R v Dupas [2011] VSC 200

2 There were no eyewitnesses to the murder. The Crown case against the accused was a circumstantial one, based in particular on:

(a) The evidence of Katica Melnik, Horst Peter Weller and Laima Burman, identifying the accused as the man, or as resembling the man, they saw in the cemetery that day;

(b) Admissions alleged to have been made by the accused to Andrew Fraser, a fellow prisoner, whilst in prison; and

(c) Lies the accused allegedly told to several people, to the effect that he had never been to the Fawkner Cemetery and did not know anyone buried there, which the Crown relied upon as implied admissions of guilt.

3 Prior to the commencement of the trial, the accused applied to have some or all of the proposed evidence of Mrs Melnik, Mr Weller and Mrs Burman excluded:

(a) On the basis that it was hearsay which was inadmissible, by virtue of s 59 of the Evidence Act 2008 ("the Act"); and/or

(b) Pursuant to s 137 of the Act, on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused.

4 On 21 October 2010, at the commencement of the trial, I ruled that I would allow the Crown to lead the evidence, for reasons which would be published later. These are those reasons.

5 Mrs Burman's proposed evidence was contained in the following: three statements to police, dated 26 April 1999, 6 May 1999 and 19 August 2000, respectively; evidence given on 13 December 2005 at the Coroner's inquest; and evidence given at the accused's first trial for this murder before Cummins J on 20 and 23 July 2007.

6 The essence of Mrs Burman's evidence as to her dealings with the man at the cemetery on 1 November 1997 was as follows. At about 9.30 am, while she was performing volunteer duties in the Latvian section of the cemetery, she was approached by a man. The man asked Mrs Burman if she worked at the cemetery, and she told him she did. He told her he had just found his adoptive mother's grave, which he had never seen before. Mrs Burman agreed to make certain enquiries for him and wrote down the name and telephone number he gave her. She also offered the man the use of her rake, so that he could clean the grave.

7 Mrs Burman described the man as Australian. He was in his late thirties, of medium build and about 5 feet 7 inches tall. He had fair to light brown, straight, collar-length hair, and was wearing prescription glasses. He was wearing what looked like white runners, black tracksuit pants and a light-coloured, waist-length jacket. The jacket had a tear near the right pocket.

8 Unlike Mrs Melnik and Mr Weller, Mrs Burman went to the police soon after the events at the cemetery. On 8 November 1997, only a week later, she provided the police with a description of the man and participated in the generation of a computer photofit image of him.

9 On 6 May 1999, Mrs Burman was shown a photoboard, on which the man in photograph 7 was the accused. Mrs Burman told the police she was unable to say "100%" if the man at the cemetery was shown in the folder. She selected photographs 6, 7 and 12, stating that they all had "similar features" to the man. She said the man in photograph 7 had hair that was very similar to the man, with the same colouring and style, although it was perhaps a bit longer at the back. The glasses worn by the man in photograph 7 were also similar in style, however, they were not tinted. The photoboard evidence is, technically, similarity evidence, rather than identification evidence, as Mrs Burman did not positively identify the accused on this occasion.

10 In her third statement, Mrs Burman said that in a local newsagency in Kyabram, on 16 August 2000, she saw newspapers stacked on the counter. She noticed the headline on the paper, and there was a photograph of a man wearing glasses. She said "as soon as I saw the man in the photo, I realised that he was the man I sat and spoke with at the cemetery on the 1st of November, 1997". She said she could definitely say that he was the person she spoke with at the cemetery.

11 The front page of the Herald Sun newspaper of 16 August 2000 had a picture of the accused, together with a smaller picture of Ms Halvagis. The headline read "A MONSTER - Revealed: How a sex killer convicted yesterday is also the prime suspect in Melbourne's graveyard murder mystery".

12 At the inquest, Mrs Burman was initially unable to identify the article of 16 August 2000 from a bundle of articles, however, she was able to do so at the first trial.

13 Mr Weller's proposed evidence was contained in the following sources: a statement to police dated 22 March 2005; evidence given at the Coroner's inquest on 29 November 2005; and evidence given on 23 July 2007 at the first trial.

