DPP v Dupas (Ruling No 13)

[2007] VSC 323

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. 13

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	1 August 2007
CASE MAY BE CITED AS:	DPP v Dupas
MEDIUM NEUTRAL CITATION:	[2007] VSC 323

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Criminal law and procedure – murder – jury trial – evidence – consciousness of guilt by lies.

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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. 13

HIS HONOUR:

1. Prior to final addresses Mr Hillman, senior counsel for the prosecution prudentially has raised the question of the proper use of two evidentiary items as consciousness of guilt of the crime charged, murder.  The count that the accused faces is that on 1 November 1997 at the Fawkner Cemetery he murdered Ms Mersina Halvagis. 

1. The two evidentiary items are the following.  First, a statement to Detective Senior Constable Bateson, now Detective Senior Sergeant, on 12 February 1998 that the accused had never been to the Fawkner Cemetery, and that he was not aware of anyone that was buried there.  That evidence appears at p.838 of the evidence before the jury of Detective Senior Sergeant Bateson.  The statement was made by the accused to the officer at the Coburg Police Station on 12 February 1998 which attendance was by arrangement.  The second item is a statement said to have been made by the accused to Mr Patrick O'Brien, now a business manager, formerly a priest, in April or May 1999.  The statement was made by the accused to the then priest in the Melbourne Assessment Prison where the accused was being held in relation to another matter.  The evidence before the jury is in response to questions from the learned leading prosecutor at p.857.   Question, "Did he tell you that he'd never been to the cemetery at Fawkner and that he knew nothing about the murder?"  Answer, "Yes."  Question, "Did he also tell you that he did not have any relatives buried there?"  Answer, "Correct."  Question, "That's at the Fawkner Cemetery?"  Answer, "Correct."  The questions were in that leading form by agreement in order to ensure that irrelevant and prejudicial material did not enter the evidentiary arena before the jury in this trial. 

1. It is said by the prosecution that both those pairs of the statements can be shown to be lies, that is to say deliberately untrue as distinct from merely erroneous, on two differential bases.  The first is the evidence before this jury of identification witnesses Ms Burman, Mr Weller and Ms Melnik who, if the jury accept, give evidence of the presence of the accused at the Fawkner Cemetery on the very day of the murder, 1 November 1997, but prior to the murder.  If that evidence is accepted, that is evidence the jury is capable of acting upon that the accused indeed had been to the Fawkner Cemetery on 1 November 1997.  The second category is said by the prosecution to be capable to be demonstrated as being a lie by reason of the evidence of two civilian witnesses, Mr John Saward and Ms Margaret Newman.  Mr Saward, a carpenter, had a relationship with Ms Newman.  Mr Saward gave evidence as appears at p.1052 that he and Mr Dupas who had struck up a friendship because of their common interest in woodwork were driving past the Fawkner Cemetery in the first week of September 1997 and, quoting Mr Saward's evidence at page 1052, "He said his grandfather was buried in there somewhere.  I asked him did he know where his grandfather was buried and he said he didn't."  That matter was again touched upon in cross-examination without traverse at pp.1055 and 1056.  In relation to Mrs Newman, she said that, on a date, unspecified but on the evidence the inference arises that it was prior to January 1998 at the latest, the accused said that “there was someone there”, someone buried in the Fawkner cemetery.  She went on to say, "I couldn't say for sure who it was". 

1. First, looking at the question of whether the statements can be demonstrated to be lies by independent evidence, I consider that it is quite clear that the statements are capable of being demonstrated to be lies by reason of the conflict between the clear and unequivocal statements of the accused to the police officer and the priest on the one hand and the antecedent statements of the accused to a Mr Saward, the woodworker, and his companion, Mrs Newman.  That is in relation to knowing his grandfather or a relative was buried in Fawkner Cemetery.  As to never having been to Fawkner Cemetery, the evidence if accepted of the witnesses Ms Burman, Mr Weller and Ms Melink contradicts that.  Thus, there is a proper evidentiary basis for the jury, if it were satisfied, concluding that the statements of the accused to Senior Sergeant Bateson and Mr O'Brien were both untrue and deliberately so, that is to say, were lies and not merely errors. 

1. Next, the lies are precise and coherent, not vague and uncertain.  The circumstance that one is a relative and one is a category, in my view, is a matter of detail.  Next, I consider they relate directly to a material issue in this case, that is to say, the presence of the accused at the Fawkner cemetery on the day of the murder.  They are capable of showing a consciousness of the accused falsely to distance himself from the cemetery, that is, the cemetery in which the crime of murder was committed.  The jury is entitled, properly instructed, to conclude that the statements were clear, were deliberately false, can be demonstrated by independent evidence to be false and were lies as contemplated in the line of authority commencing effectively with R v Lucas[1] and in its best known articulation, Edwards v R.[2] 

   [1](1981) QB 720.

   [2](1993) 178 CLR 193 particularly per Deane, Dawson and Gaudron JJ at 210-211.

1. There is a raft of authorities on the question of lies and consciousness of guilt, which is why I adjourned overnight to reread them all.  They are written on every judge's heart; but it is always prudent to reread them to make sure that one does not miss any of the numerous articulations of the essential principle.  I have done so overnight and I am satisfied that the criteria articulated principally in Edwards v R but developed in numerous cases up to the present, including R v Chiantar,[3] are properly satisfied in this case.  Of course it is for the jury to decide what evidence they accept.  My role is to ensure that they are not given a wrongful mode of reasoning and that is the function I am presently directing myself to. 

   [3][2006] VSCA 263 at [103].

1. It was urged on behalf of the accused, in a most helpful submission by Mr Regan, that the proper course is not to go down the Edwards path of a discrete lie or lies, but rather to go down the path of Zoneff v R,[4] because the material sought to be relied upon by the Crown is insufficiently precisely identified as a lie, or insufficient in any event to satisfy the high level of criteria articulated in Edwards. 

   [4](2000) 200 CLR 234 per that majority at 245.

1. For the reasons I have stated, I consider the two sets of lies, each being a double lie, are capable of satisfying the criteria in Edwards, and I so rule.

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