R v Dupas [2010] VSC 409

Supreme Court of Victoria|2010-09-15|Before: HOLLINGWORTH J

CRIMINAL LAW - Murder - Application for a permanent stay of re-trial - Whether pre-trial publicity such that fair trial not possible - Application for a stay refused

1 On 9 August 2007, the accused was found guilty by a jury of the murder of Mersina Halvagis at Fawkner Cemetery on 1 November 1997.

3 On 2 July 2007, prior to the empanelment of the jury in the Halvagis trial, the accused applied for a permanent stay of the trial, on the ground that pre-trial publicity gave rise to irremediable prejudice, such as would make a fair trial impossible - not simply at that time, but at any time. On 3 July 2007, the learned trial judge, Cummins J, refused the application.[1] Sentence was passed on 27 August 2007.[2]

4 The accused sought leave to appeal against his conviction to the Court of Appeal, on various grounds. On 17 September 2009, a majority of the Court of Appeal[3] upheld the decision of Cummins J, in so far as his Honour had refused the application for a stay. A different majority[4] upheld the appeal on other grounds, and quashed his conviction. A retrial was ordered.

5 The accused obtained special leave to appeal in relation to his application for a stay. On 15 April 2010, the High Court dismissed the accused's appeal. On 16 June 2010, the High Court published its reasons for decision.[5]

6 On 2 June 2010, I provisionally fixed the retrial for hearing for six to eight weeks, commencing on 18 October 2010. The retrial was fixed without prejudice to the accused's right to bring a further stay application.

7 The accused now seeks to have the retrial permanently stayed. He argues that the situation facing him at a trial in late 2010 is substantially more adverse than it was in mid-2007. In particular, he relies upon the following matters:

The resulting additional publicity concerning the 2007 trial (including the almost unprecedented televising of the sentence, including the televised exoneration of Mr Angelo Gorgievski, boyfriend of the deceased); public and official sympathetic homage to the long-suffering Halvagis family; in-depth analytical print media articles and publications; the regular and highly public self-promoting by Crown witness disgraced struck-off solicitor Andrew Fraser; and the ongoing scathing media campaign against the accused as he has exercised appellate rights; has resulted in the situation in 2010 being substantially more adverse to the accused than in 2007.[6]

8 The accused submits that the circumstances are such that there is no procedure that could be implemented, and no warning or direction that could be given, that would render his retrial a fair one.

9 In support of the first stay application, the accused relied upon the affidavit of his then solicitor, John Bentley, sworn 2 July 2007, and its exhibits, being the following documents:

(a) Printouts from seven publicly-accessible internet sites relating to the accused, including Wikipedia;

(b) A bundle of newspaper articles (99 articles, totalling around 180 pages) published between August 2000 and December 2006, concerning the accused;

(c) Excerpts dealing with the accused, from the following books: "Australia's Serial Killers" by Paul Wilson (13 pages), "Encyclopedia of Australian Murders" (3 pages), and "Underbelly 4" by John Silvester and Andrew Rule (13 pages), all of which were freely available at booksellers in Melbourne city and surrounding suburbs.

10 Although not referred to in the Bentley affidavit, Ashley JA in the Court of Appeal also noted the following:

It was also clear that the [accused] had been referred to in a number of television programs, including an edition of the ABC program 'Australian Story', and that his image had been depicted in some of those programs. Indeed, such images were the foundation for some of the identification evidence eventually led at trial; and for other identification evidence which ultimately was not adduced. No evidence was led as to the number of relevant programs; but it was easy enough to infer the periods when such programs would have been most prevalent.[7]

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 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 charges presently preferred against him.[8]

12 His Honour also found that the accused's convictions for the murders of Ms Patterson and Ms Maher were notorious.[9]

13 Ashley JA helpfully summarised the contents of the pre-trial publicity in more detail, in the following terms:

(1) It was reported, and it was the case, that the [accused] had been tried and convicted of the murders of two women. On 22 August 2000, he had been found guilty of the 19 April 1999 murder of Ms Nicole Patterson. On 16 August 2004 he had been found guilty of the 4 October 1997 murder of Ms Margaret Maher.