14 The essence of Mr Weller's account of what he saw at the cemetery was as follows. He had gone there with his partner, Patricia Rodrigues, to visit her late husband's grave. At about 3pm, Mr Weller parked his car just near the gates on Box Forest Road to avoid traffic, and walked through the gate with Ms Rodrigues. When he was about 5 to 10 metres inside the gate, he could see two feet standing behind a bushy tree. The feet were facing away from him, and he could only see a pair of shoes and the bottom half of someone's legs. He pointed the person out to Ms Rodrigues as they were walking past, and he had what he variously described as a "quick look" and "a really good look" at the man, for the "best part of 3 or so seconds", before both he and Ms Rodrigues continued walking. The man was standing under the tree, hunched over with his head slightly down and his hands folded in front of him.

15 The man was wearing round, silver-framed prescription glasses, and although he looked younger than Mr Weller (who would have been about 55 years old at the time), Mr Weller could not pick his age. He guessed the man would have been maybe 45 or 55 years old. The man had ginger-coloured hair, with what looked to be silver strands on the left hand side. He could not recall how long the man's hair was at the back, but the man had a fringe that was brushed forward, and the sides of his hair fell straight down. It was hard to determine how tall the man was, given that he was standing slightly hunched over, but he estimated the man was 5 feet 7 inches tall and looked "plumpish". The man was wearing a dark blue jacket - a parka - with a knitted collar, dark trousers and shoes.

16 After 1 November 1997, Mr Weller saw many pictures of the accused on television and in newspapers, particularly the Herald Sun. In his statement, he said he particularly recalled watching a television news program about the killing of Margaret Maher, and possibly another girl. In that program, it was mentioned that the accused was also suspected of the murder at Fawkner Cemetery. When he saw the picture, "I straight away thought to myself that I know this man's face. I thought about it for a while and I recalled that this was the same man that I saw this day at the Fawkner Cemetery."

17 Mr Weller was asked, both at the inquest and the first trial, whether he could remember how long it was between the day he went to the cemetery and the day he saw the man on television. Some of his answers showed a degree of confusion or uncertainty as to how long that period was.

18 Mr Weller did not contact the police, and advise them of what he had seen at the cemetery, until 14 January 2004, some 6 years after the murder.

19 On 22 March 2005, the police showed Mr Weller a photoboard containing twelve photographs; the accused was shown in photograph 7. Mr Weller identified photograph 7, saying "That looks very much like him, yep number 7".

20 Mrs Melnik's proposed evidence was contained in the following sources: three statements to police, dated 29 April 2005, 2 and 25 May 2005, respectively; evidence given at the inquest on 1 December 2005; and evidence given at the first trial on 24 July 2007.

21 Her proposed evidence dealt with what she saw at the cemetery, when she visited it on 1 November 1997 with two friends. At around 3 or 3:30 pm, they went to the Ukrainian section of the cemetery. They then walked to the Greek Macedonian section. Mrs Melnik looked over to her left and saw a man standing about five graves away, looking in her direction; as she looked over at him, he turned his head away. As Mrs Melnik continued walking, she again looked to her left and saw the man was walking away along the path towards the creek, with his head down and his hands in his pockets.

22 The essence of her description of the man she saw was as follows. He was wearing glasses, but they weren't sunglasses. He was wearing either a light grey or brown top and overalls. He was handsome and his clothing was "very neat". His hair was straight and brushed to the side; she variously described the colour as brown, dark blonde, blonde or ginger colour.

23 As far as her later identification of the man was concerned, in her first statement, Mrs Melnik said:

Some time later, I can't recall when, but I was watching the news when I saw a picture of a blonde haired girl that had been killed and a picture of a man who they said had killed her. As soon as I saw this man's face, I straight away knew I had seen him before somewhere. I recall thinking for the next hour or so, where I had seen this man before and it was then that I remembered that he was the man I saw in the Fawkner Cemetery on the day that the girl was killed.

24 In her first statement, she did not say that she had learned from the news that the man's name was Peter Dupas.

25 In her second statement, Mrs Melnik simply said by way of introductory remarks: "I have already made a statement to police regarding a man I know from television as Peter Dupas that I saw at the Fawkner Cemetery on the day that the girl was killed." It was not clear from that statement where Mrs Melnik had actually got the name "Dupas" from (that is to say, whether she got it from the media or the police).

