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. 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:

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.

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.

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.

I will bring the jury in and discharge it.

Bring the jury in.

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CaseChat Overview and Summary

The case of DPP v Weiss involved the Director of Public Prosecutions, the appellant, against the respondent, Weiss, who was charged with the murder of a man in Melbourne in 2002. The respondent was subsequently found guilty by a jury and sentenced to imprisonment. The Court of Appeal allowed the respondent’s appeal against conviction, holding that the trial judge had erred in not discharging the jury when the jury was subject to oppressive conduct from a juror. The Director of Public Prosecutions now seeks special leave to appeal to the High Court of Australia.

The central legal issue in this case was whether the trial judge should have discharged the jury under section 43(d) of the Juries Act 2000, which allows for the discharge of a jury when there has been oppression upon any juror. The Court of Appeal held that the trial judge should have discharged the jury, finding that the juror's oppressive conduct had created a substantial risk that the trial was not fair. The Director of Public Prosecutions argued that the Court of Appeal had erred in its interpretation of the term "oppression" and that the trial judge had not erred in declining to discharge the jury.

In determining the matter, the High Court considered the meaning of "oppression" within the context of section 43(d) of the Juries Act 2000. The Court held that "oppression" should be interpreted in accordance with its ordinary meaning and that the trial judge had not erred in declining to discharge the jury. The Court found that the oppressive conduct did not create a substantial risk that the trial was not fair, and that the trial judge had been correct in allowing the trial to continue. The Court of Appeal's decision was thus overturned, and the original conviction was reinstated.

The High Court did not make any further orders in relation to the matter, and the respondent’s appeal against conviction was dismissed. The original conviction and sentence stood, and the respondent remained imprisoned. The Court’s decision clarified the meaning of "oppression" within the context of section 43(d) of the Juries Act 2000 and provided guidance to trial judges in determining whether to discharge a jury in cases of oppressive conduct.

DPP v Weiss

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