DPP v Dupas (Ruling No 11)

[2007] VSC 321

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. 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:

1. 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. 

1. 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. 

1. 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." 

1. 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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