26 In her evidence at the inquest, Mrs Melnik said it would have been the Channel 9 evening news where she saw the man, as that was the news she always watched. She could not say when she saw the news item, save that it was "quite long" after she saw the man at the cemetery. The news item said the man was in jail for killing the blonde woman.

27 Mrs Melnik also said at the inquest that she read the Herald Sun (particularly on Sundays) and had seen a picture of the man in the Herald Sun, after she had seen the news item about him. The Herald Sun article involved the man's wife describing him and saying how he was sharpening a knife.

28 On another occasion, she either saw a newspaper article or a television programme featuring the same man in connection with killing two girls, a blonde one and another one.

29 At the first trial, Mrs Melnik said she saw a news broadcast which showed two blonde-haired girls who had died, and a picture of the man she recognised. Asked whether the television said the name of the man, she answered somewhat unresponsively "I think so, yes, they - yes, I think so, but I just recognise - not straight away, I was questioning myself, maybe (indistinct) but I have seen somewhere that man." It was the Channel 9 evening news. She had not seen the man's face on the television "many times". However, she had seen his face in the newspaper, the Sunday Herald-Sun. She saw the television news broadcast before the newspaper article.

30 Ms Melnik was never asked to look at a photoboard. Neither the news broadcast nor the newspaper article was identified or proposed to be tendered.

31 The hearsay rule is contained in s 59 of the Act, which relevantly provides:

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

32 Although the Act was not in force at the time of the first trial, there would have been nothing to prevent an equivalent hearsay objection being taken at common law, but it was not. Nor was any hearsay objection taken in the initial written submissions, which sought to have the evidence excluded from the trial before me. The hearsay objection seems to have been something of an afterthought, with the consequence that it was not argued fully or particularly forcefully before me.

33 The defence supplementary written submissions simply asserted that "recognition of a photo image either on television or in a newspaper is not admissible as hearsay, as the identification aspect depends on an out of court assertion by either the television or newspaper that the man recognised was [the accused]."[1] The defence relied on para [31185] in Cross on Evidence and the English case of R v Hussain[2], as authority for that proposition.

34 The relevant extract from Cross on Evidence only says the following:

W1 identifies the accused as a person who has done a particular act. If W1 only knows the identified person as the accused because W1 has been told that that person has the accused's name or other attributes, the latter evidence is inadmissible hearsay.

35 In Hussain, Hussain was convicted of murdering his sister-in-law by driving over her. Four men, including Hussain, were regular drivers of the car that killed her. One witness, X, identified Hussain as the driver, and as a person he had seen drive the car previously. X only knew him as Hussain because the deceased had previously told him that was the man's name. X did not participate in any identification parade or photoboard exercise involving the accused or his image. The Crown was seeking to rely on the evidence of X to establish two facts: (a) X recognised the man that he had previously seen; and (b) the man that X had previously seen was Hussain. The only basis on which the Crown could establish the second fact was by relying on the hearsay statement of the deceased. The Court of Appeal held that the evidence was inadmissible hearsay.

36 Although the defence seemed to be suggesting in the supplementary written submissions that the identification evidence of Burman and Weller was inadmissible as hearsay, by the second day of the preliminary argument, it had become apparent that it was only Mrs Melnik's evidence which was really challenged on that basis.

37 The defence submitted that, absent the production of any photo in which Mrs Melnik had recognised the accused, her evidence was no more than hearsay, based on media reports that the man's name was Peter Dupas.

38 However, I agreed with the Crown submission that Mrs Melnik's identification evidence was not based on the media telling her the man's name. Mrs Melnik did not say the man she saw at the cemetery was Peter Dupas, nor did her proposed evidence assert that she learned the man's name from the media.

39 Rather, she said that the man who she saw at the cemetery was the same man whose photograph was shown in connection with the reporting of the murder of a blonde-haired girl or girls. Both Margaret Maher and Nicole Patterson, the accused's previous victims, were blonde-haired. There had been media coverage of his connection with those murders. It was not clear how much of that media coverage would ultimately be placed before the jury, but at the very least the jury would be told of the accused's conviction for those two murders. It would be open to the jury to infer, even in the absence of producing the actual photograph in court, that the person whose photograph Mrs Melnik had seen was the accused.

40 Accordingly, I declined to exclude Mrs Melnik's evidence on the basis of hearsay.

41 At the first trial, the defence had sought to exclude the identification evidence of Weller, Melnik and Burman, on the ground that its probative value was significantly outweighed by the danger of unfair prejudice (under what was known at common law as the "Christie discretion").

