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R v Dubois (No 6)[2016] QSC 324

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Dubois [2016] QSC 324

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 Douglas Meredith

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. The applicant seeks the exclusion of the evidence of Douglas Meredith on the ground that it does not satisfy the requirements of s 93B of the Evidence Act 1977 (Qld), or, alternatively, that the Court should exercise its discretion to exclude the evidence.

The evidence

  1. Mr Meredith was a close associate of the applicant, Thomas Hamilton and others.  Their association with each other occurred in the 1960s and 1970s.  The relevant evidence in this application relates to a conversation between Mr Meredith and Mr Hamilton in 1974.  Mr Hamilton is dead, and William Anthony Stokes was convicted of his murder.  Mr Hamilton disappeared on or about 10 January 1975.  Mr Meredith says that the relevant conversation occurred not long before Mr Hamilton died.
  2. Mr Meredith had come to know Thomas Hamilton, Peter Hall, Keith Meredith (unrelated to Douglas Meredith) and Vincent O'Dempsey through his friendship with the applicant.  The group had been friends for a long time.
  3. In 1973 Douglas Meredith moved to New South Wales.  He encountered O'Dempsey.  Mr Meredith and his friend, Peter Hall, decided to move back to Queensland in 1974.  Mr Meredith lived at Bardon.  Mr Meredith says that Thomas Hamilton and the applicant (who is described by Mr Meredith and others as “Shorty”) were “very close”. 
  4. Mr Hamilton would visit Mr Meredith at his home in Bardon and converse.  Mr Meredith recalls a particular conversation one night when Mr Hamilton spoke for the first time about what had happened to the McCulkins.  This was in “close proximity” to when Mr Hamilton disappeared.[1]  Mr Meredith, Mr Hamilton and another friend, Peter Burns (who died about 20 years ago) were drinking that night and smoked some cannabis.  Mr Meredith says that Mr Hamilton “never smoked a great deal but he’d have a puff every now and again just to have a laugh about it”.[2]  It was probably in the early hours of the morning and Mr Burns and Mr Meredith were joking about O'Dempsey (who was not present) being colour blind.  According to Mr Meredith, at this point Mr Hamilton said words to the effect, “Don’t muck around”, and then said:

“The McCulkins are dead.

Shorty and Vince did it.

They raped the two girls.

Vince killed all of them.

Shorty came back after it happened and told me what they had done.”

Mr Meredith says that Mr Hamilton was very angry about the matter.  Nothing more was said by Mr Hamilton, and Mr Meredith cannot remember whether anything was said by him or Mr Burns in response to what Mr Hamilton had said.[3]

  1. The respondent seeks to rely upon Mr Meredith’s evidence and submits that each of the representations reportedly made by Mr Hamilton to Mr Meredith are admissible pursuant to s 93B of the Evidence Act

Section 93B

  1. Section 93B of the Evidence Act 1977 (Qld) provides for the admission of hearsay evidence in prescribed criminal proceedings if the maker of the statement is unavailable. Specifically, it provides:

“(1) This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact—

 (a) made a representation about the asserted fact; and

 (b) is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence.

(2) The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was—

 (a) made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or

 (b) made in circumstances making it highly probable the representation is reliable; or

 (c) at the time it was made, against the interests of the person who made it.

(3) If evidence given by a person of a representation about a matter has been adduced by a party and has been admitted under subsection (2), the hearsay rule does not apply to the following evidence adduced by another party to the proceeding –

 (a) evidence of the representation given by another person who saw, heard or otherwise perceived the representation;

 (b)  evidence of another representation about the matter given by a person who saw, heard or otherwise perceived the other representation.

(4) TTo avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence.

(5) In this section –

 prescribed criminal proceeding means a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 32.

 representation includes –

 (a) an express or implied representation, whether oral or written; and

 (b) a representation to be inferred from conduct; and

 (c) a representation not intended by the person making it to be communicated to or seen by another person; and

 (d) a representation that for any reason is not communicated.”

