DPP v Dupas (Ruling No 13)

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…