Dupas v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Gummow,Hayne,Heydon,Crennan,Kiefel,Bell JJ.
• Judgment Date: 15 April 2010
• Neutral Citation: 2010-0616 HCA A,[2010] HCA 20
• Docket Number: M20/2010
• Date: 15 April 2010

[2010] HCA 20

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel And Bell JJ

M20/2010

Peter Norris Dupas

Appellant

and

The Queen

Respondent

Representation

C B Boyce with L C Carter for the appellant (instructed by Victorian Legal Aid (Criminal Law Section))

J D McArdle QC with B L Sonnet for the respondent (instructed by Solicitor for Public Prosecutions (Vic))

Dupas v The Queen

Criminal law — Permanent stay of proceedings — Accused presented on charge of murder — Extensive pre-trial publicity about charge and accused's two previous convictions for murder — Whether irremediable prejudice to a fair trial justifying permanent stay of proceedings — Whether apprehended unfair consequences of pre-trial publicity were capable of being relieved against by trial judge, during trial, by thorough and appropriate directions to jury — Public interest consideration that an accused be brought to trial.

Words and phrases — ‘fair trial’, ‘permanent stay of proceedings’.

ORDER

1. The appeal is dismissed.

2. The respondent's summons is dismissed.

1 French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel And Bell JJ. At the conclusion of oral argument on behalf of the appellant the Court ordered that the appeal be dismissed and that the respondent's summons seeking an abridgement of time in respect of filing and serving a notice of contention also be dismissed. What follows are our reasons for joining in those orders.

2 The single ground of appeal to this Court is put in the alternative. First, the appellant complains that the Court of Appeal of the Supreme Court of Victoria 1 erred in rejecting the appellant's challenge to the decision on 3 July 2007 of the trial judge (Cummins J) refusing him a permanent stay of the proceedings upon his charge of the murder of Mersina Halvagis at Fawkner, Victoria, on 1 November 1997. The ground on which the stay had been sought, prior to the empanelment of the jury, was that pre-trial publicity gave rise to irremediable prejudice such as would preclude his fair trial at any time.

3 The trial proceeded before Cummins J and a jury. The case against the appellant was a circumstantial one in which the prosecution relied on three identification witnesses and an alleged confession by the appellant to one Andrew Fraser who was in gaol with him at the time. On 9 August 2007 the appellant was convicted and thereafter sentenced to life imprisonment with no minimum term. His appeal against conviction succeeded on grounds relating to the conduct of the trial which are not presently material, and a new trial was ordered. However, the appellant's challenge to the refusal by the trial judge of the stay application failed in the Court of Appeal.

4 The second way in which the ground of appeal by the appellant to this Court is put is that the Court of Appeal should not have directed a retrial and should have stayed his trial permanently, or until further order.

5 The appellant seeks orders vacating the order of the Court of Appeal for a retrial and, in its place, imposing a permanent stay or a stay until further order.

6 Before his trial for the murder of Ms Halvagis, the appellant had twice been convicted of murder. In August 2000 he had been convicted of the murder

of Nicole Patterson in April 1999 2 and in August 2004 he had been convicted of the murder in October 1997 of Margaret Maher 3. Upon each conviction the appellant had been sentenced to life imprisonment with no minimum term. The killings of all three vulnerable women had been by knife attack and characterised by extreme violence and brutality. The appellant's applications for leave to appeal against each of the two earlier convictions for murder were refused.

7 The two convictions for murder, the refusal of each of the leave applications, and the third murder charge had received wide media publicity, adverse to the appellant, and on the stay application Cummins J received a body of evidence of that publicity. This included publicity over some seven years, on seven internet sites, in approximately 120 newspaper articles and four books, all of which related either wholly or extensively to the appellant. The appellant had also been referred to in a number of television programs, and his image had been depicted in some of those programs. The appellant was identified in the media from an early stage as a suspect in regard to the murder of Ms Halvagis.

