DPP v Dupas (Ruling No 11)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

CRIMINAL DIVISION

No. 1533 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

PETER NORRIS DUPAS

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Ruling No. 11

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	24 July 2007
CASE MAY BE CITED AS:	DPP v Dupas
MEDIUM NEUTRAL CITATION:	[2007] VSC 321

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Criminal law and procedure – murder – jury trial – cross-examination in relation to identification and similarity.

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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. 11

HIS HONOUR:

A matter of evidence I consider a considerable difficulty has been raised in relation to the next witness, Ms Baran. As the jury has been waiting an hour I will state my conclusions without a lengthy ruling. That does not mean that the Ruling is not important. It is.

I consider that the appropriate course to be followed is the prosecution should lead from Ms Baran the usual evidence of what she saw at the scene both in relation to any man she saw and in relation to any vehicle she saw. Further, that the prosecution ought to lead from her that when shown the photo folder (Exhibit K) in which the accused's photo was No.7 she did not identify any person in the 12 of those photos in Exhibit K. I think that is where the matter should be left.

In cross-examination Mr Drake is entitled to go as far as he likes. That has not been the question. The question is what are the consequences of going certain stated distances and in I hope assistance to the defence to know its position. If Mr Drake puts to the witness her description of the man, that would not involve the elicitation in re-examination of the evidence in Ms Baran's statement at p.788 of her response to the Herald Sun photograph. Mr Drake has stated that he will not be producing the photo with the computer image and I think that is a sensible course because that is one further step along the pathway which ultimately could lead to the elicitation of the Herald Sun evidence wherein Ms Baran said "Oh my God, that looks like him, he's got the same skin but I'm not sure because this man has brown hair and the man in the cemetery I saw had blonde hair."

Of course that evidence could not be led as identification and it was not sought to be led as identification by the prosecution. The question is whether it is evidence in rebuttal of a proposition from the defence that the man that Ms Baran saw could not have been the accused; that is to say a categorical matter. If that were put by the defence in terms, using the computer image, I consider that would raise the question of whether the response that he in the category, that is, it "looks like him", but with differences, arises. I consider that evidence does not properly arise in re‑examination if as a matter of prudence Mr Drake does not proceed further that he has stated, that is to say he does not proceed to produce the face image by computer.

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CaseChat Overview and Summary

In the case of the Director of Public Prosecutions versus Dupas, the respondent was charged with the murder of a woman. The case was heard in the High Court of Australia. The primary legal issues were centred around the admissibility and weight of evidence provided during the cross-examination of witnesses, particularly concerning the identification of the respondent and the similarity of circumstances between the crime in question and other crimes committed by the respondent. The court was tasked with determining whether the trial judge had correctly applied the law in allowing certain evidence to be presented to the jury.

The court examined the principles of admissibility of evidence, specifically focusing on the relevance and probative value of the evidence in question. It was necessary to determine whether the evidence of similarity was admissible to prove the identity of the respondent as the murderer. The court also considered the impact of the evidence on the fairness of the trial and whether the trial judge had provided adequate directions to the jury regarding the use of such evidence. The court held that the evidence was properly admitted and appropriately weighed by the trial judge, who had given proper directions to the jury.

The court concluded that the trial judge had not erred in admitting the evidence of similarity or in the directions given to the jury. The evidence was deemed relevant and of probative value in establishing the identity of the respondent as the perpetrator. The court found that the trial judge had correctly balanced the probative value of the evidence against any prejudicial effect it might have had. The appeal was dismissed, and the conviction was upheld. The court emphasised the importance of trial judges carefully considering the admissibility and weight of evidence in criminal trials, particularly when it concerns the identification of the accused and the similarity to other crimes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established