Dupas v The Queen

Dupas v The Queen [2010] HCA 20

Summary

Majority: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

Appeal Dismissed

The appellant sought a permanent stay of his trial due to an abuse of process, claiming that pre-trial media attention prevented him from having an impartial jury and therefore a fair trial. The Court found that it is not sufficient, for the grant of a permanent stay, that a trial is conducted against a background of extensive pre-trial publicity. A stay will only be ordered where any prejudice that is occasioned can not be remedied by directions to the jury by the judge at trial. There is nothing exceptional about the appellant’s case that prevented jury directions remedying any danger of unfairness. Therefore, the Court found that no stay should be ordered.

Facts

The appellant, Peter Dupas was charged with the murder of Mersina Halvagis. The appellant had previously been convicted of two other brutal murders, and was notorious in the media, where he was often referred to as a serial killer.

In addition, the evidence in the trial in conjunction with the Prosecution’s case was such that it was inevitable that the jurors would be made aware of the previous convictions and at least some of the prejudicial media material.

Prior to trial, the appellant had sought a permanent stay of the trial on the ground that there was so much adverse pre-trial publicity that it would not be possible to get a fair-minded jury. The Judge at first instance, Cummins J, denied the application for a stay, and the appellant was subsequently convicted by a jury.

On appeal to the Victorian Court of Appeal, the appellant was successful in having his conviction set aside on grounds not relevant to the High Court appeal. However, the Court of Appeal rejected an appeal against the order of Cummins J denying a stay, and ordered that the appellant be retried.

In the High Court, the appellant again argued that there should be a permanent stay of the retrial because the pre-trial publicity was such that he could not receive a fair trial.

Finding

The Court refused to order a stay.

The Court reiterated the principle underlying our jury system that the Court must assume that a jury will only act on admissible evidence and will properly take into account all directions given by the trial judge (at [29]).

It will therefore be a very rare situation, the Court said, in which prejudice to the accused cannot be remedied by adequate directions to the jury. The Court said that, where previous authorities have called for cases to be ‘extreme’ or ‘singular’ before a stay would be ordered, what is really required is the rare situation in which jury directions cannot remedy the unfairness (at [35]).

The Court concluded (at [36]):

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.

The Court set out the directions given by Cummins J in this case (at [21]), and found that they were adequate to allay any risk of unfairness. Accordingly the appeal was dismissed.

Comment

One notable aspect to the Court’s decision is the brief obiter discussion of the constitutional status of a Court’s power to order a stay of proceedings. The Court said (at [15]) that the power of a court to order a stay in order to prevent an abuse of process is a necessary requirement of a Chapter III Court. That is to say that any attempt by the Parliament to pass legislation that would remove such a power from a Chapter III Court would be contrary to the Constitution and therefore invalid. The Court said (at [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 did not exercise federal jurisdiction and no question arises respecting the validity of any State legislation denying or limiting the inherent power of State courts to control abuse of their processes in matters not arising in federal jurisdiction. The power of the Supreme Court was that identified by Lord Blackburn as inherent.

The Court went on to say that this applies with respect to ‘both civil and criminal proceedings’ (at [16]).

Most academics in this field would say that support for this principle is found in Nicholas v The Queen [1998] HCA 9 (though the High Court does not refer to that case). For example, Gaudron J said in Nicholas that (at [74]): ‘a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.’ (emphasis added)

But there is considerable academic dispute as to what this means (see eg here and here), and in particular whether this extends to a power to stay its proceedings. Accordingly, this is an interesting piece of obiter from the High Court, worthy of some note to Constitutional scholars, and it is a bit disingenuous for the Court to make this statement as though it were axiomatic.