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R v Dubois (No 5)[2016] QSC 323

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Dubois [2016] QSC 323

PARTIES:

R

(respondent)

v

GARRY REGINALD DUBOIS
(applicant)

FILE NO:

SC No 1046 of 2015

DIVISION:

Trial Division

PROCEEDING:

Pre-trial application to exclude evidence of Janet Gayton, Juneen Gayton, Peter James Nisbet and Carole Mary Campbell (also known as Quiller)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

12 October 2016

JUDGE:

Applegarth J

ORDER:

The application is dismissed

COUNSEL:

D R Lynch QC and K E McMahon for the applicant

D L Meredith for the respondent

SOLICITORS:

Howden Saggers Lawyers for the applicant

Office of Director of Public Prosecutions for the respondent

  1. On 12 October 2016 I heard an application to exclude certain evidence of Janet Gayton about things she had been told by Vicki McCulkin.  I ruled that the requirements of s 93B of the Evidence Act 1977 (Qld) were satisfied.  In doing so, I referred to reasons that were given during the course of argument in respect of a contention that because the death of Vicki McCulkin was not admitted, I was excluded from deciding whether a precondition for admissibility under s 93B(1)(b) (namely that she is dead) was satisfied.
  2. I rejected that argument for reasons that I indicated in the course of argument.  I ruled that I was satisfied for the purpose of deciding the admissibility of evidence to proceed on the basis that each of the female McCulkins was dead.  I subsequently addressed other requirements of the section in relation to representations which were made by Vicki McCulkin to Janet Gayton. 
  3. My ruling on the point of law concerning proof that the person “is dead” had consequences for other objections which relied on the same point, namely the evidence of Juneen Gayton about representations made by Vicki Marie McCulkin, the evidence of Peter James Nisbet about representations made by Barbara McCulkin and the evidence of Carole Mary Campbell (also known as Quiller) about representations made by Barbara McCulkin.  Counsel for the applicant noted that the only basis of the objection in respect of those other witnesses was the “technical argument as to the requirement for proof of death”.  Therefore the same point was not reargued in the light of my ruling.
  4. It is appropriate that I should record in a more accessible form the arguments of the parties on the point of law and my reasons for rejecting the applicant’s argument on that point.

The applicant’s argument

  1. A pre-condition of admissibility pursuant to s 93B is that the maker of the representation “is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence”.[1]  The applicant does not admit that Vicki McCulkin, Leanne McCulkin or Barbara McCulkin is dead.  That said, counsel for the applicant fairly conceded in the course of argument that there is “absolutely no evidence that the McCulkins are alive”.  Counsel indicated that he was not suggesting that there is credible evidence that the McCulkins are still alive.  He did not suggest that he would address the jury on the point and attempt to convince them that any of the McCulkins are not dead.  However, because their deaths are not admitted, the issue of whether or not the McCulkins are dead remains a factual issue for the jury to determine.
  2. The “technical argument”[2] is that resolution of the issue of whether each of the McCulkins is dead is “within the jury’s domain” and, as a result, it is not open for a trial judge to make a finding of fact which is in issue at the trial, and which is ultimately one for determination by the jury.  According to the applicant, the Crown cannot prove that the person is dead for the purposes of s 93B without inviting the Court to descend into a fact-finding exercise that is properly the province of the jury.

The respondent’s reply

  1. The respondent submits that no authority is advanced by the applicant for this proposition and that it is contrary to the rules and principles governing the respective roles of judge and jury.  The role of the judge is to rule on the admissibility of evidence.  If a requirement for admissibility must be satisfied then it is open to the judge to decide whether or not the requirement is satisfied. 

My decision

  1. As I noted in the course of argument, it would be odd to conclude, as a matter of statutory interpretation, that s 93B does not apply simply because someone opposing the admission of evidence is not prepared to admit that someone is dead.
  2. The applicant’s threshold argument does not concern the quality or abundance of evidence placed before the trial judge in ruling on admissibility and deciding whether the person is dead, or how unrealistic it may be for that fact not to be admitted in the light of the evidence.  The issue is one of the proper interpretation of the section.  The section contains no exception for homicide cases where the person who is alleged to have made the statement is the alleged victim.  It would be an odd result, and seemingly inconsistent with the purpose of the statute, if a highly reliable statement by the deceased was not able to be admitted pursuant to s 93B because the fact of death was not admitted and therefore remained an issue for the jury to decide.
  3. The fact that an issue remains to be decided by a jury does not mean that a judge, in discharging the judge’s role in ruling on admissibility, is excluded from deciding the same factual issue.  Accordingly, in a case such as this, in which the prosecution seeks to satisfy a judge in determining an issue of admissibility that “the person is dead”, the judge is not excluded from ruling on that issue merely because the issue of death is also one for the jury to determine.  The jury will be required to decide, on the evidence placed before it, whether the prosecution has proved beyond reasonable doubt that each of the McCulkins is dead.  In ruling on issues of admissibility, I am required to decide, on the basis of the evidence and arguments placed before me, whether the maker of certain statements is dead.  There is no inconsistency in the judge and the jury performing their respective roles.  The section contemplates that the judge will rule on the point, and nothing in the section and nothing in point of principle precludes me from doing so because the fact of death is not admitted. 
  4. In the light of the concessions properly made on behalf of the applicant, and in the light of the evidence, I found on 12 October 2016 that each of the McCulkins is dead.  Because that factual issue was, in effect, a non-issue before me, I need say little about the evidence.  It includes the evidence of neighbours and William McCulkin about the disappearance.  Their house was left as though they were leaving for a short time.  There were no signs that they had made plans to leave.  Personal items and money were left.  Extensive searches and inquiries by police and others failed to locate them.  Family members and friends who were close to Barbara McCulkin and her children have never heard from them.  An inquest into their disappearance and death produced no evidence to suggest that they were alive, and concluded that there was sufficient evidence to place the applicant and Mr O'Dempsey on trial for their murder.  Police inquiries over the following decades have not located the McCulkins or any evidence that they are still alive.
  5. On the threshold legal issue raised by the applicant in respect of representations allegedly made by Vicki McCulkin and Barbara McCulkin, I conclude that the fact that the applicant has put the prosecution to proof on the issue of death, and the jury must be satisfied beyond reasonable doubt on that issue, does not preclude the respondent from seeking to prove in a hearing about the admissibility of evidence that each of the McCulkins is dead.  It does not exclude a judge from ruling on the issue of admissibility.  In fact, it is the responsibility of the judge to rule on the question of admissibility, including whether the statutory requirement that “the person is dead” is satisfied on the evidence placed before the judge.  I confirm my ruling on the point of law which I made on 12 October 2016 in the context of the argument about representations made by Vicki McCulkin.  I formally make the same ruling on the same point of law in relation to the other applications in respect of evidence about representations made by Vicki McCulkin or Barbara McCulkin to Juneen Gayton, Peter James Nisbet and Carole Mary Campbell.

 

Footnotes

[1] S 93B(1)(b).

[2]I do not use the term pejoratively since some of the best arguments are technical, and the words are those of senior counsel for the applicant.

Close

Editorial Notes

  • Published Case Name:

    R v Dubois

  • Shortened Case Name:

    R v Dubois (No 5)

  • MNC:

    [2016] QSC 323

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    31 Oct 2016

  • White Star Case:

    Yes

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 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 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 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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