R v Dubois

[2016] QSC 326

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dubois [2016] QSC 326

PARTIES:

R

(respondent)

v
GARRY REGINALD DUBOIS
(applicant)

FILE NO:

SC No 1046 of 2015

DIVISION:

Trial Division

PROCEEDING:

Pre-trial application to exclude evidence of Peter William Hall

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

12 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 to exclude at his trial the evidence of Peter William Hall on the basis that:

   (a)     it would be unfair to admit the evidence;

   (b)    alternatively, it should be excluded on public policy grounds; or

   (c)alternatively, it should be excluded because its probative value is outweighed by its prejudicial effect.

2. According to the applicant, Mr Hall’s evidence was obtained as a result of:

   (a)repeated expressions of disbelief at Mr Hall’s initial denial of having any knowledge of the applicant’s involvement in the offences with which he is charged;

   (b)after being warned that if he did not tell the truth at a Crime and Misconduct Commission (“CMC”) investigative hearing on 14 March 2014, he could be prosecuted for perjury;

   (c)what the applicant describes as the “feeding” to Mr Hall of details of the account the investigators wanted him to provide; and

   (d)being told that his evidence would be used to convince the applicant to co-operate with police.

3. The respondent denies that the investigators acted improperly in interviewing Mr Hall.  Mr Hall’s evidence at the committal hearing was that he did not feel intimidated or pressured, that he had not been threatened and that he had not been told what to say.  The respondent disputes that the investigators fed details of the account they wanted Mr Hall to provide.  In fact, rather than align his account with scenarios investigators had advanced, in some important respects, Mr Hall:

   (a)     gave important new information without prompting;

   (b)     gave a different sequence of events; and

   (c)     rejected a police theory about the motivation for Mrs McCulkin to be murdered.

4. In addition to relying upon the unfairness of admitting evidence which was obtained in the manner which is alleged, and whilst acknowledging that unreliability alone is not a basis for exclusion, the applicant relies upon what is said to be the unreliability of

   
   

   Mr Hall’s account because:

   (a)     it is contradicted by the evidence of Mr Keith Meredith;

   (b)it was the product of an induced statement and is subject to a qualified indemnity which compels him to give an account inculpating the applicant or risk a perjury charge;

   (c)     Mr Hall has previously been involved in criminal activity; and

   (d)there has been a delay of about 40 years between the making of the alleged statements and his reporting them to the police.

5. The delay is also relied upon separately as a source of…