DPP v Weiss [2002] VSC 153

Supreme Court of Victoria|2002-03-12|Before: Cummins J

CRIMINAL LAW AND PROCEDURE - murder - jury - retrial - publication of prior rulings on Internet - question of infection of subsequent jury panel - considerations applicable.

Counsel have responsibly raised with me today the matter of publication of Rulings made in the absence of the jury in the first trial herein and the possible infection of the jury in the second trial by that publicity.

The history of the matter is this. The accused was before the court in the first trial commencing on 11 February 2002. Unfortunately by reason of a circumstance as to the home locality of a juror on that jury, on 18 February 2002 I discharged that jury without verdict. After that time, but before today, various pre-empanelment Rulings that I had given in that trial, including as to the admissibility of homicide interviews of the accused one of which is said by the prosecution to be a confession of guilt of the crime charged of murder, have been published. In recent times it has been the procedure of the court, and I consider a progressive and proper procedure, that rather than Rulings being published simply by the Victorian Government Reporting Service as routine transcript, the Rulings are formatted with a face page and appropriate paragraph numbering by the internal court secretarial system and as part of that system then posted on the Internet. As a consequence, that course having been followed in this case as in other cases in recent times, the Rulings now have been posted on the Internet. The relevant posting occurred after the conclusion of the first trial but before the commencement of this (second) trial.

In the circumstance of the relevant postings today being removed from the sites, Mr Faris, senior counsel for the prosecution, has submitted that the proper course is for a jury to be empanelled tomorrow. Mr Lovitt, senior counsel for the accused, has submitted that the proper course is to adjourn the trial for a period of the order of two months, to ensure that any knowledge of the Rulings members of a panel presently might have will have faded from mind.

Demonstrably, no juror in the second trial ought to have any knowledge of that which was said in the first trial in the absence of the jury, and notably, the Ruling on the Homicide interviews of the accused that I made in that trial, Ruling No.2.

The question arises as to whether there is any risk, in any meaningful sense of that word, of the jury in the second trial having any knowledge of, or being infected by, the contents of the Rulings in the first trial.

I do not consider that there is any risk, in any meaningful sense of that word, at all. The matter having been published on the Web, any juror to be empanelled in this forthcoming trial would need to have gone to the relevant site, AustLII or SCALEplus, and then proceeded through a number of steps: Victoria, Supreme Court of Victoria, decisions from 1998, listed recent cases, ultimately got to DPP v. Weiss, and then read the Rulings. On any working day of the week there are scores of cases listed in the Supreme and County Courts of this State, and if a juror who does not know the name of an accused, in this case Mr Weiss, were to look up the Internet and go browsing, I consider the likelihood or possibility of a juror (not knowing Mr Weiss as the accused) coming across and reading such material, is so remote as not to constitute any risk at all.

It would be quite different, of course, if the jury had been empanelled and the juror knew the accused's name. Then, in the absence of instruction, there would be a possibility that a juror might, perhaps through an excess of zeal, look up the Internet to see if anything was published on the matter. That, indeed, was the problem with the CrimeNet site, which has been dealt with by governmental protocol arrangements. Of course, once a jury is empanelled, it is always given instructions as to what constitutes evidence, namely that which is said in court and tendered in court, and that the jurors must have no regard to anything but the evidence thus defined. The reasons for that direction are also explained to the jury, and it is my experience, and that of the court, that jurors both understand the reasons and act loyally to those directions. I have already directed this morning that the Internet sites have the Rulings removed from them, which either has been achieved or will be achieved during the morning. Thus tomorrow there will be nothing on the Internet, under the name Weiss or otherwise, of any of these Rulings.

The question then arises whether any member of the panel would already have had access to those Rulings and, for the reasons I have stated, I consider that that is not a risk in any real sense of the word. To make assurance doubly sure, as I have foreshadowed in discussion this morning with counsel, I shall integrate into my usual enquiries of the panel tomorrow, whether any member of the panel has viewed any publication (including on the Internet) concerning the subject matter of the trial.

Learned counsel Mr Lovitt, for the accused, has submitted that although these sites are legal sites, and thus not necessarily of great interest to browsing members of the public, there is always a risk that lawyers interested in them could, by oversight, communicate to members of the jury what is on the site. I consider, again, that is such a remote possibility as not to constitute a risk in any sense of that word.

As I said to counsel during discussion, the fundamental and non-negotiable premise of jury proceedings is the integrity of the jury. No matter of convenience or inconvenience can lessen or derogate from that fundamental premise. If I considered there was any risk at all, I would accede to an application to adjourn the matter for a couple of months, but as I have said, I consider there is no such risk.

It is also the operational philosophy of the court, and I consider a proper one, and is the experience of the Court that jurors act fairly and properly once jurors are given proper instructions - assuming the instructions are capable of human compliance in a sensible and realistic way, and explanations as to the purposes of instructions assist the jury in that regard. That is, I think, the nature of our society: that jurors do act fairly and responsibly, and the courts assist that fulfilment in every practicable way.

Accordingly, I consider there is no risk of the jury to hear the second trial being infected in any way by the Rulings in the first trial which were published for a brief period of time on the Internet.

I also consider, and have done so independently as well as with the benefit of Mr Lovitt's helpful submission, the position of the accused. I consider when the accused has had the situation fully articulated he will not have any proper sense of concern

about the matter, that is any informed apprehension of an imperfection of the jury. The reality is that there is no risk herein and, accordingly, I will not adjourn the matter beyond tomorrow.

I grant a certificate under s. 17(1) Appeal Costs Act 1998 for costs thrown away of today's proceedings. We will commence with a panel tomorrow at 10.00 a.m.

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Legislation Cited (1)