DPP v Micevic

[2005] VSC 378

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1533 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZDRADKO MICEVIC

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2005
DATE OF RULING:	10 September 2005
CASE MAY BE CITED AS:	DPP v Micevic:  Ruling No. 6
MEDIUM NEUTRAL CITATION:	[2005] VSC 378

RULING NO. 6

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CRIMINAL LAW – Manslaughter – Jury trial – Application for prohibition Order as to reasons for non-calling of witnesses by prosecution – Application refused – Sections 18(1)(c) and 19(b) Supreme Court Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr R. Elston SC Mr J. Baum	Solicitor for Office of Public Prosecutions
For the Accused	Mr T. Forrest QC Mr D. Sheales	Galbally Rolfe
By leave:
For the Herald and Weekly Times Ltd., Nine Network (Australia) Ltd., Channel Seven Melbourne Pty Ltd., the Australian Broadcasting Corporation and Nationwide News Ltd	Mr J. Quill	Corrs Chambers Westgarth
For The Age Company Ltd	Mr S. Mukerjea	Minter Ellison

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HIS HONOUR:

1. There are certain matters as to evidence that have been the subject of discussion in the absence of the jury, as almost always happens during a trial, and, those matters, of course, are sub judice until the jury verdict.

1. An issue has arisen in this case as to whether, after the verdict, one aspect of the matters discussed in the absence of the jury is properly capable of being published. More accurately, the prosecution seeks a prohibition order in relation to that material post verdict. The basis for the application by the prosecution is s.19(b) Supreme Court Act 1986 in relation to the power under s.18(1)(c). It is sought that the Court make the Order because it is necessary to do so in order not to prejudice the administration of justice – section 19(b) - thus founding an Order under section 18(1)(c) prohibiting publication of that part of the proceeding.

1. The relevant part of the proceeding the subject of the application is the non calling of Mr Shane Prior as a witness, he being a security employee of Peter Clare Agencies, working at the Beaconsfield Hotel on the relevant night, and the reasons stated by the learned Prosecutor for not calling him, as recorded at p.619 of the transcript and earlier. 

1. In my view, the administration of justice would not be prejudiced by the publication of the material;  and certainly I do not consider it is necessary to prohibit publication of that material in order not to prejudice to the administration of justice.

1. For the moment I hold in abeyance the question of fairness to Mr Prior, which is a matter which troubles me.  Mr Prior has not had locus on this matter, nor on the non calling of him by the prosecution or the articulation of the reasons by the prosecutor for his non calling.

1. It seems to me that the only bases upon which it could be said that there is any risk to the administration of justice are, first, that if there were a re-trial in this matter the fact that in this trial Mr Prior had not been called, and for the reasons stated by the prosecutor, could impinge upon the second trial. I consider that matter is remote, and would not found an Order under s.18(1)(c).

1. Next, it is said that it could be frustrating for the jury to learn after the event why it was that Mr Prior was not called;  and doubly so because the jury asked a very relevant question, namely why was not Mr Prior called -  which, yet again, shows the good sense and application of intellect by juries.  The answer to that, I think, is that juries often learn things after the event, such as prior convictions of an accused person.  That does not apply in this case, because Mr Micevic has a very good character;  but it can apply in other cases.  Juries are directed and, I am quite sure, well understand that they act upon relevant evidence which is called before them.  I am quite sure they know there might be all sorts of other things that they are not told about.  I do not think it will affect the present jury once discharged, or future juries, to have post verdict information of this sort published.

1. Next, it is said that in the interests of finality of proceedings once a verdict is in, the matter should not be the subject of further litigation and debate and argument.  I do not think that is a sound application of principle.  Of course, verdicts are final in terms of the curial process;  but that does not mean that other information cannot be discussed in the public domain.

1. Next, it is said that publication could affect future prosecutorial discretion or future prosecutorial statement of its reasons for discretion.  I am quite sure it would not affect prosecutorial discretion, to have the matter later published.  As has been demonstrated in this case, the learned senior prosecutor, Mr Elson, gave principled and anxious consideration to the matter as is his lonely duty and which he fulfilled in the highest traditions of prosecution in this country.  I do not think for a minute any prosecutor would be affected in the exercise of that lonely judgement, by the possibility of later publication.  As to whether a prosecutor might be affected in the expression of reasons in court, again I do not think any prosecutor would be so affected.  There is a job to be done.  Prosecutors do it honourably and they are not affected by extraneous considerations to the task they have in Court.

1. The final matter is the matter of fairness.  I must say I think it is unfair on Mr Prior, who has had no locus, to have published an adverse observation of him made in court when he has not had a chance to defend himself.  So far as this point goes, my sympathies are entirely with Mr Prior.  However, I do not think that is the test.  Mr Quill rightly relied upon Herald & Weekly Times Ltd v Magistrates’ Court of Victoria & Ors[1] and authority there cited.  The principle of open justice is a fundamental and vital principle.  It is not to be hedged in by matters of embarrassment or of that sort, although I think it is very regrettable that the prohibition application does not involve input from Mr Prior.  However, the fact is there has been a trial properly conducted and I think it is in public interest that such process is capable of being publicly reported. 

   [1]Beach J. (1999) 2VR 672.

1. Accordingly, I refuse the application to prohibit the publication of the decision or of the reasons for the decision as expressed in court in relation to the non calling of Mr Shane Prior as a witness by the prosecution.

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