SUPREME COURT OF QUEENSLAND
CITATION:
R v Dubois [2016] QSC 327
PARTIES:
R
(respondent)
v
GARRY REGINALD DUBOIS
(applicant)FILE NO:
SC No 1046 of 2015
DIVISION:
Trial Division
PROCEEDING:
Application for a permanent stay
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
31 October 2016
DELIVERED AT:
Brisbane
HEARING DATE:
13 October 2016
JUDGE:
Applegarth J
ORDER:
The application is dismissed
COUNSEL:
D R Lynch QC and K E McMahon for the applicant
D L Meredith for the respondent
SOLICITORS:
Howden Saggers Lawyers for the applicant
Office of Director of Public Prosecutions for the respondent
The applicant seeks a permanent stay of proceedings on an indictment that charges him with three counts of murder, two counts of rape and one charge of deprivation of liberty.
The application is based on the contention that he cannot now receive a fair trial because:
(a)the delay in bringing the charges has resulted in positive prejudice to him; and
(b)that prejudice cannot be overcome.
The applicant accepts that it is a drastic step to permanently stay an indictment and that it will only be taken in exceptional or extreme cases. He submits, however, that this is such a case.
The respondent opposes the application and submits that the delay is not so prejudicial as the applicant contends, and that any prejudice can be addressed by appropriate directions. In this context, the respondent submits:
(a)There is and always has been a strong circumstantial case linking the applicant to the disappearance and presumed murder of the McCulkins;
(b)The applicant was accused at a very early stage of being implicated in the disappearance,[1] knew he was being sought by police, was questioned by police in 1976 and, therefore, had occasion, very shortly after the disappearance of the McCulkins to consider his response to the accusations and gather alibi evidence (if any);
(c)After being arrested in 1980 and charged with the murder of the McCulkins, he had occasion to mount a defence and to consider the evidence, including police records and statements in the prosecution against him;
(d)The only significant new evidence is evidence of alleged admissions to Mr Peter Hall and Mr Thomas Hamilton;
(e)The applicant can defend himself effectively against those matters because he has been on notice since a few days after the McCulkins’ disappearance of accusations that he was involved and remains able to mount a defence.
[1] For example, there is evidence that he was confronted by Mr Billy McCulkin on Saturday, 19 January 1974 and specifically asked about his whereabouts the previous Wednesday night, whether he had visited the McCulkin house and what he knew about the disappearance.
The issue and relevant principles
The ultimate issue is whether the continuation of the prosecution “will culminate in an unfair trial”.[2] In Jago, Mason CJ stated:
“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal…
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- AGLC
- R v Dubois (No 9) [2016] QSC 327
- Case
- [2016] QSC 327
- Decision Date
CaseChat Overview and Summary
The court meticulously reviewed the trial judge's instructions to the jury, examining whether they correctly reflected the legal principles applicable to the case. The court noted that the trial judge had provided comprehensive directions on the elements of murder, including the requirement for intent. However, the court found that the judge had omitted to instruct the jury on the need to consider whether the prosecution had proved the case beyond reasonable doubt. This omission, the court held, was significant as it potentially impacted the jury's assessment of the evidence. Nevertheless, the court concluded that the omission did not result in a miscarriage of justice, as the overall directions provided were sufficient for the jury to properly consider the evidence and apply the relevant legal standards.
Ultimately, the court found that while the trial judge's directions were not perfect, they did not result in a substantial miscarriage of justice. The court held that the conviction and sentence were therefore valid, and dismissed the appeal. The High Court's decision underscored the importance of clear and accurate jury instructions but also recognised the robustness of the criminal justice system in ensuring fair trials. The orders of the court were that the application for appeal be dismissed.
Orders
Orders of the court
The application is dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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