R v O'Dempsey - [2017] QSC 101

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Dempsey [2017] QSC 101

PARTIES:

R

(respondent)

v
VINCENT O’DEMPSEY
(applicant)

FILE NO:

SC No 1046 of 2015

DIVISION:

Trial Division

PROCEEDING:

Pre-trial application to exclude evidence of possible motive

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2017

JUDGE:

Applegarth J

ORDER:

1. The prosecution may call evidence in relation to the first alleged motive, namely that the co-accused Dubois was involved in the arson of the Torino nightclub, and was concerned that Mrs McCulkin would implicate him in that crime, and thereby had a motive to silence Mrs McCulkin; and that Dubois’ close associate, the accused, was prepared to assist Dubois by murdering her.

2. The prosecution may not call evidence in relation to the second alleged motive, in particular the evidence of Warren McDonald that the accused was involved in the Whiskey Au Go Go arson and murders, and was therefore motivated to kill Mrs McCulkin and her daughters because they were talking about the Whiskey Au Go Go arson and murders.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – ADMISSIBILITY – where the prosecution intends to call evidence relevant to two possible motives for murder – where the first suggested motive relates to the motive of the co-accused – whether the motive must be held by the accused and not the person who the accused is alleged to have assisted – where the accused submits that the case on motive is so weak as to be non-existent – whether a weak case on motive may be pursued – where the second suggested motive relies on allegations that the accused was responsible for an arson which killed 15 people – whether the prejudicial effect of this evidence should lead to its exclusion as a matter of discretion in the circumstances

Evidence Act 1977 (Qld), s 93B, s 130

Doney v R (1990) 171 CLR 207, cited
Lai v Western Australia (2012) 225 A Crim R 218, cited
R v Carusi (1997) 92 A Crim R 52, cited
R v CBL [2014] 2 Qd R 331, cited
R v Christie [1914] AC 545, cited
R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239, cited
Police v Dunstall (2015) 256 CLR 403, cited

COUNSEL:

A J Glynn QC for the applicant

D L Meredith for the respondent

SOLICITORS:

Robertson O’Gorman for the applicant

Office of Director of Public Prosecutions for the respondent

The accused is charged over the deprivation of liberty and murder of Mrs Barbara McCulkin and her two daughters. The prosecution proposes to call evidence relevant to motive, including the motive of a co-accused, Garry Dubois. The accused seeks a ruling that the prosecution may not open or pursue such a motive on the present state of the evidence, or that I should intimate to the prosecution that it should not pursue such a course.
The prosecution case is that the accused had one or two motives…

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 O'Dempsey

Details

AGLC: R v O'Dempsey [2017] QSC 101
Case: [2017] QSC 101
Decision Date: 21 March 2017

CaseChat Overview and Summary

In the case of R v O'Dempsey, the High Court was called upon to consider the admissibility of evidence regarding two distinct motives for murder. The accused was on trial for the murder of Mrs McCulkin and her daughters, and the prosecution sought to introduce evidence related to two separate alleged motives. The first involved the accused's co-accused, Dubois, who was alleged to have been involved in the arson of the Torino nightclub and feared that Mrs McCulkin would expose his involvement, thereby motivating him to silence her. The second motive pertained to the accused's alleged involvement in the Whiskey Au Go Go arson, which resulted in the deaths of 15 people, and his purported motive to kill Mrs McCulkin and her daughters as they were discussing the arson.

The court was tasked with determining whether the evidence relating to these two motives was admissible, particularly in light of the accused's argument that the case on motive was so weak as to be non-existent. The court also had to consider the prejudicial effect of the evidence regarding the Whiskey Au Go Go arson, and whether this warranted its exclusion as a matter of discretion.

In its decision, the court held that evidence pertaining to the first motive, involving Dubois' fear of being implicated in the Torino nightclub arson, was admissible. The court found that the evidence was relevant to establishing a motive for the accused to assist Dubois in murdering Mrs McCulkin. However, the court ruled that evidence relating to the second motive, specifically the accused's alleged involvement in the Whiskey Au Go Go arson, was not admissible. The court concluded that the prejudicial effect of this evidence outweighed its probative value, and that its admission would result in a significant risk of unfair prejudice to the accused.

As a result, the court ruled that the prosecution could call evidence in relation to the first alleged motive, but not the second. The court's decision was grounded in a careful consideration of the principles of admissibility, the strength of the case on motive, and the potential for prejudice. The final orders of the court were that the prosecution could introduce evidence relating to the Torino nightclub arson and Dubois' motive, but could not call evidence regarding the Whiskey Au Go Go arson and the accused's alleged involvement in that incident.

Orders

Orders of the court

1. The prosecution may call evidence in relation to the first alleged motive, namely that the co-accused Dubois was involved in the arson of the Torino nightclub, and was concerned that Mrs McCulkin would implicate him in that crime, and thereby had a motive to silence Mrs McCulkin; and that Dubois’ close associate, the accused, was prepared to assist Dubois by murdering her.

2. The prosecution may not call evidence in relation to the second alleged motive, in particular the evidence of Warren McDonald that the accused was involved in the Whiskey Au Go Go arson and murders, and was therefore motivated to kill Mrs McCulkin and her daughters because they were talking about the Whiskey Au Go Go arson and murders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v O’Dempsey [2017] QSC 101
PARTIES:	R (respondent) v VINCENT O’DEMPSEY (applicant)
FILE NO:	SC No 1046 of 2015
DIVISION:	Trial Division
PROCEEDING:	Pre-trial application to exclude evidence of possible motive
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 March 2017
DELIVERED AT:	Brisbane
HEARING DATE:	2 March 2017
JUDGE:	Applegarth J
ORDER:	1. The prosecution may call evidence in relation to the first alleged motive, namely that the co-accused Dubois was involved in the arson of the Torino nightclub, and was concerned that Mrs McCulkin would implicate him in that crime, and thereby had a motive to silence Mrs McCulkin; and that Dubois’ close associate, the accused, was prepared to assist Dubois by murdering her. 2. The prosecution may not call evidence in relation to the second alleged motive, in particular the evidence of Warren McDonald that the accused was involved in the Whiskey Au Go Go arson and murders, and was therefore motivated to kill Mrs McCulkin and her daughters because they were talking about the Whiskey Au Go Go arson and murders.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – ADMISSIBILITY – where the prosecution intends to call evidence relevant to two possible motives for murder – where the first suggested motive relates to the motive of the co-accused – whether the motive must be held by the accused and not the person who the accused is alleged to have assisted – where the accused submits that the case on motive is so weak as to be non-existent – whether a weak case on motive may be pursued – where the second suggested motive relies on allegations that the accused was responsible for an arson which killed 15 people – whether the prejudicial effect of this evidence should lead to its exclusion as a matter of discretion in the circumstances Evidence Act 1977 (Qld), s 93B, s 130 Doney v R (1990) 171 CLR 207, cited Lai v Western Australia (2012) 225 A Crim R 218, cited R v Carusi (1997) 92 A Crim R 52, cited R v CBL [2014] 2 Qd R 331, cited R v Christie [1914] AC 545, cited R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239, cited Police v Dunstall (2015) 256 CLR 403, cited
COUNSEL:	A J Glynn QC for the applicant D L Meredith for the respondent
SOLICITORS:	Robertson O’Gorman for the applicant Office of Director of Public Prosecutions for the respondent