DPP v Weiss
[2002] VSC 25
•15 February 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1464 of 2001
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BOHDAN WEISS |
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Ruling No. 6
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 15 February 2002 | |
CASE MAY BE CITED AS: | DPP v Bohdan Weiss | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 25 | |
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Criminal law and procedure – murder – trial – misconduct by counsel – warning as to complaint for misconduct pursuant to s.138(1)(b) Legal Practice Act 1996.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Faris QC | OPP |
| For the Accused | Mr C. Lovitt QC | Victoria Legal Aid |
HIS HONOUR:
Learned senior counsel for the prosecution, Mr Faris, in the absence of the jury a little after 1 p.m. today, submitted that he wished to raise "a serious matter". He said: "The serious matter is this. Your Honour, in my view Mr Lovitt is personally abusing Your Honour in court and thereby abusing the court. This is being done in front of the jury. I have never heard anyone say those things to a judge before.”
This is a robust jurisdiction in which I have sat for many years, and as counsel I have frequently appeared in it before I was appointed to the Bench. I think it is essential in the interests of freedom, and freedom of expression, and a fair trial, that the jurisdiction is permitted to be robust and not hedged in by personal restraints upon expression. I start from that necessary premise in this jurisdiction.
The accused, Mr Bohdan Weiss, is charged with the murder of Helen Grey in her home at Doveton on 24 November 1994. The deceased was battered to death with a cricket bat, apparently while she lay on the couch at her home. Initially, her estranged husband, who had been the subject of some curial interest at the time, was the primary focus of the police investigation. The accused was a lesser focus, if a focus at all. The accused's female partner, Ms Jean Horstead (formerly Toft) made a police statement that he was home all night in bed with her on the night of the killing. Police interest in the accused lapsed. Some six years later, the accused and Ms Horstead having separated, Ms Horstead contacted police and stated that she had provided a false alibi for the accused, that he was not home continuously on the night of the killing and that indeed, when the accused did come home that night, he confessed to the murder of Ms Grey. Ultimately on 28 November 2000, following a substantial police investigation, the accused was charged with the murder and is now before the court on that charge.
Today, as the transcript reveals, just before the jury were sent out at 1.00 p.m., in cross-examination of Ms Horstead, the following occurred. Mr Lovitt asked: "You didn't know that Helen was dead until probably Marina turned up and said that she was dead. Is that right?" Answer: "I believed Helen was dead on the night previous." Question: "Did you? Are you sure?" Answer: "Yes, yes." To that juncture Mr Lovitt was asking the witness about her state of belief.
He then proceeded to ask the witness about the reasons for her state of belief. He put this question: "So you believed it purely because Bob [the accused] told you?" Answer: "Yes", and the witness was continuing but Mr Lovitt interrupted. Question: "He comes home and blurts out that he's -", and the witness continued her interrupted answer by saying, " - because he was so graphic about it." That, I would have thought, would have been sufficient warning to counsel as to what was likely to come in view of the circumstance that counsel knew that in the statement of the witness and in her evidence-in-chief she had given this graphic description: "Bob told me that after he stopped hitting her he could see that she was a real mess. He said that he had heard her gurgling and bent down to her head and told her to let go, not to hang on."
Undeterred, Mr Lovitt pressed ahead with the next question: "He comes home and blurts out that he's killed her with a cricket bat, coming up from behind and hitting her over the head, and you believed that not only had he done that, but she was dead because he said so. Is that right?" Answer: "When he told me that he had heard her gurgling and he bent down to tell her to let go, yes." Mr Lovitt then said in a demanding way, as will be evident on the video: "Would you answer my question, please." I said, "Don't interrupt, Mr Lovitt, you have asked her a question." Mr Lovitt then turned to me and said: "I'm not interrupting, she's not answering my question and you know it." I will return to that assertion by Mr Lovitt in a moment. I said, "You asked her why did she believe Mr Weiss. She is answering that question." Mr Lovitt then said, demonstrably erroneously: "I'm asking her did she believe him, not why did she believe him." I did not press Mr Lovitt with his error. I simply said, "Go on." Mr Lovitt, not content with my permitting him to be uncorrected, said: "Your Honour heard my question. Don't twist the question around, Your Honour." I shall return to that expression. Again, without chastising Mr Lovitt in the presence of the jury, I said, "Let the witness answer the question, Mr Lovitt. Go on", and the witness answered, "Yes, I believed him." Mr Lovitt said, "I object to this, Your Honour." The witness said, "I believed he had killed her." Mr Lovitt said: “The answer was you did believe that he killed him, and that’s what I asked you. Right, thank you.” I said: “What you asked her was ‘You believed he killed her just because he blurted it out?’ That was your question.” Mr Lovitt then said: "Now, listen, Your Honour" - again the video will demonstrate the assertiveness with which this pronouncement was made by Mr Lovitt. I said: "Don't listen me, Mr Lovitt -". And then in the presence of the jury, Mr Lovitt said: "Your Honour has a tendency -", and I replied - "- and don't play games". Mr Lovitt said, "- to want to wait until just before an adjournment and then you want to get some nice dirty bit out. You've always done that."
