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R v Dubois (No 3)[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. 
  1. 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. 
  1. 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?” 
  1. 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.” 

  1. 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. 
  1. Mr Paul Dubois says that at the end of the conversation, he felt sick and disgusted. 
  1. 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. 
  1. 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.
  1. 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. 
  1. Briefly stated, the issues of reliability concern the timing of the alleged conversation. 
  1. 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.
  1. 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. 
  1. 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. 
Close

Editorial Notes

  • Published Case Name:

    R v Dubois

  • Shortened Case Name:

    R v Dubois (No 3)

  • MNC:

    [2016] QSC 321

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    12 Oct 2016

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2016] QSC 17611 Aug 2016D and O’D’s pre-trial applications to be tried separately from one another granted; considerations favouring joint trial outweighed by unacceptable risk that, despite judicial direction, jury will be unable to assess credibility of confessional witnesses against each accused without having regard to evidence admissible only against co-accused: Applegarth J.
Primary Judgment[2016] QSC 31811 Oct 2016Pre-trial ruling on applications to exclude evidence brought by D and O’D that provisions of PPRA ch 15 div 7 do not have retrospective operation: Applegarth J.
Primary Judgment[2016] QSC 32212 Oct 2016D's pre-trial application to exclude, in exercise of Christie discretion, TM's evidence of certain statement against interest refused: Applegarth J.
Primary Judgment[2016] QSC 32112 Oct 2016D's pre-trial application to exclude evidence of PD refused; evidence admissible and should not be excluded in exercise of Christie discretion: Applegarth J.
Primary Judgment[2016] QSC 32013 Oct 2016D’s pre-trial application to exclude evidence of statements made to police in 1980 refused; PPRA ch 15 div 7 does not apply retrospectively ([2016] QSC 318); even if it did, evidence admissible, despite noncompliance with div 7, in exercise of discretion conferred by PPRA s 439; evidence should not be excluded as unfair: Applegarth J.
Primary Judgment[2016] QSC 32331 Oct 2016Ruling on D’s pre-trial applications to exclude evidence of representations made by alleged victims that judge not precluded from finding, for the purpose of determining admissibility of evidence under EA s 93B, that person is dead, even though that fact is not admitted and thus remains an issue for the jury to determine at trial: Applegarth J.
Primary Judgment[2016] QSC 32431 Oct 2016Pre-trial application by D to exclude DM’s evidence of representations made by TH about confession made by D refused; EA s 93B satisfied and evidence should not be excluded in exercise of discretion: Applegarth J (affd [2018] QCA 363).
Primary Judgment[2016] QSC 32531 Oct 2016D’s pre-trial application to exclude evidence of BM refused; evidence meets requirements of EA s 93B and D did not advance reasons for its exclusion on discretionary grounds: Applegarth J (ruling treated as binding at O'D's trial) (affd [2018] QCA 364).
Primary Judgment[2016] QSC 32631 Oct 2016D's pre-trial application to exclude PH’s evidence, which included evidence of a confession by D, refused; court declined to exclude evidence in exercise of heads of discretion relied upon: Applegarth J.
Primary Judgment[2016] QSC 31931 Oct 2016Pre-trial application by D to exclude evidence of statements against interest made to police in 1976 refused; as per [2016] QSC 318, relevant provisions of PPRA have no retrospective application; even if they did, the evidence should be admitted, notwithstanding noncompliance with PPRA, pursuant to s 439 discretion; admitting the evidence not so unfair that the evidence should be excluded: Applegarth J.
Primary Judgment[2016] QSC 32731 Oct 2016D’s pre-trial application for permanent stay, contending that delay has caused incurable prejudice rendering trial unfair, refused: Applegarth J.
Primary JudgmentSC1046/15 (No citation)28 Nov 2016Date on which D convicted upon verdict of jury of two counts of murder, one count of manslaughter, one count of rape and one count of deprivation of liberty.
Primary Judgment[2017] QSC 10003 Mar 2017Various rulings made on O’D’s pre-trial applications to exclude, amongst other evidence, that of certain witnesses said to reveal criminal disposition or bad character on basis that prejudicial effect outweighed probative value: Applegarth J.
Primary Judgment[2017] QSC 10121 Mar 2017Rulings on O’D’s pre-trial application to exclude evidence of motive; evidence of first motive, that D concerned about being implicated in Torino (and, as a consequence, Whiskey) arson and O’D prepared to assist him, weak but not non-existent; evidence of second motive, that O’D concerned about being implicated in Whiskey arson, excluded as more prejudicial than probative: Applegarth J (affd [2018] QCA 364).
Primary Judgment[2017] QSC 33816 May 2017Crown's application in O'D matter for extension of order prohibiting publication of identity of police informant granted: Applegarth J.
Primary JudgmentSC1046/15 (No citation)26 May 2017Date of O'D's conviction after trial of one count of deprivation of liberty and three counts of murder.
Appeal Determined (QCA)[2018] QCA 36321 Dec 2018D's appeal against convictions dismissed; trial judge did not err in admitting DM's evidence of representations made by TH about confession made by D (affirming [2016] QSC 324); contention that jury’s guilty verdicts unreasonable, directed mainly to credibility of PH (evidence admitted [2016] QSC 326), not made out: Sofronoff P, Gotterson JA, Ryan J.
Appeal Determined (QCA)[2018] QCA 36421 Dec 2018O’D’s appeal against convictions dismissed; evidence of first motive not wrongly received ([2017] QSC 101 affirmed) and adequate directions given in respect thereof; BM’s evidence properly admitted ([2016] QSC 325 affirmed); jury adequately directed on assessment of EL’s evidence; no Shepherd direction required; summing-up not unbalanced; trial judge did not err in directing jury on confessional evidence: Sofronoff P, Gotterson JA, Brown J.
Special Leave Refused (HCA)[2019] HCATrans 12821 Jun 2019O'D's application for special leave to appeal against [2018] QCA 364 refused; no reason to doubt correctness of decision of Court of Appeal: Kiefel CJ, Bell and Keane JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

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