R v Dupas (No 3)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 783 of 2007

THE QUEEN
	v
PETER NORRIS DUPAS (No 3)

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JUDGES	NETTLE, ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 April 2009
DATE OF JUDGMENT	17 September 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 202
JUDGMENT APPEALED FROM	R v Dupas [2007] VSC 305 (Cummins J)

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CRIMINAL LAW – Murder – Appeal against conviction – Whether pre-trial publicity productive of such injustice as to cause trial to miscarry – Whether judge erred in refusing to order that trial be permanently stayed – Identification evidence – Domican warning – Whether judge’s directions as to identification evidence adequate – Consciousness of guilt – Lies – Whether lies admissible as evidence of guilt – Other post-offence conduct – Whether evidence of other post-offence conduct received as evidence of guilt – Whether judge erred in failing to give Edwards direction in respect of such post-offence conduct – Prison informer – Pollitt warning – Whether judge’s directions as to prison informer’s evidence adequate – Charge – Whether unbalanced – Verdict – Whether reasonable – Appeal allowed – New trial ordered.

Domican v The Queen (1992) 173 CLR 555, Edwards v The Queen (1993) 178 CLR 195, Pollitt v The Queen (1991) 174 CLR 558.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Victoria Legal Aid

NETTLE JA:

On 9 August 2007 the applicant was convicted on the murder of Mersina Halvagis at Fawkner on 1 November 1997. This is an application for leave to appeal against the conviction on a range of grounds. The facts of the matter are set out in the judgment of Ashley JA. For the reasons which follow, I would allow Grounds 5 and 6 and order that a new trial be had.

Grounds 2 and 6: Identification Evidence

It is convenient to begin with Grounds 2 and 6 and to deal with them together. Under Ground 2, the applicant contended that identification evidence given by the witnesses Burman, Melnik and Weller was inadmissible, or should have been excluded by the judge in the exercise of discretion and, under Ground 6 the applicant contended that, if the evidence were properly admitted, the judge erred in the directions which his Honour gave to the jury concerning that evidence and that caused the trial to miscarry.

I reject Ground 2. I agree with Weinberg JA, for the reasons he gives, that the evidence was admissible and that the judge did not err in the exercise of his discretion in refusing to reject it.

I take a different view concerning Ground 6. I consider that the directions were inadequate. The law on the directions to be given to juries concerning disputed identification evidence appears to be clear. The High Court has laid down that a trial judge must warn the jury as to the dangers of convicting on such evidence and has said that, although the terms of the warning need not follow a particular form:

it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case’. A warning in general terms is insufficient. The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.[1]

[1]Domican v The Queen (1992) 173 CLR 555, 562 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) (citations omitted).

In this case, in my opinion, the judge did not comply with those requirements. His Honour gave the jury the general warnings prescribed by Domican. He instructed them that:

You must be cautious before you act on identification evidence and you must be very careful in considering that evidence. You all know from your everyday experience, ladies and gentlemen, that honest people can be wrong in identifying someone. That is also, ladies and gentlemen, the experience of the law and I tell you that fact, that honest people can be wrong in identifying persons and in the past, have been wrong in identifying persons. Further, because very often identification witnesses are honest and the question is not whether they are honest but whether they are reliable and accurate, that evidence can be seductive in the sense that they can look good but they can be wrong. So the issue with these identification witnesses is not, are they honest or not, but are they accurate and reliable or not? … The experience of the law shows that and your experience of life would also show that and you must be very careful in considering identification evidence.
I will give you two further warnings, ladies and gentlemen. You must not add some outside fact to an identification witness’s evidence and use that outside fact to bolster the identification witness’s evidence. You look at the identification evidence itself as identification. Further, you must not add another identification witness to the one you are considering and use that other identification witness to bolster the one you are considering. Again, you examine the identification witness on a stand alone basis, are they accurate and reliable, or not? This is a further direction of law but I’m sure it coincides with your experience of life, ladies and gentlemen. In considering identification evidence, you consider all the factors which you consider could bear upon the accuracy and reliability of identification evidence. Obvious ones are the state of the lighting, the distance between the witness and the person observed, the length of time of the observation, the reason or the lack of reason for a witness to notice the other person or to notice their features, the fact that the witness had not seen the other person before and did not therefore recognise them, the lapse of time between the event and having to recall it and the circumstances of when the witness did recall it and in particular, whether in the circumstances of recall, not only was there a lapse of time and how much, but were there any interfering factors in the circumstances of recall; what technically is called displacement. That simply means that later images intervene between the event of the recollection and displace the original image in your mind and you remember the new image, not the original image because it has been displaced. They are all factors you look at, ladies and gentlemen, in considering identification evidence. That is the experience of the law and I am sure that is equally your common sense and experience of life, ladies and gentlemen.

Of course, once you have properly exercised caution and care in assessing identification evidence, you may act on the evidence as indeed the prosecution has submitted you should but always approach it with caution and care, ladies and gentlemen, bearing in mind what I have said.

The judge did not, however, direct the jury as to any of the matters specific to the case which might reasonably be regarded as undermining the reliability of the identification evidence, or even the matters referred to by counsel as affecting the reliability of the identification evidence; still less direct the jury that they were bound to take those matters into consideration in determining whether they could rely on the identification evidence.

As Vincent JA observed in R v Debs and Roberts,[2] general directions of the kind prescribed by Domican serve as an introduction designed to draw the jury’s attention to the nature of the problem and some of the matters which may impact on the reliability of evidence of visual identification. But in view of what was said in Domican, the matter cannot be left there. A trial judge is required to address the particular evidence given in the trial and thus by reference to the evidence to isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification.
[2][2005] VSCA 66 [267].

In this case, in my view, Domican required the judge to identify in relation to each identification witness individually each matter which it was apparent from the evidence was capable of undermining the reliability of the witness’s identification of the applicant; to explain the possible significance of each such matter by reference to the evidence which bore upon it; and, in particular, by reference to the evidence, to explain the possibility that each witness’s evidence was to a greater or lesser degree possibly affected by delay and displacement. Since the judge did not undertake that exercise, in my view his directions were deficient.

Admittedly, as Weinberg JA points out, defence counsel made extensive submissions to the jury on the factors which conceivably undermined the reliability of each identification witness’s evidence, including a detailed explication of the displacement effect and how it may have operated in each case. Further, as can be seen in the judge’s brief general directions on identification which I have set out above, his Honour also referred to the displacement effect and gave a brief explanation of its operation, albeit without reference to the evidence which bore upon that possibility. Additionally, towards the end of the charge, his Honour summarised all of the evidence, including the identification witnesses’ evidence in chief and cross-examination; and, as well as that, the judge summarised counsel’s arguments, including defence counsel’s submissions as to the unreliability of the identification witnesses’ evidence, and the possibility that their evidence was affected by the displacement effect. Arguably, the result of all that was sufficient to bring home to the jury the need to consider the factors which undermined the reliability of the identification witnesses and in particular to have regard to the displacement effect as defence counsel had requested them to do. Nevertheless, according to Domican, the applicant was entitled to have the benefit of a direction which had the authority of the judge's office behind it and, for that purpose, a warning in general terms even when coupled with reference to counsel's arguments is insufficient.

There are some cases where it is open to conclude that a deficiency in Domican directions has not been productive of a miscarriage of justice.[3] Debs and Roberts[4] was a striking example of that kind in which the strength of the Crown case, and the relative insignificance of the identification evidence, impelled the conclusion that the deficiencies in the Domican warning could not have made a difference. But this case is not of that type. Here, the identification evidence formed a significant, if not essential, part of the Crown case; and the jury’s perception of the identification evidence was likely to vary profoundly according to their understanding of the factors which affected its reliability. In the case of two of the identification witnesses,

and to some extent also in the case of the third, there was a powerful displacement argument (based upon the influence of media publicity on the witness’s identification of the applicant). But in the absence of a specific judicial direction on the point, the jury may have failed to give it the attention it deserved.
[3]See, for example, R v Mendoza [2007] VSCA 120 [45] (Vincent JA).
[4][2005] VSCA 66.

This was a long and difficult trial in which the applicant started with the extraordinary disadvantage that the jury was told that he had twice before been convicted of the murder of women and they knew that he had been judged by the media to be guilty of the murder of Miss Halvagis. Consequently, even assuming that the jury strove to act impartially, they are still likely to have regarded the applicant with a degree of suspicion and hostility which not even the clearest of directions could wholly overcome. They may also have viewed defence counsel, or at least his arguments on behalf of the applicant, with a concomitant degree of suspicion and hostility, and so been more than usually inclined to view the arguments on behalf of the accused as the dissemblance of a guilty man. At least, one may rationally suppose that the jury would have been disinclined to accord the defence arguments the attention which they warranted unless specifically directed by the judge to take them into account.

In such circumstances, the applicant was entitled to a trial ’conducted with all safeguards the law can provide’.[5] In this context, that meant jury directions which complied strictly with Domican. And in my view, it is not open to conclude that proper directions in accordance with Domican, with the full weight of the judge’s authority behind them, could not have made a difference.
[5]See [63] below.

It follows, in my judgment, that the judge’s failure to abide by Domican was productive of a miscarriage of justice.

Ground 4:Admissibility of Evidence of Lies as Evidence of Consciousness of Guilt

Under Ground 4, it is alleged that the judge erred in admitting, as evidence of consciousness of guilt, evidence that the applicant told several lies to the effect that he had never been to the Fawkner cemetery and did not have any relatives or other persons whom he knew buried in the cemetery.

The first lie was one alleged to have been told by the applicant to Detective Bateson on 12 February 1998, in substance that he had never been to the Fawkner cemetery and did not know anyone who was buried there.

The second lie was alleged to have been told by the applicant to a former priest, Patrick O’Brien, in April 1999, in substance that he had never been to Fawkner cemetery and did not have any relatives buried there.

The evidence on which the Crown relied to establish that the statements that the applicant had never been to the cemetery were lies was the evidence of the identification witnesses, Burman, Melnik and Weller. The evidence on which it relied to establish that the statements that the applicant did not know anyone buried in the cemetery and did not have any relatives buried in the cemetery was evidence given by John Saward that the applicant had told him in 1997 before the deceased’s death that the applicant’s grandfather was buried in the cemetery and evidence given by Margaret Newman that the applicant had told her on a date before 1 January 1998 that there was someone he knew who was buried there.

Defence counsel submitted before the judge below that the evidence should not be admitted because it was too imprecise in its terms and because it was impossible to say that, if the statements were false, they were lies told out of consciousness of guilt of the offence charged.

