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R v Dubois (No 4)[2016] QSC 322

 

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, the evidence of Trevor Gordon McGrath.  The basis of the application is that the probative value of his evidence is outweighed by its prejudicial effect.  The Crown opposes the application and submits that the relevant prejudice can be reduced by an appropriate editing of Mr McGrath’s account to remove extraneous references to Mr Dubois’ reported involvement as a debt collector for some bookies and reference to his having done 12 years in jail, which in the recollection given by Mr McGrath, was said to be 12 years in jail “and that was because of this murder.” 

 

  1. By way of background, in about 2009 Mr McGrath and Mr Dubois became neighbours.  They socialised.  They would occasionally drink together.  About a year after they became neighbours, they were drinking together.  Mr McGrath says that they were sitting around having a few beers.  He says that Mr Dubois did not appear drunk.  They started talking about Mr Dubois’ past.  And it came up that Mr Dubois had done some time inside.  Relevantly, Mr McGrath says that he asked Mr Dubois what he’d done the time for, to which Mr Dubois responded:  “I was charged with murder and I was let out on insufficient evidence.”  Then Mr McGrath says that he said:  “Oh, righto.”  And then Mr Dubois said:  “They reassess it every five years, but I’ll be right, because I can tell you now they’ll never find the bodies.” 

 

  1. Mr McGrath says that he recalls that he was shocked by what had been said and did not speak to Mr Dubois about the murder again.  It was only after Mr McGrath saw a newspaper article, seemingly in 2014, about a month before he gave his statement dated 12 September 2014, that he came forward to the police.  At the committal, Mr McGrath said that the conversation took place about 7 or 8 o’clock at night.  They were in the lounge room.  Mr McGrath had had two or three, or maybe four beers.  Mr Dubois was drinking whiskey.  As I said, he says that Mr Dubois did not appear to be affected.  Mr McGrath acknowledged at the committal that he could not say the precise words that were used.  But he was able to give the effect of the conversation.  He did not accept that he might be mistaken about whether Mr Dubois had said he was charged with murder, but there was insufficient evidence, and the bodies were never found. 

 

  1. The statement is a statement against interest, because – at least on one reading of it – it indicates a knowledge of where or how the bodies were disposed of.  The applicant submits that the statement “I can tell you now, they’ll never find the bodies” is totally equivocal.  That submission would have greater force if the statement “I can tell you now, they’ll never find the bodies” was stated by an ordinary person, an average everyday reader of newspapers speculating about the probability of bodies being found 40 years after the event.  However, in the context in which the statements were allegedly made, they were made by someone who had been charged with murder and was referring to the prospects of his being charged.  In my view, it is open to the jury to take the view – in the context of the background facts – that this was not simply a statement of the probability or improbability of bodies being found 40 years after the event.  It was a statement being made by someone who had some knowledge about matters.

 

  1. Taken in isolation, the evidence might not prove very much.  However, this is a circumstantial case.  The evidence is likely to be assessed by the jury in light of other evidence which is admitted in the case.  It is relevant, contextually, that in talking about the time that he had done in custody as a result of being charged with murder, Mr Dubois did not profess his innocence.  He simply remarked on the fact that he was let out on insufficient evidence.  In that context, the absence of the bodies would be one part of the insufficiency of the evidence.  It seems to me that the evidence in this circumstantial case cannot be said to have only a slight probative value.  It is probative of knowledge of the circumstances of the alleged murders and probative evidence of Mr Dubois’ knowledge in particular that the bodies were disposed in a place or in a manner that would mean that they would not now be found. 

 

  1. The question then is even if I was to regard the evidence as only having slight or moderate probative effect, whether that probative effect is outweighed by its prejudicial effect, recalling the meaning of prejudicial effect in this context, namely, the potential of a jury to misuse the evidence.  It seems to me that the potential for the jury to misuse the evidence is something that can be addressed by directions as to what the evidence in isolation is capable of proving; of not proving actual participation necessarily, but proving knowledge.  If other evidence in the case is admitted in the case and accepted that supports the conclusion that Mr Dubois participated in the murders, then the evidence would be capable of showing not simply knowledge of the circumstances of the murders, but that such knowledge was gained by reason of participation in those murders. 

 

  1. A separate concern in relation to prejudice is that some of Mr McGrath’s statement places Mr Dubois in a bad light.  The Crown acknowledges that it will not seek to rely upon evidence about an episode in which Mr Dubois showed Mr McGrath a revolver.  It does not intend to elicit the evidence about Mr Dubois having worked for bookies as a debt collector and the Crown will not seek to elicit the statement that “Garry had said that he’d done 12 years in jail and that was because of this murder”. 

