DPP v Weiss - [2002] VSC 26

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. 7

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	18 February 2002
CASE MAY BE CITED AS:	DPP v Bohdan Weiss
MEDIUM NEUTRAL CITATION:	[2002] VSC 26

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Criminal law and procedure – – murder – application for discharge of jury – application on ground of actual and perceived bias of trial judge – application unfounded – application contrived and made for ulterior purposes – 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:

Senior counsel for the accused, Mr Lovitt, this morning (Monday) has, in the absence of the jury, expressed his regret for his conduct in the presence of the jury on Friday. He further stated that he thought the trial was simply going to proceed today and that that was his expectation. However, after a complaint this morning by the learned senior counsel for the prosecution as to Mr Lovitt's conduct on Friday and brief discussion thereupon, Mr Lovitt has now applied for a discharge of the jury on the grounds of "bias, both perceived and actual, against the accused". I gather from what Mr Lovitt has just said that this application has only arisen in the last ten minutes and was not extant at 10 a.m. after a weekend's reflection, even though the complaint now made relates solely to events last week.

There is no substance whatsoever in Mr Lovitt's submission.

There is no actual bias against the accused. Indeed if one reads the transcript even of Friday, at the commencement of the day's proceedings I raised with Mr Faris a concern I had to ensure that the fair trial of the accused be not deflected or jeopardised by the inter-position of witnesses during cross-examination. Mr Lovitt had not even stood up. I pointed out to the prosecution how the fair trial of the accused had to be ensured and in a full and plenary sense. That matter all appears in the transcript at page 581. Last Friday, during cross-examination of the present witness Ms Horstead, I took the opportunity of a jury break (and with the audio visual link off) to remind Mr Lovitt (although he is most experienced counsel) of the dangers of the area of cross-examination he was apparently embarking upon (the question of domestic violence by the accused upon the witness). I raised the matter to seek to ensure that the accused was protected from gratuitous forensic risks (a concern I had to explain in terms to Mr Lovitt: T.630 l.17-31). I suggested to Mr Lovitt a way out of the danger area for his client (T.630-632). One has only to look at the rulings herein I have made and the reasons I have expressed therefor to see that the proper interests of the accused are being both…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] VSC 26
Decision Date: 18 February 2002

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Weiss involved a criminal trial where the defendant was charged with murder. The trial took place in the relevant Australian court, which was required to determine the defendant's guilt or innocence based on the presented evidence and legal arguments. The case centred on whether the defendant had committed the act of murder and whether the trial judge had acted in a biased manner, which led to an application for discharge of the jury.

The primary legal issue the court had to address was whether the trial judge's conduct had exhibited actual or perceived bias, warranting the discharge of the jury. The court needed to assess the evidence and arguments presented in relation to the alleged bias and determine if it was sufficient to warrant such a significant intervention in the trial process. Additionally, the court had to consider whether the application for discharge of the jury was made in good faith or if it was contrived for ulterior purposes.

The court examined the evidence and arguments provided in relation to the alleged bias of the trial judge and found that there was no actual or perceived bias present. The court determined that the application for discharge of the jury was not made in good faith, but rather, it was contrived for ulterior purposes. Consequently, the application was refused, and the trial continued with the jury deciding the defendant's guilt or innocence based on the evidence presented. The court's decision was based on the principle that interference with the trial process should only occur when absolutely necessary, and in this case, there was no justification for such an intervention.

Orders