R v Dupas (Ruling No. 1)
[2004] VSC 253
•21 July 2004
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1503 of 2003
| THE QUEEN |
| v |
| PETER NORRIS DUPAS |
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JUDGE: | KAYE J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 July 2004 | |
DATE OF RULING: | 21 July 2004 | |
CASE MAY BE CITED AS: | R v Dupas (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 253 | |
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CRIMINAL LAW – Murder – Propensity evidence – Similar fact evidence – Crimes Act 1958 (No 6231) s 398A.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr C. Hillman S.C. with Ms M. Williams | Ms Kay Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr J. Montgomery with Ms C. Gwynn | Mr Domenico Conidi, Victoria Legal Aid |
HIS HONOUR:
Similar Fact Evidence
The accused man, Peter Norris Dupas, has been charged on direct presentment that, at Somerton on 4 October 1997, he murdered Margaret Josephine Maher. On arraignment the accused man has pleaded not guilty. The prosecution intends to adduce at trial what is described as “similar fact” evidence concerning the murder of Nicole Patterson on 19 April 1999 at 21 Harper Street, Northcote. Objection has been taken to that evidence and I am required to rule in relation to the admissibility of it.
On 4 October 1997, at about 1.45 p.m., the deceased body of Margaret Maher was found lying on the side of Cliffords Road, Somerton. Her pants had been pulled down, and her upper clothing had been pulled up, thus exposing her torso. Her left breast had been severed after she had died and was placed in her mouth.
Dr Matthew Lynch, a forensic pathologist employed by the Victorian Institute of Forensic Medicine, performed an autopsy on the deceased on the same day. On examination he found a number of injuries including lacerations to the right breast, a small laceration above the right eye, a small area of skin loss near the right eye, a small incised injury to the left wrist, and a superficial incised injury to the left middle finger. Dr Lynch also noted on the right lateral neck a linear area of petechial haemorrhage. On dissection, a small amount of haemorrhage was found within the muscles adjacent to the thyroid cartilage. There were no fractures of the thyroid cartilage. There was a small amount of haemorrhage adjacent to the joint between the body and the left greater horn of the hyoid bone. On dissection, no fractures were found to the hyoid bone.
On histology, sections of the coronary artery showed atheromatous occlusion of the vessel lumen by 75%. Toxicological investigation found traces of Methamphetamine, Methadone, Oxazepam, Diazepam and Nordiazepam. In his autopsy report Dr Lynch described the “cause of death” as:
“Combined drug toxicity (methamphetamine, Methadone and benzodiazepines) in a woman with coronary artery atheriosclerosis and subtle signs of neck compression.”
In the section of his report headed “Comment” Dr Lynch enlarged on that finding as follows:
“Individuals with coronary artery disease are at risk from cardiac arrhythmia. Pressure applied to the neck may produce evidence of laryngeal haemorrhage and result in death by various mechanisms. The presence of Methadone, methamphetamine and benzodiazepines could also be implicated in this woman’s cause of death. Methadone and benzodiazepines may cause respiratory depression. Methamphetamine may cause cardiac arrhythmias.”
In cross‑examination at the committal proceedings Dr Lynch stated that he was not able to identify the mechanism as to how the injury to the neck was caused. He stated that some degree of compression would be required. He had inferred compression by observing the bruising on the neck and the bruising on the structures of the neck. Dr Lynch stated (at transcript p.208) that the deceased had natural disease processes, foreign substances in the form of drugs, and evidence of injury. In isolation any of those particular elements could have been the sole cause of death. Dr Lynch was unwilling to elevate any one of the potential causes of death to be the principal cause of death.
The similar fact evidence proposed to be adduced by the Crown focuses on the injury to the deceased post mortem and damage to her clothing. The autopsy showed that part of the left breast had been removed after death and there was tissue of the breast present within the deceased’s mouth. Dr Ranson, a forensic pathologist, examined photographs of both the excised breast and the residual breast tissue on the trunk of the body. He noted that that examination revealed a number of “dog eared tags” which gave the edges of the excised portion of the breast a sawtooth appearance. That feature is very characteristic of the excision of skin with the use of a sawing motion of a sharp object such as a knife. In addition, the windcheater and T‑shirt worn by the deceased had been severed. The clothing was examined by Ms Jane Taupin, a forensic scientist in employment of the Victorian Forensic Science Centre, on 27 February 2001. Ms Taupin described that there was a cut which completely severed the centre front of the windcheater, commencing from the neckband, and terminating through the hemline. The T-shirt which was worn beneath the windcheater had been completely severed, with scissor cuts that had commenced from the neckband and terminated through the hemline. Ms Taupin stated that the most feasible scenario was that the windcheater and the T-shirt were cut together in the one action and by the one implement. The features of the cuts disclosed that a pair of sharp, smooth bladed scissors with medium to long blades produced the cuts.
The body of Nicole Patterson was found in her home at 21 Harper Street, Northcote on 19 April 1999. The cause of death was multiple stab injuries to the chest. A total of 27 stab wounds were located to her chest and back. The stab injuries resulted in damage to both the lungs and heart with a fatal loss of blood. Both breasts of the victim had been cut off post-mortem and were missing. There was no evidence of any natural disease, and toxicological analysis was negative for drugs and alcohol. Dr Ranson also examined photographs of Ms Patterson which showed that the edges of the excision wounds of the breasts had an irregular sawtooth appearance to much of the circumference. That damage indicated a sawing motion of a sharp cutting object.
