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

v

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:

1. 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.

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

1. 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 considered and secured by me.  On the personal front, when the accused entered the witness box to give evidence on the voir dire I spoke quietly and directly to the accused about getting a glass of water and other such things.  It was quite apparent that by those mundane comments, I was seeking to put the accused as much at his ease as is humanly possible in a situation of having to give evidence. There are numerous other instances throughout the proceedings of proper consideration and courtesy by me to the accused.  Demonstrably I have sought to ensure that the fair trial of the accused was had and to care for the personal situation of the accused in what is plainly a situation of substantial stress, he being charged with murder. 

1. So there is no actual bias. 

1. As to apparent bias, likewise, there is no apparent bias.  No fair minded observer would sense or apprehend a scintilla of bias.  As to Mr Lovitt's submission that I have made "repeated interjections," one simply needs to look at the transcript to see how many times I have intervened, which will speak for itself.  As to Mr Lovitt's characterisation of the interventions that I have made as "interjections," they were not interjections.  They were interventions seeking to ensure that the trial was conducted in accordance with law and did not run off the rails.  The rare interventions I have made were either for necessary clarification of matters or for necessary correction of counsel's conduct.  As to the latter, I have given Mr Lovitt great latitude in cross-examination both as to form and demeanour, and have only intervened in the most egregious of circumstances.  I have not intervened in relation to the answers of Ms Horstead because they were responsive to the questions asked.  Simple reference to the transcript and the video of proceedings will demonstrate all of that and I will say no more about it.  There is no actual bias.  There is no apparent bias.  The transcript and the video will speak for themselves.

1. Regrettably it is necessary to  say something else.  I am concerned that a tactic has been revealed in this case, whereby in the presence of the jury there are unfounded allegations of bias, seeking to poison the minds of the jury in relation to whether the judge is biased or the accused is getting a fair trial.  The apparent aim is to seek an acquittal on the ground of contrived sympathy, as distinct from an acquittal on proper grounds, namely that the accused is not guilty or that the prosecution has not proved its case beyond reasonable doubt.  That strategy progressively emerged last week by what Mr Lovitt said in the presence of the jury, some of which he abandoned in its absence but persisted with in its presence.

1. The present application for me to discharge myself I consider not only is unfounded, but is a knowingly cynical and hollow application.  It is hollow because there is demonstrably no substance to it and a moment's reference to the transcript and video will demonstrate that.  It is cynical because the application – which is based solely on events last week - was not going to be made at 10 a.m. on Monday after the weekend's reflection, but apparently was worth making ten minutes later.

1. The application is refused.

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