The Queen v Peter Norris Dupas - [2011] VSC 180

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1533 of 2006

THE QUEEN

PETER NORRIS DUPAS

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September & 1 November 2010
DATE OF RULING:	3 November 2010
DATE OF PUBLICATION OF REASONS:	3 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSC 180

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Evidence – Identification evidence – Opinion evidence – Whether psychological evidence admissible as to the possible effects of post-event information on memory – Whether psychological evidence admissible concerning police photoboard – Whether, if admissible, such evidence should be excluded under s 135 – Evidence Act 2008 ss 76, 79, 80, 135

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M Williams SC Mr T Hoare	Solicitor for Public Prosecutions
For the Accused	Mr G Thomas SC	Victoria Legal Aid
Mr M Regan

HER HONOUR:

Introduction

The accused was charged with the murder of Mersina Halvagis at the Fawkner Cemetery on 1 November 1997. The circumstantial Crown case relied in part upon the evidence of Katica Melnik, Horst Peter Weller and Laima Burman, identifying the accused as the man, or as resembling the man, they saw at the cemetery that day. Each of those witnesses identified, or saw the resemblance in, the accused after they had been exposed to photographs of him in the media.

The accused applied, unsuccessfully, to exclude the evidence of Melnik, Weller and Burman. That decision is the subject of separate reasons.

The accused also sought to adduce expert evidence from Dr Richard Kemp, a psychologist from the University of New South Wales School of Psychology, who has expertise in the area of eyewitness identification evidence.

Although the accused’s written application had sought leave to admit Dr Kemp’s evidence under s 108C of the Evidence Act 2008 (“the Act”)[1], the accused’s counsel submitted orally that the evidence was in fact sought to be adduced under s 79 of the Act, and the matter proceeded on that basis.
[1]Section 108C is concerned with the admission of expert opinion evidence as an exception to the credibility rule in s 102.

Section 79 contains an exception to the opinion rule. The opinion rule is contained in s 76 of the Act, and provides that “Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.”

Section 79(1) provides that “If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”

Section 80 is also relevant, as it provides that:

Evidence of an opinion is not inadmissible only because it is about –

(a) a fact in issue or an ultimate issue; or

(b) a matter of common knowledge.

Dr Kemp prepared an initial report, dated 13 July 2010 (“the first report”). On 15 September 2010, prior to the empanelment of the jury, Dr…

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 The Queen v Peter Norris Dupas

Details

AGLC: The Queen v Peter Norris Dupas [2011] VSC 180
Case: [2011] VSC 180
Decision Date: 3 November 2010

CaseChat Overview and Summary

The Queen, represented by the Director of Public Prosecutions, brought a case against Peter Norris Dupas, who was charged with a serious offence. The dispute centred on the admissibility of certain evidence presented during the trial, specifically psychological evidence concerning the possible effects of post-event information on memory and the influence of a police photoboard on witness identification. The case was heard in the Supreme Court of Victoria.

The primary legal issues revolved around whether the psychological evidence was admissible and, if so, whether it should be excluded under section 135 of the Evidence Act 2008. The court needed to determine the admissibility of opinion evidence regarding the effects of post-event information on memory and whether such evidence was relevant and reliable under sections 76, 79, and 80 of the Act. Additionally, the court examined whether the potential prejudice of the evidence outweighed its probative value, necessitating exclusion under section 135.

The court held that the psychological evidence was admissible and did not warrant exclusion under section 135. The court found that the evidence was relevant and reliable, contributing to the understanding of the reliability of witness identification. The court emphasised that the evidence did not solely rely on the witness's subjective experience but was grounded in psychological research and expert opinion. The probative value of the evidence, in relation to the reliability of the identification, outweighed any potential prejudice. The court ruled that the evidence was appropriately considered by the jury in assessing the reliability of the identification evidence.

The final orders of the court were to confirm the admissibility of the psychological evidence in question and to reject the defendant's application to exclude it under section 135. The case was remitted to the trial court for further proceedings.

Orders