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

v

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:

1. 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.

1. 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.

1. 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.

1. 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. 

1. 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 than an image on a screen.  Further, Ms Horstead is a vital and central witness in the trial.  Her evidence of a contemporaneous confession to murder made by the accused is not the only evidence of a confession made by the accused. Exhibit B on the voir dire is another confession, made to the police on 28 November 2000.  But the 1994 confession is different from the 2000 confession to the police and can be said to be more damaging in both its timing (it was contemporaneous) and its content. Ms Horstead says that the accused admitted assaulting the deceased from behind when the victim was not expecting it, similar to that which appears in photograph 23 of the photographs, and that the accused said he removed the rubber grip from the cricket bat, (which is supported by forensic evidence.)            Mr Keller is also an important witness, but not as critical as Ms Horstead.

1. Next, there is the consideration of the logistics of cross-examination in this case.  Mr Weiss is represented by a most knowledge and experienced counsel who has informed me properly that cross-examination of Ms Horstead will be both extensive and detailed and that it will not only be so, but will be of electronic and other material; that is to say of covert telephone intercepts and the like.  Thus the logistics of facilitating effective cross-examination need centrally to be taken into account in this case. 

1. It would prejudice the fair trial of the accused if simply by the problems of logistics, cross-examination on his behalf could not be properly presented because the witness is on a video screen while counsel is trying to handle vast amounts of electronic data, such as telephone intercepts, at the same time.  That is a vital consideration because the accused's fair trial is the essential non-negotiable requirement.

1. Ultimately, I am not persuaded that the accused's fair trial is likely to be jeopardised or deflected or lessened by the two witnesses giving evidence by audio visual link.  The witnesses gave evidence at committal on the video screen.  Mr Lovitt quite rightly has pointed a number of differences between that and this, particularly that Magistrates are used to video evidence, a jury is not, and I think that is important.  Further, the whole thing was not gone into below, as one would expect it would not be gone into at a committal, whereas here there is going to be all the logistical requirements of cross-examining in relation to electronic data.  On the other hand, Mr Faris says it was not - and these are not Mr Faris' words, they were more eloquent than this - a disaster at committal.  The committal did in fact proceed in a competent form, and even allowing for the differences between that forum and this that I have articulated, Mr Faris submits that at the very least we ought here to proceed and see whether the logistics work.  Mr Lovitt argues against that to this extent:  that he says both as a matter of law and as a matter of psychology one has to be careful not to let things proceed and then be placed in a position of considering, when the trial has gone some distance down the track, whether one should then discharge a jury.  One of the considerations - I have always considered one of the least important, but nonetheless on the authorities one of the considerations about discharge - is how far has the trial gone.  I have always thought that either a jury should be discharged or not, whether it is five minutes before verdict or not, but that is not what the authorities say.  The authorities say one of the considerations is how far has the trial gone, and Mr Lovitt quite rightly says that can be a problem when the trial has gone some time.

1. Bearing all those matters in mind I am persuaded that I ought to grant the application pro tem.  If I consider that the jury cannot make give a true verdict because of the attenuation of the evidence by its electronic defects, or if I consider that the accused is not getting or is not likely to get a fair trial because of the difficulties of cross-examining in the circumstances I have adumbrated, or finally if I consider that objectively we are simply sinking under a sea of logistical difficulties, I will discharge the jury.  However, I am not persuaded that I should at present refuse the application pursuant to s.42E to permit the evidence to be led electronically by audio visual link in the way that has been foreshadowed.

1. The technical requirements of s.42G no doubt will be met.  The considerations of justice are much more fundamental than the requirements of that section.  I will not permit the trial to proceed if I consider those fundamental principles of justice are not going to be fulfilled and fulfilled in a plenary sense. 

1. Accordingly I grant the application to call the two witnesses by audio visual link and we will see how we go.

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