When Ms Patterson was found, she was naked from the waist down. Her skirt had been removed and was in an adjacent room. Her upper clothing and her skirt had been cut. Ms Taupin examined her clothing in February 2001. The examination showed a large number of stab‑type cuts to the cardigan and the back of the T-shirt. The deceased’s T-shirt had been cut down the centre front commencing from the neckline and extending to above the hemline. The severance was described as consisting of scissor cuts with a slight extension of tearing towards the hemline. Beneath the T-shirt Ms Patterson had worn a singlet. Ms Taupin observed that the singlet had also been severed, commencing from the neckline and extending down to above the hemline. The severance consisted of scissor cuts with a slight extension of tearing towards the hemline. There was a cut in the right shoulder strap of the brassiere which detached the strap from the front of the garment. The deceased’s skirt had been severed commencing from the waistband and extending down the skirt to almost the edge of the hemline. The severance consisted of scissor cuts which extended to a tear towards the lower part of the skirt.
Ms Taupin stated that the damage to the clothing of Ms Patterson was caused by two distinct types of damage produced by two distinct types of weapon or instrument. There were stab cuts to the back of the upper body garments correlating with an instrument capable of being used in a thrusting motion. The scissor cuts correlated with a pair of scissors with a double blade cutting action. The scissor cuts to the T-shirt and the singlet correlated with being cut in the one action. The cuts indicated a pair of sharp smooth bladed scissors which had medium to longer length blades.
The accused was charged with the murder of Nicole Patterson. He was found guilty at his trial in August 2000. His application for leave to appeal against conviction and sentence, were dismissed by the Court of Appeal in August 2001[1].
[1]R v Dupas [2001] VSCA 109.
In the forthcoming trial the Crown proposes to call evidence to prove that the accused man murdered Nicole Patterson and cut off her breasts after her death. The Crown submits that that evidence is admissible pursuant to s 398A of the Crimes Act 1958. In particular the Crown relies on the evidence of the removal of both of Nicole Patterson’s breasts after she died as a circumstance of unique similarity with the present case, in which the left breast of Margaret Maher was excised after her death.
The legal principles relevant to similar fact evidence were authoritatively stated in 1894 by the Judicial Committee of the Privy Council in Makin v Attorney‑General (NSW)[2]. For more than one century those principles have been re‑stated and applied in a number of reported cases. At the heart of the principles lies the proposition that it is not permissible for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal, or discreditable, acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused person is likely, from his other criminal or discreditable conduct, to have committed the offence for which he is tried. The law has recognised, as an exception to that rule, that evidence disclosing prior criminal or discreditable conduct by the accused may be admitted provided that it has a high probative value beyond demonstrating that the accused is a person with a criminal disposition or one who is likely to have committed the offence with which he is charged. That exception has only operated where the high probative force of the evidence, sought to be adduced, outweighs the obvious, and often considerable, prejudicial effect of adducing evidence of the prior criminal or discreditable conduct by the accused. For those reasons “similar fact” evidence has only been held to be admissible where, notwithstanding the prejudice occasioned by its admission, it had strong and cogent probative force. Thus, in Markby v R[3] Gibbs ACJ stated:
“It is often difficult to decide whether a particular piece of evidence is or is not admissible within these principles. However, when in doubt a judge should remember that the admission of similar fact evidence is the exception rather than the rule. To be admissible the evidence must have ‘a strong degree of probative force’ … or ‘a really material bearing on the issues to be decided’ … It may not be going too far to say that it will be admissible only if it is ‘so very relevant that to exclude it would be an affront to common sense’ … The question is thus one of degree, and in answering it the judge must apply his experience and common sense … In applying the test of admissibility … practical assistance, in many cases, will be obtained by considering whether there is a ‘striking similarity’ between the similar facts and the facts in issue.”
See also Perry v R[4]; Sutton v R[5]; R v Alexander and McKenzie[6].
[2][1894] AC 57 especially at 65.
[3](1978) 140 CLR 108 at 117.
[4](1982) 150 CLR 580 especially at 586 (per Gibbs CJ) and at 604 (Brennan J).
[5](1984) 152 CLR 528 at 533, 535 (Gibbs CJ), 548 (per Brennan J), 557 (Deane J).
[6](2002) 6 VR 53 at 71-2 (per Winneke P).
Evidence of similar facts is admissible notwithstanding that the similar facts
occurred after the offence which they are adduced to prove; Pfennig v R[7]; Thompson v R[8].
[7](1995) 182 CLR 461 at 490.
[8](1989) 169 CLR 1.
In Sutton’s case, Brennan J referred to two points which are relevant to the present case. First, in order to determine the probative value of the similar fact evidence, it is necessary to identify the particular fact or issue which the evidence, which is to be adduced, proves.[9] Secondly, in determining the cogency of the similar fact evidence, it is impermissible to assume the truth of the fact which is sought to be proved by the similar fact evidence[10].
