DPP v Weiss
[2002] VSC 24
•13 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. 5
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 13 February 2002 | |
CASE MAY BE CITED AS: | DPP v Bohdan Weiss | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 24 | |
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Criminal law and procedure – murder – prosecution opening to jury – application by defence that jury be discharged without verdict – application refused.
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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, Mr Lovitt, for the accused at the conclusion of the learned prosecutor's opening to the jury, has applied for the discharge of the jury without verdict. The opening of the learned prosecutor occupied the substance of yesterday and it was approximately the last 20 minutes of the opening to which Mr Lovitt took exception and which founds the basis of his application for discharge. That relevant part appears at pages 408 to 415 of the transcript.
I had the benefit of Mr Lovitt's submissions last evening. I listened, of course, attentively to the presentation by the learned prosecutor of his opening address. As I said I would to Mr Lovitt yesterday, I have read the address overnight, and accordingly now determine the application.
Mr Lovitt submitted yesterday that Mr Faris was "mocking" the accused's answers (T.415) and that Mr Faris "rubbished the accused's account in various ways" (T.416). As I said to Mr Lovitt last evening, that certainly was not the way Mr Faris' opening, in terms of tone and address, as well as words, impressed me; nor did I get the impression, by tone, address or words, that Mr Faris was being sarcastic or impliedly sarcastic. My reading of the transcript overnight confirms that initial view of mine. Indeed, the reading of the transcript overnight also confirms my view that Mr Faris was being measured in the comments that he made about the accused's account to the police. I consider Mr Faris' approach and delivery and content was one of analysis rather than one of gratuitous comment. Further, I consider that Mr Faris’ analytical approach was legitimate, because the matter for the jury to have an understanding of was an analytical matter: the progression of the various positions of the accused to his final position, which final position the prosecution in part accepted and in part rejected. That progressive entity, including the only partial acceptance at its end by the prosecution, is a matter of some little complexity. It was thus appropriate and not gratuitous for Mr Faris to deal in some analytical detail with that progression, and in particular with what the prosecution says about its end point.
The evidence to be called by the prosecution and which Mr Faris was reviewing in his opening involved three progressive positions by the accused. First, one of complete denial of presence at the scene of the killing of the deceased, of involvement in the killing, and of contemporaneous knowledge of the killing. Second, denial of presence at or involvement in the killing but admission of later presence at the scene. Further, or as part of that position, an assertion that he knew who the killer was (not being himself) and that he (the accused) knew a week before the killing that it was to occur. Third (in the second Homicide interview on 28 November 2000) an evidently remorseful confession that he the accused killed the deceased, accompanied by substantial detail. The prosecution relies upon the demeanour of the accused in that second Homicide interview, including his evident remorse. The prosecution puts to the jury that that second interview was a true confession of guilt in two very relevant respects; first, the presence of the accused at the scene and, secondly, that the accused killed the deceased. However, the prosecution case is that some of the answers of the accused in that final interview were still not the full truth: in particular, his answers that the dispute between him and the deceased commenced while they were standing up and that the deceased assaulted him, and further, that he only struck the deceased once or twice and that it was an accident and that he did not mean it.
The prosecution thus puts to the jury that the second interview is an apparently truthful and remorseful confession but is still not the full truth. That is a notion of some little complexity for a jury to understand. The question of whether they accept it will become a matter of evidence, of course, but they need first to understand how the case is put in order to assess the evidence and accept or reject the prosecution contentions. The first step in accepting or rejecting the prosecution contentions is to understand what the prosecution contentions are, and that analytical matter was what Mr Faris was reviewing in his opening and, in my view, legitimately and not gratuitously so. Thus it was that in that last part of Mr Faris' opening, the last 20 minutes, he related the apparently remorseful confession to some aspects of the forensic evidence he said will demonstrate that the confession, although true substantially, was not the full truth even so.
In my view that was an entirely legitimate and indeed necessary part of the prosecution opening, for the reasons I have stated. Accordingly, the contents of the opening I consider were entirely proper.
The question then is whether the method of expression was inappropriate. As I have said, I certainly did not, and do not, consider that Mr Faris was "mocking" the accused or "rubbishing" his account. The only set of expressions which I think could attract consideration of such notions is at p.410 where Mr Faris said, "If this is not a true confession, if this is a lie, he is a brilliant actor, he is a brilliant actor." In that passage, Mr Faris was not saying that the accused was a brilliant actor; Mr Faris was saying the accused was truthfully expressing genuine remorse for the crime (albeit not the full truth even so). Mr Faris went on to invite the jury's attention to the completely changed demeanour of the accused in the second interview as from the first. Mr Faris immediately went on to say, "I am not criticising him for that, I am saying that he was sorry, and he was no doubt sorry that he was caught as well." (T.410).
I do not consider that those comments were gratuitous. They were seeking to explain to the jury the prosecution's submission that, once the evidence is in, they will be invited to accept that the confession was remorseful and truthful, but not wholly truthful. In an opening of a case such as this with the complexity that I have stated, it is proper and legitimate for the prosecution to open the prosecution case, that is the charge and the nature of it, open the evidence, and relate the evidence to the issues. That is what Mr Faris did. It is not appropriate for the prosecution gratuitously to comment upon credibility or floridly comment upon any matter when no witness has yet been called. Mr Faris did not do so. The reason why gratuitous and florid comment is properly prohibited in openings - and also in s.13 responses, which are issue-oriented - is that no evidence yet has been called. The jury has not yet seen a witness. It would be entirely inappropriate for a witness to be demolished prospectively as a matter of credit by counsel when the witness has yet
to give evidence. That is so because there should not be prejudice in the running of a trial - prejudice meaning pre-judgment, its true meaning. Judgment should come once the evidence is in, not before it is called. Mr Faris in my view observed those important restrictions upon opening addresses.
I consider no erroneous conduct occurred during the prosecution opening and there is no ground to discharge the jury.
Accordingly the application to discharge the jury without verdict is refused.
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