R v Dupas (No 3)

[2009] VSCA 202

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:

1. 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

1. 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.

1. 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.

1. 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…