R v Dupas
[2006] VSC 481
•12 December 2006
Fpau
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1533 of 2006
| THE QUEEN |
| v |
| PETER NORRIS DUPAS |
---
JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 NOVEMBER 2006 | |
DATE OF JUDGMENT: | 12 DECEMBER 2006 | |
CASE MAY BE CITED AS: | R v DUPAS | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 481 | |
---
Criminal Law – Murder charge – Direct presentment without committal proceeding – Application for stay of proceeding pending hearing and determination of committal proceedings – Right of Crown to make direct presentment – s. 56(1)(a) Magistrates’ Court Act 1989, s.353 Crimes Act 1958 – Duty of Court to ensure fair trial - Role of committal proceedings - Emergence of new evidence from witnesses not cross-examined by defence at coronial inquest – Sufficiency of Basha inquiry to address right of accused to fair trial
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Rapke QC with | Ms A. Cannon |
| Mr Anthony Lewis | Solicitor for Public Prosecutions | |
For the Accused | Mr David Drake with | Victoria Legal Aid |
HIS HONOUR:
This is an application brought on behalf of Peter Norris Dupas (the accused) for a stay of proceedings (being a trial for murder) pending the conduct of a committal hearing. In order to properly determine whether it is appropriate to grant such a stay, it is necessary to understand the circumstances giving rise to the application.
On 1 November 1997, Ms Mersina Halvagis was murdered in the grounds of the Fawkner Cemetery. She died from multiple stab wounds. In about 1999 police attention was directed towards the accused, who, thereafter, became the major suspect for the killing. Ultimately, on 28 November 2005 a coronial inquest into the death of Ms Halvagis commenced to hear evidence. (It had been formally convened at an earlier date).
At the outset of that inquest the Director of Public Prosecutions, Mr Paul Coghlan QC (the Director) announced that the accused was the principal suspect but, at that stage, there was insufficient evidence for the accused to be charged and, thereafter, undergo committal proceedings.
One reason why the accused became the focus of police investigation was his conviction for two earlier murders involving severe knife attacks upon women. However, as became clear from the inquest evidence of the pathologist, Professor David Ranson, there were significant dissimilarities between the earlier stabbings and that of Ms Halvagis. Further, none of the forensic evidence from the crime scene linked the accused to the killing. There was material which in general terms might be referred to as identification evidence, of a person matching the accused’s description behaving in a suspicious or unsettling manner in the cemetery at a time proximate to the killing. But since some of these witnesses had come forward after images and other information about the accused had appeared in the media there were potential problems relating to the displacement effect and reliability.
Moreover, there were no admissions by the accused about any involvement in the crime, although he had been interviewed as a suspect for the murder by the investigating police in 2002 and 2003.
The coronial inquest continued spasmodically until 1 August 2006. It occupied a period of 10 sitting days and included a view of the crime scene.
It is not disputed that all of the evidence which, at that time, was regarded as significant, was presented to the coroner. Indeed, a brief containing signed and sworn statements from 76 potential witnesses was compiled; of these, 35 were called to give evidence. Counsel for the accused cross-examined all but three of them. No request was made by counsel for further witnesses to be called.
I interpolate that whilst defence counsel acknowledged that his extensive cross-examination of the witnesses was in the context of this accused being a suspect for the murder, it was put that the accused was not present to provide instructions. Given that the defence was non‑involvement in the crime, it is difficult to pin-point what difference, if any, the accused’s presence would have made up to this point, in the inquest.
On 11 September 2005, and prior to the conclusion of the inquest, the accused was charged with the murder of Mersina Halvagis. On the same day the Director signed a presentment and the accused was served with a Notice of Trial. The original presentment was filed in this Court on 26 September 2006. The legislative warrant for presenting the accused directly for trial in the Supreme Court is found in s.353 of the Crimes Act 1958.
The genesis of this unexpected course of action lay in the obtaining by the investigators of a statement from a former solicitor, Andrew Fraser, who was serving a term of imprisonment for drug offences. In that statement, Mr Fraser alleged that admissions of involvement in the killing of Ms Halvagis were made to him by the accused during their association at Port Phillip Prison in 2003 and 2004. The statement itself was sworn on 28 June 2005 but it had been removed from the inquest brief because Mr Fraser was not prepared to give evidence until he had been released from custody. It appears that the statement came into being as the result of an approach to the then prisoner by Detective Senior Constable Paul Scarlett of the Homicide Squad.
There can be no doubt that on the state of the material the Crown would have no case without the evidence of Andrew Fraser.
The defence contend, and with good cause, that without the opportunity to cross-examine Mr Fraser as to the contents of his statement and to further cross-examine Detective Senior Constable Scarlett as to the circumstances giving rise to the creation of the statement, the accused would be greatly disadvantaged. Indeed it was put that he would be deprived of a fair trial.
