R v Dupas (Ruling No. 1) - [2004] VSC 253

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1503 of 2003

THE QUEEN

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Dupas (Ruling No. 1)

Details

AGLC: R v Dupas (Ruling No. 1) [2004] VSC 253
Case: [2004] VSC 253
Decision Date: 21 July 2004

CaseChat Overview and Summary

The case of R v Dupas (Ruling No. 1) involved the prosecution of the defendant, Dupas, on charges of murder. The dispute centred around the admissibility of propensity evidence and similar fact evidence under the Crimes Act 1958. The matter was heard in the Supreme Court of Victoria. The key issue before the court was whether evidence of the defendant's previous violent conduct, which bore similarities to the current offence, should be admitted as propensity evidence or as similar fact evidence under section 398A of the Crimes Act 1958.

The court examined the distinction between propensity evidence and similar fact evidence, noting that propensity evidence is generally inadmissible unless it falls under specific exceptions, while similar fact evidence may be admitted if it is relevant to prove a fact in issue other than the defendant's disposition to commit the offence. The court further considered the probative value of the evidence against its prejudicial effect, as mandated by section 398A. It was necessary to determine if the evidence of the previous violent conduct was sufficiently probative to outweigh any prejudicial impact it may have on the jury.

After a thorough analysis, the court ruled that the evidence of the defendant's previous violent conduct was not admissible as propensity evidence but could be considered as similar fact evidence if it was relevant to a fact in issue other than the defendant's propensity to commit the offence. The court found that the evidence met the criteria under section 398A, allowing it to be admitted as similar fact evidence. Consequently, the court allowed the evidence to be presented to the jury, subject to proper direction regarding its limited admissibility.

The final orders of the court included the admissibility of the contested evidence as similar fact evidence, subject to the limitations and directions provided by the court to ensure the jury understood its proper application in the context of the trial.

Orders