R v O'Dempsey

[2017] QSC 100

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Dempsey [2017] QSC 100

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 criminal disposition

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

13 and 14 December 2016

JUDGE:

Applegarth J

ORDER:

Various rulings

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND CO-INCIDENCE – ADMISSIBILITY AND RELEVANCY – PROPENSITY EVIDENCE – GENERALLY – where the statements of witnesses discuss evidence relating to the applicant  activities similar to that which is the subject of the counts charged on the indictment – where the statements of witnesses relate to the applicant’s prior criminal conduct – where the statements of witnesses present evidence of a disposition towards unlawful conduct – whether the evidence should be excluded – whether the probative value of the evidence outweighs its prejudicial effect

DPP v Boardman [1975] AC 421, cited
Pfennig v The Queen (1995) 182 CLR 461, cited
Phillips v The Queen (2006) 225 CLR 303, cited
R v MAP [2006] QCA 220, 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

1. The applicant seeks the exclusion of the evidence of various witnesses on the ground that it reveals a disposition towards criminal conduct or bad character, and its resulting prejudicial nature outweighs its probative value.

2. The applicant seeks to exclude parts of the evidence of:

   ·Warren Peter McDonald, as it appears in a statement he gave on 5 March 2015;

   ·Kerri-Ann Scully, as it appears in a statement she gave on 14 August 2014; and

   ·Julie Ann Fenton, as it appears in a statement she gave on 12 September 2014.

3. The applicant brought similar applications with respect to the evidence of Thomas Edward Martin and Deidre Ann Richards.  The applications concerning Mr Martin’s evidence were or are to be agreed between the parties.  At the hearing of these matters, I made a ruling allowing the application concerning Ms Richards’ evidence and excluding the evidence that appears in paragraph [18] of her statement dated 6 October 2014.

4. The contested evidence includes alleged admissions made by the applicant to McDonald and to Scully on different occasions.  Broadly speaking, the applicant seeks to exclude three types of evidence:

   (a)     evidence that the applicant has been involved in activities similar to that which is the subject of the counts charged on the indictment;

   (b)     evidence relating to other prior criminal conduct, including drug activity for which the applicant has been charged on a separate indictment and in respect of which a prosecution is ongoing; and

   (c)     evidence of a disposition towards unlawful conduct, particularly of the applicant being suspicious or wary of police, and attempting to avoid detection by police and association with criminals.

5. The applicant submits in respect of the first category that…