[9]At 549.
[10]See especially pp.551-2; see also Thompson v R (1989) 169 CLR 1 at 17 (Mason CJ, Dawson J).
Section 14 of the Crimes (Amendment) Act 1997 (Vic) introduced s.398A of the Crimes Act. Before that section was enacted, the High Court had taken the test for the admissibility of similar fact evidence to a higher level. In particular, the Court had held that similar fact evidence is inadmissible if there is a reasonable view of the evidence which is consistent with the innocence of the accused; see Sutton’s case (above)[11]; Pfennig v R[12]; Hoch v R[13].
[11]At 564 (per Dawson J).
[12](1995) 182 CLR 461 at 483-5 (per Deane and Dawson JJ) and at 506-7 (per Toohey J).
[13](1988) 165 CLR 292.
Section 398A of the Crimes Act provides as follows:
“(1)This section applies to proceedings for an indictable or summary offence.
(2)Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.
(3)The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in sub-s.(2).
(4)Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence when considering the weight of the evidence or the credibility of a witness.
(5)This section has effect despite any rule of law to the contrary.”
The Court of Appeal has held that s.398A was not designed to “set at nought” the principles established at common law which have been followed in Australia and England for more than one century. Rather, s.398A was designed, principally, to override the recent doctrine which had emerged in cases such as Sutton, Pfennig and Hoch that similar fact evidence is not admissible if there is a reasonable view of the similar fact evidence which is consistent with the innocence of the accused. Thus, similar fact evidence will still only be received with great caution, where it has “a probative force which clearly transcends its prejudicial effect”; R v Tektonopoulos[14]; R v Best[15]; R v Alexander and McKenzie[16]; R v Rajakaruna[17]. In Rajakaruna Eames JA quoted the following passage from the speech of Lord Mackay of Clashfern LC in Director of Public Prosecutions v P[18]:
“When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, consisting of unusual characteristics in its execution, the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of a perpetrator is issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. … “
[14][1999] 2 VR 412 at 417 (per Winneke P).
[15][1998] 4 VR 603 at 607, 612 (per Callaway JA).
[16][2002] 6 VR 53 at 70-72 (per Winneke J).
[17][2004] VSCA 114 especially at paragraphs 81-94 (per Eames JA).
[18][1991] 2 AC 447 at 462.
In R v Tektonopoulos[19] Winneke P expressed the principles in similar terms as follows:
“. . . when the propensity evidence sought to be tendered, whether in sexual cases or not, is in the nature of ‘similar fact’ evidence, the courts will only receive it with great caution because it is in such cases that the risk of prejudice is ordinarily at its highest. This is particularly so in cases where the evidence is tendered for the purpose of establishing the identity of the accused as the offender. In such cases the risk is high that the jury will reason, from the mere fact of established criminal propensity, that the accused is the offender. That is why the courts have insisted in such cases that there should be something in the evidence, in the nature of ‘striking similarity’ with the offences charged, which strongly points to the accused as the offender.”
[19]Above at 418 (para 25).
In the present case it is important also to bear in mind the admonition by Brennan J in Sutton’s case (to which I referred above) and the point emphasised by Eames JA in Rajakaruna[20] (above), namely, that it is necessary first to identify the fact or facts in issue sought to be proven by the similar fact evidence. As stated by Eames JA, there is a danger in simply identifying a number of strikingly similar features in the previous offence, and then concluding that, for those reasons, the evidence relating to the previous offence is admissible in respect of the present case. Rather, it is necessary to identify just what fact in issue is sought to be established by the proposed similar fact evidence. By focussing on that question, it is then possible to determine whether the probative value, if any, of the similar fact evidence is so strong as to outweigh the prejudicial effect of its admission into evidence.
[20][2004] VSCA 114 esp at paras 85-86.
In the present case, the question whether the similar fact evidence should be admissible is more complex than in most of the cases which are found in the authorities. Generally, similar fact evidence is admitted to show, for example, that the accused is the person who committed a crime, the occurrence of which is well established by other evidence. In other words, in those cases, the principal or sole question is the identity of the offender. Alternatively, similar fact evidence is called to establish that a crime has been committed, where the identity of the accused person is not in dispute. That circumstance often arises in cases involving sexual offences where the alleged offender is well-known to the complainant, and the question is whether the offender committed the offences alleged. In the present case, as I have stated, the question is more complex. The medical evidence is equivocal as to the cause of death, and in particular as to whether death was caused by a criminal act. The evidence of Dr Lynch, alone, is not sufficient to establish that Ms Maher was killed because of human pressure on her neck, and, if so, that that pressure was applied by a person intending to kill her or cause her really serious injury. In order to establish that a crime has been committed the Crown will rely on other evidence, and in particular on inferences.
The first task is to identify what fact in issue the Crown seeks to establish by proposing to adduce the similar fact evidence. I must then assess the strength of the probative value (if any) of the similar fact evidence in establishing that fact.
