DPP v Dupas (Ruling No 2)

[2007] VSC 253

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. 2

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	6 July 2007
CASE MAY BE CITED AS:	DPP v Dupas
MEDIUM NEUTRAL CITATION:	[2007] VSC 253

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Criminal law and procedure – murder – jury – jury panel to be informed of two prior convictions of the accused for murder because of notoriety of those matters – defence application for jury panel to be informed of life sentences with no minimum term imposed on accused – considerations applicable – application refused.

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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. 2

HIS HONOUR:

1. I turn to the submission of leading counsel Mr Drake for the accused that the jury panel be informed in this case of the sentences presently applying to the accused, that is two sentences of life imprisonment with no minimum term.  As I stated in Ruling No.1, I propose to inform the jury panel, because I consider it is a matter of notoriety, that the accused has previously been convicted of murder:  in 2000 of murder of Nicole Patterson and in 2004 of murder of Margaret Maher.  Mr Drake has submitted that in those exceptional circumstances it is appropriate to inform the jury of the sentences imposed and which presently apply in relation to the accused. 

1. Mr Drake, rightly, has relied upon the fact that it is an exceptional circumstance to have a panel informed that an accused person has two prior convictions for murder.  However, Mr Drake then put that to inform the jury that the accused has received life sentences from which he is not to be released

“frees the jury from any nagging doubts about what would be the result of a verdict of not guilty.” (p. 111).

Mr Drake put that logic of the ordinary person on hearing that a man has two convictions for murder is

"They don't know why it is being proceeded with for a third in the circumstances, unless there is some risk to the community." (p.112).

Mr Hillman has submitted in response that it is fanciful to think that the panel or any members of it, in the circumstance that the accused had been convicted in 2004 of murder and sentenced for it, would consider that there was an imminent question of release.  I agree with that as a matter of fact.

1. However much more fundamental than that factual matter are two considerations.  The first is the Court rightly has always set its face against juries taking into account questions of prediction and especially questions of dangerousness.  It would be antipathetic to the interests of accused persons if it were otherwise.  In my view it would be wholly undesirable to breach that unbreached wall of protection of accused persons because of this case.  Further, I consider that the analysis relied upon by the defence is fundamentally flawed.  I do not consider ordinary citizens would think that the fact that a person has a life sentence would found the conclusion that the person should not be presented again for a different and serious crime.  Victims matter.  Ms Halvagis matters.  The Halvagis family matter.  Citizens would consider that it does matter that the rights of victims are upheld whether or not that involves any additional sentence to a person, in this case one already serving life sentences.  I add, as I said more than once to Mr Drake in fairness both to him and Mr Regan, neither counsel expressed any personal view on that matter.  Each, Mr Drake in relation to this matter and Mr Regan on the utility balance in Ruling No.1, in submissions was expressing logical analysis propositionally, not a personal view.

1. For those reasons, I consider it would be wrong in principle, and undesirable in fact, to accede to the application by the defence to inform the jury panel of the sentences presently applicable to the accused.  Accordingly, I shall inform the panel of the two prior convictions of the accused but I shall not inform the panel of the sentences presently applicable to him. 

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