DPP v Weiss - [2002] VSC 15

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1464 of 2001

DIRECTOR OF PUBLIC PROSECUTIONS

BOHDAN WEISS

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Ruling No. 3

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 15

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Criminal law and procedure – murder – evidence of central prosecution witness by audio visual link from USA – s. 42E(1) Evidence Act 1958 – 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:

An application is made by the prosecution pursuant to s.42E(1) Evidence Act 1958 that two witnesses appear before the jury to give evidence by audio visual link. The evidence is to be received from United States of America, namely the State of Georgia.

The witnesses as to whom the application is made are Ms Jean Horstead and Mr Eddie Keller, her now partner. Ms Horstead was the partner of the accused at the time of the death of the deceased on 24 November 1994, they living together at that time in Dandenong In a statement made by her in Georgia, U.S.A., on 13 September 2000, that is six years later, she said that on the night of the killing, the accused was out and came home and confessed to the murder. The particulars of that confession can be found in Ms Horstead's statement at p.391 of the depositional material.

Ms Horstead, and apparently also Mr Keller, are unwilling to return to the jurisdiction to give evidence, despite requests from the prosecution to that end. Thus the question arises as to whether I should accede to the application or not, they not being subject to the jurisdiction of the court to require them coercively to appear.

In the normal course, it would be preferable if such witnesses gave evidence before the jury, for the numerous reasons so well known to any trial or appeal court. Justice Coldrey in Kyu Hyuk Kim (1998) 104 A.Crim.R. 233 at 235-236 and Justice Giles in Sunstate Airlines (Queensland) Proprietary Limited and First Chicago Australia Securities Limited (unreported, N.S.W.S.C. 11 March 1997 at p.6) have fully expounded the relevant considerations and I adopt their Honour's helpful expositions without reciting them. The relevant considerations are both sound and well known. The question, however, is whether this application should be acceded to or not. It should not be acceded to if by acceding to it, the accused is unlikely to get a fair trial.

Two relevant matters to be looked at are first, the desirability of the jury being able to see the witness in person, rather than on a two-dimensional video screen; and second, the significance of the witness in the trial of the accused. Plainly, it is preferable in the interests of the jury's giving a true verdict according to the evidence, that the jury see a living witness rather…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Weiss

Details

AGLC: Director of Public Prosecutions v Weiss [2002] VSC 15
Case: [2002] VSC 15
Decision Date: 2 February 2002

CaseChat Overview and Summary

In the case of DPP v Weiss, the defendant was charged with murder and faced trial in the County Court of Victoria. The primary dispute centred on the admissibility of evidence from a key prosecution witness, who was located in the United States and could not attend the trial in person. The legal question was whether the evidence could be admitted under section 42E(1) of the Evidence Act 1958, which allows for the use of audio-visual links when a witness is unable to attend court in person due to being outside Australia or for other significant reasons.

The court needed to consider several factors in determining the admissibility of the evidence. These factors included whether the witness was unavailable to testify in person, whether the witness would be able to give evidence in the same manner as if they were physically present, and whether the use of the audio-visual link would ensure that the witness could be cross-examined as effectively as if they were in court. The court also had to weigh the potential prejudice to the defendant against the importance of the evidence to the case.

After considering these factors, the court found that the use of an audio-visual link was appropriate and did not prejudice the defendant’s right to a fair trial. The witness was indeed unable to attend in person, and the technology available ensured that the witness could be adequately cross-examined. The evidence was deemed crucial to the prosecution’s case, and its admission did not cause undue prejudice to the defendant. Consequently, the court ruled that the evidence could be admitted under section 42E(1) of the Evidence Act 1958.

The final orders of the court allowed for the evidence to be presented via audio-visual link, and the trial proceeded with the witness's testimony included as part of the evidence. This ruling confirmed the flexibility of the Evidence Act in accommodating modern technological means of presenting evidence, ensuring that justice could be served despite geographical constraints.

Orders