On analysis, the Crown originally put its argument in support of the admission of the similar fact evidence in two alternative ways. First, the Crown contended that the similar fact evidence is admissible to establish that the accused murdered and mutilated Margaret Maher. In other words, the Crown contended that there are such striking similarities between the death and mutilation of Nicole Patterson, and the death and mutilation of Margaret Maher, that proof by the Crown that the accused murdered and mutilated Nicole Patterson gives rise to an inference that the accused also murdered and mutilated Margaret Maher. Alternatively, the Crown relied on the post‑mortem mutilation by the accused of Nicole Patterson, and its striking similarity to the post‑mortem mutilation of Margaret Maher, to infer that it was the accused man who mutilated Margaret Maher after she deceased. Having established that fact, the Crown would then invite the jury to infer that the person who mutilated Margaret Maher (ie the accused) had murdered her.
There are two difficulties with the first of the alternatives put by the Crown. First, admission of the evidence on that basis would offend the stricture enunciated by Brennan J in Sutton’s case, namely, that it assumes the truth of the fact (that Margaret Maher was murdered) which the Crown seeks to prove by the similar fact evidence. In other words, I am asked to assume that Margaret Maher was murdered, in order to determine the cogency of the similar fact evidence which the Crown seeks to adduce to actually prove that fact. Put differently, the inference which I (and the jury) would be asked to draw is that because the accused man murdered and mutilated Patterson, and because Margaret Maher was mutilated in a similar manner, the accused man also murdered and mutilated Margaret Maher. In my opinion, this process involves, or at least bears a powerful resemblance to, an argument that because the accused person murdered and mutilated Nicole Patterson, he had a disposition to murdering and mutilating, and thus he murdered and mutilated Margaret Maher. Such a proposition offends against the basic principles enunciated in the authorities to which I have referred earlier.
This analysis of the Crown’s first basis of admissibility exposes a second and allied problem. Even if I were to assume (for the purposes of this preliminary argument) that Margaret Maher died because of the pressure to her neck, there is no striking similarity between the manner in which Nicole Patterson was killed and the manner in which the Crown would contend that Margaret Maher died. Nicole Patterson was killed as the result of multiple stab wounds to her upper body. On the Crown case Margaret Maher died because of compression to her neck which may or may not have been applied with a murderous intent. Nicole Patterson was murdered and left in her own home. Margaret Maher was left at the side of a public roadway. On the Crown case the accused man had visited Nicole Patterson at her home in response to an advertisement she had placed in a local newspaper in respect of her services as a psychotherapist. On the Crown case, Margaret Maher was a prostitute working on the Hume Highway. There is no sufficient identity of factors, before the death of each of the victims, which invests those circumstances with such strong probative value to justify admitting the evidence in support of a contention that, because the accused man murdered Nicole Patterson, he also murdered Margaret Maher.
I therefore turn to the second alternative basis of admissibility relied on by the Crown, that is, that by proving that the accused mutilated the deceased body of Nicole Patterson, it thereby proves, by inference, that the accused mutilated the deceased body of Margaret Maher.
On this basis, the Crown seeks to use the similar fact evidence in order to achieve the first of two steps in its proofs. First, it seeks to establish an inference, by that evidence, that it was the accused person who mutilated Margaret Maher’s body. Secondly, and independently of the similar fact evidence, the Crown seeks to persuade the jury to infer that the person who mutilated the body of Margaret Maher had caused her death with the intention of killing her or causing her grievous bodily harm. That second step involves three inferences which originate from the fact of mutilation of the deceased’s body, namely:
(a)that the person who mutilated the deceased’s body was the same person who applied pressure to her neck;
(b)that the compression of the deceased’s neck was a substantial cause of her death; and
©that the person who applied the force which compressed the neck of the deceased did so intending to kill her or cause her really serious injury.
In order to assess the potential probative value of the similar fact evidence it is thus necessary to make an assessment of the probative value of the evidence in relation to the two steps or inferences which the Crown seeks to have drawn from it. The debate before me only focused on the first step but it is also necessary for me to give some consideration to the second step which I have just described.
The primary focus of the submissions of the Crown concerned the excision after death of one of the breasts of Margaret Maher and of both breasts of Nicole Patterson. Mr Hillman SC, who appeared on behalf of the Crown with Ms M Williams, submitted that such a feature, in each case, was extraordinarily rare and distinctive. He contended that the removal of a breast or breasts, after death, in each case, gave rise to a powerful inference that the person who murdered and excised the breasts of Nicole Patterson was the same person who cut off the breast of Margaret Maher after her death. In addition Mr Hillman relied upon the similarities in the scissor cutting of the front of the clothing of both deceased women. He submitted that the features of the removal of the breasts and the damage to the clothing, in combination, satisfied the tests posited in the authorities, and in particular was a unique and distinctive feature relating to each deceased woman so as to make the evidence of the excision of the breasts of Nicole Patterson highly probative in establishing who excised the breast of Margaret Maher after her death. Mr Hillman submitted that any prejudice flowing from the admission of the evidence could be offset by appropriate directions given by me to the jury both at the commencement of the trial and in my final charge to them.
