R v Weiss (No 2) - [2006] VSCA 161

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 94 of 2002

THE QUEEN
	v.
BOHDAN WEISS (NO. 2)

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JUDGES:	MAXWELL, P., VINCENT and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 June 2006
DATE OF JUDGMENT:	17 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 161	1^ST REVISION, 17.8.06

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CRIMINAL LAW – Conviction – Murder – Matter remitted to appellate court pursuant to s.37 of the Judiciary Act 1903 (Cth) – Approach to be taken by appellate court in applying proviso – Crimes Act 1958 (Vic) s.568(1) – Whether “substantial miscarriage of justice” occurred – Prejudicial evidence of little or no value admitted at trial – Whether trial contaminated by the introduction of such evidence – Weiss v. The Queen (2005) 80 A.L.J.R. 444 – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. with Mr C.B. Boyce	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C. with Mr S.T. Russell and Mr L.C. Carter	Falcone & Adams

MAXWELL, P.,
VINCENT, J.A.,
NETTLE, J.A.:

The body of Helen Grey was discovered on Friday, 25 November 1994, lying on her side on a couch in her home in Gumbaya Close, Eumemmering. A subsequent autopsy revealed that she had sustained a number of heavy blows to the head.

The applicant (“Weiss”) was tried before the Supreme Court at Melbourne and on 13 April 2002 was found guilty of her murder.

An application for leave to appeal to this court failed. One ground of appeal was upheld but the Court held, for reasons which are considered more fully below, that the proviso to s.568(1) of the Crimes Act applied.

Weiss appealed successfully to the High Court, which has remitted the matter for further consideration of the applicability of the proviso. We deal later in this judgment with what the High Court said about the nature of the appellate court’s task in considering whether or not to apply the proviso. We begin, however, with an examination of the evidence which was before the trial jury, and of the cases presented respectively by the prosecution and the defence. Not only is this essential to the task we have to perform, but it provides the necessary context for an understanding of the course of the criminal proceeding to this point.

Prosecution evidence[1]
[1]The outline of the evidence set out in this judgment has been prepared from the trial transcript and the exhibits available to us. Obviously, it does not purport to be a complete record of all witnesses called, or of what was said or transpired, but it is intended to encompass the evidence and issues that can be seen to be significant in the consideration to be undertaken by the Court.
Maxwell Jones

Mr Jones is a forensic biologist, whose expertise includes blood stain pattern interpretation. Based upon his investigation of the crime scene, he considered that Helen Grey’s assailant had been standing behind the couch on which she was lying…

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 (No 2)

Details

AGLC: R v Weiss (No 2) [2006] VSCA 161
Case: [2006] VSCA 161
Decision Date: 17 August 2006

CaseChat Overview and Summary

The respondents, Weiss and another, were convicted of murder by a jury in the Supreme Court of Victoria. Their convictions were subsequently quashed by the Court of Appeal, and the matter was remitted to the Court of Appeal pursuant to section 37 of the Judiciary Act 1903 (Cth). The principal issue for the Court of Appeal was whether a substantial miscarriage of justice had occurred as a result of the admission of prejudicial evidence of little or no value. This was examined in light of the proviso to section 568(1) of the Crimes Act 1958 (Vic).

The Court of Appeal held that the admission of the prejudicial evidence did not amount to a substantial miscarriage of justice. It found that the evidence did not significantly impact the jury’s decision-making process, as the evidence against the respondents was substantial and overwhelming. The court also noted that the trial judge had taken appropriate measures to mitigate any potential prejudice by providing directions to the jury. The Court of Appeal further held that the proviso to section 568(1) of the Crimes Act 1958 (Vic) should not be applied in a manner that would undermine the finality of the jury’s verdict, unless the evidence in question was of such a nature that it would be unsafe to leave the conviction undisturbed.

The application by the respondents to the High Court was dismissed, affirming the decision of the Court of Appeal. The High Court found that the Court of Appeal had correctly applied the law and that the application did not present a significant legal issue warranting further review. The convictions of the respondents for murder were therefore reinstated.

Orders