The judge rejected those objections as follows:

It is said by the prosecution that both those pairs of the statements can be shown to be lies, that is to say deliberately untrue as distinct from merely erroneous, on two differential bases. The first is the evidence before this jury of identification witnesses [Mrs] Burman, Mr Weller and [Mrs] Melnik who, if the jury accept, give evidence of the presence of the accused at the Fawkner Cemetery on the very day of the murder, 1 November 1997, but prior to the murder. If that evidence is accepted, that is evidence the jury is capable of acting upon that the accused indeed had been to the Fawkner Cemetery on 1 November 1997. The second category is said by the prosecution to be capable to be demonstrated as being a lie by reason of the evidence of two civilian witnesses, Mr John Saward and Ms Margaret Newman. Mr Saward, a carpenter, had a relationship with Ms Newman. Mr Saward gave evidence as appears at p.1052 that he and Mr Dupas who had struck up a friendship because of their common interest in woodwork were driving past the Fawkner Cemetery in the first week of September 1997 and, quoting Mr Saward's evidence at page 1052, ‘He said his grandfather was buried in there somewhere. I asked him did he know where his grandfather was buried and he said he didn't.’ That matter was again touched upon in cross-examination without traverse at pp.1055 and 1056. In relation to [Ms] Newman, she said that, on a date, unspecified but on the evidence the inference arises that it was prior to January 1998 at the latest, the accused said that ‘there was someone there’, someone buried in the Fawkner cemetery. She went on to say, ‘I couldn't say for sure who it was’.
First, looking at the question of whether the statements can be demonstrated to be lies by independent evidence, I consider that it is quite clear that the statements are capable of being demonstrated to be lies by reason of the conflict between the clear and unequivocal statements of the accused to the police officer and the priest on the one hand and the antecedent statements of the accused to a Mr Saward, the woodworker, and his companion, [Ms] Newman. That is in relation to knowing his grandfather or a relative was buried in Fawkner Cemetery. As to never having been to Fawkner Cemetery, the evidence if accepted of the witnesses [Mrs] Burman, Mr Weller and [Mrs] Melnik contradicts that. Thus, there is a proper evidentiary basis for the jury, if it were satisfied, concluding that the statements of the accused to Senior Sergeant Bateson and Mr O'Brien were both untrue and deliberately so, that is to say, were lies and not merely errors.
Next, the lies are precise and coherent, not vague and uncertain. The circumstance that one is a relative and one is a category, in my view, is a matter of detail. Next, I consider they relate directly to a material issue in this case, that is to say, the presence of the accused at the Fawkner cemetery on the day of the murder. They are capable of showing a consciousness of the accused falsely to distance himself from the cemetery, that is, the cemetery in which the crime of murder was committed. The jury is entitled, properly instructed, to conclude that the statements were clear, were deliberately false, can be demonstrated by independent evidence to be false and were lies as contemplated in the line of authority commencing effectively with R v Lucas[6] and in its best known articulation, Edwards v R.[7]
There is a raft of authorities on the question of lies and consciousness of guilt, which is why I adjourned overnight to reread them … I am satisfied that the criteria articulated principally in Edwards v R but developed in numerous cases up to the present, including R v Ciantar,[8] are properly satisfied in this case. Of course it is for the jury to decide what evidence they accept. My role is to ensure that they are not given a wrongful mode of reasoning and that is the function I am presently directing myself to.

[6][1981] QB 720.

[7](1993) 178 CLR 193, 210-211 (Deane, Dawson and Gaudron JJ).

[8](2006) 16 VR 26, 55 [103] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA).

It was contended in the applicant’s written outline of argument that the arguments advanced below against the admissibility of the evidence should have been accepted. But counsel for the applicant did not advance any submissions in support of that contention other than to say that he relied on the arguments advanced below. In my view, the judge was right to reject the arguments for the reasons which his Honour gave.

I reject Ground 4.

Ground 5: Post Offence Conduct Amounting to Evidence of Consciousness of Guilt

In the course of final address, the prosecutor referred to a number of acts of post-offence conduct which in his submission were more than just coincidences and in combination with other evidence amounted to an overwhelming case of guilt:

… in the days after that murder of Mersina Halvagis you know Mr Dupas is getting new glasses. Maybe he wanted the particular glasses with the particular lenses that you’ve heard evidence about. But of course it’s well known that a change in glasses can lead to a change in appearance, a different aspect. Is it just coincidence that within a few days, a handful of - just over a handful of days [after] the murder, Mr Dupas is getting new glasses?
As I say it’s nothing particularly significant on its own but it has much greater significance when it’s taken in conjunction with all the evidence and the same comment can be made about the evidence you heard about discussion that the accused man had with Ms D’Alberto, the mobile hairdresser. At a time both before and after 1 November 1997, as Ms D’Alberto told you, the accused wanted to change his hairstyle and over time he became more determined to change his hairstyle and what was the nature of the change? It related to the fringe. He wanted to have a part because, as you will see from that FACE image produced by [Mrs] Burman, one significant feature is the fringe, the hairstyle itself … It’s another piece of bad luck for Mr Dupas, there’s evidence that he did change his hairstyle after the events of 1 November 1997. Certainly by February the following year.
There’s more bad luck for Mr Dupas if he is not the murderer of Mersina Halvagis, because he had a family connection with the cemetery, the Fawkner cemetery. His grandfather is buried there. But he significantly, lies about that.
…
The point I am seeking to make is that all these matters just build up such an overwhelming case against Peter Dupas, and it [is] not just one piece of evidence, it’s piece after piece after piece, which when added to the whole picture, provide an overwhelming case of guilt of the murder of Mersina Halvagis.

Under Ground 5, counsel for the applicant argued that the logical sub-text of the prosecutor’s submission was that the applicant was conscious of his guilt of the deceased’s murder and was seeking to change his appearance in order to avoid detection. Therefore, it was said, it was incumbent on the judge to direct the jury in accordance with Edwards v The Queen[9] that they were not to treat that conduct as evidence of consciousness of guilt unless satisfied that it occurred and that the only explanation for it was consciousness of guilt.[10]
[9](1993) 178 CLR 193.
[10]See Woolley v R (1989) 42 A Crim R 418, 423 (Murphy, Marks and Gobbo JJ); R v Ciantar (2006) 16 VR 26, 49 [74]-[87] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA).

I accept that submission. Despite the submissions of counsel for the respondent to the contrary, it appears to me to be clear that the purpose and effect of the prosecutor’s submission was to persuade the jury that they should regard the applicant’s conduct in purchasing new spectacles and changing his hair style as implied admissions of guilt and, in those circumstances, I consider that it was incumbent upon the judge to direct the jury in accordance with Ciantar as to the matters of which they needed to be satisfied before treating it in that fashion.[11] In my view, the judge’s failure to give those directions amounted to a miscarriage of justice.
[11]R v Cuenco (2007) 16 VR 118, 123 [15]-[16] (Nettle JA).

If this ground of appeal were the only ground of appeal made good, a question would arise as to whether the proviso could be applied. Since I have concluded, however, that ground 6 has been made out, in respect of which the proviso could not be applied, I do not stay to address that problem.

Ground 7: Inadequate Pollitt Warning

The thrust of Ground 7 is that the judge did less than was required in warning the jury of the dangers of acting on the evidence of Andrew Fraser; in particular, by failing to warn the jury of each specific matter which could reasonable be regarded as undermining Fraser’s credibility.

In Pollitt v The Queen,[12] several members of the High Court expressed differing views as to how far a trial judge must go when warning a jury of the dangers of convicting on the basis of the evidence of a prison informer.
[12](1991) 174 CLR 558.

Dawson and Gaudron JJ (with whom Brennan J agreed on this point) said that there was no rule of law or practice which identifies the evidence of prison informers as requiring corroboration. But they added that it is always the duty of a trial judge to warn of the dangers of convicting on evidence which is potentially unreliable and that it would only be in an exceptional case that the evidence of a prison informer would not fall into that category. It followed, they said, that a trial judge should ordinarily warn the jury that it is dangerous to convict on the evidence of a prison informer unless corroborated by other evidence connecting or tending to connect the accused with the offence charged. They concluded, however, that the following warning given by the trial judge was sufficient for that purpose:

[The prison informer] is a person with a long criminal history. He is a person one would describe as being of bad character or, as [counsel] put it, a tainted person or certainly up to comparatively recently. When considering the evidence of such a person commonsense dictates that you scrutinize it very carefully.
It does not automatically follow from the fact that [the prison informer] has a criminal record and has been a person of bad character that his evidence will be untrue. Nevertheless, experience has shown that persons of that calibre may -- and I stress the word `may' -- have motives for not telling the truth. So when considering what weight you will attach to his evidence it is wise to look for independent evidence which corroborates his account, that is, evidence from some other acceptable source which implicates the accused man in the crime.
…
When you are dealing with such a person you must scrutinize his evidence very carefully when determining what weight you attach to it. You will also look to see if there is independent evidence you accept which corroborates the evidence of the witness in question. As I have said to you on a number of previous occasions such persons may have motives for lying. You must look at their evidence very carefully.[13]

[13]Ibid 613.

Deane J, was similarly inclined. He held that, because the evidence of the prison informer in Pollitt was liable to be unreliable for a number of reasons which he stated,[14] it was necessary that an ‘appropriate warning’ be given. His Honour said, however, that:

It would be unwise to seek to formulate in the abstract the contents of an appropriate warning for every case where the prosecution places significant reliance upon the evidence of a prison informer. Such a warning is most likely to be understood by a jury and to be effective if it is moulded in the words of the trial judge to fit the circumstances of the particular case. The most that should be said is that there will inevitably be cases where the minimum necessary warning will be in unqualified terms which draw attention to the fact that the evidence is of its nature potentially unreliable, which stress the need for very careful scrutiny of it and which warn that it would be dangerous to base a conviction upon it.[15]

[14]Which Deane J identified as being: (1) such evidence is easily concocted; (2) an accused is ordinarily denied corroboration of his denial of the alleged confession; (3) a prison informer is liable to be of bad character; (4) a prison informer may be motivated to fabricate evidence in the hope of deriving some benefit in terms of sentence, treatment or release on parole, or because of a variety of pressures which may easily arise in a prison but not be immediately apparent to a jury; (5) in that case, the informer claimed to remember the alleged confession ‘nearly word perfect’ years after the event; (6) in that case, the informer had an extraordinarily bad criminal record, was serving a life sentence, was at least partly motivated by the desire to receive favourable treatment from the authorities, and had received some.

[15]Ibid 588.

Deane J added that it would have been preferable for the judge to direct the jury ‘in unqualified terms which draw attention to the fact that the evidence is of its nature potentially unreliable’ for the reasons stated. But he concluded that, when considered in the context that defence counsel had not sought any further direction than was given, the direction which was given satisfied the requirement ‘that an appropriate direction be given to warn the jury of the potential unreliability of the evidence’.[16]
[16]Ibid 589-90.

Toohey J also considered that a trial judge must ordinarily warn of the risks of convicting upon the uncorroborated evidence of a prison informer. But his Honour was more specific as to what the warning should contain. He said that:

the warning to the jury should be couched directly in terms that it is dangerous to convict upon the evidence of a person who is a prison informer, that such evidence should be scrutinized with great care and that the jury must be satisfied beyond reasonable doubt as to the guilt of the accused, having regard to the potential unreliability of the evidence of a prison informer and the risk of a miscarriage of justice by attaching too much importance to it. The direction should be properly tailored to the circumstances of the particular case. This will ordinarily require the trial judge to refer specifically to those facts which are likely to render the evidence of the witness unreliable.[17]

[17]Ibid (emphasis added).

Toohey J concluded, however, that, in the particular circumstances of the case, including the circumstance that defence counsel had not sought any further warning, the warning given was adequate ‘to alert the jury to the dangers of acting on [the informer's] evidence’; or at least that ‘No miscarriage of justice was likely to have resulted from that aspect only of the direction’.[18]
[18]Ibid.

