DPP v Dupas (Ruling No 12)

[2007] VSC 322

IN THE SUPREME COURT OF VICTORIA Not Restricted

CRIMINAL DIVISION

No. 1533 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER NORRIS DUPAS

---

Ruling No. 12

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 322

---

Criminal law and procedure – murder – jury trial – admissibility of evidence of implied admissions.

---

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

---

Ruling No. 12

HIS HONOUR:

1. I am deeply troubled that two years after a statement was made by this critical witness in this serious case, midway through one critical conversation in evidence to the jury, and in which I have leant over backwards to ensure a fair trial to this accused, his counsel raises a question which was obvious at all times.  However I have to deal with it, so I will.

1. Mr Drake's submission is flawed in that it confuses legal doctrine with behaviour.  Whether or not Mr Fraser, in his advice to the accused, got the law right or not, is not the point.  The point is what did he say.  Therefore the primary objection by Mr Drake to this material is irrelevant.  Mr Fraser was not sitting a law exam or giving a judicial ruling.  He says he was having a conversation about legal matters with a fellow prisoner.

1. Next, it seems to me, given the position of the defence, perfectly within its rights disputing this conversation ever having occurred, that is to say the admissions within it namely "he left not forensics at the scene and no-one would have seen him," it is inevitable in this trial that the conversation in its entirety is relevant.  The impugned passage goes to the existence of the conversation: why it happened in the first place, whether it is likely to have happened between a struck-off solicitor and an accused person with other legal issues, et cetera.  Demonstrably all the elements of this conversation are relevant to the central question which is were the admissions made.

1. I think in terms of prejudice, the line ought be drawn where, fortunately, we are at, namely the words "knife attack" without the adjective "frenzied," and without the words "and subsequent mutilation."

1. It seems to me seeking to strike a balance between relevance and prejudice to ensure that the material is more probative than prejudicial, that certainly the words "subsequent mutilation" ought to be excluded.  Fortunately, they have not yet been said, by a hair's breadth.  As the adjective "frenzied" has not yet been said, I consider it ought to be excluded as well. 

1. I do not consider reference to the "same modus operandi" and like phrases ought be excluded because that is the very reason, according to Mr Fraser, why the conversations occurred and as the conversations are under challenge, the reason for their occurrence is of high relevance.

---