(2) It was reported that the killings of which he had been convicted had sexual connotations. The victims had been mutilated. Following his conviction for the murder of Ms Patterson, the [accused] was described by the Herald Sun as 'a sex crazed predator', and as a 'serial rapist' who had been 'convicted of rape three times'.

(3) It was reported, and it was the case, that the killer - found by the juries to be the [accused] - had used a knife when murdering Ms Patterson and Ms Maher. It was further stated that he had used or threatened to use a knife or similar implement when committing earlier offences.

(4) It was reported, and it was the case, that each of the applications for leave to appeal against the convictions for murder had been refused.

(5) Subsequent to his conviction for murdering Ms Patterson, the [accused] was repeatedly implicated by the press in the murders of Ms Maher and Ms Halvagis; and as well in the murders of several other women. He was described in the popular press as 'a monster', and as a 'prime suspect' in the killing of other women. 'Prime Suspect' became an internet site. Whilst the language used was generally the language of 'suspicion' and of what the police 'believed', the unmistakeable gist of what was said, in my view, was that the [accused] was guilty of the other murders.

(6) Also subsequent to his conviction for the murder of Ms Patterson, the [accused's] full criminal history, which as I have said included convictions for rape, was published in the popular press - and not just once. There was a theme: how could it be that this violent repeat rapist had been allowed onto the streets so that he could offend again? For he was, in the words of the detective who had first arrested him for rape, 'evil personified'.

(7) When charged with Ms Maher's murder in late 2002, the [accused] was further implicated by press articles as the killer of Miss Halvagis and two other women.

(8) Following his conviction in August 2004 for the murder of Ms Maher, the [accused] was named by the press as a suspect in the killing of Miss Halvagis and another woman; and the question was posed: 'Is Peter Dupas a serial killer?'

(9) An article published in the Herald Sun on 12 August 2004, informing the public of the [accused's] conviction for the murder of Ms Maher, named him as a suspect in the murders of Miss Halvagis and another woman. It further alleged that the [accused] had mutilated two female corpses at the Austin Hospital in January 1969 (a matter which was never established against him).

(10) Subsequent to the announcement of a reward of $1 million for information leading to the conviction of the killer of Miss Halvagis, later increased to $1.5 million, the [accused] was named as the prime suspect in the killing of Miss Halvagis and two other women.

(11) In September 2005, not long before an inquest commenced into the death of Miss Halvagis, the Herald Sun reported 'Killer accused on third case'.

(12) On 19 November 2005, The Age published an article headed 'Grave Secrets'. It set out, inter alia, the circumstances of the killing of Miss Halvagis. It listed the [accused's] victims, naming Miss Halvagis and four other women, the four others including Ms Patterson and Ms Maher. That article was also placed on the internet.

(13) The [accused] was identified as a serial killer on a number of internet sites, including Wikipedia. On Wikipedia there was published a full list of the [accused's] previous convictions, and extracts from a statement made by Andrew Fraser, who was an important witness in the [accused's] trial for the murder of Miss Halvagis.

(14) Another internet site, 'Monster Watch' stated that 'Mersina Halvagis was murdered in 1997 in Melbourne, Victoria by Peter Dupas'. To much the same effect was the website 'Serial Killer Central'.

(15) The applicant was identified as a serial killer in a book entitled 'Australia's Serial Killers'. In connection with the killing of Miss Halvagis, the author stated that 'The grave of [the accused's] grandfather was just 100 metres away [from where Miss Halvagis was stabbed to death] and the disturbed rapist had been there often in the weeks before the murder'. The author further stated that although the [accused] had denied killing any of the four women, including Miss Halvagis, 'the facts are damning'.

(16) In a book entitled 'The Encyclopaedia of Australian Murders', the [accused] was treated under the heading 'The Mutilating Monster'.

(17) Another book, entitled 'Underbelly Four', written by a well-known crime reporter, John Silvester, dealt with the [accused] under the heading 'Pure Evil', there setting out his life history including his previous convictions.

