R v Dubois

[2016] QSC 319

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dubois [2016] QSC 319

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 White and Swindells

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. Mr Dubois applies to exclude at trial evidence of statements he reportedly made to Detective Senior Constable Bruce White and Detective Sergeant Frank Swindells in the course of being questioned on 29 February and 1 March 1976.

2. The basis of the application is that:

   (a)the alleged statements were not recorded as required by s 436(4) or s 437 of the Police Powers and Responsibilities Act 2000 (PPRA);

   (b)pursuant to s 436(3) of the PPRA, the alleged statements are therefore prima facie not admissible in evidence;

   (c)no special circumstances exist which would justify admission of the alleged statements in the interests of justice pursuant to s 439 of the PPRA;

   (d)alternatively, in all of the circumstances it would be unfair to use the statements against the applicant.

3. The respondent opposes the application and submits that:

   1.      the PPRA does not apply retrospectively to the statements;

   2.      even if it did, the evidence would be admitted pursuant to s 439(2) of the PPRA;

   3.it would not be unfair to admit the evidence, appropriately edited, in the circumstances.

4. The application concerns both the statutory framework governing confessions or admissions allegedly made in police interviews and the Court’s discretion to exclude evidence on the grounds of unfairness.

5. Three issues arise:

   1.whether the PPRA provisions about questioning “relevant persons” apply to statements made before the Act was passed, such that the statements would be found prima facie inadmissible;

   2.if so, whether, under s 439(2) of the PPRA, there are special circumstances that would justify their admission in the interests of justice; and

   3.in any event, whether, at common law, it would be unfair to allow their admission at trial.

6. I decided the first issue of statutory interpretation in an ex tempore ruling on 11 October 2016 and concluded that the requirements of the PPRA do not apply retrospectively.  However, for completeness, I will later express my conclusion about admission pursuant to s 439(2) of the PPRA.

The relevant evidence

1. The statements are alleged to have been made at the Darlington CIB in South Australia on 29 February and 1 March 1976.  I shall assume for the purpose of the argument that the applicant was in custody at the time.  Detective Senior Constable White, who was attached to the Consorting Squad in Brisbane, interviewed the applicant, with Detective Sergeant Swindells present.  Mr Swindells has since passed away.

2. In the…