The exercise of cross-examination which, it was submitted, ought to be by way of a committal hearing, was estimated to take 2-3 days. The Court was informed that enquiries made of the Magistrates’ Court had elicited the information that a committal hearing of this length could not be scheduled until some time in June 2007.
The Crown conceded that the cross-examination foreshadowed by the defence was appropriate but submitted that it could occur in the form of the procedure known as a Basha inquiry[1] supervised by a Supreme Court judge (probably the trial judge). If this occurred the trial itself could be heard in June or July 2007. On the other hand, if the matter were to proceed by way of committal, the likelihood was that the trial would not commence until some time in 2008. Two consequences were said to flow from such further delay. First there would be the adverse effect upon the Halvagis family who had already suffered enormously. Secondly, after a period in excess of nine years, further delay could effect the memories and potential reliability of a number of witnesses, most of whose evidence related to identification. It was put that a number of these persons were elderly and frail. This latter assertion, insofar as it founded an argument about their ultimate capacity to give evidence, was questioned by the defence in the absence of any material to that effect being placed before the Court. In any event it is well recognised that the effluxion of time has the capacity to erode the quality of the evidence adduced. On that ground alone, delay is rightly regarded as undesirable.
[1]R v Basha (1989) 39 A Crim R 337.
An application of this type has been the subject of consideration by this Court on only one previous occasion. This was by Gillard J in Williams, Brincat and Traglia v DPP[2]. I will refer as necessary to the legal analysis in that case in the course of this ruling.
[2][2004] 151 A Crim R 42.
The statutory provisions, so far as relevant, are found in s.56(1)(i) of the Magistrates’ Court Act 1989 and s.353 of the Crimes Act 1958. Their combined effect is that a committal proceeding must be held in all cases where a defendant is charged with an indictable offence except where, pursuant to common law or s.353 of the Crimes Act 1958, a presentment is preferred by the Director without a committal proceeding having been conducted.
However, as was made clear in Barton v The Queen[3], although the decision by an Attorney-General (and now by analogy a Director of Public Prosecutions) to initiate proceedings by direct presentment is not susceptible to examination by a Court, once the criminal proceeding is before the Court it has the power to control that proceeding in order to ensure that an accused receives a fair trial.[4] The theme of the judgments in Barton’s case is of the capacity and responsibility of a Court to regulate the criminal process in order to accord an accused person a fair trial. The question with which the High Court grappled in that case was whether the conduct of a committal hearing was a necessary pre-requisite for a fair trial. Despite the fact that this decision was prior to the introduction of the hand-up brief containing statements of prosecution witnesses on oath and was before the adoption of the Basha inquiry, none of the judges expressed the view that a committal hearing was essential for a fair trial.
[3](1980) 147 CLR 75.
[4]Gibbs ACJ and Mason J at 95; Aicken J agreeing, at 109.
The strongest statement in Barton’s case in favour of the committal process was made by Gibbs ACJ and Mason J (Aicken J agreeing). It was as follows:[5]
"It is now accepted in England and Australia that committal proceedings are an important element in our system of criminal justice. They constitute such an important element in the protection of the accused that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair." (My emphasis.)
[5]Ibid at 100.
As can be seen, even this forcefully expressed view was not unqualified.
A different emphasis is discernable in the judgment of Stephen J:[6]
"The fair trial of an accused does not, in my view, require as an essential pre-requisite that it should be preceded by committal proceedings. The contrary view would place a significant practical qualification upon the Attorney-General’s unexaminable power to file ex officio indictments, a power which applies to ex officio indictments generally without distinguishing between those filed after discharge by a committing magistrate and those filed in the absence of any committal proceedings. It is one thing freely to acknowledge that power while retaining for the courts the not inconsistent duty of ensuring that in each individual case the accused has a fair trial; it is quite another to treat the Attorney-General’s power as never properly exercised in the absence of prior committal proceedings. Their absence will, however, always call for careful evaluation by the trial court of all the circumstances, lest the consequent prejudice to the accused should be such as to have deprived him of a fair trial. Committal proceedings are an important part of the protection ordinarily afforded to an accused in the criminal process and for the accused to be deprived of them necessarily puts a court upon enquiry."
[6]Ibid at 104-5.
In his judgment, Wilson J, whilst agreeing with Gibbs ACJ and Mason J that "the courts may postpone or stay the trial of any indictment in circumstances where such action is necessary to prevent an abuse of process and ensure a fair trial for the accused person" went on to state:
"However I am unable to agree with their Honours that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair."[7]
[7]Ibid at 109.
Justice Murphy stated that he agreed generally with the reasons of Wilson J. He went on to remark[8]:
"Trial by jury without previous committal proceedings can and should be stayed until the accused has been given discovery by proper particulars and notice of the evidence to be tendered against him. But this does not entitle any court to decline to proceed on an indictment filed by the Attorney-General until there have been committal proceedings. This would be to deny in substance the Attorney-General’s right to file an ex officio indictment."
[8]Ibid at 107.