42 Cummins J ruled[3] that the evidence was relevant and had significant probative strength. Any imperfections in the evidence went to its weight, and could be the subject of appropriate directions to the jury. His Honour considered that any prejudicial effect could be dealt with by appropriately controlling the amount of extraneous material (such as the headline which Mrs Burman saw) which was put before the jury. He allowed their identification evidence to be led.

43 The Court of Appeal upheld that ruling of Cummins J.[4] The Court of Appeal recognised that the identification evidence formed a significant part of the Crown case. The evidence, if accepted by the jury, was relevant because it placed the accused at the cemetery on the relevant day. It was also relevant to the argument that the accused had told certain lies (about never having been to the cemetery) out of consciousness of guilt.

44 Weinberg JA, with whom Nettle and Ashley JJA agreed in relation to this appeal ground, gave detailed reasons in relation to the admissibility of the identification evidence. The Court said that the evidence of Mrs Burman was very powerful, although the same could not be said of the evidence of Mr Weller and Mrs Melnik. Nevertheless, it was open to the trial judge to find that the evidence had significant probative value, which was not outweighed by any likely prejudicial effect.

45 Section 137 now provides that:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

46 Section 137 clearly differs from the Christie discretion, in that it does not involve the exercise of any discretion.[5] If the statutory requirements are met, then the evidence must be excluded.

47 But defence counsel properly conceded that parliament otherwise intended s 137 to be the statutory replacement of the Christie discretion.

48 "Probative value" is defined in the Act's dictionary as meaning "the extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue."

49 It was common ground, and I find it to be the case, that the concepts of "probative value" and "unfair prejudice" have the same meaning at common law and under s137.

50 As far as probative value is concerned, the authorities recognise that even when the identification evidence may be termed "weak", or there are problems with its reliability, that is not a question of admissibility, but a question of weight, together with the safeguards of appropriate directions and warnings to the jury.

51 Defence counsel accepted that "the preponderance of authority suggests it is not open to a trial judge in assessing (for the purposes of s 137) the probative value of any piece of evidence, to take into account his or her own evaluation of its reliability or the credibility of the witness through which it is tendered."

52 Evidence is not "unfairly prejudicial" to an accused merely because it makes it more likely that the accused will be convicted.[6] The risk of unfair prejudice arises where there is a danger that the jury may use the evidence to make a decision on an improper basis, or to adopt an illegitimate form of reasoning.[7]

53 Unlike the discretion to exclude evidence contained in s 135 of the Act, s 137 contains no requirement that the danger of unfair prejudice must "substantially" outweigh the probative value of the evidence.

54 In the first written submissions, defence counsel argued that the following evidence should be excluded under s 137:

(a) All of Mr Weller and Mrs Melnik's identification evidence; and

55 In the supplementary submissions, it was argued that Mrs Burman's evidence about the Herald Sun identification should also be excluded under s 137.

56 It was common ground that I was not bound by the Court of Appeal's decision, but the Crown submitted that I should nevertheless find the Court of Appeal's reasoning in relation to the admissibility of the identification evidence highly persuasive. On the other hand, the defence urged me to consider the evidence afresh and come to a different conclusion.

57 As far as Mrs Burman's photoboard evidence was concerned, the defence argued that the accused's photograph stood out unfairly, for a number of reasons. It was said to be a heavily "photo-shopped" image, which appeared to have been crudely altered.

58 Those are matters which go to the weight to be given to Mrs Burman's photoboard evidence, and could be the subject of criticism by defence counsel at trial. But I am not persuaded that the jury could not be given appropriate directions to avoid any unfair prejudice which might otherwise arise.

59 As far as Mrs Burman's Herald Sun identification was concerned, the defence argued that it was akin to a dock identification. Defence counsel referred me to cases such as Alexander v R[8], Davies & Cody v R[9] and Festa v The Queen[10], in which dock identifications were said to be of little probative value, because of the risk that a witness's recollection will be overlaid or affected by suggestions that a particular person in custody is either the person previously seen by the witness or is the person suspected of or charged with the crime.

if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial. [11]

61 Defence counsel noted that the newspaper photograph from which Ms Burman identified the accused showed him in handcuffs and next to a headline linking the man to the graveyard murder. They said that made the identification no better than a dock identification.