(18) The accused's photograph, in connection with offences of which he had been convicted, and crimes in respect of which he was the suspected offender, was repeatedly published over the years in newspaper articles to which I have referred; and images of his face were also depicted on television programs.[10]

14 The Ashley summary was referred to, and apparently relied upon, by the members of the High Court in their joint reasons.[11]

15 The High Court considered the nature of the inherent power of this court to prevent abuse of its processes and, in particular, to prevent the prosecution of a criminal proceeding which would result in an unfair trial, and noted the following:

There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.[12]"

There is nothing remarkable or singular about extensive pre-trial publicity, especially in notorious cases, such as those involving heinous acts. That a trial is conducted against such a background does not of itself render a case extreme, in the sense that the unfair consequences of any prejudice thereby created can never be relieved against by the judge during the course of the trial.

A further consideration is the need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial[13], the "social imperative" as Nettle JA called it, as a permanent stay is tantamount to a continuing immunity from prosecution[14]. Because of this public interest, fairness to the accused is not the only consideration bearing upon a court's decision as to whether a trial should proceed[15].

The apprehended defect in the [accused's] trial, namely unfair consequences of prejudice or prejudgment arising out of the extensive adverse pre-trial publicity, was capable of being relieved against by the trial judge in the conduct of the trial, by thorough and appropriate directions to the jury. Because that is so, it is not necessary for the purpose of this case to undertake any broad inquiry into the full extent of the court's inherent power to grant a permanent stay of criminal proceedings in order to prevent unfairness to an accused.

16 The accused concedes that the High Court decision has "certainly narrowed the circumstances in which a court should consider the granting of a stay."[16]

Evidence relied upon in support of the current application

17 The Bentley affidavit and exhibits form part of the evidence relied upon in the current application.

18 Also tendered in support of the current application were the following documents, which were in existence in July 2007, but had not been exhibited to the Bentley affidavit or relied upon before Cummins J:

(a) A bundle of 19 newspaper articles, containing the search term "Dupas", with publication dates between August 2000 and July 2004. The accused is mentioned as a suspect, or the prime suspect, in Ms Halvagis' death, in 9 of the 19 articles;

(b) A bundle of 63 newspaper articles (totalling 93 pages), containing the search term "Halvagis", published between November 1997 and August 2000. In general terms, these deal with the circumstances of Ms Halvagis' death, her funeral, and calls by the police and her family for persons with information about her death to come forward. The accused is not mentioned in any of the articles.

19 In so far as any of these articles do refer to the accused, they essentially involve a repetition of allegations made elsewhere (and referred to in the Ashley summary).

20 However, counsel for the accused did point to one article which he said contained new material, which had not been considered at the time of the 2007 stay application. It was an article which appeared on pages 1 and 5 of the Sunday Herald Sun on 27 August 2000, under the heading "I Married A Monster." The article appeared within a week of the accused's sentencing for the Patterson murder. It was based on an interview with the accused's wife, and discussed, among other things, an occasion when the accused had insisted on sharpening the kitchen knives, the day before he committed another rape whilst using a knife. In fact, there has been considerable publicity over many years about the fact that the accused has used a knife in the commission of a number of his crimes. But, the use of a statement by his wife as a source of information seems to be novel. In so far as the contents of the article do contain new material, it was not suggested that such material had been republished anywhere since August 2000. It seems unlikely that prospective jurors in the 2010 trial will remember this particular article from 10 years ago, or that, if they do, it would have any particular impact, given the volume and nature of other publicity.

21 During the course of submissions, counsel for the accused also singled out several newspaper articles in late 2000, which mentioned the accused in the context of parliament considering whether to review the law in relation to the right to silence. The accused was used as an example of the sort of heinous criminal whose behaviour justified a change in the law. Defence counsel suggested that these articles went much further than the material before the court at the time of the 2007 application. However, an examination of the articles exhibited to the Bentley affidavit shows that the topic, and the accused's connection with it, were discussed in detail in a number of articles relied upon in support of the 2007 stay application. The articles singled out by defence counsel do not appear to involve anything more than further examples of the same.