McHugh J went further than the other members of the court. He held that:

If accused persons are to be protected against the dangers arising from the evidence of prison informers and the fairness of criminal trials are to be ensured, juries must be directed as to the danger of acting upon such evidence. Ordinarily, that will mean that the jury must be directed that it is dangerous to act on that evidence where the account of the prison informer is not substantially confirmed by independent evidence. Thus, if the informer alleges that the accused has confessed to the crime, it will be dangerous to act on his evidence unless the making of the confession is substantially confirmed by independent evidence. If the informer alleges that he saw or heard the accused do or say something which incriminates the accused, it will be dangerous to act on the allegation unless the doing of the act by the accused or the making of the statement is substantially confirmed by independent evidence. Only in the most exceptional case, if at all, could the evidence of a fellow prisoner be regarded as independent evidence for this purpose. Furthermore, the jury should be warned not only as to the inherent or general danger of acting upon the evidence of a prison informer but, where appropriate, instructed to consider any specific matters which could reasonably be regarded as undermining the credibility of the witness. Finally, the trial judge should draw to the jury's attention the particular matters which could reasonably be regarded as confirming the evidence of the prison informer.[19]

[19]Ibid 616-7 (emphasis added).

But like the other members of the court, McHugh J concluded that the warning given was adequate in ‘the very special circumstances’ of the case (including the circumstance that defence counsel had not sought a further direction) ‘to bring home to the jury the danger of acting on the evidence of [the informer]’.[20]
[20]Ibid 617.

In this case, the judge gave the following warning:

Next, ladies and gentlemen, there is evidence in this case from Mr Andrew Fraser who at the relevant time was in gaol with Mr Dupas. I give you a direction of law in relation to the evidence of Mr Fraser as a person who was convicted of a serious crime and was in gaol. The experience of the law, ladies and gentlemen, and this direction also binds you, is that it is dangerous to convict on the evidence of prisoners who say another prisoner confessed to them. That is because of the obvious circumstance that first of all, the witness is a serving prisoner who has been convicted of a serious crime, second, the witness usually has something to gain or hopes to gain something such as early release and there is usually no other witness to the alleged admission.
So, ladies and gentlemen, the experience of the law is that such evidence from another prisoner is potentially unreliable and it is dangerous to convict on it. Therefore, ladies and gentlemen, you must scrutinise that evidence with great care before you act on it. Of course having scrutinised it with great care, including bearing in mind the directions of law I have just given you, you may act on that evidence as indeed the prosecution submits you should.

His Honour next summarised Fraser’s evidence in chief, including reference to Fraser’s testimony that the applicant had told him on more than one occasion that: ‘There was no forensic evidence at Fawkner’; that: ‘she [meaning the deceased] would not have seen [me] because [I] attacked her from behind’; and that the applicant had pantomimed killing the deceased. Then his Honour continued:

Well as you appreciate, ladies and gentlemen, it is strongly in dispute by the defence who say there was no pantomime, that is an invention of Mr Fraser. It is strongly in dispute that Mr Dupas ever said he’d ‘left no forensics at Fawkner’. That’s in dispute. But it wasn’t put in dispute that Mr Fraser gave Mr Dupas advice on the Maher matter. It was not in dispute that in the Maher matter the question of forensics arose, the glove left at the scene.
So what the prosecution says is there is no dispute about that, there is discussion about the forensics in the Maher matter and the prosecution says the next step, which the defence denies, is after the discussion about the forensics in the Maher matter of the glove Mr Dupas added, ‘I left no forensics at Fawkner’.
And what the prosecution relies upon is that it says that statement, ‘I left no forensics at Fawkner’ can only mean one thing, it can mean Mr Dupas was at Fawkner and was the killer. It is an implied admission that he was there at Fawkner and that he killed her. That is how the prosecution put that, ladies and gentlemen, and that is what is in dispute on that aspect of Mr Fraser’s evidence.
I have gone through that ladies and gentlemen, in a bit of detail because it is a bit complicated to see what is in dispute and what is not. There is no dispute that there was discussion about forensics with Ms Maher and the glove. The dispute is did Mr Dupas go on [and] say, ‘I left no forensics at Fawkner’? that is the issue between [t]he parties, ladies and gentlemen. And the prosecution says that is a clear implied admission that he had been at Fawkner and that he did the killing.
All right, that is the direction of law I give you in relation to the prison informant, that is to say Mr Fraser. I will of course take you through all the arguments about, to use [defence counsel’s] expression, ‘he [Fraser] was going for gold’ et cetera later on but I am just stating for you what the law is and what the issue there in relation to, ‘I left no forensics at Fawkner’ is about.

As can be seen, the directions thus given satisfied the requirement of warning the jury that it is dangerous to act on the evidence of a prison informer. They did not, however, refer to the need for corroboration (because the judge had determined that there was no evidence capable of amounting to corroboration). Nor did they go to the length of informing the jury that they must be satisfied beyond reasonable doubt as to the applicant’s guilt having regard to the potential unreliability of the evidence of a prison informer and the risk of a miscarriage of justice by attaching too much importance to it. They included three of the reasons identified by Deane J in Pollitt as to why a prison informer’s evidence is unlikely to be reliable, namely: (1) ‘that there is usually no other witness to the alleged admission’ (which presumably would have conveyed to the jury that the accused was denied means of corroborating his denial of Fraser’s testimony); (2) that ‘the witness is a serving prisoner who has been convicted of a serious crime’ (which presumably would have conveyed to the jury that Fraser was a witness of bad character); and (3) that ‘a prison informer usually has something to gain or hopes to gain something such as early release’. But the directions did not condescend to the specific reasons which, according to the defence case, made Fraser particularly unreliable.

Shortly after the judge had concluded those directions, defence counsel took three exceptions to them. The first was, in substance, that the manner of the judge’s delivery of the directions was not sufficiently authoritative. As defence counsel put it:

it’s my respectful submission that your Honour did not disclose any real judicial authority when you were directing them on the difficulty with informers. It seemed, with respect, that your Honour’s attention was rushed or delivery was rushed and not as firm as one would have liked at least from the defence point of view from the point of view of an authoritative statement from the Bench particularly, …
… Your Honour’s voice was fairly quiet and, with respect, you didn’t catch the eye of the jury, it seemed your Honour was thinking above like that and - - -
…
Well I’d rather your Honour fix the jury’s attention with both your tone of voice and the manner of presentation as your Honour’s quite capable of doing with me from time to time.

The judge dismissed that with the observation that it was fortunate that the proceedings were videotaped, which I take to be a suggestion that, if one views the video tape, it will be seen that there is nothing in the point. I have viewed the tape, therefore, and I agree that it shows that there is nothing in the point.

The second exception was that the judge had not referred to corroboration and that if the judge were of the view there was no corroboration he ought instruct the jury that it was dangerous to convict on Fraser’s evidence in the absence of corroboration and that there was no corroboration. After considering that matter over night the judge accepted that he should redirect the jury to the effect that there was no corroboration of Fraser’s evidence and, therefore, that the jury would have to be satisfied beyond reasonable doubt on Fraser’s evidence that the applicant had made the admissions to which Fraser deposed.

The third exception was that the judge had not tailored the direction to the circumstances of the case, as Deane J had said was necessary in Pollitt, inasmuch as he had not referred specifically to the facts which, according to defence counsel, were likely to render Fraser’s evidence unreliable. Defence counsel identified those as being: (1) when in prison, Fraser believed he could obtain early release if he assisted the police; (2) Fraser’s failure to mention the pantomime when first interviewed by police and his mention of it at the second occasion only after there was mention of a $1 million reward; (3) the $1 million reward itself; and (4) what counsel submitted was the inconsistency between the fact that the wounds which killed the deceased were wounds to the front of her body and the alleged pantomime which was of the applicant stabbing the deceased from behind. The judge ruled against that exception.

In the result, the only re-direction concerning Fraser’s evidence was as follows:

Next, ladies and gentlemen, in relation to the evidence of Mr Fraser, the three implied admissions the prosecution relies upon, that he left no forensics at Fawkner plus the demonstration [pantomime] of the attack. To rely upon Mr Fraser’s evidence in those respects for a conviction, you would have to be satisfied that that evidence is true. That is to say the words were said by Mr Dupas, he ‘left no forensics at Fawkner’ and that those words were true. That is because Mr Fraser’s evidence is, if you like, stand alone and the prosecution relies upon it as an admission of guilt, three admissions of guilt, three times, he ‘left no forensics at Fawkner’ plus the demonstration and you would need to be satisfied beyond reasonable doubt of that evidence to act upon that in finding the accused guilty.
Next, ladies and gentlemen, as a matter of law and I direct you on this, there is no independent confirmation in the evidence of what Mr Fraser said Mr Dupas told him. So you assess Mr Fraser’s evidence in that light and with that direction of law. Again, ladies and gentlemen, you have seen the witness give his evidence and be cross-examined, that is why you are here and bearing those directions importantly in mind you again decide whether you are satisfied beyond reasonable doubt on Mr Fraser’s evidence that the accused made those admissions as stated by Mr Fraser.

Counsel for the applicant argued that both the warning and the redirection fell short of what was required. He submitted that the warning was deficient because it failed to identify the specific matters which made Fraser’s evidence particularly suspect, and its effectiveness was further compromised by the way in which the judge had joined it with a re-telling of Fraser’s evidence. According to counsel, that was likely to have assured the jury of the cogency of Fraser’s evidence rather than emphasising its shortcomings. And the redirection was said to be ineffective because it came belatedly and was thus divorced from the body of the warning.

In my view, there is a degree of force in those submissions. Given the importance of Fraser’s evidence in the Crown case, it would have been better if the judge had referred specifically to each of the matters identified as reasonably capable of undermining the reliability of Fraser’s evidence, and specifically warned the jury of the need to take those matters into account in deciding whether they were persuaded beyond reasonable doubt that his evidence was true. It would also have been preferable if, when rehearsing the substance of Fraser’s evidence in chief, the judge had referred as well to the principal defects in Fraser’s reliability identified in cross-examination. Without the latter, there is some truth in counsel’s complaint that recitation of Fraser’s evidence tended to add to its credibility rather than highlight its deficiencies.

Nevertheless, it is apparent from the transcript of Fraser’s evidence and final addresses that defence counsel laid great stress on Fraser’s shortcomings as a witness and it seems to me that those weaknesses would thereby have been revealed to the jury. For example, in the course of Fraser’s cross-examination, defence counsel established that Fraser knew that, if the applicant were convicted, Fraser stood a good chance of getting a substantial part of a reward of $1 million which had been offered by the government to anyone offering information leading to the applicant’s conviction; Fraser had told the police when he was first contacted that he would not give evidence unless he got a substantial time off his sentence; it was only after Fraser was advised that the Crown would not consider reducing his sentence until and unless he had made a statement that he agreed to do so; it was only on the second occasion Fraser met police, after there was mention of the $1 million reward, that he disclosed that the applicant had told him that he had attacked the deceased from behind; it was only after the third visit that he told police that the applicant had pantomimed his killing of the deceased; Fraser had given incorrect sworn evidence in the course of a Basha inquiry, to the effect that he had not revealed to the Herald Sun newspaper while still in prison what he would say about what the applicant told him; and Fraser had told the police falsely that he had not revealed the contents of his statement to the Herald Sun newspaper.

Similarly, in the course of final address, defence counsel reminded the jury of the evidence which established that Fraser was a convicted drug trafficker and disgraced former solicitor who had taken unconscientious advantage of an innocent young woman to bring illicit drugs into the country; that he was motivated to give the evidence which he had, not out of concern for the deceased’s family as he claimed, but because he saw it as a get-out-of-gaol card with a million dollar reward; that he had not mentioned the applicant admitting he attacked the deceased from behind until after there was mention of the $1 million reward; that he knew that the reward would only be available upon the applicant’s conviction; that he had changed his evidence from what he had said at the Basha inquiry about not informing the press of the content of his statement; that he had not mentioned the pantomime to police until the third visit; and that, if the deceased were attacked from behind, as the applicant was alleged to have admitted, it was odd that she did not have one wound on the back of her body.