A little later, Mr Lovitt said, "I just want a level playing field, that's all I'm asking for." I replied, "You've got it, so play on it, Mr Lovitt." Mr Lovitt then asked whether that was a convenient time to adjourn. It was in fact just after 1.00 p.m. Friday.
I put aside Mr Lovitt's personal behaviour because I am unaffected by personal conduct of counsel. I understand that counsel often act under severe stress when cross-examining witnesses, and this is a heavy trial and Mr Lovitt has a significant and vital role to play for his client. So with junior counsel I would excuse the conduct, and even though Mr Lovitt is not junior counsel, I put aside his personal conduct.
However, two matters arise, and both are important. The first is the objective behaviour of Mr Lovitt in the presence of the jury. I turn to that.
Mr Lovitt, in the presence of the jury, has clearly asserted, both explicitly and implicitly, that the court is biased against his client and is acting unjudicially. That is evident from the following: the expression "You know it"; the expression "Don't twist the question around"; the assertion "Your Honour has a tendency to want to wait until just before an adjournment and then you want to get some nice dirty bit out. You've always done that"; and finally, the hollow assertion "I just want a level playing field", which Mr Lovitt now asserts was an explicit statement of request, not an implicit assertion that he was not getting a level playing field. One however does not have to go to the implicit assertion. One has an amplitude of explicit assertion of bias and of judicial impropriety, all in the presence of the jury. They are objective matters. Those assertions are not only rejected, but are unacceptable.
There is a deeper and more serious problem and concern that I have. It is demonstrable on the face of the record that Mr Lovitt factually was wrong in what he was asserting the witness had said. He was even factually wrong about what he had asked himself. One would have thought he would know what he had asked, even if he did not listen to the witness. But he then chose, in the presence of the jury, to assert I was “twisting” the question and that I "waited until just before an adjournment to want to get out some nice dirty bit. You've always done that." One could not get a clearer expression of bias and impropriety than that.
It concerns me that that expression of bias and impropriety, in the presence of the jury, is part of a strategy to seek to demonstrate to the jury, by improper conduct of counsel, that the court is biased, in an attempt to achieve a favourable verdict for the client on irrelevant and improper allegations: a Milosevic approach, where you impugn the tribunal rather than deal with the evidence.
MR LOVITT: Your Honour, with respect - - -
HIS HONOUR: I consider that the conduct of Mr Lovitt gives cause for concern as to whether his conduct is not only improper - and I will return to that - but is a deliberate forensic strategy.
The time has come for the matter to be stated. I believe in fairness to counsel, and, accordingly, I am giving Mr Lovitt one warning. And I now give it.
His conduct today was a serious breach of professional ethics. His conduct today was amply such to justify my making a formal complaint pursuant to s.138(1)(b) Legal Practice Act 1996 to the Ethics Committee of the Victorian Bar. His conduct today was such that I would expect that any Tribunal looking at it, whether it be that Tribunal or this Court, on an application as to professional standard and standing, would regard the conduct as unacceptable in the face of the court.
On this occasion I will not lodge a formal complaint to the Victorian Bar or to any other Tribunal, but if it occurs again I shall. I repeat, I believe in fairness to counsel and I do not believe in ambushing counsel, so counsel has a warning. But there is a sanction for professional misconduct. If it happens again I will lodge the formal complaint and I would expect that there will be a substantial sanction.