8 In response to questions from the trial judge as to the currency of the pre-trial publicity and as to how easy it was to access, the appellant's counsel referred to three periods of intense media publicity — late 2000 (relating to the murder of Ms Patterson), late 2004 (relating to the murder trial where the victim was Ms Maher), and early 2005 (where the appellant was named as a suspect in the murder of Ms Halvagis); counsel referred also to material currently available on the internet and to the use of the Google search engine to access articles electronically stored on the World Wide Web. A summary of the pre-trial publicity can be found in the reasons of Ashley JA 4. The essence of the appellant's submission before Cummins J was that ‘the ubiquity and pervasiveness of the accused's reputation as a serial killer, is such that no fair trial can now be had.’ It was contended that, if a permanent stay were not granted, any subsequent conviction would necessarily constitute a miscarriage of justice.

9 Cummins J considered that, if acted upon by a jury, the pre-trial publicity would have precluded a fair trial upon the third murder charge. Nevertheless, his Honour concluded that he had ‘very responsible confidence that the jury, appropriately directed, will firewall its deliberations and verdict from extraneous considerations and from prejudice in this case.’

10 His Honour so concluded 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 therefore, to give a true verdict according to the evidence. Third, the jury operationally will observe and will inevitably be influenced by the care with which evidence is received and tested during the trial. Fourth, the jury will be assisted in its task by the nature of a jury trial, its methods of testing and of consideration and of analysis, its valuing of care and of scrupulousness and its conscientious commitment to fairness. Fifth, citizens in this community selected to act as jurors show, and historically have shown, a robust capacity and conscientious capacity to act on evidence and to put aside extraneous data and considerations and demonstrate an honourable commitment to fairness.’

His Honour also said he considered that the jurors would comply with his directions not to do their own research, not to have access to the internet, and to have regard only to the evidence led in court, that they would not know or be able to recall much of the detail of the historical material referred to in the data placed before him and that none of the panel would prospectively know that the case for which they were summoned involved the particular accused.

11 Something more should be said respecting the outcome in the Court of Appeal. Grounds of appeal numbered 5 and 6 concerned alleged errors in the charge of the trial judge to the jury. Weinberg JA would have dismissed all grounds on which leave was sought and dissented from the result. Nettle and Ashley JJA agreed that the conviction should be quashed on grounds 5 and 6 but, unlike Nettle JA, the grounds upon which Ashley JA allowed the appeal included ground 1 alleging error by the trial judge in refusing the stay application. Ashley JA went on to favour a stay until further order, but not a permanent stay, of a retrial. The upshot was an order of the Court of Appeal directing a retrial, but no stay order of any description.

Abuse of process

12 The stay application made to the trial judge and the appeal to the Court of Appeal invoked the power of the Supreme 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.

13 In this Court, the appellant contends that pervasive pre-trial publicity attributed guilt to the appellant in respect of the crime with which he is charged and that evidence in the trial revived that pre-trial publicity with the effect that the pre-trial publicity, particularly as to the appellant's guilt in respect of other crimes and the crime charged, could not be dismissed from the jury's consideration when deciding the guilt or innocence of the appellant. The appellant submits that an accused's right not to be tried unfairly 5 includes a right to be tried without a significant likelihood that the jury will be affected by substantial prejudice and prejudgment as a consequence of pre-trial publicity.

14 From the joint reasons of Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads and Traffic Authority (NSW)6 there appear, or are foreshadowed, several propositions which bear upon the appeal now brought to this Court. In Batistatos their Honours referred 7, with approval, to the statements of Lord Blackburn in Metropolitan Bank Ltd v Pooley8 that from ‘early times’ the courts had inherent power to see that their processes were not abused, and that the power existed to enable the courts to protect themselves and thereby safeguard the administration of justice.

15 Having regard both to the antiquity of the power and its institutional importance, there is much to be said for the view that in Australia the inherent power to control abuse of process should be seen, along with the contempt power, as an attribute of the judicial power provided for in Ch III of the

Constitution. However, on the trial of the appellant the Supreme Court...