It is also to be observed that when directing the jury on the dangers of acting on Fraser’s evidence, the judge said that he would come later to defence counsel’s arguments pertaining to Fraser’s unreliability and that, when summarising counsel’s arguments, the judge specifically referred to a number of the matters which defence counsel had so identified in final address:

Finally, Andrew Fraser. …[Defence counsel] said Mr Fraser is only interested in one person, Andrew Fraser, no one else. The only reason he pleaded guilty in the County Court to the drug charges those years ago was not because he was a good person but because his office was bugged and he was gone and that is why he pleaded guilty, not through any decency and it was a disgrace what he put that young girl through, who could have faced, theoretically, life in prison and certainly was in gaol for a month anyway. [Defence counsel] said in relation to that girl, it was a despicable and low act.
He then said that in relation to Mr Fraser, Mr Fraser’s position is [that] he is in gaol, seven years with a minimum of five years before parole, an appeal had failed, his petition for mercy had failed and then a couple of years into that, Mr Scarlett [the investigating police officer] arrives playing a hunch. [Defence counsel] said this is his get out of gaol card and what’s more collect one million from the community chest, referring to the old game of Monopoly where you have got to get out of gaol card and you got a community chest. He said that is what went across the mind of Mr Fraser who is only interested in Mr Fraser. Whether it was a ride for a ride or a ride there or a ride back, it meant the same thing, ‘What’s in it for me?’.
[Defence counsel] poured scorn on Mr Fraser’s statement that he had forgotten about the demonstration [pantomime] the first time Mr Scarlett came down unannounced and only remembered it the second time[21] and said if that was true, you would never forget it. This witness said he forgot it, he did not forget it, he is making it up. You would not forget it.

[21]Sic, in fact the third time.

Counsel for the applicant contended that it was not enough for the judge to refer to points which had been made in final address, and in support of that contention he invoked the rule in relation to identification evidence warnings that mere repetition of counsel’s arguments is insufficient.[22] Counsel argued that, logically, that the same rule should apply to warnings as to the dangers of convicting on the evidence of unsatisfactory witnesses.
[22]Domican v The Queen (1992) 173 CLR 555, 564 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

There is some force in that submission too. Inasmuch as the informing principle of both Domican and Pollitt warnings is the idea that it is necessary for a judge to draw to the jury’s attention matters of which they might not recognise the significance, logic and commonsense suggest that, if it is necessary for the purposes of a Domican warning for a judge specifically to identify and warn of weaknesses which may reasonably be regarded as undermining the reliability of the evidence in question, it should also be necessary to do that for the purposes of a Pollitt warning.

As a matter of authority, however, it appears that it is not the case. For as has been seen, in Pollitt, which was decided some six months after Domican, the High Court regarded it as sufficient that the details had been dealt with in closing addresses and counsel had not seen fit to ask for a further direction.

It is true that, in this case, defence counsel did seek a direction that the jury take into account each of the weaknesses in Fraser’s evidence. In that sense, this case is distinguishable from Pollitt. But as was pointed out in Domican, if justice requires that a warning be given, a judge’s failure to give the warning cannot be excused on the basis of defence counsel’s failure to ask for it. The absence of exception is simply a factor from which it might be inferred that defence counsel believed that the jury did not need any more assistance to comprehend the point, and from that to infer it was so. Conversely, as it seems to me, when one is dealing with a Pollitt warning, the significance of the fact that defence counsel has taken exception is that it provides a basis from which to infer that defence counsel believed that the jury did need more assistance to comprehend the point. It does not mean that one is bound to conclude that the jury were in need of that assistance.

In this case, given defence counsel’s extensive cross-examination of Fraser on the matters which undermined his reliability, defence counsel’s final address in which he rehearsed each of those matters, the judge’s directions as to the danger in general of acting on the evidence of prison informers having motives to lie, and his Honour’s recitation of defence counsel’s arguments, I conclude that what was done was sufficient to bring home to the jury the danger of acting on Fraser’s evidence.

Ground 8: Unbalanced Charge

Under Ground 8, it was contended that the judge’s charge was unbalanced in two respects: first, because of failure to put adequately the defence argument that it was reasonably possible that the deceased had been killed by her fiancée, Angelo Gorgievski; and, secondly, because of failure to emphasise sufficiently the unreliability of Andrew Fraser’s evidence in light of differences between his version of events, as portrayed in the pantomime of the killing which he alleged the applicant had acted out in prison, and the forensic evidence as to the manner in which the deceased was killed in fact.

I do not accept that contention. It appears to me that the judge dealt adequately with both matters. The judge’s summary of defence counsel’s argument concerning the possibility of Angelo Gorgievski’s involvement was of almost two pages in length and was augmented by a full summary of Angelo Gorgievski’s evidence in chief and in cross-examination. His Honour’s recitation of defence counsel’s argument as to the unreliability of Andrew Fraser’s evidence was also thorough. It was more than two pages in length and was backed by a lengthy summary of Fraser’s evidence in chief and in cross-examination.

In my view, the way in which the judge went about drawing attention to defence counsel’s arguments and reminding the jury of the relevant evidence was adequate for the purpose of the trial. I do not think it reasonable to suppose that the jury would have been left in any doubt about the nature and effect of defence counsel’s arguments or the features of the evidence on which they were based.

Ground 9: Unsafe and Unsatisfactory

Counsel for the applicant relied upon the matters raised in support of Grounds 2, 4, 5, 6 and 7 to argue that, in sum, the verdict was unreasonable. Since I have concluded that the applicant has made good Grounds 5[23] and 6, it is strictly speaking unnecessary to consider this Ground. Mindful of the possibility that the matter may go further, however, and of the requirements laid down by the High Court in Cornwell v The Queen,[24] I make the following observations.
[23]Though subject to the possible operation of the proviso.
[24](2007) 231 CLR 260, 300 [103]-[105] (Gleeson CJ, Gummow, Heydon and Crennan JJ).

First, based upon my assessment of the totality of the evidence, I have concluded that, unless the jury were prepared to accept Fraser’s evidence, they could not reasonably have been satisfied of guilt beyond reasonable doubt. In other words, even if persuaded by the identification evidence that the applicant was in the cemetery on the morning before the killing, and persuaded that the applicant lied as to not having been in the cemetery and not having a connection with someone buried in the cemetery, there would remain a reasonable doubt as to the applicant’s guilt which acceptance of Fraser’s evidence would be necessary to exclude.

Secondly, Fraser’s evidence was not only the subject of credible attack but was given in a manner which, as I perceive it, did not engender confidence in its reliability. I cannot say, however, that a jury properly informed would be bound to reject it or even necessarily share my doubts about its veracity.[25]
[25]Cf M v the Queen (1994) 181 CLR 487, 502 (Brennan J).

Consequently, if proper directions had been given as to the matters the subject of Grounds 5 and 6, I accept that it would have been open to the jury acting reasonably to be satisfied of the applicant’s guilt beyond reasonable doubt.

Ground 1: Permanent Stay

I turn finally to Ground 1, in support of which counsel for the applicant argued that the applicant’s prior convictions for murder and rape, coupled with extreme pre-trial publicity of the fact and detail of those convictions and of allegations that the applicant was guilty of the murder of Ms Halvagis, made it impossible for him to receive a fair trial. On that basis, counsel submitted, the judge had erred in refusing to order that the trial be permanently stayed.

I agree with Ashley JA, for the reasons his Honour gives, that this is an extreme or singular case in the sense that, despite lapse of time, and no matter how careful and thorough may be the directions given to the jury, there was and for the foreseeable future there will remain a significant likelihood that any conviction of the applicant for the murder of Ms Halvagis would be affected by substantial prejudice and pre-judgment. That being so, I agree with Ashley JA that the balance of persuasion in R v Glennon[26] implies that the trial should have been stayed indefinitely.
[26](1992) 173 CLR 592.

The difficulty with that, however, is that the risk of prejudice and pre-judgment has been brought about by media publicity. Consequently, to grant an indefinite stay would be to recognise that the media has the capacity to render an accused unable to be tried. I do not consider that we should recognise that the media has that capacity. With respect, I adopt the view expressed by Brennan J in Glennon,[27] with which Dawson J agreed, that the community cannot afford to

acknowledge that the media has the capacity so to render an accused unable to be tried.

[27]Ibid 613-4.

The result of that is to some degree unsatisfactory in that it leaves the applicant exposed to the unfairness of prejudice and pre-judgment. But the social imperative that an accused be brought to trial surmounts that consideration. And the consequent unfairness of that for the applicant is to be rationalised, as Brennan J reasoned in Glennon it should be, upon the basis that unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. The court must do all that it can to guard against the prejudicial effects of pre-trial publicity. But provided the trial is conducted with all the safeguards the law can provide, ‘it is a trial according to law and there is no miscarriage of justice in a conviction after such a trial’.[28]
[28]Ibid 615.

On that basis, I reject Ground 1.

Conclusion

For the reasons I have given, I would allow the application and the appeal and order that a new trial be had.

ASHLEY JA

Peter Norris Dupas is a notorious rapist and murderer. On 22 August 2000 he was convicted of the murder of Nicole Amanda Patterson at Northcote on 19 April 1999 and the details of the killing and the conviction were widely reported in the media. On 1 August 2001, his application for leave to appeal against conviction was refused and that was also widely reported in the media.

On 16 August 2004, he was convicted of the murder of Margaret Josephine Maher at Somerton on 4 October 1997 and the details of that killing and conviction

were widely reported in the media. In July 2005 his application for leave to appeal against that conviction was refused and that was also widely reported in the media.

On 11 September 2005 the applicant was charged with the murder of Mersina Halvagis at Fawkner on 1 November 1997 and, following a coronial inquest which lasted until 1 August 2006, which was also widely reported, and a four week trial in the Criminal Division of the Supreme Court, on 9 August 2007 he was convicted of the murder.

The applicant’s modus operandi in the killing of Nicole Patterson was strikingly similar to the modus operandi employed in the killing of Margaret Maher. It consisted of multiple stab wounds to the victim’s upper torso and post-mortem excision of her breasts. Consequently, evidence of the applicant’s murder of Ms Patterson was admitted pursuant to s 398A of the Crimes Act 1958 (Vic) as similar fact evidence in the applicant’s trial for the murder of Ms Maher.

The modus operandi used in the killing of Mersina Halvagis was to some extent also similar to the modus operandi used in the killings of Ms Patterson and Ms Maher, in that it involved multiple wounds to the upper torso; but it was not strikingly similar, inasmuch as her breasts were left intact. Thus there was no suggestion of admitting evidence of the other killings as similar fact evidence at the applicant’s trial for the murder of Miss Halvagis. But evidence of the applicant’s prior convictions – and, in an incidental but damning way, of material which implicated the applicant as the killer of Ms Halvagis – was admitted because it was inextricably linked to evidence of identification and evidence of a gaol-house confession. The judge was also of the view that the applicant’s prior convictions were so notorious that it was better to face the problem head on and attempt to deal with it by appropriate directions rather than pretending that it did not exist.

The applicant now applies for leave to appeal, relying upon eight grounds,[29] against his conviction for the murder of Miss Halvagis. Because I agree with the reasons for judgment of Nettle JA, which I have read in draft, with respect to all the grounds other than ground 1, it is only necessary for me to address that single ground.