Accordingly, I will presently do nothing about Mr Lovitt's professional misconduct today, but those appearing before me and the parties affected by this case, including the accused and the victims, ought be under no misapprehension that if this professional misconduct occurs again I will deal with it swiftly and finally.
I conclude by saying that Mr Weiss' fair trial will not be affected by the misconduct of his counsel. Mr Weiss will receive a fair trial. But it is not a fair trial to any party, including Mr Weiss and including the victims and including the community, if senior counsel adopt a strategy of seeking to characterise the court as prejudiced and improper as a means of seeking a favourable result for the client.
I will say no more about Mr Lovitt's misconduct today but - - -
MR LOVITT: I might say, with respect, Your Honour, that - - -
HIS HONOUR: I haven't finished.
MR LOVITT: Sorry.
HIS HONOUR: I haven't finished, Mr Lovitt.MR LOVITT: I beg your pardon.
HIS HONOUR: I do not want the trial to go down the path of Mr Weiss having the disconcerting experience of not only facing a murder charge but of seeing his counsel reported for misconduct. Mr Weiss has a heavy enough burden as it is, lonely in the dock facing a charge of murder, without this burden being placed on him as well. I assure Mr Weiss he will receive a fair trial in the full and plenary sense. I assure Mr Lovitt that if yet again he behaves in the grave and serious breach of professional standards that he has done today, I will report him without further ado, and I trust his conduct will be dealt with.
I add another matter. Mr Lovitt has complained that I have let the witness, in effect, run on. As I pointed out to Mr Lovitt in the break this morning, I had not intervened in the witness’s answers, some of which were lengthy, because I thought Mr Lovitt was trying to demonstrate to the jury that the person was a vindictive, malicious, inventive, talkative person – indeed the very words that Mr Lovitt often put to the witness. I considered, within the bounds of containing the witness to evidence, that it was not in the defence interests for me to sanitise or sterilise the witness. I did not permit the witness to go beyond the bounds of proper evidence; but I did not, on the other hand, intervene to sanitise or sterilise her evidence.
In cross-examination this morning (T.610-611) of the witness, Mr Lovitt asked a very loose question:
"By the way, the Daily Planet - what was the joke about the Daily Planet - - -?
The Daily Planet's a place where Bob [the accused] used to go regularly to waste his money, and it became a joke after that."
Mr Lovitt asked for the jury to be sent out. I counselled him to get on with the case. I said:
“Mr Lovitt, let's get on with the case. Come on. We're getting there. Keep going."
The following then occurred:
"MR LOVITT: No, apart from her exposing what a devious person she is, which is quite clear - - -
HIS HONOUR: Well, Mr Lovitt, if you're going to make a speech, the time to make it is in your final address.
MR LOVITT: But Your Honour has a role that you are not fulfilling.
HIS HONOUR: You are giving the witness directions, you're warning the witness how to speak. Why don't you just ask questions? And let's get on to something else.
MR LOVITT: Only because Your Honour is doing nothing in circumstances where Your Honour has an obligation to, in my submission."
Mr Lovitt thus had made in the presence of the jury the clearest assertion that I was not fulfilling my judicial office and the clearest implication that I was favouring one party. But five minutes later - in the absence of the jury - Mr Lovitt said he had expected the answer the witness had given and, by implication, deliberately elicited it so as to rely upon it. (T.615). This is unacceptable.
[ADDENDUM]
This was an ex tempore judgment. I add the following in its published form.]
I draw counsel's attention to Clyne v NSW Bar Association[1], a case involving abuse by counsel for ulterior motives of counsel's privileges. The Court (Dixon CJ and McTiernan, Fullagar, Menzies and Windeyer JJ) stated (at 200-201):
"Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned"
[1](1960) 104 CLR 186
I draw counsel's attention also to NSW Bar Association v Evatt[2] where the Court (Barwick CJ and Kitto, Menzies and Owen JJ) stated (at 183-184):
[2](1968) 117 CLR 177
"The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this Court in Clyne v NSW Bar Association. The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser."
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