DPP v Dupas (Ruling No 3)

[2007] VSC 254

IN THE SUPREME COURT OF VICTORIA Not Restricted

CRIMINAL DIVISION

No. 1533 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER NORRIS DUPAS

---

Ruling No. 3

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 254

---

Criminal law and procedure – murder – identification – provenance of identification – probativeness and prejudice.

---

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. 3

HIS HONOUR:

1. I turn to the question of the admissibility of identification of evidence in this case.  In a helpful and very well prepared submission Mr Drake, leading counsel for the accused, rehearsed the material available to be called, both from the depositional statements and from the Inquest, and submitted that all the personal identification evidence in this case ought be excluded.  Essentially that was because its pathway was afflicted by imperfections. 

1. Mr Drake, in a graphic analogy, compared the imperfections in the pathways to identification in this case with the controlled environment of a properly conducted police identification procedure.  Mr Drake put in essence the pathways of identification in this case, infected and polluted as they were by extraneous influences including but not limited to displacement, ought found the exclusion of identification evidence.  He further put that, as a matter of fairness to the defence, the evidence ought to be excluded because the defence has in many instances no viable method of testing the evidence, for, unlike with a controlled police identification situation, the defence simply has no access to the data upon which the identifying witness was or might have been acting.  Thus Mr Drake submitted the defence is precluded from having the locus that ordinarily and rightly applies in trials of testing the material in a viable rather than in an impotent way.  Finally, Mr Drake put that the prejudicial effect of the methodology and its circumstances, in particular the circumstance that the accused in the contextual material surrounding the identification item has regularly been described as "a monster" and likewise, is such that the identification evidence ought be excluded.  On that last point, it is not proposed by the prosecution to lead the context of “monster” allegations and the like but rather simply the data which was visually relied upon, linking it with what Mr Regan before Ruling No. 1 called the "spikes" of interest historically over time in this case since 1 November 1997.

1. Mr Drake in his analysis usefully adopted the categorical analysis of A and B, category A being identification evidence on the day of 1 November 1997 at the Fawkner Cemetery and category B being identification evidence at that place but antecedently.  Mr Drake then rehearsed the relevant data in each respective category.

1. Overnight I have, as I had previously, read all the material and now considered it with the benefit of counsel’s submissions. 

1. In category A there are four witnesses.  First, Laima Burman. whose statements, commencing at p.944 of the Inquest, were made by her on 26 April 1999, 6 May 1999 and 19 August 2000.  She gave evidence at the Inquest as recorded at p.591 and thereafter.  Second, Katicia Melnik, whose statements commence at p.820 and were made on 29 April 2005, 2 May 2005 and 25 May 2005.  Her evidence commences at p.302 of the Inquest.  Third, Angela Baran, formerly Rowe, whose statements commence at p.785 and were made on 3 January 1998 and 11 May of 2005, and whose evidence at the Inquest commences at 263.  And finally, Horst Peter Weller, whose statement commences at p.765 and was made on 22 March 2005 and whose evidence at the Inquest commences at p.143.

1. In relation to the third of those witnesses in category A, that is to say Ms Baran, the prosecution announced at p.134 that it did not propose to call her as to visual identification.  However the defence wishes her to be called for vehicular identification and the prosecution proposes to call her to give the defence locus on that matter.  That leaves three witnesses to personal identification on the day of the killing at the scene being the Fawkner Cemetery.

1. Paradoxically some of the very deficiencies relied upon by Mr Drake were, in a different respect, relied upon Mr Hillman in support of the provenance of the identifications.  Mr Hillman put that, unlike in a police controlled environment, these identifications have all the hallmarks of spontaneity and of unpreparedness;  and their provenance, he submitted, was thereby significantly increased.

