DPP v Weiss
[2002] VSC 135
•4 April 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. 2 continued (3rd Trial)
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 4 April 2002 | |
CASE MAY BE CITED AS: | DPP v Bohdan Weiss | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 135 | |
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Criminal law and procedure – trial – murder – application for discharge of jury without verdict – assertion of bias in trial judge – misconduct of defence counsel – application refused – necessary jury instruction as to conduct of counsel.
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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:
As the application yesterday by Mr Lovitt for the discharge of the jury was made without notice and my Ruling thereon was ex tempore, I would like to add to that Ruling some reference to authority.
As to the matter of apprehended bias, I was guided in my Ruling yesterday by the well-known principles adumbrated in Damjanovic v. Sharpe Hume & Co [2001] NSW Court of Appeal 407, Livesey v. NSW Bar Association [1983] 151 C.L.R. 288 and Vakauta v. Kelly [1989] 167 C.L.R. 568, and the authorities cited therein. Those principles, in particular the test of the informed observer having a reasonable apprehension that the judge was not impartial, appear from my ruling. Reference can also be made to R v. Mawson [1975] V.R. 205 as to interference by the trial judge (especially at 207 per curiam, "It is clearly established ...") and the authorities there cited. Of course, the question of undue interference is not to be determined by a mere arithmetical calculation; qualitative criteria are equally, if not more, important. Those authorities and considerations guided the conclusion I reached and expressed yesterday, that there was no apparent bias as contemplated by law.
As to the matter of prejudice to the accused's fair trial by the conduct of his counsel, or by interchange between his counsel and the Bench, or by both, again I was guided in my Ruling yesterday by the principles of fairness, balance, and sensitivity to juror feelings, known to all experienced advocates and judges in the criminal jurisdiction. Unfortunate examples of failure to fulfil those basal but essential requirements can be found in McIntyre [2000] 111 A.Crim.R.211 - as to the facts between 215 and 217 and per Hulme J. at 218 (in whose judgment Sully and Hidden JJ agreed) - and also in Lars, Da Silva and Kalanderian [1994] 73 A.Crim.R.91 per curiam at 121-142 (the Group B grounds of appeal) and the authorities there cited. Helpful, if I may say so, formulations were provided by the Court in Lars at 126 ("The power of the judge ...") and at 127 ("All of that having been said ..."). See also R v. Birks [1996] 19 N.S.W.L.R.677 at 685 per Gleeson CJ (as there he was) and R v. Miletic [1997] 1 V.R.593 per curiam at 598. Questions of the competence of counsel, as raised in Birks, of course are not the issue here; there is no question of the substantial competence of learned counsel for the accused.
For the reasons I stated yesterday I am affirmatively satisfied that the accused is not at risk of suffering prejudice to his fair trial by the conduct of his counsel, or by the interchange between his counsel and the Bench, or by both, once the jury is properly instructed. I propose, this morning, to give the jury brief, but I trust pertinent, directions as to their task in order to root out and eradicate, fully and finally, any residual concern that the jury might have in respect of the matters which we have discussed. Then I will call upon Mr Lovitt to announce his course and then the accused will be called upon to give evidence.
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