On the other hand, Mr Montgomery, who appeared with Ms Gwynn for the accused man, contended that the submissions made by the Crown were artificial in two important respects. First he submitted that it is artificial for the Crown to contend that in each case that the removal of a breast or breasts after death was unique and strikingly similar. He pointed to other cases which he submitted made that circumstance not unique. Further, he pointed to a number of differences in relation to the deaths and post mortem injury to both deceased women which, he contended, had the effect that the evidence relating to the post mortem excision of the breasts of Nicole Patterson was not strikingly similar to the evidence relating to the excision of the left breast of Margaret Maher after her death. In addition Mr Montgomery submitted that, if the evidence relating to the death and mutilation of Ms Patterson was admitted, the accused man would suffer irreparable prejudice which could not be cured by appropriate judicial direction.
In support of its submission that, in each case, the removal of a breast or breasts from the deceased women is a unique feature, the Crown proposes to call in evidence Ms Jenny Mouzos, a research analyst employed by the Australian Institute of Criminology, who manages the National Homicide Monitoring Programme. Ms Mouzos has reviewed all homicides contained in the National Homicide Monitoring Programme to determine whether, between 1 July 1989 and June 2000, there have been any other previous homicide cases which involved a female having her breasts cut off. For that purpose, Ms Mouzos manually reviewed each of the 2,821 homicide cases in all Australian States and Territories between 1 July 1989 and 30 July 1998. She has also reviewed the NHMP database which contains data on a total of 3,723 homicides in Australia between 1 July 1989 and 30 June 2000. Of these 3,723 homicides so recorded, 1,378 involved females as victims. Both the manual review, and the review of the database, shows that the only case on file between July 1989 and June 2000 involving the removal of a breast or breasts was the case of Nicole Patterson.
Dr Ranson, a forensic pathologist, stated at the committal[21] that in his experience in Victoria since 1988, and in the United Kingdom before that, he had never seen breast removal as a part of a homicide case investigation except for in the cases of Patterson and Maher.
[21](transcript p.249).
Mr Montgomery submitted that, if the similar fact evidence were to be admitted, nevertheless the evidence of Ms Mouzos would be inadmissible. In particular he submitted that the evidence of Ms Mouzos had an inadequate basis, as her research did not go back before 1989, and did not involve any countries outside Australia. Accordingly, Mr Montgomery submitted that Ms Mouzos’ evidence lacked any probative value.
I do not accept that submission. In my view, the evidence of Ms Mouzos does have probative value. The National Homicide Monitoring Programme statistics to be adduced by her covers a period of over one decade, and are nation wide. The question of what weight the evidence ought to be accorded is a matter for a jury, but I do not find that it lacks any or any sufficient relevance or probative value. On the contrary, the evidence is clearly relevant to establish that the excision of a breast or breasts of a deceased woman, after her murder, is either unique or extremely rare in Australia over the a period of almost one decade which preceded the deaths of both Margaret Maher and Nicole Patterson. That evidence is relevant to support the Crown proposition that the removal of a breast or breasts from a deceased woman after her homicide is a rare and unusual feature.
The Crown also relies on the evidence of Ms Taupin, to which I have already referred, relating to the cutting by scissors of the front of the clothing of each of the two deceased women. In particular Ms Taupin noted five similarities in each case. First, she noted that the scissor damage to the front of the clothing of both deceased was caused by smooth sharp bladed scissors with medium to long blades. Secondly, in each case, the damage to the top part of the clothing of each deceased woman was from the neckline to above or through the hemline. Thirdly, in each case, the direction of the cut by the scissors was from the top of the clothing to the bottom. Fourthly, in each case, two layers of top clothing worn by the deceased were cut at the same time. Fifthly, in each case, Ms Taupin noted that the deceased person would have had to be stationary and not moving when the clothing was cut.
Mr Montgomery objected to two further features of the evidence which it is proposed to be called from Ms Taupin. First, Ms Taupin postulated that the most feasible scenario, in each case, was that the approximate position of the person using the scissors was from the head area, and facing down the supine body of each deceased. Mr Hillman accepted that that evidence would not be admissible because it is a conclusion which the jury could draw from the other evidence to be called from Ms Taupin. In my view that concession by Mr Hillman was correct. Secondly, Mr Montgomery objected to evidence which it was proposed to be called from Ms Taupin that in each case the scissor cuts to the clothing of the deceased are an “unusual and outstanding feature”. In my view that objection is valid and I uphold it. At the Committal, Ms Taupin stated that she had given evidence in relation to cutting of clothing in 30 cases. She did not give evidence that she had reviewed any records of, or been involved in, a large number of cases of homicides involving damage to clothing, in order to sustain the proposition that damage to clothing by scissors is a rare and unusual feature. Ms Taupin did state that scissor cuts to the clothing are not reported in the forensic science peer review literature to her knowledge. However that statement, standing alone, is insufficient to qualify Ms Taupin to express the view objected to by Mr Montgomery. There is no evidence as to whether ordinarily such damage, if it occurred, would be reported in forensic science peer review literature. Thus Ms Taupin’s evidence that she had not read of any such damage in forensic science peer review literature, of itself, has no significance in establishing whether or not, in cases of homicides, damage to clothing by scissor cutting is or is not a rare or unusual event. In the course of submissions Mr Hillman acknowledged this point, but sought leave to adduce further evidence on a voire dire during the trial should it emerge that Ms Taupin would be able to lay a basis for her opinion by giving evidence as to the nature and contents of the forensic science peer review literature. I expressed the view, to which I adhere, that I would be reluctant to give that leave during the trial. At that time defence counsel would have little if any opportunity to have appropriate research conducted in order to test such a proposition in cross-examination. However, based on the matters set out in the Committal evidence, at this stage I rule that evidence may not be adduced from Ms Taupin to the effect that scissor cuts to clothing of a deceased person are an unusual and outstanding feature.