62 However, I accepted the Crown submission that Mrs Burman's Herald Sun identification was not akin to a dock identification. True it was that the accused was wearing handcuffs in the picture, but this was not like the police showing a witness a single photograph or showing them the accused in the dock. The police were not trying to get Mrs Burman to identify the man in the photograph. Rather, Mrs Burman spontaneously identified the accused as soon as she saw the photograph on the shop counter. Furthermore, there was other evidence of Mrs Burman and others to substantiate the identification. Once again, any possible prejudice could be addressed with appropriate jury directions.

63 The defence argued that with both Mr Weller and Mrs Melnik, there was an extreme or overwhelming risk that they had overlaid their recollections of what they saw at the cemetery with mistaken beliefs from exposure to repetitive sensational media coverage about the accused in the intervening years.

64 The defence also pointed to a number of what are, undoubtedly, weaknesses in the evidence of Mrs Melnik and Mr Weller. It was also said that there was an overwhelming risk that a jury would give much more weight to the evidence of Mr Weller and Mrs Melnik than it deserved.

65 It was argued that the level of resulting prejudice was so high as to prevent even the most comprehensive and detailed Domican or other warning properly addressing it.

66 Although the members of the Court of Appeal, either expressly or implicitly, found that the evidence of Mr Weller and Mrs Melnik was weak, that was not enough to render it inadmissible. Any imperfections in the evidence went to the weight of the evidence, rather than its admissibility. If the evidence was relevant and probative, even if its probative value was weak, it was still admissible. Issues such as the reliability of the evidence were a matter for a jury. Appropriate and strong directions would be sufficient to address any unfair prejudice which might otherwise flow.

67 I agreed with and adopted those findings. The evidence was relevant and probative. I did not accept that there was a risk that a jury would give more weight to the evidence of Mr Weller and Mrs Melnik than it deserved. As Weinberg JA observed, it could be assumed that the jury would obey the directions of the trial judge in relation to how prejudicial evidence can, and cannot, be used.

68 Defence counsel also argued that unfair prejudice would result, if they sought to demonstrate through cross-examination the possibility of the displacement effect having occurred. To do that, they would necessarily have to touch on the extensive and sometimes sensational media coverage surrounding the accused's convictions for the murders of Margaret Maher and Nicole Patterson.

69 As the Court of Appeal recognised, this case undoubtedly presented some difficult forensic decisions for defence counsel to make. The same difficult decisions would arise on the re-trial. I was not persuaded that the potentially prejudicial effect of any media items which might be placed before the jury, in order to demonstrate the displacement effect, could not be overcome by either controlling or editing them, or giving appropriate directions.

70 At the first trial, the previous defence counsel had submitted that the jury should be informed of the two prior convictions for murder and be provided with appropriate directions. Whilst defence counsel had not given a final indication, at the time of this application, as to what they would ask to be done in that regard at the re-trial, in my opinion it would have been unrealistic to conduct the re-trial without informing the jury of that information (given the nature of the identification evidence and the evidence of Andrew Fraser). Ultimately, I was not persuaded that appropriate warnings and directions given by the trial judge could not overcome any resulting unfair prejudice.

71 For these reasons, I was not satisfied that the probative value of the relevant evidence was outweighed by any danger of unfair prejudice to the accused, such that the relevant evidence should be excluded under s 137 of the Act.

[1] Defence supplementary submissions dated 23 August 2010 at [33].

[2] [1998] Crim LR 820.

[3] DPP v Dupas [2007] VSC 254.

[4] R v Dupas [2009] VSCA 202.

[5] In contrast to ss 135 and 136 of the Act, which respectively contain a general discretion to exclude evidence, and a general discretion to limit the use of evidence, which might be unfairly prejudicial.

[6] Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297; R v BD (1997) 94 A Crim R 131.

[7] R v Yates [2002] NSWCCA 520 at [252].

[8] Alexander v R [1981] HCA 17; (1981) 145 CLR 395.

[9] Davies & Cody v R [1937] HCA 27; (1937) 57 CLR 170.

[10] [2001] HCA 72; (2001) 208 CLR 593.

[11] Davies & Cody v R [1937] HCA 27; (1937) 57 CLR 170.