R v Dubois (No 3)

[2016] QSC 321

[2016] QSC 321

QUEENSLAND SUPREME COURT

APPLEGARTH J

SC 1046 of 2015

R  Respondent

v

GARRY REGINALD DUBOIS  Applicant

BRISBANE

WEDNESDAY, 12 OCTOBER 2016

JUDGMENT (EX TEMPORE)

[1]This is an application to exclude at the trial evidence of Paul Alfred Dubois.  The basis of the application is that the evidence is inadmissible and, in any event, if it is admissible, it should be excluded because its probative value is outweighed by its prejudicial effect. 

[2]Briefly stated, the evidence is that Paul Dubois is the applicant’s brother.  They had not spoken to each other for many years.  In 2014, Paul Dubois gave evidence in the form of a statement which, after detailing their background, recounted seeing a media program about his brother. 

[3]He thought that the program occurred before his brother was arrested and extradited back to Queensland.  His recollection is that the media report was that Mr O’Dempsey and Mr Garry Dubois were suspects in the McCulkins’ disappearance and murders and that it talked about them being the last persons seen with Barbara McCulkin on the day that the McCulkins disappeared.  Mr Paul Dubois says that after seeing the program, he contacted his brother and asked his brother, “Did you do this?” to which the applicant replied, “No, Vince did.”  Paul Dubois said, “Why?” 

[4]

His account is that the applicant said:  

“That woman was working for Vince’s massage parlour and was on with Vince.  She had information that could put him away for 20 years and was blackmailing him and that’s the only way that he could deal with it.” 

[5]He then mentioned something else about Ms Barbara McCulkin.  Mr Paul Dubois says that he then said to his brother, “But the kids, mate” to which the applicant replied, “Vince said the kids were not meant to be there” or words to that effect. 

[6]Mr Paul Dubois says that at the end of the conversation, he felt sick and disgusted. 

[7]The evidence on its own is capable, if accepted, of showing that the applicant had knowledge of the circumstances of the murders of the McCulkins.  It does not, in its terms, prove that the applicant participated in their murders. 

[8]The admissibility of the evidence falls to be determined in a circumstantial case and I shall presently proceed on the assumption that other evidence in the case will be admitted and capable of proving, together with other circumstantial evidence, the applicant’s participation in the abductions and murders.  Therefore, the evidence is capable, in conjunction with other evidence, of implicating the applicant in the offences and the evidence, itself, is capable of showing knowledge of the offences and the circumstances in which they came about.

[9]A challenge was made to the probative value of the evidence and it was submitted that its probative value is exceeded by its prejudicial effect.  The evidence is said to lack probative value because it is not capable of implicating the applicant in the murders. It certainly implicates Mr O’Dempsey but that is not enough.  And it is said that there is a real risk that the jury will misuse the evidence to reason that the applicant was involved in the offences.  Further submissions were made that the evidence is highly questionable in terms of its reliability. I take that submission into account whilst observing, of course, that the questions of reliability are, ultimately, for the jury. 

[10]Briefly stated, the issues of reliability concern the timing of the alleged conversation. 

[11]For reasons that have been discussed, it seems unlikely that the conversation occurred at a time when there was a program called Australia’s Most Wanted but, as I’ve said, I tend to interpret the statement as indicating that there was a program about Mr O’Dempsey and Mr Dubois as being wanted for these offences and the program was not necessarily titled Australia’s Most Wanted, being a program that did not come onto the air until the mid-1980s.  The reliability or otherwise of Mr Paul Dubois’ recollections will be a matter that can be tested by the jury.  It seems to me that the evidence is admissible.  It has probative value as proving Mr Garry Dubois’ knowledge of the circumstances under which the McCulkins came to be killed and by whom they were killed.

[12]The risk that the jury will misuse that evidence to reason that this evidence establishes participation can and should be addressed by directions that will be to the effect that the evidence is only capable of proving, if accepted, the applicant’s knowledge of the circumstances attested to in the alleged statement, and that those pieces of evidences do not themselves establish his participation in the murder.  If, however, the jury was to accept other evidence, including the evidence that has been outlined in detail in the respondent’s submissions concerning its circumstantial case concerning the involvement of the applicant in the disappearance of the deceased, then the evidence would have probative value in establishing not simply the applicant’s knowledge of the circumstances under which the McCulkins were killed and by whom they were killed, but his participation in it. 

[13]I consider that the evidence is relevant and that the discretion which exists when the probative value of evidence is outweighed by its prejudicial effect should not be exercised in this case.  I refer to Justice Thomas’ consideration of the relevant principles in Hasler’s case.  Here, the probative value of the evidence cannot be said to be slight and the risk of misuse, as that term is used in the authorities, can be addressed by appropriate directions.  Therefore, I decline the application to exclude the evidence of Paul Dubois.