R v Dubois - [2016] QSC 324

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dubois [2016] QSC 324

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 Douglas Meredith

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

The applicant seeks the exclusion of the evidence of Douglas Meredith on the ground that it does not satisfy the requirements of s 93B of the Evidence Act 1977 (Qld), or, alternatively, that the Court should exercise its discretion to exclude the evidence.

The evidence

Mr Meredith was a close associate of the applicant, Thomas Hamilton and others. Their association with each other occurred in the 1960s and 1970s. The relevant evidence in this application relates to a conversation between Mr Meredith and Mr Hamilton in 1974. Mr Hamilton is dead, and William Anthony Stokes was convicted of his murder.

Mr Hamilton disappeared on or about 10 January 1975. Mr Meredith says that the relevant conversation occurred not long before Mr Hamilton died.
Mr Meredith had come to know Thomas Hamilton, Peter Hall, Keith Meredith (unrelated to Douglas Meredith) and Vincent O’Dempsey through his friendship with the applicant. The group had been friends for a long time.
In 1973 Douglas Meredith moved to New South Wales. He encountered O’Dempsey. Mr Meredith and his friend, Peter Hall, decided to move back to Queensland in 1974.

Mr Meredith lived at Bardon. Mr Meredith says that Thomas Hamilton and the applicant (who is described by Mr Meredith and others as “Shorty”) were “very close”.
Mr Hamilton would visit Mr Meredith at his home in Bardon and converse. Mr Meredith recalls a particular conversation one night when Mr Hamilton spoke for the first time about what had happened to the McCulkins. This was in “close proximity” to when

Mr Hamilton disappeared.[1] Mr Meredith, Mr Hamilton and another friend, Peter Burns (who died about 20 years ago) were drinking that night and smoked some cannabis.
[1] Committal transcript 2-37 l 45.

Mr Meredith says that Mr Hamilton “never smoked a great deal but he’d have a puff every now and again just to have a laugh about it”.[2] It was probably in the early hours of the morning and Mr Burns and Mr Meredith were joking about O’Dempsey (who was not present) being colour blind. According to Mr Meredith, at this point Mr Hamilton said words to the effect, “Don’t muck around”, and then said:
“The McCulkins are dead.
Shorty and Vince did it.
They raped the two girls.
Vince killed all of them.
Shorty came back after it happened and told me what they had done.”
Mr Meredith says that Mr Hamilton was very angry…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Dubois

Details

AGLC: R v Dubois (No 6) [2016] QSC 324
Case: [2016] QSC 324
Decision Date: 31 October 2016

CaseChat Overview and Summary

The case of R v Dubois involves the admissibility of certain statements made by the applicant, which were intended to be presented as evidence in the trial. The primary issue before the court was whether these statements should be excluded under the discretionary provisions of s 93B, s 98, and s 130. Section 93B pertains to the admissibility of statements made by a person charged with an offence, while s 98 and s 130 provide the court with discretionary powers to reject evidence on various grounds, including the interest of justice and fairness to the accused.

The applicant argued for the exclusion of the evidence on the grounds that it would be inexpedient in the interests of justice, it would be unfair to admit the evidence, or its prejudicial effect would outweigh its probative value. However, the court found that the applicant did not sufficiently develop these arguments in their oral submissions, particularly in relation to the reliability of the witness, Mr Meredith. Although there were doubts raised about the reliability of Mr Meredith, the court held that it was not sufficient to conclude that his evidence should be excluded based solely on these doubts. The applicant also failed to make specific submissions about Mr Meredith's reliability or the impact of his past criminal associations and the delay in disclosing the evidence.

The court held that the evidence was not of slight or relatively slight probative value, as it was probative in its own right as proof of the applicant's involvement in, and knowledge of, the circumstances in which the crimes were committed. The lack of detail about the precise location and timing of the rapes and murders did not detract from its probative value, considering the limited disclosure made by Mr Hamilton and the understandable response of Mr Meredith and Mr Burns not to press for further details.

As a result, the court dismissed the application to exclude the evidence, allowing it to be presented in the trial. The court concluded that the prejudicial effect of the evidence was not outweighed by its probative value, and the evidence was deemed admissible.

Orders

Orders of the court

The application is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

The admissibility provisions of s 93B are subject to the discretion to exclude under s 98 and the discretion to exclude under s 130. These sections provide:“98 Rejection of evidence(1)The court may in its discretion reject any statement or representation notwithstanding that the requirements of this part are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.(2)This section does not affect the admissibility of any evidence otherwise than by virtue of this part.130 Rejection of evidence in criminal proceedingsNothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.” The applicant submits that I should exercise my discretion to exclude this evidence on the basis that it would be expedient in the interests of justice, it would be unfair to admit the evidence or its prejudicial effect is outweighed by its probative value. These short written submissions were not developed in oral argument. One matter which arises in this context is the reliability of Mr Meredith, including the doubt raised by the passage of his cross-examination at the committal proceeding to which I have earlier referred. On one view, this casts doubt on whether Mr Hamilton was relaying statements made by the applicant about events at which the applicant had been present. As noted, Mr Meredith’s original witness statement, as supplemented by his addendum statement, is that, according to Mr Hamilton, the applicant had told Mr Hamilton about the applicant’s involvement in the crimes, not simply that the applicant had been told about them. I have regard to the passage of cross-examination, however, it is not clear to me that Mr Meredith was intending to resile from what he had said in his statement. It is not sufficient for me to conclude that I should exclude his evidence, as reaffirmed in his later evidence, on the grounds that it is unreliable. No specific submission was made to me about Mr Meredith’s reliability, or that his past criminal associations or his delay in disclosing this evidence makes him such an unreliable witness that, in the interests of justice, an assessment of his reliability should not be left to the jury. As noted, the applicant did not develop submissions as to why it would be expedient in the interests of justice to exclude the evidence or why it would be unfair to admit it. The applicant’s written contention that the prejudicial effect of the evidence is outweighed by its probative value engages well-established principles governing the circumstances in which a court will exclude evidence on this ground. The evidence is not of slight or relatively slight probative value. The evidence is probative in its own right as proof of the applicant’s involvement in, and knowledge of, the circumstances in which the crimes with which he is charged were committed. Its lack of detail about precisely where and when the rapes and murders occurred does not detract from it, given the limited disclosure which Mr Hamilton made and the understandable response of Mr Meredith (and Mr Burns) to not press Mr Hamilton for further details.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Dubois [2016] QSC 324
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 Douglas Meredith
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