  1. The principles governing admissibility pursuant to s 93B are not in dispute.  The requirements of s 93B should be carefully applied, consistent with the purpose of the section, because they relax the exclusionary effect of the hearsay rule.  It is no light thing to admit a hearsay statement inculpating an accused.[4]  Section 93B allows the Court to admit evidence against an accused who is unable to cross-examine at trial the person who allegedly made the representation.  Evidence which is admitted pursuant to s 93B is subject to warnings to the jury, as required by s 93C and the general law. 
  2. Section 93B only provides for exceptions to the hearsay rule.  It does not render admissible evidence from a deceased person which, had the deceased person been alive and available to give evidence, would not have been admissible.[5]   For example, it does not make double hearsay evidence admissible.
  3. The provisions of s 93B direct attention to the particular representation which asserts a fact, not a global view of the reliability of the maker of a variety of different representations.[6]
  4. On this application, the respondent acknowledges that it must show that each representation was “made in circumstances making it highly probably the representation is reliable”.[7]
  5. The meaning of “made in circumstances making it highly probable the representation is reliable” in s 93B(2)(b) and comparable provisions of other Australian evidence statutes has been considered in a number of cases.  These cases establish that the section does not permit a wide-ranging, general inquiry into the reliability of the representation.  The test is not whether, in all the circumstances, there is a high probability of reliability, but whether the circumstances in which the representation was made establish such a probability.  Evidence tending only to prove the asserted fact may not be considered in this context.  Prior or later statements or conduct of the person making the alleged representation may be considered to the extent that they touch upon the circumstances of the making of the relevant representation.[8]

The asserted facts

  1. The applicant contests whether the statements allegedly made by Mr Hamilton to Mr Meredith amount to a representation which would be admissible against the applicant if Mr Hamilton was alive to give evidence of it.  Cross-examination of Mr Meredith at the committal proceeding is submitted to make it uncertain whether Mr Hamilton was relaying statements made by the applicant about events the applicant had actually been present for, or whether there was some other source of the information, for example, what the applicant was told by O'Demspey.  The respondent submits that it is quite clear from Mr Meredith’s original statement and his addendum statement that he is saying that Mr Hamilton told him that the applicant had told Mr Hamilton that the applicant was involved. 
  2. Under cross-examination at the committal proceeding, Mr Meredith confirmed that the information that he had had come from “Shorty”, and although he could not remember the precise words used, what Shorty had said had “stuck in my mind”.[9]  In his evidence, Mr Meredith sought to emphasise “I didn’t know if it was true or not true.  How would you know?”[10]  He was cross-examined by counsel for the applicant and by O'Dempsey’s solicitor, and so questions about whether the applicant was relaying “hearsay” had a potential to be confusing.  When asked whether what the applicant was relating was hearsay, Mr Meredith said “I don’t know”.  