22 Defence counsel tendered the results of a number of other searches undertaken since July 2007, which produced the following material:

(a) A bundle of 155 newspaper articles (totalling approximately 237 pages) containing the search term "Dupas", published between 4 July 2007 and 20 May 2010. Of those articles, 91 were published during 2007, 23 were published in 2008, 30 were published in 2009, and 11 were published in 2010;

(b) The print-outs from some searches conducted using the Google Australia search engine, including the results from the Wikipedia website, which the accused's Solicitor Georgina Connelly carried out on 11 July 2010. Her search of the term "Peter Dupas" resulted in some 54,200 "hits";[17]

(c) DVDs of TV and radio broadcasts in relation to the accused and/or the Crown witness, Andrew Fraser. The broadcasts cover the period from August 2000 to April 2010. Much of the broadcast material either preceded the 2007 trial, or was concerned with the 2007 trial and sentence, and subsequent appeals;

(d) A TV program called "Beyond the Darklands", and some promotional material for the program, which Channel 7 proposed to broadcast nationally in late August 2009. On 31 August 2009, the Court of Appeal ordered that Channel 7 not broadcast that program, or further promotions for it, in Victoria. The program itself was broadcast in Sydney, Brisbane, Adelaide and Perth on 31 August 2009, and was re-broadcast in Sydney and Brisbane on 30 April 2010. It seems that there were some 15 broadcasts in Victoria of the promotional material, in August 2009, before the Court of Appeal orders were made;

(e) Four additional books or parts thereof: "Rot in Hell: Peter Dupas the Mutilating Monster" by Jim Main (published in 2009); "Lunatic Soup: Inside the Madness of Maximum Security" by Andrew Fraser (published in 2008); an extract from "Murders that Shocked Australia" by Ian Ferguson (published in 2007); and an extract from "Dangerous to Know: An Australia Crime Compendium" by Suzanna Lobez and James Morton (published in 2009).

23 There is nothing of substance in the contents of the TV and radio broadcasts before the 2007 trial which is not already covered by the Ashley summary.

24 The bulk of the newspaper articles, and the TV and radio broadcasts, since July 2007 concern what might be called routine court reporting of the 2007 trial and its aftermath - including interviews outside the court with members of the victim's family - and the subsequent appeals. Those matters attracted considerable media attention at the time, but the amount of attention diminished substantially over the following years.

25 The sentencing by Cummins J was televised, something which is a very rare occurrence in this State. It was widely broadcast in August 2007, and short extracts from it have been replayed or referred to in later programs, such as in a "Stateline" program, broadcast by the ABC in July 2008. The rarity of televising a sentence was itself commented upon in the print and electronic media.

26 Cummins J's language included referring to the accused as "a psychopath driven by a hatred of women", "evil", "cunning" and "predatory." Much of the contents of the sentencing remarks involved no more than a recitation of matters which had already been the subject of widespread reporting, albeit delivered with the authority of his Honour.

27 However, the accused is particularly concerned by the fact that Cummins J publicly praised the Halvagis family and exonerated Ms Halvagis' boyfriend, Angelo Gorgievski, from any involvement with her death. The defence had put him forward to the jury as a possible killer.

28 The accused is also concerned about public comments made by the Premier and the then Director of Public Prosecutions at or around the time of the 2007 conviction. In August 2007, the Premier, Mr Brumby, made comments to the effect that the community was pleased that the conviction had occurred, as it finally brought justice to the matter and gave some closure to the Halvagis family. And the then Director, now Coghlan J, was quoted in August 2007 as saying "it is likely he has committed more murders"; he also described the accused as "one of the most evil people we have ever dealt with."

29 The largest volume of printed and broadcast material concerning the accused's involvement in the Patterson and Maher murders was centred around the relevant trial dates (August 2000 and August 2004, respectively). However, since the 2007 trial, the media has continued to mention his guilt of those murders, albeit to a reduced extent. Similarly, the media has continued to name him as a suspect in the Downes, Brunton and McMahon murders, and to refer to his prior criminal history.