1. I agree with Mr Hillman.  These identifications have the hallmarks of spontaneity, of humanity, and of naturalness.  I consider that gives them significant probative strength.  I do not consider that the imperfections relied upon by Mr Drake properly found their exclusion from evidence.  The imperfections, if there be such, go to weight, a matter to be pursued before the jury.  They are not fundamental.  Appropriate identification directions will be given to the jury.  Each of the witnesses saw and heard (on television or in the print media) allegations concerning the accused and other crimes – usually in unspecified, and therefore untestable, circumstances.  Some purported to identify the accused in television news items about other crimes.  Mrs Burman, on 16 August 2000 in a newsagency in Kyabram, saw a front page newspaper article with a photograph of the accused in connection with another murder and purported to identify him.  The defence points to possible displacement effect and other improvenances in those witnesses’ identification evidence.  I do not consider that those identifications are subject to such imperfection or interference as on their face to be excluded, or that the contextual circumstances of the identifications (markedly different from a controlled police procedure) are such as to warrant their exclusion as inherently unsafe either by context or by displacement.  I do not consider that any prejudicial effect of them cannot properly be dealt with by appropriately controlling the evidence to be led to exclude extraneous material such as not reading out of prejudicial sections of newspapers, as distinct from relying upon photographs;  and in any event I am entirely persuaded that the significant probative value and weight of the three eyewitnesses on the day of the killing of Ms Halvagis at the cemetery where she was killed wholly justifies their reception in evidence.  The prosecution relies upon that evidence in two respects.  One is spatial and one is forensic.  The spatial aspect is that it relies upon the presence, if the jury is satisfied of it, of the accused on the day in question at the scene in question.  That is highly relevant evidence.  The prosecution also relies upon the evidence of those witnesses in seeking to establish that the accused lied to two other witnesses when he said that he had never been to the Fawkner Cemetery.  I consider that also is an admissible use of the material, assuming of course that proper directions are given to the jury as to the limitations of the use that can be made in that regard.

1. Accordingly, I rule that the evidence of Laima Burman, Katicia Melnik and Horst Weller, is admissible in evidence of identification of the accused at the cemetery on 1 November 1997;  and for completeness, the evidence of Ms Baran in relation to vehicles, likewise is admissible.

1. I turn to the second category, category B.  That consists of five witnesses.  They are Ms Stefanie Pawluk, whose statement commences at p.773 and was made on 4 May 2005 and whose evidence commences at p.187 of the Inquest;  Ms Janet Morton, whose statement commences at p.781 and was made on 7 May 2005 and whose evidence commences at p.227 of the Inquest;  Ms Enza Romanella, whose statement commences at p.831 and was made on 2 January 2001 and whose evidence at the Inquest commences at p.340;  Ms Patricia Nemeth, whose statements commence at p.852 and were made on 28 May 2001 and 7 June 2001 and whose evidence commences at p.416 of the Inquest;  and Ms Seval Dillon, formerly Latif, whose statements commence at p.836 and were made on 19 November 1997 and 9 June 2001 and whose evidence commences at p.374.  This category, I consider, is different from category A.  I think Mr Drake was analytically correct in separating the two categories as he did in his submission. 

1. Again, this category is relevant.  It is relevant, as the prosecution contends, to show that the accused had previously been at the cemetery on a number of occasions.  That is sought to be used by the prosecution in two ways.  The first is to demonstrate that the accused had a familiarity with the cemetery and thus would have had the spatial knowledge to put into effect a murder in broad daylight in the cemetery without being seen or apprehended.  The second is that the prosecution relies upon these witnesses in support of the lies, as the prosecution has it, by Mr Dupas that he had never been to the cemetery before.

1. However, this material is more attenuated as a matter of proof than category A.  It is not as directly connected with the crime charged.  True it is, as Mr Hillman says, that the material is capable of demonstrating familiarity over time with the area which in turn can be utilised by the prosecution to found a submission as to preparedness to murder in broad daylight in a public place;  and, although I think less importantly, can be used by the prosecution in relation to the alleged lie.  However, the prosecution already does have evidence in category A of the accused being in the area on the day in question more than once;  and that evidence also can be used on the lie question.

1. In addition to the more attenuated probative nexus between the category B evidence and the crime charged, I think in category B the question of prejudice is of a far greater degree and character than could be contended for in category A.  The hallmark of category B is the spectre of a graveyard stalker.  The material in Category B has the haunting quality of the person stalking others in a graveyard over time.  I think that is highly potent.  It is something which I think could affect humanly the jury, no matter how carefully and fully one directed them.  Having considered it overnight, on balance I think that that significant potential prejudice of a graveyard stalker over a lengthy period warrants the exclusion on the grounds of prejudice of the evidence of the identification witnesses in category B. 

1. Accordingly, I rule that the personnel identification evidence of the witnesses Pawluk, Morton, Romanella, Nemeth and Dillon is not admissible in evidence;  but that of the witnesses Burman, Melnik and Weller is, as well as of Baran as to vehichles.

---