DPP v Weiss

[2002] VSC 133

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. 1 (3rd Trial)

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	20 March 2002
CASE MAY BE CITED AS:	DPP v Bohdan Weiss
MEDIUM NEUTRAL CITATION:	[2002] VSC 133

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Criminal Law and procedure – trial – murder – application for discharge of jury without verdict – evidence said to be prejudicial to accused – application refused.

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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 counsel, Mr Lovitt, for the accused, has applied for the discharge of the jury without verdict.  Mr Lovitt's application is based upon some evidentiary matters and upon the effect of the evidentiary matters upon the issues in the trial. 

1. As to the evidentiary matters, Mr Lovitt, quite understandably, has rested upon the answers of the witness in the session this morning in cross-examination in which she has stated that the accused broke a friend's arm (presumably not accidentally) and also committed violence on another person, breaking his nose, some six months before the death of Ms Grey. Both injured persons were men.  Ms Horstead stated that there was no violence in the relationship between her and the accused up to the time of the subject of this charge, the killing of Helen Grey on 24 November 1994. 

1. I certainly consider that Mr Lovitt's questions did not invite the answers and that the answers which were given were in no way the fault of any question asked by Mr Lovitt.  The answers went beyond the questions which were asked and were strictly non-responsive.

1. However, I am entirely unpersuaded that the answers in the context of this trial would have any possible adverse effect upon the fair trial of the accused.  They would not, in my view, have any tendency to set up in the jury's mind a question that the accused had a violent disposition or a propensity for violence.  The incidents were discrete and limited.  They were not between the accused and the deceased;  they were not between the accused and the witness;  they were not between the accused and women.  In the circumstances, I consider that the answers fall far short of that which would set up a high degree of need as contemplated by relevant authority.

1. As to the impingement of the answers upon the issues in the trial, there is the question of the effect of the unsolicited evidence upon the lack of motive (as the defence would have it) herein.  Again, I am not persuaded that that impingement of the unsolicited answers upon that proposition of the defence is such as to warrant the jury being discharged.

1. The matter falls far short of any degree of need, let alone a high degree.  In reaching the conclusions I have stated, I have taken into account the circumstance that this is early in the trial.

1. Accordingly I refuse the application.

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