30 There has continued to be reporting of the possibility of Mr Fraser receiving some or all of the large reward for information leading to the conviction of the killer of Ms Halvagis.

31 Mr Fraser has also re-enacted on television the demonstration which he gave during the trial, of how he says the accused showed him how he killed Ms Halvagis. He has also been interviewed on TV programs such as Andrew Denton's "Enough Rope" program on the ABC in October 2007, and the "Today Tonight" program on Channel 7 in November 2008. Mr Fraser has also received media coverage for the release of his books, including "Lunatic Soup".

32 There is a vast amount of material on the internet concerning the accused, as there was in July 2007. The most recent internet printouts tendered for this application, such as Wikipedia, have been updated since 2007, for example, to deal with the 2007 trial. By its very nature, material on the internet is not subject to any editorial or quality control, and is frequently written in highly emotive and prejudicial terms.

33 Before, during and since the 2007 trial, there has been considerable publication of images of the accused, including photographs of him handcuffed and in custody, and other photos which were tendered in evidence at the 2007 trial, and the Berman computer image discussed later in these reasons.

34 As far as the additional books are concerned, the short extracts from the Ferguson and Lobez/Morton books do not contain information not previously published elsewhere:

(a) The three-page extract from the Ferguson book is headed "Peter Dupas - the Melbourne Monster", and details the accused's criminal history, including his convictions for the Maher and Patterson murders, and his suspicion of involvement in the Halvagis, McMahon and Downes murders; and

(b) The extract from the Lobez/Morton book consists of a one-paragraph summary of the accused's previous criminal history, including his convictions for the Maher, Patterson and Halvagis murders, together with a photograph of him.

35 However, the other two books contain considerably more information about the accused and his history than has been published previously:

(a) The entire book "Rot in Hell: Peter Dupas the Mutilating Monster" by Jim Main (published in 2009) is devoted to the accused and his criminal history, including the Maher, Patterson and Halvagis murders. The author acknowledges amongst his sources various members of Victoria Police. Although Ms Halvagis is also mentioned in other parts of the book, of particular relevance to this application are the following chapters:

Chapter 9 - "Death in a Cemetery" - contains considerable detail of the death of Ms Halvagis, and refers to the evidence of various witnesses, and extracts from the accused's record of interview. It includes inadmissible information about the Halvagis murder provided by persons who did not give evidence during the 2007 trial; and

Chapter 10 - "The Breakthrough"- concerns the police breakthrough in solving the Halvagis murder, after Andrew Fraser came forward. It also deals with the 2007 trial and sentence, and comments made by the Halvagis family after the sentence;

(b) "Lunatic Soup: Inside the madness of maximum security" by Andrew Fraser, was published in 2008. It deals with his experiences in the maximum security unit at Port Phillip Prison. A large part of the book concerns Fraser's dealings with the accused, particularly in relation to the Halvagis murder and trial. There are numerous mentions of the Maher and Patterson cases, and the book also implicates the accused in the McMahon, Brunton and Downes murders. The following chapters are of particular relevance to the Halvagis case:

Chapter 8 - "Mersina Halvagis: Evil Knows No Bounds"

Chapter 9 - "A Bolt from the Blue: The Odyssey Begins"

Chapter 11 - "Take a Deep Breath; The Preliminary Hearing"

Chapter 12 - "The Trial: Not a Nice Day at the Office"

Chapter 13 - "What Else? Solved and Unsolved Atrocities."

36 The contents and the amount of detail in both the Main and Fraser books are such that I would propose to exclude from the jury pool any person who had read either book.

37 The TV program "Beyond the Darklands" also contains a very detailed history of the accused and his criminal past, including details of the Halvagis case. Although not broadcast in Victoria, there remains the possibility that a potential juror might have viewed the program whilst interstate, or seen a copy of it here in Victoria. Given the contents and amount of detail in the program, I would propose to exclude from the jury pool any person who had viewed the actual program. However, I would not propose to do so in respect of persons who had only seen the promotional material, back in August 2009; the advertising was brief and its contents really went no further than much of the other media publicity about the accused.