As I have stated, the primary focus of the Crown’s submission was on the excision of a breast (of Margaret Maher) or the breasts (of Nicole Patterson) after death. Based on the evidence of Ms Mouzos and Dr Ranson, the Crown contended that such a feature is rare if not unique. Further, the fact that the two instances of breast excision after death occurred within 18 months of each other, each in the northern suburbs of Melbourne, was particularly significant. In addition, the Crown also relied on the cutting of the front of the clothing of each deceased woman by scissors and on the distinctive features which attended the cutting of that clothing which I have already referred to. Thus the Crown contended that, in the above circumstances, the evidence of the excision of the breasts of Nicole Patterson by the accused man after she had been murdered had a high probative value in proving that it was the accused man who excised the left breast of Margaret Maher after she died on 4 October 1997.
Mr Montgomery contested the basic propositions underlining the Crown’s contentions. First, he contended that the excision of a breast or breasts after death is not unique or unusual in Australian or international history. He referred me to a number of instances which he had derived principally from the Internet. Certainly, in the course of history, there have been isolated cases overseas involving the removal of breasts, usually in combination with other acts of sexual mutilation, revealed by Mr Montgomery’s researches. However, it would seem that those cases are few and far between. Further, Mr Montgomery’s researches did not reveal any previous case of the removal of a breast in Australia after the murder of a woman. I was referred to cases involving the post mortem mutilation of women, including the post mortem mutilation of their breasts. See for example R v Giles[22]; R v Cal[23]. However the only instance of the removal of a breast or breasts post mortem occurred in vastly different circumstances to the present where a miscreant or miscreants broke into the mortuary of a public hospital and mutilated the deceased bodies of two elderly women by (inter alia) removing their breasts.
[22][1999] VSC 118.
[23](Supreme Court of Northern Territory, unreported, 30 June 2004).
Thus, on the evidence before me, the Crown will be able to establish that the removal after death of a breast or breasts of a murdered woman is most unusual, if not unique, certainly in the recent history of homicides in Australia.
Mr Montgomery then pointed to a number of differences in the cases of the two deceased women. First he pointed to differences in the circumstances leading up to the deaths. For example, the evidence is that the accused man met Nicole Patterson when she advertised her services as a psychotherapist. The Crown case is that, pursuant to a prearranged appointment, he visited her at her home and murdered her there. By contrast Margaret Maher was a prostitute. She was last seen at 12.15 pm departing the Safeway store and heading for the Hume Highway, where she normally worked. Secondly, Nicole Patterson was murdered and left in her own home. Margaret Maher’s body was apparently dumped by the side of a roadway in Somerton. Thirdly the means and causes of death in each case were quite distinct and different. Nicole Patterson was murdered by multiple stab wounds. The cause of death of Margaret Maher is contentious. If the Crown establishes beyond reasonable doubt that she was murdered, then she was strangled by pressure being applied to the neck. Fourthly, after the death of each women, their bodies were quite differently arranged. Nicole Patterson was lying face up, with her right foot over her left ankle, and her hands outspread. Margaret Maher was left lying on her side.
As I have already noted, the differences to which Mr Montgomery has referred are so significant that the Crown would not be permitted to adduce the evidence to prove that because Dupas murdered and mutilated Patterson, he also murdered and mutilated Maher. However, as Mr Hillman correctly contends, it is necessary to focus on the fact in issue which the Crown seeks to establish by adducing the similar fact evidence. In this instance, the Crown seeks to establish one fact which is in issue, namely, the identity of the person who excised the left breast of Margaret Maher after her decease. In determining that fact the differences to which I have already referred in the two cases are of limited relevance. The fact which is of central relevance is the excision of the breast or breasts. It is that factor which is of particular probative force, given its rarity, and given its inherently striking and distinctive character.
In this respect Mr Montgomery countered by contending that there are two significant dissimilarities in respect of the excision of the breasts of Nicole Patterson to the excision of the breast of Margaret Maher. First, in the case of Nicole Patterson, both breasts were removed; in the case of Margaret Maher one breast was removed. Secondly, Margaret Maher’s breast was left in her mouth, in what Mr Montgomery described as a public demonstration of contempt for the victim or for women generally. By contrast both Nicole Patterson’s breasts were removed from the scene and have not been found since.
The question is whether those two dissimilarities detract from the uniqueness and the striking quality of the excision of the breasts of the two women after their death. Certainly, if in the case of Nicole Patterson, only one breast had been removed, and had been left in the same position as the breast of Margaret Maher, the evidence relating to that mutilation of Nicole Patterson would have been more potent than it is. However, the two differences adverted to by Mr Montgomery do not necessarily mean that the removal of the two breasts in the case of Nicole Patterson does not have a high probative value in the present case. Those differences only mean that the probative value of the evidence relating to Nicole Patterson is not as high as if the two cases were completely identical.
