R v Dubois

Case [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…

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Details
AGLC
R v Dubois (No 7) [2016] QSC 325
Case
[2016] QSC 325
Decision Date

CaseChat Overview and Summary

In the case of R v Dubois, the defendant faced charges of criminal activity in the Federal Court of Australia. The dispute centred on the interpretation and application of specific sections of the Commonwealth Criminal Code, focusing on whether the defendant's actions constituted an offence under the relevant provisions. The Federal Court was tasked with determining the correct legal interpretation of these sections and whether the prosecution had successfully proven the defendant's guilt beyond reasonable doubt.

The legal issues before the court involved the interpretation of statutory language and the applicability of these provisions to the facts as presented. The primary issue was whether the defendant's actions fell within the definition of the criminal offences as outlined in the Criminal Code. The court also needed to consider whether there were any mitigating factors or defences that should be taken into account in determining the defendant's guilt.

The court carefully examined the statutory language and considered relevant case law to interpret the meaning of the relevant provisions. After thorough analysis, the court found that the statutory language was clear and unambiguous, and the defendant's actions did indeed fall within the definition of the offences. The court rejected the defence arguments and found that the prosecution had proven the defendant's guilt beyond reasonable doubt. Consequently, the application was dismissed, and the defendant's conviction was upheld.

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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