R v Dubois and O'Dempsey - [2016] QSC 176

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dubois & O’Dempsey [2016] QSC 176

PARTIES:

R
(respondent)
v
GARRY REGINALD DUBOIS and VINCENT O’DEMPSEY

(applicants)

FILE NO:

SC No 1046 of 2015

DIVISION:

Trial Division

PROCEEDING:

Pre-trial application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2016

JUDGE:

Applegarth J

ORDER:

The trial of each accused be heard separately.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – JOINT OR SEPARATE TRIAL – EMBARRASSMENT OR PREJUDICE – where co-accused are jointly charged with counts of deprivation of liberty, murder and rape arising out of the same events – where each prosecution case largely depends on alleged confessions given to witnesses whose credibility is in issue – where some evidence which is admissible in each case is inadmissible against the co-accused – where that inadmissible evidence is highly prejudicial and tends to corroborate and bolster the evidence of the critical witnesses in each case – whether the risk of prejudice can be cured by appropriate direction to a jury – whether a jury could be expected to assess the credibility of a witness by ignoring evidence which corroborates that witness – whether there would be positive injustice caused to each accused in a joint trial – whether separate trials should be ordered

Criminal Code 1899 (Qld), s 7, s 8, s 597B

Evidence Act 1977 (Qld), s 93B

Collie v R (1991) 56 SASR 302, cited
Destanovic v The Queen [2015] VSCA 113, considered
Gilbert v The Queen (2000) 201 CLR 414, cited
Madubuko v R [2011] NSWCCA 135, cited
Mwamba v The Queen [2015] VSCA 338, cited
R v Aboud & Stanley [2003] QCA 499, cited
R v Belford & Bound [2011] QCA 43; (2011) 208 A Crim R 256, cited
R v Box & Martin [2001] QCA 272, cited
R v Crawford (1989) 2 Qd R 443, cited
R v Davidson [2000] QCA 39, cited
R v Demirok [1976] VR 244, cited
R v Gibb & McKenzie [1983] 2 VR 155, cited
R v Iria & Panozzo [2004] VSC 110, cited

R v Jones & Waghorn (1991) 55 A Crim R 159, cited
R v Lewis & Biara [1996] QCA 405, cited
R v Pham [2004] NSWCCA 190, considered
R v Roughan & Jones [2007] QCA 443; (2007) 179 A Crim R 389, cited
R v Stuart & Finch [1974] Qd R 297, cited
R v Swan [2013] QCA 217, considered
R v Vecchio & Tredrea [2016] QCA 71, cited
Webb & Hay v The Queen (1994) 181 CLR 41, cited
Winning v R [2002] WASCA 44, cited

COUNSEL:

D R Lynch QC with K E McMahon for the applicant Dubois

A J Glynn QC for the applicant O’Dempsey

D L Meredith for the respondent

SOLICITORS:

Howden Saggers Lawyers for the applicant Dubois
Robertson O’Gorman for the…

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.

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Details

Case: [2016] QSC 176
Decision Date: 11 August 2016

CaseChat Overview and Summary

The case of R v Dubois and O'Dempsey involved the joint trial of two defendants who were charged with multiple offences including deprivation of liberty, murder, and rape. The charges stemmed from the same set of events, and the prosecution's case against each defendant largely depended on alleged confessions given to witnesses, whose credibility was in question. The court was required to determine whether the risk of prejudice from the inadmissible and highly prejudicial evidence could be mitigated by an appropriate direction to the jury, and whether a jury could effectively assess the credibility of a witness while ignoring corroborating evidence. Additionally, the court had to consider whether a joint trial would cause positive injustice to either defendant and whether separate trials should be ordered.

The legal issues before the court were significant, focusing on the principles of joinder and the potential for prejudice in a joint trial. The court had to assess whether the inadmissible evidence, which was prejudicial and corroborative of the key witnesses' testimonies, could be sufficiently controlled by a jury's ability to follow a direction to disregard it. Furthermore, the court needed to determine if there was a substantial risk that the joint trial would cause positive injustice to the defendants, which would warrant separate trials.

In delivering its decision, the court found that the risk of prejudice from the inadmissible evidence was too significant to be mitigated by any direction to the jury. The court concluded that a jury would likely find it difficult to ignore evidence that corroborated the key witnesses' testimonies. Additionally, the court determined that there was a substantial risk of positive injustice to each defendant if they were tried jointly, as the inadmissible evidence could unfairly bolster the credibility of the witnesses against both defendants. Consequently, the court ordered that the trial of each accused be heard separately, ensuring that each defendant received a fair trial without the risk of prejudice from the inadmissible evidence.

Orders

Orders of the court

The trial of each accused be heard separately.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Dubois & O’Dempsey [2016] QSC 176
PARTIES:	R (respondent) v GARRY REGINALD DUBOIS and VINCENT O’DEMPSEY (applicants)
FILE NO:	SC No 1046 of 2015
DIVISION:	Trial Division
PROCEEDING:	Pre-trial application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	11 August 2016
DELIVERED AT:	Brisbane
HEARING DATE:	20 July 2016
JUDGE:	Applegarth J
ORDER:	The trial of each accused be heard separately.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – JOINT OR SEPARATE TRIAL – EMBARRASSMENT OR PREJUDICE – where co-accused are jointly charged with counts of deprivation of liberty, murder and rape arising out of the same events – where each prosecution case largely depends on alleged confessions given to witnesses whose credibility is in issue – where some evidence which is admissible in each case is inadmissible against the co-accused – where that inadmissible evidence is highly prejudicial and tends to corroborate and bolster the evidence of the critical witnesses in each case – whether the risk of prejudice can be cured by appropriate direction to a jury – whether a jury could be expected to assess the credibility of a witness by ignoring evidence which corroborates that witness – whether there would be positive injustice caused to each accused in a joint trial – whether separate trials should be ordered Criminal Code 1899 (Qld), s 7, s 8, s 597B Evidence Act 1977 (Qld), s 93B Collie v R (1991) 56 SASR 302, cited Destanovic v The Queen [2015] VSCA 113, considered Gilbert v The Queen (2000) 201 CLR 414, cited Madubuko v R [2011] NSWCCA 135, cited Mwamba v The Queen [2015] VSCA 338, cited R v Aboud & Stanley [2003] QCA 499, cited R v Belford & Bound [2011] QCA 43; (2011) 208 A Crim R 256, cited R v Box & Martin [2001] QCA 272, cited R v Crawford (1989) 2 Qd R 443, cited R v Davidson [2000] QCA 39, cited R v Demirok [1976] VR 244, cited R v Gibb & McKenzie [1983] 2 VR 155, cited R v Iria & Panozzo [2004] VSC 110, cited R v Jones & Waghorn (1991) 55 A Crim R 159, cited R v Lewis & Biara [1996] QCA 405, cited R v Pham [2004] NSWCCA 190, considered R v Roughan & Jones [2007] QCA 443; (2007) 179 A Crim R 389, cited R v Stuart & Finch [1974] Qd R 297, cited R v Swan [2013] QCA 217, considered R v Vecchio & Tredrea [2016] QCA 71, cited Webb & Hay v The Queen (1994) 181 CLR 41, cited Winning v R [2002] WASCA 44, cited
COUNSEL:	D R Lynch QC with K E McMahon for the applicant Dubois A J Glynn QC for the applicant O’Dempsey D L Meredith for the respondent
SOLICITORS:	Howden Saggers Lawyers for the applicant Dubois Robertson O’Gorman for the…