R v Dupas (Ruling No. 4)

[2004] VSC 285

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:
DATE OF RULING:	22 July 2004
CASE MAY BE CITED AS:	R v Dupas (Ruling No. 4)
MEDIUM NEUTRAL CITATION:	[2004] VSC 285

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Hillman S.C. with Ms M. Williams	Ms Kay Robertson, Solicitor of Public Prosecutions
For the Defendant	Mr J. Montgomery with Ms C. Gwynn	Mr Domenico Conidi, Victoria Legal Aid

HIS HONOUR:

1. The question of the admissibility of the evidence of Ms Birrell in this case is, in my view, a difficult one.  The issue is borderline, but on balance I have come to the conclusion that it ought not to be admitted into evidence.

1. The Crown relies, essentially, on the evidence as admission evidence and correctly accepts that for it to persuade the jury they must be persuaded beyond reasonable doubt, firstly, that Mr Dupas made the phone call; and secondly, that it was a true admission.

1. Mr Montgomery contends, and I consider correctly, that the link between the person who made the offensive phone calls and Mr Dupas is extraordinarily weak.  First, and most critically, it appears that the phone call was made, on the evidence of Ms Birrell, through a phone service.  The evidence which is being used to link the caller to Mr Dupas is the Telstra records, which seem to indicate that direct phone calls were made from Mr Dupas's home in early November 1997 to the house of Ms Birrell.  That evidence is simply not consistent with the clear evidence of Ms Birrell which she, no doubt, will give to the jury that the phone calls to her home from the caller in question came in through Granny's Phone Sex.  Indeed, even the pattern of the calls is not consistent with Ms Birrell's evidence.  Ms Birrell, as I understand her evidence, says that three calls were made from the particular caller on the one day.  The Telstra phone records of Mr Dupas's home in Coburg indicate that two phone calls were made on 1 November and one each on the 2, 3 and 4 November.  Thirdly, and significantly, the Telstra records relating to Ms Birrell's residence indicate that phone calls were made from that residence directly to Mr Dupas's home on 29 and 31 October 1997, that is before these calls, but more significantly also on 3 and 4 November 1997, that is either during or shortly after the calls.  It would be unthinkable, given the contents of her statement, that she rang back the person who called her.

1. I appreciate that a jury is entitled to accept some evidence and reject other evidence, but those differences do cause the link which is sought to be made between the Crown and Mr Dupas to be extremely weak.

1. I do accept what Ms Williams says, that the timing is significant and important as Ms Birrell's recollection is that these calls were made between October and March, but I do not consider that that fact alone sufficiently strengthens the evidence to give it any other character than weak.

1. In addition, as Mr Montgomery states, there are significant and important differences in the substance of the phone call made, in respect of the damage which was caused to Ms Maher, and the Crown case about how she died.  Without visiting the details of those matters in this ruling, it is sufficient to say, firstly, that there was an allegation of gross vaginal interference by the caller, that is simply not existent in relation to Ms Maher.  Secondly, the most significant aspect of the Crown's case against Mr Dupas is the excision of the left breast of Ms Maher.  The caller did not state, to the recollection of Ms Birrell, that the left breast was excised, although under cross-examination at the committal she did say that the caller said something about the left breast.  The differences in substance significantly outweigh the similarities to further weaken the connection between the two bits of evidence.

1. The evidence therefore, if relevant, is only weakly so.  It would be of weak probative value.  Those differences, if the evidence were admitted, would no doubt be eloquently pointed to by counsel for the accused and would be highlighted in any final directions I gave to the jury.  I would think that at the end of the day the jury would gain marginal, if any, assistance from the evidence of Ms Birrell if I were to admit it.

1. On the other side of the equation, I accept that if I were to admit the evidence there would be unfair prejudice to the accused man in defending the serious charge in respect of which he is brought to this court.  Firstly, the evidence standing alone would, no doubt, upset and disgust the jury.  The jury do have a lot to cope with in this case and it is, I think, undesirable that any further evidence be given which is not relevant but which only serves to further cause them any emotional difficulty.  Secondly, and more specifically, Mr Montgomery would have to cross-examine on the differences between, on the one hand, the damage to the body of Ms Maher, or the lack of it; and on the other hand, the sordid details of what the caller said he did to the woman who he described as his mother.  That evidence would distract the jury, would have the potential of antagonising the jury against Mr Dupas and quite possibly against his counsel and would, accordingly, be prejudicial.

1. I also accept that the evidence, if admitted, because of its weakness could lead to areas of speculation which would be an impermissible area of reasoning.  I do accept that juries are robust, that they follow directions and that historically, particularly in recent times, they do follow an intellectual, not an emotional, process of coming to their verdicts.  Nevertheless, it is most undesirable to admit evidence of this type which could at least tempt them into areas of speculation which are not permitted.

1. I do have hesitation.  I have hesitation because of the description given by the caller of the injury to the neck of the woman, the use of the knife, and some of the damage he caused.  I have hesitation because of the timing of the call.  It is a difficult call for a trial judge, but on balance if I were to err I should err in favour of the accused man on this evidence.  In doing so, I rule it inadmissible, firstly, on the grounds it is irrelevant.  Secondly, if it is relevant, it is only weakly so, and any probative value is sufficiently outweighed by its potential prejudicial value to justify its exclusion.

1. For those reasons I rule that the evidence which the Crown proposes to call from Ms Birrell is not admissible in the forthcoming trial.

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