DPP v Weiss

[2002] VSC 134

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 (3rd Trial)

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	3 April 2002
CASE MAY BE CITED AS:	DPP v Bohdan Weiss
MEDIUM NEUTRAL CITATION:	[2002] VSC 134

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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:

1. Learned senior counsel for the accused, Mr Lovitt, has applied for a discharge of the jury without verdict.  The prosecution case has concluded.  Mr Lovitt had foreshadowed, antecedent to this application being made, that it is proposed by the defence that the accused be called to give evidence.

1. Mr Lovitt's primary expressed ground is that the events which have occurred in the presence of the jury, between himself, as learned counsel for the accused, and myself, as the trial judge, are such that they are likely to distract the jury, and without attributing blame to either himself or myself, in relation to the events, he has submitted that the consequence of the events is that the jury is likely to be distracted, coloured in its thinking, or prejudiced against his client's proper interests, by the events.  A second, much more briefly expressed, ground of his application is that there is perceived bias, that is to say, an apprehension in the mind of the informed observer, of bias, in the judge, against the accused.  Although that second ground was his expressed second ground, it is a logically antecedent ground, and I will deal with it first.

1. The authorities clearly establish that the apprehension is to be the reasonable apprehension of the informed observer.  I consider that no informed observer would consider that I have been prejudiced or am prejudiced - that is, may not be impartial - in relation to the accused.  Indeed, the very opposite:  I think any informed observer would think that I have been extremely tolerant and fair in copping what I have copped from the Bar table.  As to judicial intervention, the few interventions I have made have been necessary in the proper conduct of the trial according to law - to eliminate substantial ambiguity, to ensure and secure fairness, and to apply the rules of procedure - and have not been made on technical, pedantic or minor grounds.  So there is no apprehended bias.

1. The real question is whether the jury will be distracted by what has occurred in court.  I consider that a properly instructed jury would not be distracted by what has occurred in court.  I certainly think on a couple of occasions during this trial the jury has been temporarily affected by the abuse and sarcasm that I have been subjected to by Mr Lovitt.  On the other hand, we have kept the trial going.  There have been many other times where there has been a degree of warmth and goodwill and generosity from Mr Lovitt towards the Bench, and I think the jury would take a holistic view that occasionally things are said in the heat of the moment but that such matters are transient and we all press on and get on with the trial.  In that spirit, on 22 March Mr Lovitt expressed his regret at what happened the day before, and I, in the same spirit, accepted it, and we got on with it (T.502); and I am sure the jury would have accepted it on that basis.  However and unfortunately I was deeply troubled last Thursday by what happened in both the morning (T.975) and in the afternoon (T.1009-1011) in separate incidents, and am concerned that those incidents could alienate the jury from the fair trial of the accused.  They were serious incidents, as I stated (in the absence of the jury) on Easter Eve (T.1035-1038), both of themselves and by reason of their cumulative and potentially corrosive effect.  Plainly, something has now to be said to the jury.  If the jury remained uninstructed, a possible prejudice to the accused could settle in the jury's mind, and it needs to be rooted out, and eliminated, promptly and unequivocally.  As I have previously said, juries are fair and intelligent entities.  With an appropriate direction to the jury, I consider that the vice can be rooted out, fully and finally, and I propose, tomorrow morning, to give the jury a brief but specific direction in order to root out any potential prejudice.  I am confident that a properly instructed jury would regard the unfortunate incidents as things which were inappropriate to be said but were said in the heat of the moment, and we will all get on with the case.  The jury immediately will have the advantage of having substantial and important evidence to listen to, namely that of the accused, and I am confident that, once instructed, that is what they will concentrate on, without the matter festering.  I will give the jury that direction in the morning. 

1. I am unpersuaded that any prejudice (if it exists) will remain with the jury in relation to what has occurred.  The jury will act, as juries do act, sensibly and fairly, as long as they are (a) given some useful directions by the judge and (b) given something

else to concentrate upon.  They will have both of those by tomorrow morning. 

1. I would like to add that which I said to counsel in discussion, namely I am entirely confident that Mr Lovitt on last Thursday was not seeking to implement a strategy of sabotaging this trial; and I am equally entirely confident that today in his application for discharge of the jury he is not seeking to manufacture a ground of appeal against the contingency of a conviction. 

1. I think, in all the circumstances, we will just press ahead tomorrow with a direction from me to the jury in short compass and then the benefit of the accused's evidence which the jury will concentrate on.  I consider no degree of need arises, let alone a high degree of need as contemplated by the authorities, to discharge the jury without verdict and, accordingly, I refuse the application.

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