Ground 1: The Learned Trial Judge Erred in Failing to Order a Permanent Stay

[29]He abandoned ground 3, which complained that the evidence of the witness O’Brien had wrongly been ruled admissible.

Before the jury was empanelled, counsel for the applicant applied for the proceeding to be permanently stayed. The essence of his application was that pre-trial publicity concerning his client made a fair trial impossible – not simply at that time, but at any time. The publicity was to be found in a large number of articles in the popular press circulating in Melbourne, television programs which had been aired in Melbourne, in books available in Melbourne, and on internet sites. The publicity had extended over a period of some seven years preceding trial, although it had peaked at particular times. The publicity had a number of threads, often repeated.

The learned judge refused the application. Now the question is whether in all the circumstances – which include what transpired at trial – ‘a miscarriage of justice … occurred, and the [conviction was] unsafe, as a consequence of irreversible prejudice...’[30].

Pre-trial Publicity

[30]R v Glennon(No.2) (2001) 7 VR 631, 657-658 (Winneke P, Ormiston JA).

The applicant’s solicitor swore an affidavit in support of the application. He identified seven internet sites,[31] approximately 120 newspaper articles[32] published over a period of seven years, and four books, all of which related either wholly or extensively to the applicant.
[31]Including Wikipedia.
[32]Published variously in 96 editions of the ‘Herald Sun’, ‘The Age’ and ‘The Sunday Age’ and two editions of ‘The Australian’.

In support of the application, counsel for Dupas quoted extensively from the various publications. It is not clear whether the texts were formally put before the learned judge, but his Honour stated, when ruling upon the application, that he had read the articles and relevant excerpts from the books. It was not suggested at any point, I add, that what counsel read to his Honour was other than an accurate account of what had been said in the various publications.

It was also clear that the applicant had been referred to in a number of television programs, including an edition of the ABC program ‘Australian Story’, and that his image had been depicted in some of those programs. Indeed, such images were the foundation for some of the identification evidence eventually led at trial; and for other identification evidence which ultimately was not adduced. No evidence was led as to the number of relevant programs; but it was easy enough to infer the periods when such programs would have been most prevalent.

This is a synopsis of the pre-trial publicity, as revealed by the newspaper articles, books and internet sites:

(1) It was reported, and it was the case, that the applicant had been tried and convicted of the murders of two women. On 22 August 2000, he had been found guilty of the 19 April 1999 murder of Ms Nicole Patterson. On 16 August 2004 he had been found guilty of the 4 October 1997 murder of Ms Margaret Maher.

(2) It was reported that the killings of which he had been convicted had sexual connotations. The victims had been mutilated. Following his conviction for the murder of Ms Patterson, the applicant was described by the Herald Sun as ‘a sex crazed predator’, and as a ‘serial rapist’ who had been ‘convicted of rape three times’.

(3) It was reported, and it was the case, that the killer – found by the juries to be the applicant – had used a knife when murdering Ms Patterson and Ms Maher. It was further stated that he had used or threatened to use a knife or similar implement when committing earlier offences.

(4) It was reported, and it was the case, that each of the applications for leave to appeal against the convictions for murder had been refused.

(5) Subsequent to his conviction for murdering Ms Patterson, the applicant was repeatedly implicated by the press in the murders of Ms Maher and Ms Halvagis; and as well in the murders of several other women. He was described in the popular press as ‘a monster’, and as a ‘prime suspect’ in the killing of other women. ‘Prime Suspect’ became an internet site. Whilst the language used was generally the language of ’suspicion’ and of what the police ‘believed’, the unmistakeable gist of what was said, in my view, was that the applicant was guilty of the other murders.

(6) Also subsequent to his conviction for the murder of Ms Patterson, the applicant’s full criminal history, which as I have said included convictions for rape, was published in the popular press - and not just once. There was a theme: how could it be that this violent repeat rapist had been allowed onto the streets so that he could offend again? For he was, in the words of the detective who had first arrested him for rape, ‘evil personified’.

(7) When charged with Ms Maher’s murder in late 2002, the applicant was further implicated by press articles as the killer of Miss Halvagis and two other women.

(8) Following his conviction in August 2004 for the murder of Ms Maher, the applicant was named by the press as a suspect in the killing of Miss Halvagis and another woman; and the question was posed: ‘Is Peter Dupas a serial killer?’

(9) An article published in the Herald Sun on 12 August 2004, informing the public of the applicant’s conviction for the murder of Ms Maher, named him as a suspect in the murders of Miss Halvagis and another woman. It further alleged that the applicant had mutilated two female corpses at the Austin Hospital in January 1969 (a matter which was never established against him).

(10) Subsequent to the announcement of a reward of $1 million for information leading to the conviction of the killer of Miss Halvagis, later increased to $1.5 million, the applicant was named as the prime suspect in the killing of Miss Halvagis and two other women.

(11) In September 2005, not long before an inquest commenced into the death of Miss Halvagis, the Herald Sun reported ‘Killer accused on third case’.

(12) On 19 November 2005, The Age published an article headed ‘Grave Secrets’. It set out, inter alia, the circumstances of the killing of Miss Halvagis. It listed the applicant’s victims, naming Miss Halvagis and four other women, the four others including Ms Patterson and Ms Maher. That article was also placed on the internet.

(13) The applicant was identified as a serial killer on a number of internet sites, including Wikipedia. On Wikipedia there was published a full list of the applicant’s previous convictions, and extracts from a statement made by Andrew Fraser, who was an important witness in the applicant’s trial for the murder of Miss Halvagis.

(14) Another internet site, ‘Monster Watch’ stated that ‘Mersina Halvagis was murdered in 1997 in Melbourne, Victoria by Peter Dupas’. To much the same effect was the website ‘Serial Killer Central’.

(15) The applicant was identified as a serial killer in a book entitled ‘Australia’s Serial Killers’. In connection with the killing of Miss Halvagis, the author stated that ‘The grave of [the applicant’s] grandfather was just 100 metres away [from where Miss Halvagis was stabbed to death] and the disturbed rapist had been there often in the weeks before the murder’. The author further stated that although the applicant had denied killing any of the four women, including Miss Halvagis, ‘the facts are damning’.

(16) In a book entitled ‘The Encyclopaedia of Australian Murders’, the applicant was treated under the heading ‘The Mutilating Monster’.

(17) Another book, entitled ‘Underbelly Four’, written by a well-known crime reporter, John Silvester, dealt with the applicant under the heading ‘Pure Evil’, there setting out his life history including his previous convictions.

(18) The applicant’s photograph, in connection with offences of which he had been convicted, and crimes in respect of which he was the suspected offender, was repeatedly published over the years in newspaper articles to which I have referred; and images of his face were also depicted on television programs.

The Submissions Below

According to counsel’s submission at trial, there was an important relationship between the adverse publicity and the Crown’s proofs. A number of witnesses who claimed to have identified the applicant in connection with Miss Halvagis’ murder had done so by reference to newspaper photographs or television images, such photos or images accompanying publications which in substance indicted the applicant as a killer of women, including Miss Halvagis.

Further according to counsel’s submission, despite the assumed robustness of juries and the faith that the courts have shown in them applying instructions given to them, there comes a point when a jury cannot do what the learned trial judge characterised in discussion as ‘the psychologically impossible’. This was that case – an ‘extreme or singular case’.

The prosecutor conceded that a jury was likely to know, even if not informed of the fact, that the applicant had been convicted of two murders. But it was wrong, he submitted, to think that the jury would recall the ‘fine detail’ of articles published years before. Material currently available on the internet would, however, need to be ‘handled differently’ – that is, by a specific warning. The prosecutor submitted that it was ‘nonsense’ that the point could be reached where a jury would be constrained by ‘the psychologically impossible’. He further submitted that it ran in the applicant’s favour that, by contrast with the murders of Ms Patterson and Ms Maher, Miss Halvagis had not been mutilated.

At the request of the learned judge, counsel for the applicant formulated the kind of warning which might be given before empanelment if his Honour rejected the stay application. The formulation included identification of the applicant as the murderer of Ms Patterson and Ms Maher, and included a proposed incantation that if any member of the jury panel –

… believes he or she is in possession of any information or opinion about the facts of this case that member of the jury panel should apply to be excused.

The prosecutor agreed that a pre-empanelment warning and direction should be given. It would need to say, he submitted, that merely having heard or read something about the applicant did not of itself disqualify that person as a juror. The influence of what had been heard or read must be such that ‘in good conscience [the prospective juror] would be unable to render an impartial verdict based solely on the evidence presented in the trial and acting in accordance with [the judge’s directions]’.

Although the learned judge reserved his decision whether to accede to the stay application, observations which he made before retiring to consider his ruling make it plain, in my opinion, that he had by then formed a provisional view that the application should be refused.

The Ruling

The learned judge delivered his ruling on 3 July 2007. He said this:

Essentially the defence admission (sic) is of the ubiquity and pervasiveness of the accused's reputation as a serial killer, is such that no fair trial can now be had. Submissions, both oral and written on behalf of the accused in support of the application, were made by [counsel]. They were excellent submissions and I commend him for them.
No permanent stay on the ground of irremediable prejudice has ever successfully been granted in this court. The power so to stay however exists see R v. Glennon (1992) 137 C.L.R. 592, per Deane, Gaudron and McHugh, JJ, at 623 to 624.
I turn first to the evidentiary considerations. The accused has twice previously been convicted in this court of murder. In August 2000, he was convicted of the murder on 19 April 1999 at Northcote, of Nicole Patterson, and was sentenced to life imprisonment with no minimum term. In August 2006, he was convicted of the murder on 4 October 1997 at Somerton, of Margaret Maher and again sentenced to life imprisonment with no minimum term. Both killings were of vulnerable women by knife attack and were characterised by extreme violence and brutality. The killing of Ms Halvagis was of a vulnerable young woman by knife attack and was characterised by extreme violence and brutality.
The two murder convictions of the accused received wide media publicity. He now stands trial for the murder of Ms Halvagis, and is entitled to a fair trial with the verdict given solely on the evidence led in the trial. That there has been a substantial amount of adverse publicity concerning the accused, is established by evidentiary material filed before me and which is the subject of formal exhibition and to an affidavit filed today. I received the evidentiary material yesterday although I have not yet formally exhibited because it was proper to receive it without impediment and as its prominence appeared on it face.
The accused's convictions for the murder of Ms Patterson and Ms Maher, are also notorious and on that basis, also are taken into account on this application. The evidentiary material falls into four categories, first, newspaper publications, at the times of the murders of Ms Patterson and Ms Maher and of the trials thereto, and in relation to alleged other actions, history or proclivities of the accused. Second, television and radio broadcasting likewise. Third, Internet and other electronic publication, likewise. Fourth, book publication, likewise. Generically I shall refer to the material in these categories as impugned material.

and
For the purpose of determining this application, I read all the newspaper, book and printed internet material relied upon by the defence and have viewed the ABC television program Australian Story, which went to air on 18 March 1999, concerning the offence charged including having purported re-enactments, and concerning the deceased and her family.
I refer to all the material as cumulative rather than discrete. Further, I take into account the fact of publicity over time, the effect of publicity over time and its percolating and pervasive effect. I also take into account as I have said, as a matter of notoriety, that the accused is known to be a convicted murderer.
The impugned material includes review in graphic detail of the deaths of Ms Patterson, Ms Maher and Ms Halvagis, their circumstances and similarities. It includes detailed review of the criminal and psycho-social history of the accused. It includes characterisation of him as a ’serial killer’ and a ‘monster’. It includes attribution to him, either as an actor or suspect, of the killing of other women as yet unsolved.
There is no doubt that the impugned material, if acted upon by a jury, would preclude his fair trial on the charge presently preferred against him.

