R v Dupas (Ruling No. 5)

[2004] VSC 286

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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:	28 July 2004
CASE MAY BE CITED AS:	R v Dupas (Ruling No. 5)
MEDIUM NEUTRAL CITATION:	[2004] VSC 286

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

HIS HONOUR:

1. Although I have been invited to take time to rule on this issue I think it is better for the progress of the trial that I rule now.  In addition, the point of law is fairly clear.  The evidence is not extensive and it is really a matter of judgment as to whether I admit or exclude the evidence referred to.

1. The short point raised by Mr Montgomery is whether the Crown, or put more properly, whether it is admissible to adduce evidence from Ms Gloria Nakad who is to give evidence as to two matters which are contained in the statement taken by the police on 2 June 1998.

1. The first matter is that about two weeks before Ms Maher died she came into Ms Nakad's shop to pay some money off her lay-by.  At that time she told Ms Nakad that the methadone was not enough and she was mixing her own drug cocktails to try and reach the ultimate high that she was always craving for.

1. The second passage which is the subject of debate is the passage in which Ms Nakad says that that week was the last time she saw Margaret alive.  She then went on to say this, "From the first time I met her to the last time I saw her I believe that Margaret had gone downhill very quickly.  By this I mean she looked like she was using more and more drugs all the time.  She even told me she could get around the methadone program to show clear specimens." .

1. The contention on behalf of the Crown made by the learned prosecutor Ms Williams is that both passages are hearsay and ought not to be admitted into evidence.  In response Mr Montgomery contends that they are admissible on, as I see it, two bases: 

1. Firstly, both statements contain statements of intention by the deceased woman and, therefore, are admissible under the principles discussed by the High Court in R v Walton[1].

   [1](1989) 166 CLR 283.

1. Secondly, Mr Montgomery points to the evidence of Dr Marsh and Mr Dieini contained in the depositions, who I understand will be called at the trial, who will, as I understand it, each express views that when they last saw the deceased woman two weeks before her death they were of the view that she was adhering to the methadone program and not using any other drugs.

1. The issue is not easy of resolution but I am of the opinion that both passages are admissible in evidence but are admissible for a particular purpose only, which I expect to be adhered to throughout the trial.

1. Firstly, in relation to Walton's case, it seems clear that the High Court in that case decided that the statements by a deceased person to a witness are admissible if, firstly, they are evidence as to the state of mind of the deceased person; and secondly, the proof of that state of mind is relevant to a fact in issue.  The task therefore is to decide, firstly, are the two statements to which I have referred statements which might be evidence of Ms Maher's state of mind; and secondly, does proof of that state of mind two weeks before her death bear on a fact in issue in this case?  Much may ultimately depend on what she does say at trial and how closely she adheres to her witness statement, but I must act on the basis she will adhere closely to the statement.

1. It seems to me that the first statement which she made, that is that she was then mixing her own drug cocktails to try and reach the ultimate high that she was always craving for does carry an element of intentionality.  In other words, that was what she was seeking to do and intending to do at that time.  From there the jury may or may not infer, but it would be a matter for them, that she continued to act in accordance with that intention and was doing so at the time of her death.  Thus that passage would be admissible, and I so rule, for that limited purpose, that is, to invite the jury to infer that she had the intention to mix her own drug cocktails to try and reach the ultimate high.

1. The second passage is more problematic as to whether Walton's case applies to it.  I have some hesitation in relation to that, however, it would seem to me there would be some validity in the proposition that the evidence establishes that she at least had the belief she could mix other drugs in because she could get away with it.  That statement would not be admissible as to the validity of that belief, but simply that that was then her belief and that state of mind may well reflect on how she was using drugs at the time of her death so that I would admit it for that purpose.

1. The other basis of relevance would lie in the evidence which has been adverted to in argument of Dr Marsh and Mr Dieini.  It is not clear what material Dr Marsh was particularly acting on, but I would expect that part of the material on which he is expressing the views, which will be adduced from him in the witness box, would consist of a history given to him by the deceased.  If that is correct, and only if that is correct, then the evidence of Ms Nakad would be admissible and might be used in cross-examination of Dr Marsh.  In other words, being put as a history inconsistent with the history he received from the deceased lady.

1. The second witness, Mr Dieini, seems on his deposition to be a therapist.  Whilst it is not altogether clear, it would seem that the view that he will be called to express, that is the view that she was only using methadone at the time of her death, was based on his dealings with Ms Maher, and it would seem a fair inference that those dealings would have included discussions he had with Ms Maher.  So that for the same reason that the evidence might be admissible to put in cross-examination to Dr Marsh, it would also be admissible to put in cross-examination to Mr Dieini.

1. Accordingly, although the issue is difficult, I have come to the conclusion that the evidence is admissible and admissible for those purposes only.

1. For the purposes of completion Mr Montgomery did also refer to a passage at the top of p.721 relating to where Ms Maher had bruises, saying, "I sometimes asked her where she got the bruises and she told me it was from her clients."  in the course of discussion Mr Montgomery correctly and validly conceded that that was hearsay and could not be admitted in the evidence.  If it is necessary, I so rule.