DPP v Weiss

[2002] VSC 155

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 (2^nd Trial)

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	14 March 2002
CASE MAY BE CITED AS:	DPP v Bohdan Weiss
MEDIUM NEUTRAL CITATION:	[2002] VSC 155

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Criminal law and procedure – murder – jury – oppression upon juror – discharge of jury – s. 43(d) Juries Act 2000.

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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. A problem has arisen in this case namely that one member of the jury - who plainly should have applied for excuse, and had he applied it would have been granted - did not apply for excuse but has now informed the Juries Commissioner of significant personal difficulty in serving for a month in this trial.  The juror is an unemployed plumber who is about, he believes, to get work and was certainly actively seeking work.  In the circumstances I would have excused him had he applied as a member of the panel.

1. I would discharge him pursuant to s.43(d) Juries Act 2000 and proceed with 11 jurors if that was an appropriate way to proceed. However, Mr Lovitt, senior counsel for the accused, has received instructions from his client, which instructions I entirely understand, that his client wishes to proceed with a full panel of 12 jurors. The Crown, indeed, does not demur from that position.

1. The trial has not yet received evidence and we are simply at the stage of the prosecution opening and, in all the circumstances, I consider that it is fair and proper that the normal constitutional fulfilment of 12 jurors be achieved, particularly as that is the wish of the accused.  For that reason I will discharge this jury and proceed later this morning with a new panel and a new arraignment. 

1. I will bring the jury in and discharge it. 

1. Bring the jury in.

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