38 For the purpose of determining this application, I have read all of the documentary material, and played all of the DVD recordings, which were tendered in support of the application. Obviously, I have done so in a far more intensive manner than any potential juror would have done. It is highly unlikely that any juror would have read, viewed or heard all of that material over a thirteen year period, let alone over such a short period.

39 Nevertheless, I accept that it is necessary to have regard to the cumulative effect on potential jurors of having been exposed to substantial amounts of media publicity concerning the accused over a number of years, both before and after the 2007 trial. As Cummins J observed, the media material has a "percolating and pervasive effect."

40 I also respectfully adopt the following observations of Weinberg JA:

...it is generally assumed that, over time, the memory that the public has of the subject of the [pre-trial] publicity will fade. It is inevitable, however, that there will be cases where, by reason of the nature and extent of the publicity, even if memory has subsided, recollections of what the media has said will revive once the trial commences. Plainly, the availability of such material on the internet complicates matters still further.[18]

41 In general terms, the media publicity has tended to dehumanise the accused, whilst personalising Ms Halvagis and her family, the police investigators and some Crown witnesses.

42 The pre-trial publicity relied upon by the accused in his 2007 stay application was extensive, in the sense that it occurred over a lengthy period of time, its publication crossed all forms of media and its nature was such that, if acted upon by a jury, it would preclude the fair trial of the accused of the charge of murdering Ms Halvagis. The same may be said of the material filed in support of the current application.

43 The question is whether the unfair consequences of prejudice or prejudgment arising out of the extensive pre-trial publicity are capable of being relieved against, in the conduct of the trial, by appropriate and thorough directions to the jury.

44 The case against the accused is a circumstantial one. In part, it relies on the evidence of Andrew Fraser, of the accused's alleged confession to him in prison. The High Court noted that Mr Fraser's evidence necessarily involved disclosing to the jury some of the accused's history, including at least one of his prior convictions for murder.[19] No application to exclude the evidence of Fraser has been foreshadowed, and I proceed on the assumption that the same disclosure is likely to be necessary at the 2010 trial as it was at the 2007 trial. Both Ashley and Weinberg JJA noted numerous other instances in which juries were necessarily told of an accused's prior convictions and, sometimes, the horrific details of previous offending, most usually when similar fact or coincidence evidence was led. In such cases, strong and appropriate directions need to be given to deal with such material.

45 The Crown case against the accused also relies upon the evidence of Horst Weller, Katica Melnik and Laima Burman, to the effect that they saw the accused at the Fawkner Cemetery on the day in question. Both Mr Weller and Ms Melnik identified the accused as the person they saw at the cemetery some years later, after they saw various media publications of his image. Ms Burman gave instructions which resulted in the preparation of a computer image of a man's face; she also referred to three men, including the accused, on a photoboard, some 17 months after the event. At the 2007 trial, she identified the accused as the man she saw at the cemetery from a Herald Sun article. The accused seeks to have the evidence of all three witnesses excluded, either: because it is inadmissible as hearsay; or under s 137 of the Evidence Act 2008, on the basis that the probative value of the evidence is outweighed by the danger of unfair prejudice to him.

46 The accused also seeks to lead expert evidence pursuant to s 108C of the Evidence Act 2008, from Dr Richard Kemp, a psychologist from the University of New South Wales. Dr Kemp's proposed evidence addresses the "displacement effect", being the considerable danger that a witness's memories for a person they have seen is likely to have been affected by exposure to the many images of the accused which were presented in the media and linked to the Halvagis murder.

47 Finally, the accused seeks to exclude the following evidence, which is apparently to be relied upon by the Crown to demonstrate evidence of consciousness of guilt, or implied admissions of guilt: a hairdresser, Domenica D'Alberto, who will give evidence about discussions she had with the accused, before and after the date of Ms Halvagis' murder, about him changing his hairstyle; an optometrist, Isabella La Rocca, and a spectacle maker, Jack Sgourakis, who will give evidence about the accused changing his style of glasses in early November 1997; and evidence from Ms La Rocca as to the accused having a scratch on his cheek on 7 November 1997, which he told her he got at work, together with evidence from his then-employer, John Kazakis, that the accused did not report any workplace injury in November 1997. The accused seeks to have the evidence of all four witnesses excluded under s 137 of the Evidence Act 2008, on the basis that the probative value of the evidence is outweighed by the danger of unfair prejudice to him.

