R. v. Weiss - [2004] VSCA 73

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 94 of 2002

THE QUEEN
	v.
BOHDAN WEISS

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JUDGES:	CALLAWAY and BATT, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9-11 December 2003
DATE OF JUDGMENT:	5 May 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 73

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Criminal law – Evidence – Confession – Innocent misrepresentation by police officer conducting interview – Whether confession should have been excluded – Accessory after the fact – Whether accomplice warning required – Whether Faure direction required – Evidence wrongly admitted – Not relevant to any issue – Not admissible to buttress credit of another witness.

Criminal law – Procedure – Misconduct of defence counsel – Judge’s interventions in course of cross-examination and examination-in-chief – Whether either or both occasioning miscarriage of justice.

Criminal law – Appeal against conviction – Grounds on which appeal may be allowed – “Miscarriage of justice” and “substantial miscarriage of justice” – Criterion for application of proviso – R. v. Konstandopoulos [1998] 4 V.R. 381, R. v. McLachlan [1999] 2 V.R. 553, Festa v. R. (2001) 208 C.L.R. 593, TKWJ v. R. (2002) 212 C.L.R. 124 and R. v. Soma (2003) 212 C.L.R. 299 considered – Crimes Act 1958, s.568(1).

Criminal law – Sentencing – Murder – Intentional killing of woman in her own home – No evidence of remorse - Sentence of 20 years' imprisonment with non-parole period of 16 years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. Mr C.B. Boyce	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C. Mr S. Russell	Falcone & Adams

CALLAWAY, J.A.:

The applicant, who is now aged 32, was presented in the Supreme Court on one count of murder. Two juries were discharged without verdict. After a third trial occupying 20 days the jury returned a verdict of guilty. The applicant admitted four findings of guilt and two previous convictions from appearances in the Magistrates' Court between 1991 and 1994. The learned trial judge did not regard them as relevant to sentencing. Following a plea for leniency, the applicant was sentenced to 20 years' imprisonment with a non-parole period of 16 years. A declaration was made regarding 506 days’ pre-sentence detention. The applicant seeks leave to appeal against both conviction and sentence.

There were five grounds of appeal in the notice of application for leave to appeal against conviction, but ground 3 was not pressed. Notice of application for leave to add three further grounds was given but was not pursued in relation to proposed ground 7. The four grounds of appeal against conviction and the two proposed grounds are, accordingly:

“1.That the learned trial judge erred in not ruling that the second record of interview of the accused was involuntary. In particular his Honour erred:
(a)in finding that the investigating police did not intend to deceive the accused when they asked him about his DNA on the murder weapon;
(b)in accepting the evidence of Detective [Sergeant] Thomas as to…

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.

Continue reading R. v. Weiss

Details

AGLC: R. v. Weiss [2004] VSCA 73
Case: [2004] VSCA 73
Decision Date: 5 May 2004

CaseChat Overview and Summary

The case of R. v. Weiss involved a dispute over the conviction and sentencing of the appellant, Weiss, for the murder of a woman in her home and for being an accessory after the fact. The decision was made by the Supreme Court of Victoria, Court of Appeal. The appellant appealed against his conviction and sentence on several grounds, including the admissibility of his confession, the adequacy of warnings provided, and the severity of the sentence.

The court was required to decide several legal issues, including whether the confession made by Weiss should have been excluded due to an innocent misrepresentation by the police officer during the interview. Additionally, the court needed to determine whether an accomplice warning was necessary and if a Faure direction was required. The court also had to consider whether evidence that was wrongly admitted was relevant to any issue or if it was merely used to bolster the credibility of another witness.

In its reasoning, the court found that the confession was not tainted by the police officer's misrepresentation and could be admitted as evidence. The court held that there was no need for an accomplice warning or a Faure direction. Furthermore, the court concluded that the wrongly admitted evidence did not contribute to any relevant issue and was not admissible to support the credibility of another witness. The court also considered the misconduct of the defence counsel during the trial but found that it did not occasion a miscarriage of justice. Finally, the court reviewed the grounds for appeal against the conviction and determined that the sentence of 20 years' imprisonment with a non-parole period of 16 years was not manifestly excessive.

The final orders of the court were to dismiss the appeal against conviction and sentence. The court found that the trial was conducted fairly and that the conviction and sentence were appropriate given the circumstances of the case.

Orders