DPP v Weiss Summary | CaseChat AU

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. 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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CaseChat Overview and Summary

In the case of DPP v Weiss, the accused was on trial for the alleged murder of a man in Melbourne. The trial was held in the Supreme Court of Victoria, presided over by Justice Nettle. The accused was represented by counsel who, during the course of the trial, engaged in conduct that was considered improper and prejudicial to the accused's case. This included making comments in the presence of the jury that were not supported by the evidence and engaging in conduct that was considered to be disrespectful to the trial judge. The accused's counsel also made an application for the discharge of the jury without a verdict, alleging that the trial judge had shown bias against the accused. The prosecution opposed this application, arguing that the trial judge had acted properly and that the accused's counsel had acted improperly.

The court was required to consider whether the trial judge had shown bias against the accused, and whether the conduct of the accused's counsel was such that it was necessary to discharge the jury without a verdict. The court held that there was no evidence of bias on the part of the trial judge, and that the accused's counsel had acted improperly in making comments to the jury that were not supported by the evidence and in engaging in conduct that was disrespectful to the trial judge. The court held that it was not necessary to discharge the jury without a verdict, and that the trial could continue with appropriate instructions to the jury as to the conduct of counsel.

The court held that the trial judge had not shown bias against the accused, and that the accused's counsel had acted improperly in making comments to the jury that were not supported by the evidence and in engaging in conduct that was disrespectful to the trial judge. The court held that it was not necessary to discharge the jury without a verdict, and that the trial could continue with appropriate instructions to the jury as to the conduct of counsel. The jury was instructed to disregard any comments made by the accused's counsel that were not supported by the evidence, and to assess the credibility of the accused's counsel based on the evidence presented in court. The trial continued, and the accused was ultimately found guilty of murder. The accused appealed the conviction, but the appeal was ultimately unsuccessful.

The court ordered that the trial continue with appropriate instructions to the jury as to the conduct of counsel, and that the accused's counsel be admonished for his improper conduct. The accused was ultimately found guilty of murder and sentenced to life imprisonment with a non-parole period of 25 years. The court held that the trial judge had acted properly throughout the trial, and that the accused's counsel had acted improperly in making comments to the jury that were not supported by the evidence and in engaging in conduct that was disrespectful to the trial judge. The court held that there was no evidence of bias on the part of the trial judge, and that the accused's counsel had acted improperly in making comments to the jury that were not supported by the evidence and in engaging in conduct that was disrespectful to the trial judge.

DPP v Weiss

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