Dupas v The Queen - [2010] HCATrans 30

[2010] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M92 of 2009

B e t w e e n -
PETER NORRIS DUPAS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 FEBRUARY 2010, AT 2.46 PM

MR C.B. BOYCE: If the Court pleases, I appear on behalf of the applicant with my learned friend, MR L.C. CARTER. (instructed by Victoria Legal Aid (Criminal Law Section)

MR J.D. McARDLE, QC: I appear on behalf of the respondent with my learned friend, MR B.L. SONNET, if the Court pleases. (instructed by Director of Public Prosecutions (Vic))

FRENCH CJ: Mr McArdle, it might assist us to hear from you first.

MR McARDLE: Very well, your Honours. Your Honours, it is submitted that the arguments advanced on behalf of this application are such as not to expose a special leave point. All three judges in the Court of Appeal approached the question – I should say that the submissions I am presently advancing relate to the stay.

FRENCH CJ: Yes.

MR McARDLE: All three judges approached the material with the same legal principles in mind. There was no controversy in relation to those. They were, was there a miscarriage of justice because of irreversible prejudice occasioned by adverse publicity, irreversible insofar as it is not amenable to direction, adjournment or any of the other strategies available to a trial judge.

Now, what happened, your Honours, was that Justice Ashley took the view that this was such a case, that is to say, that it could not be remedied by direction. Justice Weinberg thought otherwise. Justice Nettle sided or agreed with Justice Ashley’s assessment of the situation but declined to make an order staying the retrial of the case. It was an appeal that was going to lead to a retrial for reasons unconnected with the application for a stay. So what we would say then is left is a question of an assessment of the facts, whether they fitted within the test about which there was no controversy. That being the situation, it is submitted there being no matter of principle exposed, it is not a suitable matter for a grant of special leave.

Now, your Honours, the other aspect of this case is that the order proposed by Justice Ashley was that there be a stay, that it was a stay pending a determination of a future trial judge. We are not at all sure where the power came from for such a proposed order. In fact, no such order was made because on this issue his Honour was in the minority. The question of whether or not the Court of Appeal should have stayed these proceedings was not, as we recollect it, part of the argument before the court. We would say, in any event, whatever be said, that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] HCATrans 30
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Dupas against his conviction for murder. The appeal concerned the admissibility of certain evidence and the fairness of the trial.

The central legal issues before the High Court were whether the trial judge erred in admitting evidence obtained through a covert recording of the appellant, and whether the trial judge adequately directed the jury on the issue of self-defence. The Court also considered whether the cumulative effect of certain alleged errors rendered the trial unfair.

The High Court held that the covert recording was lawfully obtained and admissible. The Court reasoned that the recording was made in circumstances where the appellant had no reasonable expectation of privacy, and its admission did not offend the principle of legality or any other established legal principle. Regarding the self-defence direction, the Court found that while the direction could have been more comprehensive, it was not so inadequate as to constitute a miscarriage of justice, particularly in light of the evidence presented. The Court ultimately concluded that no substantial miscarriage of justice had occurred.

The appeal was dismissed.

Orders