R v Dubois - [2018] QCA 363

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dubois [2018] QCA 363

PARTIES:

R
v
DUBOIS, Garry Reginald
(appellant)

FILE NO/S:

CA No 337 of 2016
SC No 1046 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 28 November 2016 (Applegarth J)

DELIVERED ON:

21 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

21 June 2018

JUDGES:

Sofronoff P and Gotterson JA and Ryan J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of one count of deprivation of liberty, three counts of murder and two counts of rape – where the offending the subject of the indictment occurred over 40 years ago – where many witnesses were deceased at the time of trial – where the learned trial judge admitted the evidence of a witness, pursuant to s 93B Evidence Act 1977 (Qld), relating to a conversation in the course of which the witness was told by a now-deceased individual that the appellant, along with his co-accused, was responsible for the rape and deaths of the three deceased – where the witness was told this information in the course of a night of drinking and cannabis use – where the appellant submits that the evidence of this witness ought not have been admitted by the learned trial judge – whether the representation made to the witness was made in circumstances making it highly probable the representation is reliable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE – where the appellant submits that the evidence of one particular witness, who was a friend of the appellant and the appellant’s co-offender, could not reasonably have been accepted as truthful by the jury – where the witness had denied any knowledge of the disappearance of the three deceased for decades, including under oath, but had decided to offer information that implicated the appellant in May 2014 – where the appellant further submits that the witness could not remember certain details and was inconsistent in his recollection – where the appellant submits that nothing in the evidence of the witness was anything that he could not have learned from the questions put to him by police – where the appellant submits that nothing was clearly corroborative of the evidence of the witness – whether the matters raised by the appellant justify appellate interference with the findings of the jury

Evidence Act 1977 (Qld), s 93B

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v Noble [2002] 1 Qd R 432; [2000] QCA 523, applied
Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32, applied
Willis v The Queen (2016) 261 A Crim R 151; [2016] VSCA 176, applied

COUNSEL:

M J Copley QC, with K E McMahon, for…

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 [2018] QCA 363
Case: [2018] QCA 363
Decision Date: 21 December 2018

CaseChat Overview and Summary

The appellant in this case, Dubois, was convicted of one count of deprivation of liberty, three counts of murder and two counts of rape. The offending the subject of the indictment occurred over 40 years ago. Many of the witnesses were deceased at the time of trial. Dubois appealed against his conviction on several grounds, including the improper admission of evidence and the verdict being against the evidence or weight of evidence.

Dubois submitted that the evidence of a particular witness was inadmissible because it was obtained in circumstances that made it highly unlikely to be reliable. This witness had been told by a deceased individual that Dubois, along with his co-accused, was responsible for the crimes. The witness had been told this information during a night of drinking and cannabis use. Dubois argued that the representation made to the witness was not made in circumstances making it highly probable that the representation is reliable. The court considered the circumstances under which the information was conveyed and found that the evidence was properly admitted. The court found that the evidence was not so unreliable as to warrant exclusion.

Dubois also submitted that the evidence of one particular witness, who was a friend of Dubois and the appellant’s co-offender, could not reasonably have been accepted as truthful by the jury. This witness had denied any knowledge of the disappearance of the three deceased for decades, including under oath, but had decided to offer information that implicated Dubois in May 2014. Dubois further submitted that the witness could not remember certain details and was inconsistent in his recollection. Dubois submitted that nothing in the evidence of the witness was anything that he could not have learned from the questions put to him by police and that nothing was clearly corroborative of the evidence of the witness. The court found that the jury was entitled to accept the witness’s evidence. The court found that the evidence was sufficient to support the verdict.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Dubois [2018] QCA 363
PARTIES:	R v DUBOIS, Garry Reginald (appellant)
FILE NO/S:	CA No 337 of 2016 SC No 1046 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 28 November 2016 (Applegarth J)
DELIVERED ON:	21 December 2018
DELIVERED AT:	Brisbane
HEARING DATE:	21 June 2018
JUDGES:	Sofronoff P and Gotterson JA and Ryan J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of one count of deprivation of liberty, three counts of murder and two counts of rape – where the offending the subject of the indictment occurred over 40 years ago – where many witnesses were deceased at the time of trial – where the learned trial judge admitted the evidence of a witness, pursuant to s 93B Evidence Act 1977 (Qld), relating to a conversation in the course of which the witness was told by a now-deceased individual that the appellant, along with his co-accused, was responsible for the rape and deaths of the three deceased – where the witness was told this information in the course of a night of drinking and cannabis use – where the appellant submits that the evidence of this witness ought not have been admitted by the learned trial judge – whether the representation made to the witness was made in circumstances making it highly probable the representation is reliable CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE – where the appellant submits that the evidence of one particular witness, who was a friend of the appellant and the appellant’s co-offender, could not reasonably have been accepted as truthful by the jury – where the witness had denied any knowledge of the disappearance of the three deceased for decades, including under oath, but had decided to offer information that implicated the appellant in May 2014 – where the appellant further submits that the witness could not remember certain details and was inconsistent in his recollection – where the appellant submits that nothing in the evidence of the witness was anything that he could not have learned from the questions put to him by police – where the appellant submits that nothing was clearly corroborative of the evidence of the witness – whether the matters raised by the appellant justify appellate interference with the findings of the jury Evidence Act 1977 (Qld), s 93B M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited R v Noble [2002] 1 Qd R 432; [2000] QCA 523, applied Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32, applied Willis v The Queen (2016) 261 A Crim R 151; [2016] VSCA 176, applied
COUNSEL:	M J Copley QC, with K E McMahon, for…