48 All of the evidence which the defence now seeks to exclude was led during the 2007 trial. The difficult forensic decisions which the defence needed to make, particularly in relation to the evidence of witnesses such as Melnik and Weller, may need to be made again at the 2010 trial, depending on the outcome of the exclusion applications. That fact did not preclude the High Court from concluding that a fair trial was still possible.

49 The accused's applications, both for the exclusion of evidence, and the inclusion of the Kemp evidence, have been listed for hearing before me on 15 and 16 September 2010. The outcome of those applications, particularly those relating to the identification evidence, may obviously have some impact on how much of the pre-trial publicity needs to be disclosed to the jury (and, therefore, what specific directions may be given to the jury in that regard). That rather tends to highlight the premature nature of the current application.

50 The 2007 jury was told of the accused's prior convictions for the Patterson and Maher murders. In that case, defence counsel had submitted that the jury should be informed of the convictions and provided with appropriate directions about them. Although defence counsel informed me that no final position had been taken as to whether the defence would adopt the same position at the 2010 retrial, the accused's submissions proceeded on the assumption that the 2010 jury would also be told of those two convictions, and I proceed on the same basis for the purposes of this application. I also accept that knowledge of the accused's prior murder convictions is likely to cause the 2010 jury to regard the accused with a degree of suspicion and hostility (as it would be likely to have done to the 2007 jury).

51 Our system of criminal justice relies upon juries deciding cases in accordance with their oaths and affirmations, and in accordance with the directions of the trial judge. Indeed, the fact that the 2007 jury took about 1 ½ days to return its verdict, demonstrated the capacity of that jury so to act, notwithstanding all the pre-trial publicity. The High Court was satisfied that the directions provided by Cummins J to the 2007 jury demonstrated "the capacity of the trial judge to relieve against the unfair consequences of the pre-trial publicity without staying the criminal proceedings."[20] They included directions concerning the following matters:

(a) The need for the jurors to act fairly, calmly, and without prejudice;

(b) The need for the jurors not to conduct their own research or make their own enquiries about the case;

(c) The need for the jurors to act solely on the evidence led in court, and to exclude from their considerations anything that they may have read or seen outside the court.

52 To those directions may be added a further direction to the effect that it is now a criminal offence for any juror to conduct their own research, including using the internet, whilst the trial is in progress.[21]

53 Of course, the 2010 trial will be a retrial. Jurors at the 2007 trial may have been aware from the media that the accused had long been a suspect for the Halvagis murder. However, at least some jurors at the 2010 trial are likely to be aware that the accused has already been convicted of the Halvagis murder. But, even if it is decided that the extent of the publicity is such that the jury should be told that the accused has previously been convicted of the crime for which he stands charged, and that his conviction was quashed because of errors at the 2007 trial, that would not be a novel situation. It is not uncommon for juries in retrials to be told that the trial is a second trial, and, in some cases, that the first trial ended with the accused being convicted. Appropriate directions could be fashioned to deal with this matter.

54 In so far as some of the media coverage has been critical of the accused for exercising his appellate rights subsequent to the 2007 conviction, that could also be the subject of an appropriate direction.