There is of course coupled with the removal of the breasts the similar features relating to the cutting of the front of the garments of both women by scissors. I have already referred to five common features in the two cases which were identified by Ms Taupin. There are also relevant differences in the two cases. First, Ms Patterson’s skirt was also cut by scissors, from the waistband to the hem; by contrast Margaret Maher’s pants were not cut at all. Secondly, the cutting of Nicole Patterson’s upper garments extended to above the hemline; the cutting of Margaret Maher’s upper garments went through the hemline. Thirdly, there was a slight extension of the cutting of Nicole Patterson’s upper garments by a tearing towards the hemline.
On its own the cutting of the clothing by the scissors is not so unique or distinctive as to justify the admission of the evidence as similar fact evidence. However, the five features of similarity, identified by Ms Taupin, do add weight to the probative value of the excision of the breasts in the cases of the two women. The combined effect of the excision of the two breasts of Nicole Patterson, and the cutting of her clothing with scissors, give that evidence high probative force in establishing that the person who mutilated Nicole Patterson’s body by removing her two breasts after she died was the same person who excised the left breast of Margaret Maher after her decease and cut her clothing with scissors.
Mr Montgomery correctly did not contend that the fact of the mutilation of Margaret Maher’s left breast after she died was of peripheral or limited relevance to the case of the Crown. Clearly the issue of who excised the breast of Margaret Maher after her decease is of central relevance to the Crown’s case. Unlike, for example, in the case of R v Alexander and McKenzie[24], the similar fact evidence is not directed to proving a fact which is of peripheral relevance to the issues at trial.
[24]Above.
If it is established that the accused man mutilated the body of Margaret Maher, that fact is relevant to show that he was with Maher either at or about the time she died. Dr Lynch’s evidence, at the committal, was that death occurred between 9.00 p.m. and 7.00 a.m. The witness Marina Henne places Ms Maher at the Safeway Supermarket in Broadmeadows Town Shopping Centre until about 12.15 a.m. on Saturday 4 October 1997. If the jury accept that the accused man mutilated Mrs Maher’s body, it will be for the jury to determine whether it infers that the accused man was with Mrs Maher at or about the time of her death. One possible inference is that, in some way or other, he “happened upon” her body after she had died and then mutilated it. I doubt, however, that the jury would accept such an “innocent” inference, as it strains the bounds of coincidence considerably. Thus, for present purposes, I consider that if the Crown were able to establish that the accused man mutilated the body of Margaret Maher, such a fact would be strong evidence of the presence of the accused man with the deceased at or about the time of her death.
Further, the fact that the body of a deceased person has been mutilated after death, and then left abandoned at a roadside, would in my view entitle a jury to infer that the person who had mutilated the body and left it at the roadside had, at that time, a violent disposition towards the deceased. In other words, a jury would be entitled to infer that the death of the deceased was the result of “foul play” by the person who had mutilated the deceased’s body and left it by the roadway. The violence to the corpse, the antipathy or callousness revealed by the mutilation, and the contempt manifested for the dignity of the deceased, are all matters which a jury may consider to be the work of a person who had a malevolent disposition towards the deceased before she died.
The other, and critical, side of the equation involves an assessment of the prejudice to the accused person if I were to admit the evidence in question. If the evidence is to be admitted, it is only relevant to establishing that the person who excised the breasts of Ms Patterson after her death was the same person who excised the left breast of Margaret Maher after she died. However, if that evidence relating to Nicole Patterson were to be admitted, that evidence would be inextricably intertwined with the evidence relating to the circumstances in which Nicole Patterson was murdered. In other words, if the evidence relating to the mutilation of Nicole Patterson’s breasts were admitted, the jury would also have to consider the evidence relating to the murder of Nicole Patterson, in order to be satisfied beyond reasonable doubt that it was the accused man who excised the breasts of Nicole Patterson after she died. Thus the evidence which would be sought to be adduced would go beyond the purpose for which it was adduced, namely establishing the identity of the person who mutilated the breasts of Nicole Patterson after her murder. It would also prove the identity of the person who murdered Nicole Patterson and the circumstances in which she was so murdered.
There is no doubt that the proof of the murder by the accused man of Nicole Patterson, and of the circumstances in which that murder was perpetrated, may have a significantly prejudicial affect on a jury. There is a real risk that the jury would, impermissibly, reason that because Dupas had murdered Nicole Patterson, and then had mutilated the body, he therefore also murdered Margaret Maher and, similarly, mutilated her body. Equally there is the risk that the jury could simply be overwhelmed by the evidence that the accused person is himself a murderer, whatever the circumstances of the previous murder. If the similar fact evidence were to be admitted, I would give strict and detailed directions to the jury, at the outset, and in my final charge to them, concerning what use they may make of the evidence, and in particular what use they may not make of the evidence. However, realistically, there must be some doubt whether any direction given by me could entirely allay all the prejudice which would stem from admission of the evidence. The task which I have is to determine whether, in the circumstances, the probative value of the evidence, which I have considered above, sufficiently outweighs the prejudicial effect of the evidence, that it is just in the circumstances to admit it into evidence.