His Honour described the criteria for determination of an application for a permanent stay by referring to the reasons for judgment of Mason CJ and Toohey J in The Queen v Glennon where their Honours said –

… a permanent stay will only be ordered in an extreme case (Jago (1989) 168 CLR at 34) and there must be a fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'.[33]

[33](1992) 173 CLR 592, 605. His Honour misstated the source of the passage which he included in his ruling; but nothing turns on it.

Then his Honour referred to other authorities, including Murphy v The Queen,[34] R v Long; ex parte Attorney General for the State of Queensland[35] and John Fairfax Publications Pty Ltd v District Court of New South Wales & Ors;[36] and as well to a dictum of Street CJ in Munday v R[37] in which the learned Chief Justice referred to his ‘great faith in the multiple wisdom and balance reflected in the verdict of a jury’.
[34](1989) 167 CLR 94.
[35](2003) 138 A Crim R 103.
[36](2004) 61 NSWLR 344.
[37](1984) 14 A Crim R 456, 457.

His Honour then expressed these conclusions:

Because I consider that it is notorious that the accused has been convicted of the murders of Ms Patterson and Ms Maher I propose to give the jury directions about those two convictions. Although not every member of the jury will know of those convictions I consider some will and thus I shall give the jury appropriate directions which I shall foreshadow to the jury panel when inviting excuse applications. Depending upon future rulings as to admissibility of identification evidence the fact of those two murders may be introduced in evidence.
Applying the relevant legal criteria to the evidence before me including its cumulation and effect over time and the inferences deriving there from I am entirely unpersuaded that the accused cannot obtain a fair trial by jury on the charge of the murder of Ms Halvagis.
Indeed I am of the positive conclusion that the accused can and will receive a fair trial in its plenary sense. That is because of the inherently fair and robust jury system in this State which system will, in my view, preclude prejudice from the extraneous sources which I have characterised above affecting a deliberation or verdict. I have very responsible confidence that the jury, appropriately directed, will firewall its deliberations and verdict from extraneous considerations and from prejudice in this case.
That is for the following reasons: First, each juror will swear or affirm to give a true verdict according to the evidence. Second, the jury will be directed, with reasons therefore, to give a true verdict according to the evidence. Third, the jury operationally will observe and will inevitably be influenced by the care with which evidence is received and tested during the trial. Fourth, the jury will be assisted in its task by the nature of a jury trial, its methods of testing and of consideration and of analysis, its valuing of care and of scrupulousness and its conscientious commitment to fairness. Fifth, citizens in this community selected to act as jurors show, and historically have shown, a robust capacity and conscientious capacity to act on evidence and to put aside extraneous data and considerations and demonstrate an honourable commitment to fairness.
As to material currently available, particularly on the Internet, that material is easy of access in an electronic age but I am satisfied that empanelled jurors will comply with the direction of law I shall give them not to do their own research, not to have access to the Internet and to have regard only to evidence led in court.
As to the historical material referred to in the data placed before me I am satisfied that much of the detail of such material would not be known to jurors or be capable of recall by them.
None of the panel prospectively will know the case they are summoned for involves this accused.
Applying the criteria articulated by the authorities I have cited to the impugned material relied upon and the relevant considerations deriving from the material, I am satisfied that an empanelled jury will accord the accused a fair trial. (my emphasis)

The learned judge did not articulate how it could be that he considered it notorious (and would be known to at least some jurors) that the applicant had been convicted of the murders of Ms Patterson and Ms Maher, and yet that ‘much of the detail of the historical material would not be known to jurors or be capable of recall by them’. The applicant’s notoriety, after all, was the product of the relentless recapitulation of his prior criminal history, his murder convictions and the intimation that he had killed other women including Miss Halvagis.

But however that may be, except in the passage which I have highlighted his Honour said nothing about the way in which important aspects of the Crown case would inevitably call-up the applicant’s prior murder convictions and the publicity which attended them; and of the inhibitions which this imposed upon the conduct of the defence case.

The Empanelment

A jury was then empanelled. But a perceived problem of non-compliance with s 32(1) of the Juries Act 2000 (Vic) arose, and the learned judge reluctantly discharged the jury without verdict. For that reason, I need say nothing about the pre-empanelment warning which his Honour gave on that occasion.

A second jury was empanelled on 11 July 2007. Before empanelment, the learned judge instructed the jury as follows:

So let me tell you a bit about categories of application for excuse. The first category is this, and it's a pretty obvious one. If any of you know the accused or knew the deceased or know their families or know anyone connected with the case, you should say ‘excuse’, and that is because, ladies and gentlemen, for very sensible reasons persons who know anyone connected with the case should not be on the jury, and therefore if any of you know the accused, Mr Peter Norris Dupas, or knew the deceased, Ms Mersina Halvagis, or know their families or anyone connected with the case, when your number is called you should say ‘excuse’.

The warning must be strong and complete. It must be given even if a conviction could not be based on identification alone as, for example, where the identification, if accepted, would still provide only circumstantial evidence of guilt.[184] A warning must also be given even if there is ample additional evidence upon which the accused can be convicted and even if there is more than one identifying witness.[185] Mistakes can occur where two or more witnesses have each made positive identifications.[186]
[184]R v Crupi (1995) 86 A Crim R 229.
[185]Domican v The Queen (1992) 173 CLR 555.
[186]R v Burchielli [1981] VR 611.

That said, it is clearly understood that the terms of any direction must depend, to a considerable degree, upon the particular circumstances of the case. A trial judge’s charge need not follow any rigid formula, but must be geared towards alerting the jury to any dangers lurking in the evidence that they might not otherwise appreciate. The strength of the warning that is required may depend to some degree upon the extent to which the Crown relies on the identification evidence. A stronger warning may be required when the witness had no previous acquaintance with the accused, or only a passing opportunity to make an observation.

It is important to understand that Domican does not require every conceivable aspect of identification evidence to be the subject of a warning. It is also useful to remember that in Festa, the High Court reminded trial judges that they ought be careful to ensure that any warnings that they gave did not rob identification evidence of all probative value.[187]
[187]Festa v The Queen (2001) 208 CLR 593.

In the present case, the trial judge was obliged, as I have said, to warn the jury appropriately of the dangers of acting too readily upon the evidence of the three identification witnesses.

There is no doubt that the general directions that his Honour gave as to the dangers associated with mistaken identification met all the requirements laid down in Domican. The jury were told, in the clearest terms, that they had to scrutinise the evidence of identification in this case with special care, and to exercise particular caution before accepting it as reliable. They were told the reasons for this warning. They were directed to be aware of the risk that even honest and convincing witnesses might be mistaken in their evidence of identification.

The jury were also reminded to examine closely the circumstances in which each identification was made, including factors such as lighting, distance, and any obstacles that stood in the path of clear observation.

The cases say that where more than one witness gives identification evidence, the jury should be told that they still can all be mistaken.[188] Indeed, there is some authority for the proposition that it may be necessary, in such cases, to warn the jury that two unsatisfactory identifications do not support each other.[189]
[188]R v Turnbull [1977] QB 224 and R v Burchielli [1981] VR 611.
[189]R v Burchielli [1981] VR 611; R v Dickson [1983] 1 VR 227 and R v Haidley & Alford [1984] VR 229.

However, the trial judge in the present case went much further than this. As has been seen, he instructed the jury that, as a matter of law, the evidence of each identifying witness had to be considered and evaluated in isolation, and without paying any regard to the evidence of any other identifying witness. As I have indicated, there is some authority for the proposition that this direction may have

been unduly favourable to the applicant.[190] The cases go no further than to suggest that the jury should be told that one unsatisfactory identification cannot support another. I should add that even that proposition has been doubted.

[190]Weeder v R (1980) 71 Cr App Rep 228; R v Haidley & Alford [1984] VR 229 and R v Callaghan (2001) 4 VR 79.

The trial judge directed the jury that not only did they have to consider each act of identification on its own, without regard to other acts of identification, but that when considering the accuracy of any single identification, they could not look to any circumstantial or other evidence that might support it. That direction certainly seems to have been unduly favourable to the applicant.[191] It was not supported by authority and I regard it as contrary to principle.
[191]R v Marshall (2000) 113 A Crim R 190 [38] (Spigelman CJ).

Domican establishes that the general directions of the kind that his Honour gave in this case must be backed by judicial authority. It is not sufficient simply to refer to arguments already advanced by counsel. The warnings must carry the weight of judicial office.

As regards the general directions given, the trial judge told the jury on more than one occasion that these were directions of law, and binding upon them. No criticism has been levelled at this aspect of his Honour’s charge. Nor could it be.

The real point upon which this ground of appeal rests has nothing to do with the general directions that were given. It is said that his Honour’s charge was deficient for one reason and one reason only, namely, that it failed to identify for the jury the factors that might affect the reliability of the identification evidence in the particular circumstances of this case.[192]
[192]Kelleher v The Queen (1974) 131 CLR 534; Domican v The Queen (1992) 173 CLR 555; R v Debs [2005] VSCA 66 and R v Abbouchi; R v Allouche [2008] VSCA 171.

It was submitted on behalf of the applicant that Domican establishes that, in every case, a trial judge must isolate and identify any matters of significance which might reasonably be regarded as undermining the reliability of identification evidence, and draw attention to any weaknesses in the particular identification evidence given. It was submitted that his Honour had failed to do so.

It should be noted that there is at least one case, decided after Domican, which holds quite specifically that a trial judge is not obliged to point out every possible weakness that may be associated with identification evidence which is under challenge.[193] That case suggests that whether or not a particular weakness need be noted, and commented upon, will depend upon the facts of the individual case.
[193]R v Bint & Butterworth (1996) 187 LSJS 201.

It was submitted that the trial judge’s charge to the jury in the present case failed to remind them of at least two weaknesses that were said to be associated with the identification evidence that was led. These were, first, the delay between the sightings at the cemetery and the eventual positive acts of identification and, second, the ‘suggestibility’ associated with the manner in which those later acts of identification were done.

Bearing in mind that the jury must be instructed ‘as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case’,[194] and that their attention should be drawn to any weaknesses in the identification evidence[195] (with reference to counsel’s arguments being insufficient to achieve that end),[196] the question now before this Court is, did his Honour’s charge adequately meet these requirements?
[194]Domican v The Queen (1992) 173 CLR 555, 562.
[195]Kelleher v The Queen (1974) 131 CLR 534, 551 (McTiernan J).
[196]Davies & Cody v The King (1937) 57 CLR 170, 182-3.

In approaching that question, it must be remembered that Domican itself was a case in which the identification evidence was of a highly unsatisfactory nature. At the time that her husband was shot, Mrs Flannery, the sole identifying witness, had never met the appellant. Nearly nine months had passed before she formally identified him from a collection of photographs. Those photographs had been altered to show the appellant wearing a wig and false moustache in conformity with the description given of the person who fired the shots. By the time she saw the photographs, not only was the appellant a definite suspect, but Mrs Flannery had seen him on television a number of times. She had also allegedly seen him in the vicinity of her home.

