DPP v Dupas

2 Submissions, both oral and written, on behalf of the accused in support of the application were made by Mr Regan. They were excellent submissions and I commend him for them.

3 No permanent stay on the ground of irremediable prejudice has ever successfully been granted in this Court. The power so to stay however exists: see R v Glennon.[1]

5 The accused has twice previously been convicted in this Court of murder. In August 2000 he was convicted of the murder on 19 April 1999 at Northcote of Nicole Patterson and was sentenced to life imprisonment with no minimum term. In August 2004 he was convicted of the murder on 4 October 1997 at Somerton of Margaret Maher and again sentenced to life imprisonment with no minimum term. Both killings were of vulnerable women by knife attack and were characterised by extreme violence and brutality. The killing of Ms Halvagis was of a vulnerable young woman by knife attack and was characterised by extreme violence and brutality. The two murder convictions of the accused received wide media publicity. He now stands trial for the murder of Ms Halvagis, and is entitled to a fair trial with the verdict given solely on the evidence led in the trial.

6 That there has been a substantial amount of adverse publicity concerning the accused is established by evidentiary material filed before me and which is the subject of formal exhibition to an affidavit filed today. I received the evidentiary material yesterday although not yet formally exhibited because it was proper to receive it without impediment and its provenance appeared on it face. The accused's convictions for the murder of Ms Patterson and Ms Maher are also notorious, and also on that basis are taken into account by me on this application.

7 The evidentiary material falls into four categories. First, newspaper publications at the times of the murders of Ms Patterson and Ms Maher and of the trials thereto, and in relation to other actions, history and proclivities of the accused, actual or alleged. Second, television and radio broadcasting likewise. Third, Internet and other electronic publication likewise. Fourth, book publication likewise. Generically I shall refer to the material in these categories as the impugned material. The defence also rely upon "word of mouth notoriety and infamy" which although not directly established is said to be an established inference from the four specified categories. For the purpose of determining this application, I have read all the newspaper, book, and printed Internet material including the Wikipedia entry relied upon by the defence. I have also viewed the ABC television program "Australian Story" which went to air on 18 March 1999 concerning the offence charged including purported re-enactments and concerning the deceased and her family. I treat the material as cumulative rather than discrete. Further, I take into account the fact of publicity over time, the effect of publicity over time and its percolating and pervasive effect over time. I also take into account, as I have said as a matter of notoriety, that the accused is known to be a convicted murderer.

8 The impugned material includes review in graphic detail of the deaths of Ms Patterson, Ms Maher and Ms Halvagis, their circumstances and similarities. It includes detailed review of the criminal and psycho-social history of the accused. It includes characterisation of him as a "serial killer" and a "monster". It includes attribution to him, either as an actor or suspect, of the killing of other women as yet unsolved. It is extensive over time. There is no doubt that the impugned material, if acted upon by a jury, would preclude his fair trial on the charge presently preferred against him.

9 A permanent stay will only be ordered in an extreme case: R v Glennon.[2] The criteria for determination of an application for a permanent stay in circumstances such as these are well established. They derive from the statement of Wilson J in Barton & Anor v R & Anor [3] adopted by Mason CJ in Jago v District Court of NSW & Ors[4] and stated by Mason CJ and Toohey J in Glennon as follows:[5]

"... a permanent stay will only be ordered in an extreme case and there must be a fundamental defect 'of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences'."

I proceed upon that criterion and take into account its development, first in R v Glennon itself, already cited, particularly by Mason CJ and Toohey J[6] and also by Brennan J, as then he was.[7] It is to be noted that Glennon was an appellate review not a prospective trial ruling. I further take into account what was stated in Murphy v R[8] particularly by Mason CJ and Toohey J[9]; R v Long; e_x parte Attorney-General for the State of Queensland_[10] particularly the judgment of Jerrard JA[11] and the eight considerations there set forth; and finally, and most helpfully if I may say so, the summation by Spigelman CJ in John Fairfax Publications Pty Limited & Anor v District Court of New South Wales and Ors.[12] I also note that which was cited with evident approval by Brennan J in Glennon[13], namely the statement of the most experienced Chief Justice of New South Wales, Street CJ who in Munday[14] cited that which he had earlier said in an unreported decision:

"I have great faith in the multiple wisdom and balance reflected in the verdict of a jury."

10 I proceed consonantly with the principles I have briefly stated.

11 I shall not rehearse all the evidentiary material. It is exhibited and is a matter of record. Because I consider that it is notorious that the accused has been convicted of the murders of Ms Patterson and Ms Maher I propose to give the jury directions about those two convictions. Although not every member of the jury will know of those convictions, I consider some will and thus I shall give the jury appropriate directions, which I shall foreshadow to the jury panel when inviting excuse applications. Depending upon future rulings as to admissibility of identification evidence, the fact of those two murders might be introduced in evidence in any event.

12 Applying the relevant legal criteria to the evidence before me including its cumulation and effect over time and the inferences deriving therefrom, I am entirely unpersuaded that the accused cannot obtain a fair trial by jury on the charge of the murder of Ms Halvagis. Indeed I am of the positive conclusion that the accused can and will receive a fair trial in its plenary sense. That is because of the inherently fair and robust jury system in this State which system will, in my view, preclude prejudice from the extraneous sources which I have characterised above affecting deliberations or verdict. I have every responsible confidence that the jury, appropriately directed, will firewall its deliberations and verdict from extraneous considerations and from prejudice in this case.

13 That is for the following reasons. First, each juror will swear or affirm to give a true verdict according to the evidence. Second, the jury will be directed, with reasons therefor, to give a true verdict according to the evidence. Third, the jury operationally will observe and progressively by osmosis will be influenced by the nature of the trial process. That process articulates testing, consideration and analysis, valuing of care and of scrupulousness, and conscientious commitment to fairness. Finally, citizens in this community selected to act as jurors show, and historically have shown, a conscientious and robust capacity to act on evidence and to put aside extraneous data and considerations and demonstrate an honourable commitment to fairness.

14 As to material currently available, particularly on the Internet, that material is easy of access in an electronic age but I am satisfied that empanelled jurors will comply with the direction of law I shall give them not to do their own research and not to have access to the Internet and to have regard only to evidence led in court. As to the historical material previously published and contained in the data placed before me, I am satisfied that much of the detail of such material would not be known to jurors or now be capable of recall by them. None of the

panel prospectively will know the case for which they are summoned involves this accused.

15 Applying the criteria articulated by the authorities I have cited to the impugned material relied upon and the relevant considerations deriving from the material, I am satisfied that an empanelled jury will accord the accused a fair trial.

16 It is further submitted on behalf of the accused that there lacked utility in proceeding with the trial because the accused was already serving two life sentences with no minimum term. That submission is flawed. Every victim matters.

17 Accordingly, I refuse the application of the defence for a permanent stay of the charge preferred against him of the murder of Ms Halvagis.

[1] [1992] HCA 16; (1992) 173 CLR 592 per Mason CJ and Toohey J at 605 and per Deane, Gaudron and McHugh JJ at 623-624.

[2] [1992] HCA 16; (1992) 173 CLR 592.

[3] [1980] HCA 48; (1980-1981) 147 CLR 75 at 111.

[4] [1989] HCA 46; (1989) 168 CLR 23 at 34.

[8] [1989] HCA 28; (1988-1989) 167 CLR 94.

[10] [2003] QCA 077 (unreported).

[12] [2004] NSWCA 324; (2004) 61 NSWLR 344 at 366-367.

[14] (1984) 14 A Crim R 456 at 457.