Director of Public Prosecutions v Dupas (Ruling No 4)

[2007] VSC 255

IN THE SUPREME COURT OF VICTORIA Not Restricted

CRIMINAL DIVISION

No. 1533 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER NORRIS DUPAS

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Ruling No. 4

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	6 July 2007
CASE MAY BE CITED AS:	DPP v Dupas
MEDIUM NEUTRAL CITATION:	[2007] VSC 255

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Criminal law and procedure – murder – police interview – accused exercised right of silence – admissibility of that evidence. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Hillman SC Mr A. Lewis	Office of Public Prosecutions
For the Accused	Mr D. Drake Mr M. Regan	Victoria Legal Aid

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Ruling No. 4

HIS HONOUR:

1. Learned senior counsel Mr Hillman has submitted that evidence ought to be led in this case of the circumstance that the accused was sought to be interviewed by investigating police and exercised his lawful right to silence, with the appropriate direction to the jury that they cannot draw any inference adverse to the accused from that lawful exercise of his right. 

1. I have on many occasions including Ivanovic[1] ruled that it is admissible for the jury to have evidence led before it that an accused person was sought to be interviewed by investigating officers and exercised the right to silence.  That is for reasons of proper treatment of juries.  A jury is likely to ask itself why was not the accused given an opportunity by police of speaking.  A jury should not be left with a concern that it is acting in a process wherein the accused was railroaded by not being given the opportunity by investigating police to be heard.  Thus I consider, and for the reasons more fully stated in Ivanovic Ruling No.2, that evidence that the police went to interview an accused, informed him of his full right of silence, and the accused exercised that right, is normally admissible.  I always accompany that evidence by direction to the jury not to draw an adverse inference from the exercise of that right;  and as with every direction I seek to give the jury reasons, so that it is not simply a sterile direction but something which is understandable and thus the more capable of being complied with.  I direct the jury that the burden of proof is on the prosecution;  that the police rightly informed the accused of his lawful right, the accused exercised it and it would be totally wrong to change the rules after the event and to blame the accused for exercising a right that in law very importantly he and every other citizen has.  My experience with juries is they understand that direction and act upon it.  I consider the jury should be told that information because it assists the jury, who are citizens randomly chosen and brought into court and required to act as judges, to understand their function and not to be haunted by the thought that an accused person may not have been treated properly in the process that they the jury are the arbiter of.  Such a question does not arrive only when the conduct of the police investigation is in issue.

   [1][2003] VSC 403: Ruling No.2.

1. For those reasons I consider that the opportunity given the accused of interview should ordinarily be led before the jury. 

1. However, in this case I consider it would be inappropriate for the evidence to be led.  That is primarily because there was a significant hiatus in time between February 1998, the first interview of 6 August 2001, the second interview of 2 September 2005, and the charging of the accused a year later on 11 September 2006;  and the existence of intervening steps including the Inquest and a direct presentment.  The extent of time, more significantly the hiatus between various steps in the history, and most significantly the various procedural steps between interview and the much later charging of the accused and then process by direct presentment, I think bring into play a series of complications which I think are hazardous to introduce into evidence and which could work an unfairness to the accused.  In the circumstances it is proper to refuse the application of the prosecution to lead this evidence even though ordinarily I think it should be led.  The collocation of circumstances as to time and events which are unusual in this case I think can introduce irrelevancies and distractions from the jury's task and could work an unfairness to the accused. 

1. For those reasons, both analytically and as to fairness, I consider the evidence in this case ought not be led. 

1. I accept what Mr Drake says, of course, that, unlike in Ivanovic, the defence in this case is the accused did not commit the crime and was not present.  That is, unlike in Ivanovic, the defence here is not one postulating an asserted set of events but rather an absence.  Even so, I consider the jury ordinarily ought to be informed an accused person had been given the opportunity.

1. Accordingly I rule that in this case the evidence ought not be led. 

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CERTIFICATE

I certify that this and the two preceding pages are a true copy of the reasons for ruling of Cummins J of the Supreme Court of Victoria delivered on 6 July 2007.

DATED this 6th day of July 2007.

Associate