There were other weaknesses associated with Mrs Flannery’s identification. When she first saw the gunman, he was some distance away. Her vision was obscured and she had only a fleeting moment to observe him. Moreover, he was clearly disguised. Her first sighting of him took place after about 30 shots had been fired in her direction, and while she was in a state of shock.

To make matters worse, there were significant discrepancies between the description that Mrs Flannery gave to the police in her first statement to them, and what she later said about the offender’s appearance. She was wrong about the make and colour of car that he was driving and the number of people involved in the shooting.

It was hardly surprising, in these circumstances, that the High Court held that the general warning given to the jury in that case regarding the dangers of identification was not sufficient. It did not bring home to the jury any of the real dangers associated with Mrs Flannery’s identification.

It is against that background that one needs to understand the comments in Domican. In a passage from the joint judgment of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ (upon which the applicant largely relies), their Honours said:

Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of (the identification) evidence in the circumstances of the particular case’. A warning in general terms is insufficient. The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.
…
Unfortunately, the learned trial judge's directions were not likely to impress upon the jury that the evidence of identification by Mrs Flannery had a number of weaknesses. His Honour told the jury that ‘(s)udden and unexpected acts of violence such as Mrs Flannery described in this case, can affect people caught up in the events in different ways.’ He said that the terror of the occasion ‘can serve to impress indelibly on the minds of some people the features of anyone they see involved in it. With other people the effect may be to obscure their judgment and their later recollection.’ He also raised the possibility of honest mistakes being made in identification and the need for caution when dealing with this type of evidence. But apart from these statements, his Honour's directions did not refer to any matters concerning Mrs Flannery's evidence which would bring the attention of the jury to the many weaknesses in her evidence. To the contrary, some parts of his Honour's directions were capable of conveying the impression that her evidence of identification was reliable. After pointing out to the jury that ‘(w)hat it is important to know is whether the identification was aided by any suggestion made to the witness or any expectation on the part of the witness at the time when it was made’, his Honour recited the evidence of Mrs Flannery concerning the steps by which she came to identify the appellant. His Honour then said:
‘This is a case you might think where it was a recognition and realisation by the witness that 'that is the man' when it wasn't a circumstance in which there was any particular reason for her to believe that it was. It was a chance occurrence that she saw this man.’

This passage may have been understood by the jury, as it was probably intended to be understood, as meaning that Mrs Flannery's identification was more reliable than usual because she had no expectation that the person in the milk truck, in the orange Ford Falcon sedan and on television was the person who had shot her husband.
It is true that on two occasions in his summing up his Honour referred to the arguments of counsel for the appellant concerning the weaknesses in Mrs Flannery's evidence of identification. Thus, his Honour referred to an argument that the evidence of a surveyor showed that Mrs Flannery ‘would not have had the clear view of the person sitting in the car that she said she had’. His Honour also said:
‘As to Mrs Flannery, it was put by the defence that the circumstances in which she said that she saw the person with the gun in the car make her identification unreliable. The shock, her fear and the fact that on her own account the man was disguised, would make her identification unreliable It was also put that quite apart from the risk of genuine error, she may have believed that the shooter was the accused because of something Mr Eustace told her and so, the argument runs, she would have a reason for deliberately lying. You are also invited by the defence to reject her purported identification because she did not name the accused until September 1985 after previously telling the police from her first interview in May 1985 that she could not identify the person in the car.’

However, as we have already pointed out, mere repetition of counsel's arguments is an insufficient discharge of the trial judge's duty to draw the jury's attention to any weaknesses in the identification evidence. If the matters to which counsel has referred may reasonably be regarded as undermining the reliability of the identification evidence, the trial judge must direct the jury that they are bound to take those matters into consideration in determining whether they will rely on that evidence. Consequently, the learned trial judge's directions on the issue of identification were not adequate and constituted a misdirection.[197]

[197]Domican v The Queen (1992) 173 CLR 555, 561-564.

Their Honours went on to say:

A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused. Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused.[198]

[198]Ibid 565-566.

Domican represents the most authoritative statement of the law in this area. It has, of course, been routinely followed by trial and intermediate appellate courts throughout this country.[199] A number of convictions have been quashed where its stringent requirements have not been met. However, as Domican also makes clear, there is no set formula to be followed when directing a jury as to the dangers associated with identification evidence. As I have said, it is still the law that the nature of the warning to be given in any particular case must be tailored to the particular circumstances of that case.[200]
[199]See, for example, Radford v R (1993) 66 A Crim R 210; The Queen v Glennon (1994) 179 CLR 1; R v Johnson (2001) 126 A Crim R 395; Farrell v R (1998) 194 CLR 286; R v Dodd (2002) 135 A Crim R 32; Johnson v Giumelli (2003) 175 FLR 467; R v Ngo (2003) 56 NSWLR 55; R v Rose (2002) 55 NSWLR 701; R v Rivkin (2004) 59 NSWLR 284; Al-Hashimi v The Queen (2004) 181 FLR 383; R v Debs [2005] VSCA 66; R v Demiri [2006] VSCA 64; R v Mendoza (2007) 173 A Crim R 157; R v Abbouchi; R v Allouche [2008] VSCA 171 and R v Serrano [2009] VSCA 140.
[200]R v Clune [1982] VR 1; R v Dickson [1983] 1 VR 227; R v Haidley & Alford [1984] VR 229, 230-1 and R v Finn (1988) 34 A Crim R 425.

J D Heydon, the learned author of Cross on Evidence, has suggested, in his discussion of Domican, that the warning will usually take the form of pointing out that the evidence of identification is critical (assuming that it is), that mistakes as to identification have occurred in the past, as the law recognises (but juries may not), and that if there is only one witness as to identification, the jury must be careful with regard to that witness’s accuracy. The trial judge will also explain the reasons why such evidence may be unreliable, and the jury reminded that witnesses may be honest, and convincing, but still mistaken. The trial judge will also usually discuss the opportunities of identification available to the witness, including matters such as distance, light, and possible exposure to stress.[201]
[201]J D Heydon, Cross on Evidence (6^th Australian ed, 2000) [1400].

When considering the challenge mounted to the adequacy of his Honour’s charge in the present case, it is useful to bear in mind that each of the three identifications had its own potential weaknesses.

In relation to Mrs Burman, the only factor that might have cast any significant doubt upon her reliability was the risk of undue suggestion as a result of her having seen the Herald Sun article. However, as I have previously noted, that article had no bearing upon her earlier acts of identification. In addition, the circumstances under which she saw the man at the cemetery were as near to optimum as could be contemplated.

Putting to one side the strength of her evidence arising from the computer-generated image, and the identification of photograph 7, there is yet another factor that should be taken into account when considering this ground of appeal. That is Mrs Burman’s evidence regarding the jacket that was worn by the man that she saw.

Mrs Burman described that jacket as having been of a ‘light colour’. She said that she had observed a ‘rip near the pocket’ on the right-hand side. She had earlier given the same description to the police officer responsible for producing the computer-generated image. That image shows the jacket as being ivory or bone coloured.

There was evidence at the trial from a Detective Keighley who, on 22 April 1999, had searched a workshop at the rear of the applicant’s house. He said that he had found there, on the bottom shelf of a cabinet situated against the northern wall, a rolled-up jacket. That jacket had, in fact, been worn by the applicant several days earlier when he murdered Nicole Patterson.

The jacket was tendered in evidence, over objection. Counsel for the applicant maintained that it was olive green. However, the prosecutor submitted that it was ‘a sort of a khaki colour’, and that it could be regarded as ‘light coloured’, consistent with Mrs Burman’s description. Of critical importance was the fact that the jacket had a rip near the right lower pocket, exactly as she had described.

The trial judge permitted the jacket to be tendered. His Honour described the jacket as ‘highly relevant as a matter of proof in the circumstantial case’. He ruled that its probative value far outweighed any possible prejudicial effect.

In substance, therefore, the jury were invited to consider the significance of a jacket found in the applicant’s home that was said to match closely the description given by Mrs Burman. They were asked to consider, in particular, the coincidence associated with there being a rip to the right-hand side pocket.

In his closing address to the jury, the learned prosecutor said:

Another piece of bad luck for Mr Dupas, if he is not the murderer of Mersina Halvagis, is the evidence that you heard from Mrs Burman, that the man she spoke to in the Latvian section of the cemetery, was wearing a light coloured jacket with a rip near the right hand pocket. The jacket, Exhibit S, found at the accused's home at 19 Coane Street, Pascoe Vale, has such a rip in that position, a rip or tear near the right hand side outer pocket. That jacket was recovered from the workshop, from a cabinet in the workshop of the accused's home, on 22 April 1999. Mrs Burman had described that as part of the description that she gave to Mr Hardiman when she did the face image on 15 April 1998. Mrs Burman has referred to the jacket, the rip. At that time it's not as if the police have recovered a jacket and then it's able to be seen; she made comment to Mr Hardiman, as you heard in the course of his evidence, about that as part of the description at the time the face image, Exhibit J, was created on 15 April 1998.
True it is, as you know, Mrs Burman referred to a light coloured jacket. Mr Hardiman said that he received instructions from Mrs Burman that it was a bone or similar coloured jacket, and it might be said well, the jacket which you have seen held up by His Honour's tipstaff, is not bone. It may be said it's not a particularly light colour, but it's certainly not a dark colour like a black, and I suggest that your experience of life tells you that different people have different recollections about colours, because every jacket is some colour or other, and that is an impression, but a rip or tear near the outer right hand pocket is an unusual feature, likely to be remembered, likely to be remembered more clearly and more completely, than mere colour. It is a jacket with a tear near the right hand pocket. Is it just bad luck that Mr Dupas has such a jacket? True it is it's recovered much later, but it's part of the whole circumstances. The person that Mrs Burman sees at the cemetery that morning has a jacket with such a rip or tear, and so does the accused. It's another piece of bad luck if Peter Dupas is not the murderer of Mersina Halvagis.

Counsel for the applicant, in his closing address, argued that the jacket was green and not bone. He reminded the jury that there was no blood or DNA from Ms Halvagis upon it. He criticised the Crown for not having shown the jacket to Mrs Burman to see whether she could identify it. However, having been reminded that he had not put to any of the police witnesses that this had been done for an improper purpose, he subsequently withdrew that suggestion.

The jury were reminded by his Honour, in his charge, of the various arguments put by the prosecution and the defence in relation to the jacket. As I have said, they were permitted to inspect it from a distance, but did not have access to it in the jury room.

The evidence concerning the jacket, and in particular the tear near the right pocket, seems to me to have been particularly powerful. It provided strong support for the accuracy of Mrs Burman’s identification.

As I have indicated, when the High Court in Domican spoke of the consequences of failure to comply with the warning requirements therein laid down, their Honours did so against the background of a set of facts far removed from those in the present case. They said that if a trial judge failed to give an adequate warning concerning identification, a new trial ordinarily would be ordered. They added that this would be so even when other evidence made a very strong case against the accused.[202]
[202]Domican v The Queen (1992) 173 CLR 555, 565.

If I thought that there was even a remote chance that the trial judge’s warning to the jury regarding identification in this case might not have brought home to them, with the full authority of his office, the particular weaknesses associated with the evidence of the identification witnesses, I would be obliged, in accordance with Domican, to hold, subject to the proviso,[203] that there should be a new trial.
[203]In R v Debs [2005] VSCA 66, a deficient warning as to identification was nonetheless said not to warrant the setting aside of a conviction, presumably on the basis that the proviso could be invoked. The Court of Appeal in Debs did not speak in terms of the proviso, but it was plainly implicit in the reasoning of Vincent JA that this was what his Honour had in mind.

