DPP v Weiss [2002] VSC 27

Supreme Court of Victoria|2002-02-18|Before: Cummins J

CRIMINAL LAW AND PROCEDURE - murder - application by defence to discharge jury - one juror residing in area of offence - risk of juror being oppressed by evidence as to characteristics of area of offence - application by prosecution pursuant to s. 43(d) and s. 44(1) Juries Act 2000 for discharge of individual juror only - risk of infection of balance of jury - application by prosecution refused - jury discharged without verdict.

Accordingly, I informed counsel of those matters and asked counsel to consider the situation over the weekend.

Had the problem remained simply a problem as to knowledge of witnesses in person or by reputation, I would have followed the course which I expressed on Friday of waiting and seeing; that is, to wait and see whether the juror knew personally or by reputation any witness who was called. If she did, the likelihood then would have been that I would have discharged not only the juror but the jury. Had the problem remained thus confined, I would not have considered there presently existed the need to discharge the juror or the jury.

However, as has become apparent during discussions this morning with counsel, the question is now revealed to be not simply one of the juror's knowledge of individual witnesses, but rather one of the juror's knowledge of and association with the area of the killing. That is because, as I apprehend it, it is going to be put by the defence or otherwise arise during the trial that in Doveton there were and are various named and unnamed persons, one or more of whom is to be called as witnesses but others will not be, who are dangerous, threatening and criminal. There will be evidence in the trial from one source or another of what Mr Lovitt called this morning "the dangers of Doveton." This juror lives in Doveton and in the vicinity of the killing.

It seems to me that that raises a very serious question as to the appropriateness and propriety of the juror continuing to sit. Even if the juror does not immediately feel distracted by or oppressed by the evidence which will hereafter be led, there is I consider a real danger that subconsciously the juror might be affected by it, and it is essential in the administration of justice that a juror is able to give a true verdict according to the evidence and is not oppressed by conscious or unconscious concerns, she living in an area as to which evidence of danger is to be led as a relevant part of the trial.

Accordingly, I consider that the juror ought not remain on the jury.

The question then arises, what about the other 11 jurors? Learned counsel for the prosecution, Mr Faris, has submitted that the course contemplated by s.44(1) Juries Act 2000 should be followed, that the remaining 11 jurors sit on the case and that the twelfth juror be, pursuant to s.43(d), discharged. Mr Faris put that there is no evidence that the individual juror has polluted the other jurors by any factual observation, and Mr Faris rightly has put that the evidence as to "the dangers of Doveton" is yet to come.

However, I do not consider that that submission is adequate to deal with the problem which has arisen. That is so for two reasons. First, there has already been, albeit only in passing, reference to the suggested dangers of Doveton, both in counsel's opening addresses and in evidentiary material before the jury. Even though it is not yet fully formulated, the matter has been at least touched upon in the presence of the jury. Second, one simply does not know what the juror might have said to the other 11 jurors about living in Doveton. She might have said nothing. She might have said it is a peaceful, domestic, quiescent area. Or she might have said, "We have a lot of problems around here." We simply do not know. It would be quite inappropriate to bring the juror in and to interrogate her about what she has or has not said to the other 11 members. So we are in a position of ignorance.

9 Unless one can be assured that the 12th juror has not affected the other 11 jurors, I consider that it is necessary that the jury as a whole be discharged without verdict. One has to exercise scrupulous care to secure the integrity of the fact-finding tribunal, the jury. One cannot take risks by flying blind. Further, the appearance of the trial proceeding with a member of it having been on the jury and who lives in the area of present controversy as to its character, I think is undesirable as well. But the primary matter is that one must be scrupulously careful to secure the integrity of the fact-finding tribunal.

I think in the end it is simply too risky, it is simply sailing too close to the wind, to contemplate proceeding with the other 11 jurors when we do not know what this 12th juror might have said to other jurors about the pleasures or dangers of living in Doveton. She may have said nothing, she may have said an amount, and I consider we simply cannot take that risk.

Accordingly, I am unpersuaded by Mr Faris that the trial should proceed with 11 jurors.

I consider a high degree of need does arise to secure the purity of the tribunal of fact and its independence and impartiality. Thus I consider the only course - highly regrettable though it is for numerous reasons and including in particular the oppression upon the various witnesses, the victims and the accused, as well as cost - in the interests of the proper administration of justice is to discharge the jury as a whole.

Accordingly, I will bring the jury in and discharge it without verdict. Then I shall discuss with counsel further matters.

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