DPP v Dupas (Ruling No 8)

[2007] VSC 260

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. 8

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	10 July 2007
CASE MAY BE CITED AS:	DPP v Dupas
MEDIUM NEUTRAL CITATION:	[2007] VSC 260

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Criminal law and procedure – murder – jury empanelment – s. 32(1) and (2) Juries Act 2000 – formal non-compliance – R v Panozzo and Iaria (2003) 8 VR 546 – 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. 8

HIS HONOUR:

1. Learned Senior Counsel Mr Hillman for the prosecution responsibly has raised a matter of form for consideration by the Court and has submitted that the jury should be discharged without verdict and the empanelment procedure commenced again with a fresh panel.  Today is the first day of this trial after empanelment. 

1. I must say that this matter is undoubtedly a triumph of form over substance.  There is absolutely no reason in substance that requires this jury to be discharged without verdict.  However, there is a matter of form and, in view of the decision in R v Panozzo and Iaria[1], which also was a matter of procedure, I consider that the application of the prosecution ought be acceded to.

   [1](2003) 8 VR 546.

1. The matter of form is that the Juries Act2000 provides by s. 32(1) that the Court must inform the panel or cause it to be informed of certain information and then (s. 32(2)) call on persons seeking to be excused. Yesterday, I informed the panel of the charge preferred against the accused and the names of the parties and principal witnesses, in conformity with s. 32(1)(a)(b) and (c). I then excused persons who knew the parties or witnesses (numbering seven members of the panel) and who inevitably would have had to be excused. I then informed the remaining 103 members of the panel of the estimated length of the trial (s. 32(1)(d)) and other information (s. 32(1)(e)). I did so in that sequence to ensure that no persons who knew the parties or witnesses, particularly the parties, infected other members of the panel by adverse or other comment in court. I was especially concerned to secure the integrity of the jury and to avoid any prejudice to this accused. Thus I fashioned the course I took.

1. Prudent though that course was, it now appears that it was in technical breach of

1. the sequence laid down by s. 32(1) and (2), because the excused jurors should first have been informed of the length of the trial. The provision to them of that information would have made no difference to anything. No flaw of substance occurred; no fundamental irregularity as contemplated in R v Panozzo and Iaria occurred.  However, there was non-compliance with a mandatory provision, albeit in a most technical respect.  The Juries Act 2000 constitutes a code as to empanelment[2] and unfortunately does not contain a saving provision for minor or technical non-compliance such as this. 

   [2]DPP v Panozzo and Iaria at 554.

1. It would be most unfortunate if a technicality caused this trial to be held legally invalid in two years’ time on appeal if the accused were convicted.  Accordingly, I think it is responsible to accede to the application of the prosecution to discharge this jury, and to start again to ensure that this insignificant factual matter is stated to the next panel so that s. 32 cannot be said to have been breached.  To make assurance doubly sure, that is what I shall do.

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