I note that in R v Debs,[204] this Court invoked the proviso in answer to an attack upon the adequacy of a charge relating to identification, but said that the charge itself was deficient. The main difference between Debs and the present case lies in the fact that Mrs Burman’s identification, at least prior to her having seen the Herald Sun article, was of a quality that was vastly superior to that of the identifying witness in that case.
[204]Ibid.

In addition, unlike what occurred in Debs, the trial judge in the present case did warn the jury specifically of the dangers associated with what is described as ‘displacement’, a matter that was of critical importance to the identification in Debs, but entirely overlooked in the trial judge’s charge in that case. In speaking of the dangers of displacement, the trial judge in the present case did so with the full voice of his judicial office, and not merely by reference to the arguments of counsel. Accordingly, at least one crucial aspect of Mrs Burman’s evidence that needed to be addressed was the subject of a full and complete warning.

As I have said, it should also be borne in mind, when considering the adequacy of his Honour’s charge, that not every potential weakness associated with identification evidence must necessarily be highlighted. For example, consider the question of delay. It is true that the trial judge did not specifically remind the jury that some years had passed between the events at Fawkner Cemetery, and the positive identifications made by Mr Weller and Mrs Melnik. However, the matter of delay would have been perfectly obvious. It had been the subject of extensive cross-examination. Perhaps more importantly, delay, and the effect that this can have upon memory, is not a matter upon which any jury would need special direction. It is a matter of common sense that memory does fade over time.

Counsel for the applicant put to each of Mr Weller and Mrs Melnik that they must have been influenced, in making their identifications, by having seen the applicant on television, at least in circumstances where he was known by then to have murdered two other women. He put to Mrs Burman that she had been similarly influenced, in arriving at her positive identification, by seeing the photograph in the Herald Sun.

Both the prosecutor and counsel for the applicant addressed at considerable length on these issues. Indeed, counsel for the applicant spent a good part of this address focussing upon the dangers of displacement, the issue that he obviously regarded as of paramount importance in attacking the reliability of the individual identifications.

Of course, it is not sufficient for a trial judge to do no more than refer to the arguments of counsel. However, in this case, his Honour went much further than that. He warned the jury, specifically and in terms, of the dangers of displacement. He did so as a matter of law, and with the full weight of judicial authority behind that warning.

It might be said that, in a perfect world, his Honour could have gone further. He could have added, in perhaps a sentence or two, that the risk of displacement of which he had spoken applied to Mrs Burman’s identification of the applicant from the Herald Sun because she had earlier identified him from the folder of photographs that she had been shown. He could also have added, in relation to Mr Weller and Mrs Melnik, a sentence or two to like effect. However, in my opinion, the fact that he did not do so did not cause this trial to miscarry.

I am in no doubt that the jury in this case were well aware of the need to be particularly careful with the identification evidence. His Honour gave them all the assistance necessary to enable them to understand just why that was so. It is no part of Domican, as I read what the High Court said in that case, that an intermediate appellate court should go over every word of the trial judge’s charge to see whether it matches up precisely with the many judicial pronouncements that have been made in relation to identification evidence. Rather, the charge should be read as a whole, having regard to the real issues in the trial. The points upon which the trial judge should focus are those upon which the jury are likely to need assistance because of the risk that, without an appropriate direction, they may give too much weight to evidence that is, for whatever reason, suspect or potentially unreliable.

In this case, the trial judge’s charge complied sufficiently with the requirements laid down in Domican. There was no risk, in my view, that the jury would have acted upon questionable identification evidence.

Finally, I would add that his Honour’s warning to the jury to consider the evidence of each identifying witness on its own, and only act upon that evidence if satisfied beyond reasonable doubt as to its accuracy, was, in my view, unduly favourable to the applicant. It is true that ‘poor quality’ identification evidence, considered in isolation, cannot be improved by other evidence. It stands or falls according to its own strength. However, what other evidence can do is bolster the Crown case, which includes the identification evidence said to be flawed. In other words, even if of poor quality, evidence of identification may, together with other evidence, assist the Crown case.[205] His Honour’s charge may have led the jury to disregard evidence which was in truth capable of providing support for the Crown case as a whole. In that regard, it was too favourable to the applicant.
[205]Bilal Skaf v R [2008] NSWCCA 303 [71]-[79] (Unreported, McClellan CJ at CL, Hidden and Howie JJ, 17 December 2008).

Once the jury accepted that it was indeed the applicant whom Mrs Burman encountered in the cemetery on the morning of Ms Halvagis’ death, it was but a short step from there to a conclusion that it was he who was responsible for her murder later that day. Not only was he at the scene of the crime a comparatively short time prior to the commission of the offence but, if Mrs Burman’s evidence were to be accepted, he was behaving in a bizarre fashion and one that raised deep suspicions in her mind.

There was also a good deal of ‘post-offence’ conduct on the part of the applicant that tended to support the conclusion that, if he was at the cemetery on that particular morning, he was in fact the murderer. There were firstly the lies that he told, in May 1999, when he said to Father Patrick O’Brien, a retired Catholic priest he had known for some years, that he had never been to the Fawkner Cemetery. Moreover, on the Crown case, he falsely told Father O’Brien that he had no relatives buried there when, in truth, the position was that his grandfather was buried at the cemetery. Indeed, his grandfather’s grave was only about 100 metres from the grave of Ms Halvagis’s grandmother, which she had been tending at the time of the murder.

There was also evidence that, in early November 1997, within just a few days of the offence, the applicant asked his hairdresser to alter his hairstyle. He told her that he intended to go to Queensland. In addition, Father O’Brien gave evidence that, on one occasion, he noticed that the applicant was not wearing his glasses. This was unusual, and he asked him why. The applicant told him that he had broken them at work. Other witnesses were called to say that, on 7 November 1997, the applicant had ordered a new pair of glasses. On that day, he was seen to have a fresh cut to the left side of his face. He said that it had happened at work. However, there was no record of any such injury in the book maintained for the purpose of keeping track of such matters at his place of work.

It follows that, provided that the jury accepted Mrs Burman’s evidence that the applicant was at the cemetery on the morning of the crime, the evidence taken as a whole pointed strongly towards the conclusion that it was he who had murdered Ms Halvagis. That was so irrespective of what weight, if any, the jury gave to Mr Fraser’s evidence.

Finally, I note that no exception was taken to any aspect of his Honour’s charge on identification. That is a matter which I regard as being of considerable importance.[206] Identification was obviously one of the central issues in this trial. Counsel on both sides were obviously well prepared to deal with that issue, and had become well versed in the law on this subject. Had there been any concern, after the trial judge’s charge, that the jury might not have been made fully aware of the dangers associated with mistaken identification, it is inconceivable that the point would not have been taken.
[206]R v Serrano [2009] VSCA 140.

It follows that I would reject ground 6.

Grounds 5: Post-offence Conduct Amounting to Consciousness of Guilt

It was submitted on behalf of the applicant that the various acts of post-offence conduct upon which the Crown relied in support of its case, including, in particular, his change of hairstyle and purchase of new glasses, should have been the subject of a direction as to consciousness of guilt, in accordance with Edwards v The Queen.[207] I reject that contention.
[207](1993) 178 CLR 193.

The jury were given detailed and appropriate directions regarding lies said to have been told by the applicant as to his never having been to Fawkner Cemetery, and not having any relatives buried there. For that reason, ground 4, which complains of the directions given regarding lies, is in my opinion devoid of any substance. I note that both Nettle JA and Ashley JA share that view in relation to ground 4.

The question to be considered in relation to ground 5 is whether a direction similar to that given in relation to lies also had to be given in relation to other post-offence conduct.

This Court has, in the past, intimated that an Edwards direction, or something closely akin thereto, should be given in relation to post-offence conduct, other than lies, where such conduct is relied upon as consciousness of guilt.[208] Thus, in R v Ciantar,[209] a case involving a hit-run motor vehicle accident, and a charge of culpable driving, it was held that evidence of flight from the scene, and subsequent ingestion of alcohol, could be led as consciousness of guilt. However, such evidence was not to be left to the jury unless the Crown precisely identified how, together with the other circumstances in the case, it was said to demonstrate a consciousness of having committed the offence with which the accused was charged, and not some other offence.
[208]R v Renzella [1997] 2 VR 88, 91.
[209](2006) 16 VR 26.

Ciantar was followed some months later in R v Cuenco.[210] That case concerned lies said to have been told by an accused. However, the judgment speaks in broader terms, positing, on one view, that any post-offence conduct upon which the Crown relies as evidence of consciousness of guilt, including, but not limited to lies, should be subject to an Edwards direction.
[210](2007) 16 VR 118.

Both Ciantar and Cuenco concerned lies. In so far as Ciantar dealt with flight, it did not hold, in terms, that an Edwards direction must, in every case, be given. It certainly did not hold that such a direction must be given in every case involving post-offence conduct relied upon as circumstantial evidence by the Crown. Cuenco was solely concerned with lies. Any observations by the Court in that case regarding post-offence conduct, apart from lies, were, strictly speaking, dicta. To the extent that Ciantar follows an earlier dictum in Renzella, and purports to extend the detailed requirements laid down in Edwards to cases not involving lies, it does so only in a specific and quite narrow context. It recognises that there may be circumstances in which post-offence conduct is incapable of being shown to be probative of guilt of the charged offence as opposed to a lesser alternative, or another count on the presentment. In accordance with Ciantar, such evidence should not be left to a jury as evidence of consciousness of guilt.

In my respectful opinion, neither Ciantar nor Cuenco is directly in point so far as the present application is concerned. The Crown’s reliance upon the applicant’s change of appearance shortly after Ms Halvagis’ murder had nothing whatever to do with any lies ostensibly told by him.

Unlike Ciantar, there is no question in the present case of any of the evidence relating to post-offence conduct being treated as consciousness of guilt of some offence other than murder. The change of appearance was nothing more than circumstantial evidence, of the most ordinary kind, upon which the Crown relied in order to strengthen its case. Where, as happened in this case, the jury were correctly directed as to the onus of proof and as to the principles governing circumstantial evidence, it was unnecessary, in my view, for an Edwards direction also to have been given. Such a direction could only have confused the jury. Moreover, the need for any such direction was obviated by the fact that no such direction was sought.

It is an indisputable fact that the form in which the Edwards direction must now be given has led to enormous difficulty in the conduct of criminal trials in this State.[211] Such a direction, and the attendant problems associated with the related Zoneff warning,[212] should be confined, so far as practicable, to the very special difficulties that are normally associated with lies. The Edwards direction, which is specifically tailored to those very special difficulties, is not well suited to other, broader, categories of circumstantial evidence.
[211]See generally: Victorian Law Reform Commission, Jury Directions: Final Report 17 (2009) [3.71]-[3.81]. The Commission observes that since the mid 1990s, the Victorian Court of Appeal has heard at least 84 appeals which raised consciousness of guilt as an issue, the appellant having succeeded in 28 of those cases.
[212]Zoneff v The Queen (2000) 200 CLR 234.

If I am wrong about this, and the law in this State as it now stands is that an Edwards direction must be given in relation to any post-offence conduct relied upon by the Crown, I would have no hesitation in saying that the failure to give such a direction did not give rise to a substantial miscarriage of justice. I would therefore reject ground 5.

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SCHEDULE A

[2009] VSCA 202

17 September 2009