R v Dupas (Ruling No. 3)

[2004] VSC 284

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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:
DATE OF RULING:	22 July 2004
CASE MAY BE CITED AS:	R v Dupas (Ruling No. 3)
MEDIUM NEUTRAL CITATION:	[2004] VSC 284

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Hillman SC 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:

1. In the exercise of my discretion I will not admit the evidence of Ms  Henne of her claimed identification of the accused man who was either with or in the vicinity of the deceased woman Margaret Maher about two weeks before she died, that evidence being the evidence contained in the statement of Marina Henne dated 11 August 2003, and any evidence she gave at the committal in relation to it.

1. Briefly, for the reasons I have already outlined, the actual evidence of identification is particularly weak.  The witness only made the identification, at best, three years after she saw the man who was near or with Ms  Maher.  The identification was made when she saw a photograph which connected the accused man with another murder or murders and thus there is a very real risk that her identification processes were heavily infected by that.

1. In cross-examination, and indeed even in re-examination, it appears clear that she only saw the man who was with Ms  Maher for a short time.  She had not seen him before or after.  The photograph she saw was only of the upper part of the body.  If the evidence were admitted, I agree with Mr  Montgomery, I would need to give the strongest directions, as the authorities require me to do, which would effectively devalue the evidence and render it virtually useless.  Therefore the evidence would be admitted for me simply to tell the jury that it would be of very weak effect.

1. I do accept the proposition made well by Mr  Montgomery that the evidence would be of prejudicial value for the reasons I have outlined.  Firstly, the circumstances of the identification in which she saw the photograph connect the accused man not only with the murder of Ms  Patterson, which will be the subject of evidence in this case in any event, but significantly with other possible murders.

1. If the evidence were admitted Mr  Montgomery could not possibly cross-examine about that photograph without the risk of badly prejudicing his client.  That would be grossly unfair.  He would therefore have to cross-examine with probably not one hand behind his back but one hand at least strapped to his side.

1. There is a prejudice because no-one has been able to find the photograph, so that neither the Crown, and that is no criticism of them, but the fact that they cannot find it indicates how impossible it would be now to identify the photograph, but neither the Crown nor the accused could compare the photograph to Mr  Dupas.  It may in fact be a bad likeness and, in fact, may further devalue the identification.

1. For those reasons I have come to the conclusion that the identification evidence is very weak.  I agree it goes to a central fact, but it is a very weak connection to that central fact.  Its probative value is, in my view, far outweighed by its potential prejudicial value.

1. In the exercise of my discretion I therefore rule that it is not admissible in the forthcoming trial.

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