I reiterate that these judgments preceded the procedural innovations to which I have referred and which address at least some of the judicial concerns. Consequently, one may view this decision as the high watermark on this subject. Nonetheless, all the judges were of the opinion that one of the indictments considered in that case (referred to as the Harbourside indictment) should proceed to trial despite the absence from the committal proceedings of a key prosecution witness.
Nothing I have said should be taken as denigrating from the importance of committal proceedings in the administration of the criminal law. Indeed, my views are encapsulated in the Report of the Advisory Committee on Committal Proceedings released in February 1986. However, in an application of this sort the necessity of a committal proceeding must be assessed not by a reflexive recourse to a broad general principle, but by a realistic and pragmatic view of all the circumstances.
The approach to this type of application is spelled out in the joint judgment of Gibbs ACJ and Mason J in Barton's case:[9]
"… we have to determine where on balance the interests of justice lie. We must have regard to the interests of the Crown acting on behalf of the community as well as to the interests of the accused."
However, whatever formulation is adopted, there exists an overriding necessity that the accused be accorded a fair trial.
[9]Ibid at 101.
In Williams' case, Gillard J expressed the view that the burden of persuading the Court to grant a stay was borne by the accused.[10] Whilst I agree with his Honour's view that the onus is initially on the accused to advance material in support of an application of this nature, I am not convinced that the accused bears any particular burden of persuasion. Once the Court is seized of the matter then the Court itself must embark upon the balancing process to which I have referred.
[10]Ibid at 49.
In any event, whether this represents a correct approach or one too favourable to the accused does not, in the circumstances of this case, affect my conclusion.
In this case, like that of R v Smith & Ors[11], the only previous murder trial where a direct presentment was preferred without committal proceedings, there had been a coronial inquest. Indeed, the defence in the present case conceded that, having had the benefit of an inquest, there were currently only two witnesses for whom cross-examination would be required.
[11][1995] 1 VR 10.
The Crown as I have indicated submitted that this could be satisfactorily achieved through a Basha inquiry.[12]
[12]This pre-empanelment cross-examination of Crown witnesses was approved in Victoria in DPP v Denysenko & Ors [1998] 1 VR 312 per Brooking JA at 316.
Unlike Williams' case, in which it was predicted that a Basha inquiry would occupy a Supreme Court Judge for some four sitting weeks, the estimate of defence counsel in the instant case is two to three days.
In my view the adoption of the Basha procedure would avoid the exacerbation of the undesirable effects of delay which I have previously enunciated and which would inevitably be occasioned by a stay of proceedings pending the conduct of a committal. The catchcry "justice delayed is justice denied" is not limited to a defence perspective.
The procedure proposed by the Crown would duplicate that of a committal hearing in enabling the accused to have precise knowledge of what the witnesses Fraser and Scarlett assert about the circumstances of the alleged admissions and in enabling the cross-examination of each of them.
What the defence would notionally lose (as articulated by counsel) is the opportunity to have a Magistrate discharge the accused if the evidence was regarded as insufficient to support a conviction, together with a consequent loss of the right to costs. However, it seems to me that, from a practical perspective, the former is illusory. It could only occur if a Magistrate formed the view that the witness Fraser had no credibility whatsoever. Even if that were to occur, the Director could, nonetheless, present the accused for trial, taking the view that credibility was essentially a jury matter. Further, should the matter proceed by way of a Basha inquiry, it would be open to the trial Judge to accede to an application by counsel for a permanent stay of prosecution in the (admittedly exceptional) circumstances adverted to by the Court of Appeal in R v Smith & Ors[13].
[13]Ibid, see per Brooking JA p.16; Byrne J p.29; and Eames J p.41-42. This decision was subsequently overturned by the High Court but without ruling upon this aspect of the matter. See Smith & Ors v The Queen (1994) 181 CLR 338.
Moreover, the issue of whether the Crown could advance a witness as credible and truthful may be raised as the result of a Basha inquiry in the same way that it may emerge from committal proceedings.
On the issue of the recovery of costs, given that the accused is represented by Victoria Legal Aid, I regard this as a makeweight submission.
It was also submitted by defence counsel that one problem inherent in a Basha inquiry is that it might result in the emergence of further avenues requiring investigation by the defence which the time constraints of an impending trial would prevent. This concern could be addressed by holding the Basha inquiry a reasonable period of time (perhaps one or two months) before the trial date.
The desirability of expediting this murder trial from the point of view of the witnesses, of the relatives of the deceased, and of the community, is in my view manifest. Moreover, the adoption of the course proposed will not deprive the accused Dupas of a fair trial. The absence of committal proceedings must be seen in the context of the accused having had the benefit of a coronial inquiry and of being given the opportunity to cross-examine Messrs Fraser and Scarlett in a Basha inquiry.
On balance the interests of justice in this case clearly lie in the trial proceeding as soon as possible. Accordingly, the application to stay proceedings pending a committal hearing is refused.
---
0
3
0