R v Dupas (Ruling No. 6) - [2004] VSC 287

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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:
DATE OF RULING:	5 August 2004
CASE MAY BE CITED AS:	R v Dupas (Ruling No. 6)
MEDIUM NEUTRAL CITATION:	[2004] VSC 287

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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:

The accused man, Peter Norris Dupas, has pleaded not guilty to one count of murder that at Somerton on 4 October 1997 he murdered Margaret Josephine Maher. The Crown case has closed. Mr J Montgomery of counsel on behalf of the accused man has submitted that he has no case to answer and that I should therefore direct the jury to acquit the accused man.

The Crown case against the accused is essentially circumstantial. There were no eyewitnesses to her death. Her deceased body was found by the side of Cliffords Road, Somerton, at about 1:45 p.m. On 4 October 1997. She was lying on her side, her lower garments had been pulled down and her upper garments had been pulled up. Her left breast had been cut off after she died and had been stuck in her mouth.

The pathologist who examined her that evening, Dr Lynch, estimated that the probable time of her death was between 9 p.m. On 3 October 1997 and 7 a.m. On 4 October 1997. He also found other injuries. One injury inflicted before death was a wound above the right eyebrow caused by blunt trauma. I shall return to the other injuries later.

Dr Lynch gave evidence as to the result of the autopsy and as to toxicological analysis of specimens taken from Ms Maher's body. He made three findings of significance.

First, he found that there were signs of compression of the neck of the deceased before her death. On external examination he noted linear petechial marking on the right side of her neck. On internal examination, when he dissected the muscles of the neck, he found a small amount of bruising on the right side of the neck in a position where the mark on the skin was; that is, near the voice box. He concluded from that that there had been some form of compression of the neck before death. Beyond that he could not be more specific and, in particular, he could not postulate what had caused or brought about the compression of the neck.

The second finding of significance by Dr Lynch was that he found that Ms Maher's coronary artery was significantly blocked and that she had quite significantly advanced coronary artery disease.

The third finding of significance was based on the toxicological analysis. That analysis showed that there were traces of methadone, methamphetamine and benzodiazepines in…

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. 6)

Details

AGLC: R v Dupas (Ruling No. 6) [2004] VSC 287
Case: [2004] VSC 287
Decision Date: 5 August 2004

CaseChat Overview and Summary

The accused man, Peter Norris Dupas, has pleaded not guilty to the murder of Margaret Josephine Maher on 4 October 1997. The Crown's case against the accused man is essentially circumstantial. There were no eyewitnesses to her death. Her deceased body was found by the side of Cliffords Road, Somerton. She was lying on her side, her lower garments had been pulled down and her upper garments had been pulled up. Her left breast had been cut off after she died and had been stuck in her mouth. The Crown case is based on the evidence of the pathologist, Dr Lynch, who found that there were signs of compression of the neck of the deceased before her death, that she had significantly advanced coronary artery disease, and that there were traces of methadone, methamphetamine and benzodiazepines in the bloodstream of the deceased woman. The principal issues between the parties at the trial of this case are, first, whether the Crown establishes beyond reasonable doubt that a person caused the death of Margaret Maher by compression of her neck. Secondly, if so, whether the Crown establishes beyond reasonable doubt that the person who caused the death of Margaret Maher by compression of her neck did so with the intention to kill her or cause her really serious injury, in which case there would be a case of murder, or arguably, by an unlawful and dangerous act which might entitle a finding of manslaughter. The third and very real issue at the trial is, in any event, whether the Crown establishes beyond reasonable doubt that it was the accused man who caused the death of Margaret Maher. Mr J Montgomery, of counsel, submitted that the Crown had no case to answer and that the jury should be directed to acquit the accused man. The Crown case is circumstantial. There were no eyewitnesses to her death. The accused man's submission was that the Crown had not excluded a reasonable hypothesis on the facts which was consistent with innocence, namely, that Margaret Maher died either from the effect of drugs ingested by her, or from her heart disease, or indeed from a combination of both factors working together, and that the signs of compression of her neck were only incidental to her death. The Crown's case was based on a chain or a series of inferences principally drawn from facts which were wholly or at least substantially uncontroversial, and particularly facts relating to injuries to the deceased before and after her death and the position of her body after she died. The first inference in the Crown's chain of reasoning was that there was human involvement in the disposal and mutilation of Margaret Maher's body after she died. The second inference was that the person who mutilated the body of Margaret Maher and who left it at Cliffords Road, was with her at the time when she died. The third inference was that the person who mutilated the body and who was with Ms Maher when she died was not simply an innocent casual bystander in the processes which brought about her death. The Crown then contended that the jury should infer that that same person applied pressure to the neck of Margaret Maher before she died. Mr Montgomery contended that, even if that were so, nevertheless, the jury could not on the evidence of Dr Lynch go any further. Mr Montgomery contended that Dr Lynch was seized of all the relevant facts from which the Crown would invite the jury to draw inferences about the cause of death. Therefore he contended that, if the jury accepted the compression to the neck caused the death of Margaret Maher, the jury would be acting irrationally and contrary to the uncontradicted and unimpeached evidence of Dr Lynch. The court found that Dr Lynch expressed his views as to the cause of death without drawing inferences as to how and in what circumstances the compression injury to the neck might have occurred. The jury, by the process of inferences which the court had referred to, was entitled to take various steps of reasoning to reach the conclusion, inter alia, that at or about the time of death pressure was applied to the neck of Margaret Maher by the person who later proceeded to mutilate her body. The court concluded that it was open to the jury to accept by a process of inferences that the person who mutilated Margaret Maher was with her when she died, acted with some force towards her and applied pressure or caused pressure to be applied to her neck. The court also concluded that it would not be unreasonable for the jury to reject the inference that the pressure applied to the neck was applied without intent to kill or to cause really serious injury. The application on behalf of the accused man to direct the jury to bring in a verdict of not guilty was dismissed.

Orders