Matters became strained in the course of Mr Meredith’s cross-examination by counsel for the applicant and in a particular passage to which I was directed they appeared to talk across each other and possibly be at cross-purposes.  Still, on one view of his evidence, Mr Meredith acknowledged that he could not say whether the information that he obtained from Mr Hamilton was “on the basis of what he had been told or whether he had been present and witnessed and taken part”.  These were the cross-examiner’s words and Mr Meredith appeared to accept them.  There is scope to debate what he was agreeing to.  On Mr Meredith’s account, whilst the applicant reportedly told Mr Hamilton that he had been present and taken part in certain events, O'Dempsey personally committed the murders.  The answer is open to the interpretation that Mr Meredith could not say whether, in addition to being present, the applicant had “taken part” in the murders.
  3. In the light of this confusion, Mr Meredith subsequently sought to clarify matters and explained that he got distracted during his evidence.  He reiterated the substance of his earlier statement about what Mr Hamilton had said and the context in which he said it. The context was in response to a conversation in which Mr Meredith and Mr Burns were joking about O'Dempsey being colour blind, Mr Hamilton became quite agitated and said words to the effect of “Don’t muck around”.  He then said the words which I have earlier quoted, or words to that effect. 
  4. As I understand his evidence, Mr Meredith is saying that it is possible that the applicant in fact used different words when he spoke to Mr Hamilton.  The passage of his cross-examination upon which the applicant relies was an acknowledgement that it is possible that different things were in fact said in the conversation between Mr Hamilton and the applicant.  Mr Meredith says this is possible because he was not present for that conversation and cannot comment on it.  He can only give his account of the conversation he had with Mr Hamilton. 
  5. Mr Meredith’s evidence about what Mr Hamilton told him is reasonably clear, even if the reported conversation was relatively brief.  Mr Hamilton reported to Mr Meredith that the applicant had told him that he was present, not simply that he had been told by O'Dempsey that O'Dempsey had killed the McCulkins. 
  6. My ruling on admissibility, whilst taking account of the confusing exchange in one part of the cross-examination of Mr Meredith at the committal, should proceed on the basis that the prosecution intends to call evidence from Mr Meredith and that when it does so Mr Meredith will recount the words I have quoted in [5] above.  The evidence which the prosecution proposes to lead, having regard to Mr Meredith’s statements and the totality of his evidence at committal, is in relation to certain representations which the applicant is reported to have made to Mr Hamilton about matters the applicant knew because of his presence.  It concerned what the applicant and O'Dempsey had done together, namely that they had raped the girls and O'Dempsey had murdered all three women.  Mr Meredith’s proposed evidence is that Mr Hamilton reported that the applicant had said he was there.   For example, Mr Hamilton allegedly represented “Shorty came back after it happened and told me what they had done”.
  7. The evidence the respondent proposes to lead is in the form of representations about matters which the applicant knew by reason of his presence, rather than having simply been told things by O'Dempsey or others.  Each representation is of a fact, being a statement about which Mr Hamilton could have given evidence, if alive, being in the nature of a confession or admission by the applicant. 