 

  1. The applicant submits that it is not possible to edit the account of the conversation to remove the prejudicial evidence and if that were done, the full circumstance of the conversation would not be before the jury, namely that is that it was drunken and inaccurate boasting amongst friends.  As to whether it was a drunken episode, it really depends on whether one would conclude that someone who’s had three or four beers is drunk and would also involve the jury making an assessment as to whether someone who has had a substantial amount to drink but is not drunk might be sufficiently disinhibited to say the things that Mr McGrath recalls Mr Dubois saying.  The fact that Mr McGrath had had, on his recollection, three or four beers is a matter that may be relevant to the reliability of his recollection and that is a matter that can be tested through cross-examination. 

 

  1. A more difficult issue is whether the excision of reference to Mr Dubois having done 12 years in jail and that was because of the murder deprives unfairly the applicant of the opportunity to put to Mr McGrath that his recollection is flawed.  It seems to me that part of the answer to that is that the decision of the Crown not to elicit that evidence is done to remove prejudicial evidence.  For the reasons that were exposed during argument it seems to me at least probable that Mr McGrath was told something about Mr Dubois having spent 12 years in jail, it being the fact that Mr Dubois had spent a total period in jail of that order and that Mr McGrath made, perhaps, an understandable mistake of linking the reference to 12 years in jail to the murder.  It is no small thing to deprive the applicant of the opportunity to challenge Mr McGrath’s recollection on that ground, however, it seems to me on balance that it is not unfair to permit the Crown to allow Mr McGrath to give his recollection of what clearly shocked him, which was the statement about never being able to find the bodies.  That was something that he recalled and which he is confident the applicant said. 

 

  1. On balance, it seems to me that I should not regard this evidence as prejudicial because it was said in circumstances where each of the individuals had had something to drink.  As I said, the effect of drink on Mr McGrath’s recollection and the effect of drink on Mr Dubois’s inhibition or preparedness to make false claims is something that can be explored at the trial.  On the basis that the Crown does not intend to lead the more prejudicial material about having spent 12 years in jail or the evidence about the revolver, it seems to me that this is not a case in which the evidence can be said to have only slight probative value.  The discretion to exclude on the grounds that the relevant evidence has slight probative value and is outweighed by its prejudicial effect is a discretion that is exercised in accordance with the principles that have been stated in various authorities. 

 

  1. In Swaffield (1988) 192 CLR 159, Chief Justice Brennan referred to earlier authority referring to the exercise of the discretion that is called for if the evidence is of little or no weight, and may be greatly prejudicial to the accused.  Sometimes the test is whether its reception would involve a perceptible risk of a miscarriage of justice.  In other cases reference has been made to the fact that evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted.  The prejudice to which relevant provisions and relevant authorities refers is not that the evidence merely tends to establish the Crown case, it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.  In authorities such as Hasler [1987] 1 Qd R 239 at 251, the nature of the discretion was considered.  Justice Thomas stated exclusion should occur only when the evidence in question is of relatively slight probative value and the prejudicial effect of its admission would be substantial. 

 

  1. I am not persuaded that the evidence is of only slight or relatively slight probative value.  It seems to me to have real probative value in proof of knowledge of where and how the bodies were, effectively, disposed of.  In its context, it is incriminating, if not necessarily incriminating of participation. 

 

  1. However, in a circumstantial case of the kind outlined, this evidence will have a significance.  I take into account that the appropriate editing has some inhibition upon cross-examination of Mr McGrath as to the reliability of his recollection.  However, in circumstances in which Mr McGrath is likely to concede that he does not have a word perfect recollection of the conversation, I do not consider that that inhibition upon cross-examination is sufficient to justify the exercise of the discretion to exclude.  And I am only faced with that matter because on the view which I take of the likely content of the relevant exchange, Mr Dubois disclosed that he had served 12 years in prison. 

 

  1. Rather than allowing Mr McGrath to give his full recollection of that account with its prejudicial effect in disclosing, upon analysis, the true fact that Mr Dubois had served about 12 years in prison, that evidence is not being led so as to not prejudice Mr Dubois unfairly.  Although, I have to take account of the consequence of it not being led in the way that I’ve discussed, I don’t consider that that aspect of prejudice is sufficient to justify the exercise of the discretion to exclude.  Accordingly, on the basis that the Crown will not lead the parts of the evidence which it has identified in the submissions, I intend to allow the Crown to call Mr McGrath to give an account of the conversation, in particular, that in the course of that conversation, Mr Dubois said to Mr McGrath, “I was charged with murder and I was let out on insufficient evidence.”  And Mr Dubois’ further statement, “They reassess it every five years but I’ll be right because I can tell you now, they’ll never find the bodies.” 

 

Close

Editorial Notes

  • Published Case Name:

    R v Dubois

  • Shortened Case Name:

    R v Dubois (No 4)

  • MNC:

    [2016] QSC 322

  • 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 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 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 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 32731 Oct 2016D’s pre-trial application for permanent stay, contending that delay has caused incurable prejudice rendering trial unfair, refused: 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 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 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.
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.
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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