DPP v Weiss

[2002] VSC 17

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. 4

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	2 February 2002
CASE MAY BE CITED AS:	DPP v Bohdan Weiss
MEDIUM NEUTRAL CITATION:	[2002] VSC 17

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Criminal law and procedure – murder – photographs of deceased upon autopsy – relevance and prejudice – considerations applicable.

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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:

1. I have considered with the substantial assistance of submissions both of Mr Faris and Mr Lovitt the proper course in relation to the various autopsy photographs.  The prosecution has, I think, rightly conceded that the photographs of the deceased made in the autopsy room, 105-107 and 110-112, should go out.  Those photographs are excluded.             As to the close-up photographs of the face of the deceased with dried blood (before autopsy cleaning), 108 and 109, it has I think now rightly been conceded by the prosecution they should go out as well.  Various photographs with differences of limited forensic significance are not pressed by the prosecution. 

1. Of the photographs of the deceased with her head largely shaved, there are again a substantial number, being 113 to 123 inclusive.  The prosecution seeks, having consulted with Dr Lynch, the pathologist, as to the giving of his evidence, that only 113, 114 and 119 go in.  They respectively show different areas of the head of the deceased, and I consider those three photographs showing different areas are relevant and ought go in.  They show discrete areas of injury to the head.  The other photographs are excluded because they are substantially repetitive - not entirely, but substantially, and are unnecessary for purposes of the elicitation of Dr Lynch's evidence.  So 113, 114 and 119 go in.  The other photographs of the shaved head between 113 and 123 go out. 

1. The final area is the post-operative photographs, that is to say of the skull of the deceased after the external skin has been removed.  The prosecution has conceded that of those photographs, 139 to 142, all but one should go out, the exception being 140.  Photograph 140 is of the shaved head of the deceased with the skin removed but otherwise with no surgical intervention, that is to say of the exposed skull but with no surgical intervention of the skull.

1. In the end I consider I should permit photograph 140 to be led.  It is a graphic photograph.  Mr Lovitt very sensibly has submitted that it is not just a question of prejudice - because juries demonstrate they cope with photographs given time - but also a heavy burden upon citizens of the community serving voluntarily as jurors

having to look at such things, which should not be foisted upon juries unless it is necessary.  I agree with Mr Lovitt's general approach.

1. However, I consider in this case, it is appropriate and necessary.  There is likely to be or may well be an issue in this case of manslaughter.  A primary matter, if manslaughter arises, is where were the blows first inflicted; and photograph 23 and other photographs, showing the deceased in situ on the couch with the rug around her legs, will bear upon that.  Also the number of blows.  Photographs 113, 114 and 119 show that.  But they, as Mr Faris says, are not the only matters which the jury might consider.  As well as the position of the deceased when first attacked and the number of blows inflicted, the jury  might well on the issue of manslaughter have to give close attending to the question of the severity of the blows.  Mr Lovitt has said, sensibly, that you have here a pathologist who can adequately describe in words the injuries; and Dr Lynch is a very articulate witness and would be well able to do that and could even do it by diagram if necessary.  However, I do consider that the actual exposure of the extent of the fractures to the skull, as shown in 140, is legitimate and clear evidence the prosecution is entitled to lead on the question of the severity of the blows, relevant to manslaughter if it arises.  I do not consider the photograph is so unpleasant or graphic that the jury will be oppressed by it, given the time that the trial will take to proceed.  I am not satisfied I should exclude the photograph either in the interests of the accused or the interests of the fairness of the trial or in the interests of decency to the jury.  Accordingly, because it is relevant and is not prejudicial in the sense I have defined or oppressive in the sense that I have defined, I permit photograph 140 to go to the jury. 

1. The other post-surgical photographs are not pressed by the prosecution, rightly in my view, and they are excluded.

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