R v Dubois

[2016] QSC 327

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

1. 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.

2. 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.

3. 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.

4. 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

1. 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…