R v Dubois

[2016] QSC 325

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dubois [2016] QSC 325

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 Robert William McCulkin

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 the exclusion of the evidence of Robert William (Billy) McCulkin on the ground that it does not satisfy the requirements of s 93B of the Evidence Act 1977 (Qld). Mr McCulkin died on 25 August 2011.

2. He gave a lengthy statement to police dated 5 February 1974 which included evidence about:

   ·   his family’s circumstances;

   ·   his movements in the days leading up to the time his wife and daughters disappeared;

   ·   his visiting their house on the night of Friday, 18 January 1974 with a view to giving his wife some money and finding no-one present;

   ·   his learning from neighbours that his family had not been seen for a few days;

   ·   what he found when he broke into the house;

   ·   his attempts in the following days to locate his missing wife and daughters, including evidence of encounters with Mr O’Dempsey and the applicant.

3. Mr McCulkin also gave two short addendum statements, and gave substantial evidence at the inquest in 1980, at which he was examined by counsel assisting and cross-examined at length.  The applicant acknowledges that Mr McCulkin’s inquest evidence was broadly in accordance with his earlier statements.  However, they note what are said to be some inconsistencies in relation to some matters which he observed in the house.   

4. The respondent submits that Mr McCulkin’s evidence, at least in the form of his

   
   

   5 February 1974 witness statement, meets the requirements of s 93B. Background matters such as the dates of birth of his children, their education and where his family lived are unremarkable and are not the subject of objection. Representations which the applicant contests the admissibility of, such as those about Mr McCulkin’s movements in the days immediately before and immediately after the disappearance of his family, are submitted by the respondent to fulfil the requirements of s 93B because they were made either:

   (a)shortly after the events in question happened and in circumstances making it unlikely the representation is a fabrication; or

   (b)     in circumstances making it highly probable the representation is reliable.

5. The applicant opposes the admission of Mr McCulkin’s evidence pursuant to s 93B because his statements are submitted to be:

   (a)     inconsistent with later contrary statements made at the inquest;

   (b)inconsistent with later statements allegedly made in 2011 to Mrs Fe McCulkin by Mr McCulkin in which he is supposed to have confessed to killing his wife…