55 For the most part, the accused's current stay application is based on the cumulative effect of all of the pre-trial publicity, rather than on individual publications. However, defence counsel singled out some individual publications, as presenting particular problems for the accused, including the following:

(a) An article published in the Herald Sun on 10 August 2007, headed "Cruel Monster's Long Evil Record", which reported that the holes in the accused's jacket, which was tendered at the 2007 trial, bore traces of Ms Patterson's blood. At the 2007 trial, the jury was simply told that the holes in the jacket were due to chemical testing done to the jacket; no objection was taken to that statement, either at trial or on appeal. The accused submits that there is a danger that a juror might remember the contents of the article when the jacket is tendered during the 2010 trial; and

(b) Another article published in the Herald Sun on 10 August 2007, headed "Justice at Last", which reported that Andrew Fraser had said in his police statement that the accused made admissions to him in respect of the murder of Kathleen Downes. That information was not led during the 2007 trial and would not be admissible in the 2010 trial. The accused submits that there is a danger that a juror might remember the contents of the article.

56 Even if it be assumed that some jurors may recall specific newspaper articles, such as those two examples, I am not persuaded that the contents are any more damaging than much of the other media publicity concerning the accused, or that the jury could not be given appropriate directions in relation thereto.

57 Nor am I persuaded that the defence will be "significantly undermined" in its cross-examination of Ms Halvagis' boyfriend, Mr Gorgievski, by the fact that in his August 2007 reasons for sentence Cummins J exonerated him from any involvement in her death (or that Mr Gorgievski, and the Crown, publicly proclaimed his innocence during the 2007 trial). It may be doubted whether, some three years on, any juror would specifically remember such matters (as opposed to remembering, more generally, that the accused has previously been found guilty of the murder).

58 In any event, strong directions can and should be given at the 2010 trial about the onus of proof and the presumption of innocence. To what extent those (or other) directions might specifically refer to the 2007 conviction, or to matters said by Cummins J in the course of sentencing, can be the subject of further discussion or decision prior to or during the course of the 2010 trial.

59 During the empanelment process, the jury panel will be instructed that they should identify themselves and ask to be excused if they feel they cannot be impartial. I have already indicated that I would also propose to exclude from the jury panel any potential juror who has read either the Main or Fraser books, or viewed the TV program "Beyond the Darklands". If the accused wishes to suggest that there are any other specific media items which would fall into the same category, and should be specifically mentioned during the excuse process, I will hear further from defence counsel in that regard.

60 For all of these reasons, I am satisfied that the traditional safeguards of a jury trial, including the juror selection process and the use of strong and appropriate directions, are sufficient to enable a fair trial to be held.

61 This application has been based on the simple proposition that there is nothing the court can say or do to render the 2010 retrial a fair trial. I have rejected that submission. It may be that, in the light of my decision, defence counsel will wish to make further submissions as to what I should say to the jury about any of the pre-trial publicity or other matters canvassed in these reasons. I propose to discuss such matters with counsel, prior to the empanelment of the jury, and at appropriate times during the course of the trial, to ensure that the trial is as fair as possible.

[1] Ruling No 1 [2007] VSC 251.

[3] Nettle and Weinberg JJA; Ashley JA dissenting on this point. The Court of Appeal's reasons are R v Dupas (No 3) [2009] VSCA 202.

[4] Nettle and Ashley JJA; Weinberg JA dissenting.

[5] Dupas v The Queen [2010] HCA 20.

[6] Outline of defence argument at [5].

[10] Court of Appeal reasons at [77].

[12] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 111 per Wilson J quoted in Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 34 per Mason CJ and in R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605 per Mason CJ and Toohey J.

[13] R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 598 per Mason CJ and Toohey J.

[14] R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 599 per Mason CJ and Toohey J.

[15] Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 33 per Mason CJ.

[16] Outline of defence argument at [2].

[17] A Herald Sun article, dated 10 August 2007, reported that the accused's then counsel had told Cummins J that when he typed "Dupas" into his internet search engine, it produced 78,000 "hits." However, the article does not indicate what search engine was used, and there is no evidence before me as to how many "hits" the same search as that undertaken by Ms Connelly would have produced in July 2007 (ie whether there would be more or less than now). I proceed on the basis that there was in July 2007, and is currently, an enormous amount of material about the accused which is readily accessible to the public by internet search.

[18] Court of Appeal reasons at [202].

[20] High Court reasons at [21]-[22].

At a glance

Court

Decision date

Before

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Judgment (131 paragraphs)

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Cases Cited (3)