Was each representation made “in circumstances making it highly probable the representation is reliable”?

  1. The applicant submits that the requirement of s 93B(2)(b) is not satisfied in circumstances in which the representations were made, being that Mr Meredith and Mr Hamilton had both been drinking and smoking cannabis that night.[11]  The applicant also relies upon what is submitted to be the ambiguity of the evidence.  He relies upon the matters which I have already addressed about whether, leaving aside Mr Meredith’s clarification of matters, the evidence is capable of an interpretation that Mr Hamilton was relaying a conversation he had with the applicant in which the applicant told him about events at which the applicant was not present, but had been told about.  For the reasons I have given, the evidence which the respondent proposes to lead about what Mr Hamilton said is not attended by any real ambiguity, even if it was not accompanied by much detail.  The statements against interest attributed by Mr Hamilton to the applicant are:

1. The applicant told Mr Hamilton what the applicant and O'Dempsey had done when the applicant came back after it happened.

2. The applicant told Mr Hamilton:

 (a) The McCulkins are dead;

 (b) The applicant and O'Dempsey did it;

 (c) They raped the two girls;

 (d) O'Dempsey murdered all three women;

  1. I have to consider the circumstances in which Mr Hamilton told Mr Meredith about the applicant’s alleged confession of these things. 
  2. The applicant’s relies upon the fact that Mr Meredith and Mr Hamilton had been drinking and had earlier smoked cannabis.  The evidence does not suggest that they were rolling drunk.  I proceed on the basis that each of them was affected by their consumption of alcohol over a number of hours and that Mr Hamilton may have been disinhibited by what he had consumed.  He was not so affected by alcohol as to make no sense or appear very drunk. 
  3. According to Mr Meredith, he and Mr Burns were joking about O'Dempsey being colour blind.  This prompted Mr Hamilton to warn them not to joke about O'Dempsey.  He gave his reasons for this which I have quoted, and these stuck in Mr Meredith’s mind.  The present inquiry is not about the reliability of Mr Meredith’s recollection (to which I will return) but the reliability of what Mr Hamilton told Mr Meredith.  Mr Hamilton had no apparent reason to falsely implicate O'Dempsey or his close friend, the applicant, in the disappearance and murders of the McCulkins or the rape of the two McCulkin daughters.  At the time, Mr Meredith was on amicable terms with O'Dempsey.  They had shared a house for some time in New South Wales.  More importantly, Mr Hamilton was very close to the applicant and the circumstances in which he made his disclosures to Mr Meredith (and Mr Burns) do not include any circumstances suggestive of ill will towards the applicant, or any other reason to falsely implicate him in a crime.
  4. An important circumstance is that the words were not said in jest.  They were said in the context of a warning to friends not to joke about O'Dempsey.
  5. Another circumstance which supports the conclusion that each representation was made in circumstances making it highly probable the representation is reliable is the subject matter.  Each representation was not about some inconsequential or trivial subject matter.  Mr Hamilton was serious (indeed agitated or angry) and the matter about which he spoke was serious.  The representation was that one of Mr Hamilton’s best friends, the applicant, had told him of his involvement in serious crimes.  Mr Hamilton, the applicant, Mr Meredith and others were part of a tightly-knit group and had been involved in criminal activities.  They trusted each other, it seems, and the circumstance of trust and friendship which existed between Mr Hamilton and Mr Meredith makes it probable that Mr Hamilton felt able to tell Mr Meredith the truth, confident that Mr Meredith would not report such an allegation to the police.
  6. In summary, the seriousness of the subject matter, the seriousness of Mr Hamilton in giving the warning which he did to Mr Meredith and Mr Burns, Mr Hamilton’s close association with the applicant and others and the absence of any apparent ill-will towards the applicant or reason to falsely implicate him, all suggest that Mr Hamilton was likely to accurately report what he had been told by the applicant in order to warn his friends why they should not “muck around” and joke about O'Dempsey.  Each representation was said to friends for their protection.  It was said in circumstances that were likely to result in Mr Meredith and Mr Burns keeping the information disclosed to themselves.  The circumstances in which the representations were made do not disclose why Mr Hamilton would falsely implicate his friend, the applicant. 
  7. The fact that these things were said when Mr Hamilton was affected by alcohol is not a sufficient reason to conclude that the requirement of s 93B(2)(b) is not satisfied.  The disinhibiting effect of alcohol may explain why he made such a disclosure to close associates who at the time had loyalties to each other and to the applicant.  Having regard to the circumstances in which each representation was made, I am satisfied that each representation was made in circumstances making it highly probable the representation is reliable.  The respondent has satisfied the requirements of s 93B(2)(b) in respect of each representation. 

Discretionary exclusion

  1. The admissibility provisions of s 93B are subject to the discretion to exclude under s 98 and the discretion to exclude under s 130.  These sections provide:

98 Rejection of evidence

 (1) The court may in its discretion reject any statement or representation notwithstanding that the requirements of this part are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.

 (2) This section does not affect the admissibility of any evidence otherwise than by virtue of this part.

 130 Rejection of evidence in criminal proceedings

 Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.”