Mr Montgomery has referred me to a number of press clippings which I have marked as Exhibit 1 in the voire dire. Those documents disclose that between late 2000 and November 2003 there have been a number of articles in the press concerning Mr Dupas. Those articles have three relevant features. First they disclose that the accused man has a number of previous convictions for violent sexual offences. Secondly the articles purport to compare the circumstances of the deaths of Nicole Patterson and Margaret Maher. Thirdly the articles accuse Mr Dupas of the murders of other women for which he has not been charged. The articles each have prominent headlines. On occasion they use strong and emotive language, for example describing the accused man as “a sex killer” and a “sex monster”. The most recent article, in the Herald Sun of November 2003, is entitled “Dupas linked to mystery killings”. The article contains the photograph of the accused man, together with the photographs of four other women, including Nicole Patterson and Margaret Maher. The article states that a brief of evidence was submitted to the State Coroner in respect of the deaths of Margaret Maher, Nicole Patterson and the two other women. The article suggests that the brief of evidence is thought to list propensity evidence which allegedly establishes common features of the four killings.
The nature and tenor of the newspaper articles are, to say the least, unfortunate. They do not assist in the maintenance of a system of justice such as ours which is based on trial by evidence, and not trial by public allegation and innuendo. I will certainly need to give strong directions to the jury that they must totally ignore and disregard any publicity they have previously read about the accused man. However, as Mr Montgomery contends, the publicity has a particular effect in the present case. The similar fact evidence has an inherent prejudicial potential in any event. In most cases a strong direction from the trial judge can allay or eliminate that prejudice. However, Mr Montgomery contends that in the circumstances of this case, given the antecedent publicity about his client, such a direction might not have the same force with the jury. In other words, the similar fact evidence might serve to reinforce the negative publicity which the jury may have read about the accused man.
I consider that the submissions of Mr Montgomery in this respect do have some force. I am concerned that the evidence, if admitted, will cause the jury to recall, or be affected by, publicity they have already read about the accused man concerning his other alleged offending. On the other hand, it is important not to overlook, or underestimate, the capacity of juries and the increasing sophistication of our juries. Historically juries have shown, time and again, the ability to focus on the evidence and the issues which are at large in a trial before them, unaffected by negative or sensational publicity which might have preceded the trial. Particularly in more recent decades, verdicts of juries, both in criminal and civil cases, have reflected the fact that juries do take seriously judicial directions given to them that they must bring in a verdict according only to the evidence, and not according to any prejudice which they may have about the parties or the cause which is before them. Certainly, it would be naïve to contemplate that juries are entirely impervious to the type of publicity to which Mr Dupas has been subjected. Nevertheless I do consider that, properly directed, any such prejudice can be sufficiently allayed so as not to deny the accused man a fair trial.
The ultimate question for me to determine is whether the proposed similar fact evidence is of such high probative value that it would be just to admit it into evidence notwithstanding its potential prejudicial effect in the circumstances which I have described above. In R v Best (above p 616) Callaway JA stated the applicable test as follows:
“Propensity evidence is admissible only if its probative value is such that it is just to admit the evidence despite any prejudicial effect it may have on the accused. All the circumstances bearing on probative value and prejudicial effect are relevant, but not factors impugning the reliability of the evidence.”
See also R v Rajakaruna (above) at para 79.
I have come to the conclusion that the probative value of the evidence is so high that it is, in the circumstances, just to admit it. The evidence relating to the excision of the breast or breasts in each case, and the evidence relating to the rarity of that phenomenon, is of particularly high probative value in relation to the issue as to who excised the left breast of Margaret Maher after she died. That evidence is given additional probative force by the scissor cuts to the clothing which I have described. The evidence goes well beyond showing that the accused man had a “disposition” to mutilate the deceased bodies of women in the manner described. Rather, the evidence shows a specific mark or signature left by the accused man in the case of Nicole Patterson which is of such unusual or rare occurrence as to make it a striking and highly probative fact in establishing that the same person also excised the left breast of Margaret Maher after she died. The evidence not only is of probative value to that effect, but it is, on my estimate, of strong and high probative force, notwithstanding the submissions of Mr Montgomery relating to the differences which can be identified between the two cases. While I accept that there is a risk of prejudice to any accused man from the adducing of such evidence, and in this case there is a more significant risk because of the antecedent adverse publicity given to Mr Dupas, I am of the opinion that such prejudice can be significantly allayed by directions, both at the outset of the trial, and in my final charge to the jury, requiring the jury to focus purely on the evidence of the excision of the breast in each case to determine the one issue, namely, whether it is established beyond reasonable doubt that it was the accused man who excised the left breast of Margaret Maher after she died. In so ruling I expect that the prosecution will also take particular care to open the evidence as being relevant only to that issue.
For the reasons which I have set out above, I rule that the evidence relating to the murder of Nicole Patterson, and relating to the excision of her breasts after she was murdered, is admissible on the forthcoming trial of the accused man for the murder of Margaret Maher. That evidence is only admissible for the purposes of establishing that it was the accused man who excised the left breast of Margaret Maher after she died.
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