DPP v Dupas (Ruling No 14)

[2007] VSC 324

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. 14

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	2 August 2007
CASE MAY BE CITED AS:	DPP v Dupas
MEDIUM NEUTRAL CITATION:	[2007] VSC 324

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Criminal law and procedure – Murder – Practice and procedure – Jury trial – Defence final address – Application to play court video of witness’ evidence for credibility purposes – Considerations applicable.

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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. 14

HIS HONOUR:

1. This morning at 10.00am the prosecution final address was due to commence in this month-long trial.  Last evening, at 1657 hours the defence emailed the court a request that the video of the proceedings by the court be made available for defence counsel’s final address.  The application was made formally in court this morning at the commencement of proceedings at 10.00am.  The application has two aspects.  The first is relatively routine.  The second is both novel and significant.

1. As to the relatively routine aspect, the application is that the silent demonstration by the witness, Mr Andrew Fraser, of the pantomime by the accused in gaol of the method of attack upon Ms Halvagis, be played for the jury.  In gaol, Mr Fraser said, there was a silent demonstration by Mr Dupas – silent because Mr Dupas did not want to be overheard by prison authorities in a cell which it was believed could be listened to electronically and recorded.  Thus, Mr Fraser said, Mr Dupas did a pantomime, pointing to the listening point in the cell and the possibility of being overheard, and being silent while he demonstrated the method of his attack upon Ms Halvagis. 

1. In this trial, Mr Fraser, in the course of his sworn evidence, with permission left the witness box, sat and stood at the Bar table which was cleared for the purpose, and replicated the pantomime which he said Mr Dupas had done earlier for him in prison.  To that extent it was a demonstration and I think in fairness it is appropriate and proper that defence counsel can have that played to the jury to assist them in their consideration of the issues.  That is because what is sought to be played is not mere demeanour of a witness, but rather a demonstration as such.  There were some few words given by Mr Fraser during the demonstration at the Bar table by way of the explanation at the start and end and I consider it would be appropriate in those circumstances to permit those words also to be played; otherwise the purpose legitimately being fulfilled of visual reproduction of the demonstration could look artificial to the jury.

1. That is, as I say, a fairly routine matter.  As a matter of fairness and as a matter of inclusiveness, I consider that should be permitted to be done.

1. The second aspect is different.  What is sought by the defence is to play a part of Mr Fraser's evidence which the defence says will visually demonstrate his unreliability and untruthfulness as a witness.  In particular, the defence seeks to play an answer to demonstrate how long Mr Fraser took to answer; that is to say, a pause.  In my view, that raises a raft of different considerations.  There is no reason logically why, if it is sought to be demonstrated that a witness paused and is therefore unreliable or untruthful, that by parity of reasoning it should not be demonstrated that a witness was swift and confident; or over‑swift and over‑confident, and therefore unreliable or untruthful; or slow and careful, and therefore reliable and truthful.  The considerations are endless.  Further, why should not the general demeanour of a witness be replayed to the jury for general consideration?  Further, and I think this is not insignificant, will, in the future, the prosecution be able to replay the evidence of an accused person who chooses to give evidence, to say ‘how could you believe that?’  Will that in turn unfairly interfere by oppression with the right of accused persons to choose to give evidence? 

1. These considerations, I think, are serious.  It is no analogy to say, as Mr Drake submitted, that videos of records of interview can be shown to juries, because they are exhibits. 

1. The application by the defence involves the category of demeanour.  It is rightly said by judges to juries routinely, that the jury is entitled to take into account, in assessing the credit of a witness, the demeanour of the witness.  To state that proposition demonstrates the potential of this application, because demeanour is always an issue.  There are now routinely court-recorded videos of the whole trial, which means the demeanour of witnesses throughout the whole trial is always available to be replayed.  There is no suggestion here that the transcript is deficient as transcript.

1. A further corollary of this application is that it has the potential to change the nature of final addresses.  Why not, henceforth, should final addresses not have a repeated theme and phrase, "Just watch this"?  Are the courts to provide the routine court videos of proceedings to all counsel so that edited DVDs can be made by counsel of the proceedings to be played electronically to the repeated litany, "Just watch this?"  Next, when the jury is in consideration of its verdict, is the jury to be provided with the DVD of the whole evidentiary course of the trial so the jury can consider it?  These are serious considerations.  Certainly, the application has the potential significantly to increase the length of trials, significantly to increase the length of deliberations and significantly to affect the course of trials. 

1. My own view is that we live in an electronic age, and such proper assistance as can be provided to the parties or to the jury, ought be provided.  Intellectually, I consider that the application to have such facilities provided to counsel on both sides, and to the jury, is justifiable.  But the matter needs to be carefully considered; not raised by counsel after the final address of the prosecution has been prepared and is about to commence. 

1. In the present case, in the exercise of discretion, I refuse the application of the defence made at the 59th minute of the 11th hour to isolate and play one short section of one witness.  I refuse it in the exercise of ensuring that there is a fair trial.   Mr Hillman, who has had 20 minutes to consider the matter, has very decently said that he does not seek to play the numerous parts of the witnesses for the prosecution that he might wish to play had he had proper notice to consider it.  Even so, I consider it is entirely unfair and inappropriate for this application to be

made for such an exceptional course, not to my knowledge ever having been made before, at the last minute of this trial.  I consider it is unfair, it is inappropriate, and it could have an unbalancing effect.

1. In future cases, if proper notice is given and both parties – not just one party – have a proper opportunity to consider it and prepare for it, a different consequence could arise.

1. For the reasons stated, I refuse the application in this case.

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