  1. The applicant submits that I should exercise my discretion to exclude this evidence on the basis that it would be expedient in the interests of justice, it would be unfair to admit the evidence or its prejudicial effect is outweighed by its probative value.  These short written submissions were not developed in oral argument. 
  2. One matter which arises in this context is the reliability of Mr Meredith, including the doubt raised by the passage of his cross-examination at the committal proceeding to which I have earlier referred.  On one view, this casts doubt on whether Mr Hamilton was relaying statements made by the applicant about events at which the applicant had been present. As noted, Mr Meredith’s original witness statement, as supplemented by his addendum statement, is that, according to Mr Hamilton, the applicant had told Mr Hamilton about the applicant’s involvement in the crimes, not simply that the applicant had been told about them.  I have regard to the passage of cross-examination, however, it is not clear to me that Mr Meredith was intending to resile from what he had said in his statement.  It is not sufficient for me to conclude that I should exclude his evidence, as reaffirmed in his later evidence, on the grounds that it is unreliable.
  3. No specific submission was made to me about Mr Meredith’s reliability, or that his past criminal associations or his delay in disclosing this evidence makes him such an unreliable witness that, in the interests of justice, an assessment of his reliability should not be left to the jury.  As noted, the applicant did not develop submissions as to why it would be expedient in the interests of justice to exclude the evidence or why it would be unfair to admit it. 
  4. The applicant’s written contention that the prejudicial effect of the evidence is outweighed by its probative value engages well-established principles governing the circumstances in which a court will exclude evidence on this ground.  The evidence is not of slight or relatively slight probative value.  The evidence is probative in its own right as proof of the applicant’s involvement in, and knowledge of, the circumstances in which the crimes with which he is charged were committed.  Its lack of detail about precisely where and when the rapes and murders occurred does not detract from it, given the limited disclosure which Mr Hamilton made and the understandable response of Mr Meredith (and Mr Burns) to not press Mr Hamilton for further details. 
  5. In addition, if Mr Hall’s evidence is admitted then Mr Meredith’s evidence provides corroboration of it, notwithstanding that Mr Meredith’s evidence lacks the detail which Mr Hall’s evidence provides.  Incidentally in this context, Mr Meredith said that he did not subsequently speak to Mr Hall after being told the things which he reports being told by Mr Hamilton.
  6. Evidence is not excluded as a matter of discretion because it prejudices an accused’s case in the sense of making it more likely that the accused will be found guilty.  The discretion which the applicant seeks to invoke is concerned with evidence which is prejudicial because of its potential for misuse and the risk that it will cause a miscarriage of justice.
  7. I am not persuaded that any such prejudicial effect of the evidence outweighs its probative value.
  8. More generally, in deciding whether to exclude the evidence as a matter of discretion under either s 98 or s 130, I take into account that, although admissible, it is received as an exception to the hearsay rule and the accused is not able to cross-examine the person who is alleged to have made the representation.  Although I have found the evidence satisfies the statutory pre-condition of admissibility, it is no light thing to admit a hearsay statement inculpating an accused.  The interests of justice are not served by placing an accused at an unfair disadvantage.  The disadvantage which the applicant will encounter in not being able to cross-examine Mr Hamilton is a relevant consideration.  It is reduced, to some extent, by a warning to the jury.  In considering where the interests of justice lie, and what fairness to the applicant dictates, I must take account of the purpose of the statute in permitting hearsay evidence in exceptional circumstances where the strict requirements of the statute are met, as well as the enactment of residual discretions to exclude such evidence.
  9. I am not satisfied that the disadvantage which the applicant will experience in not being able to cross-examine Mr Hamilton makes it contrary to the interests of justice or unfair for the evidence to be admitted. 
  10. Concerns about the reliability of Mr Meredith, like concerns about the reliability of any other witness, will be the subject of cross-examination at the trial, addresses and appropriate directions.
  11. In the circumstances, I am not persuaded that it is expedient in the interests of justice or otherwise appropriate to exercise my discretion to exclude Mr Douglas Meredith’s evidence.  Therefore, I dismiss the application to exclude his evidence at the trial.

 

Footnotes

[1]  Committal transcript 2-37 l 45.

[2]  Committal transcript 2-37 l 20.

[3]  Committal transcript 2-39 l 35 to 2-40 l 10.

[4]Sio v The Queen (2016) 334 ALR 57 at 69 [60]; [2016] HCA 32 at [60].

[5]R v Knight [2010] QCA 372 at [319].

[6]Sio v The Queen (2016) 334 ALR 57 at 69, 72; [2016] HCA 32 at [57], [70].

[7]Evidence Act 1977 (Qld), s 93B(2)(b).

[8]  See generally R v Ambrosoli (2002) 55 NSWLR 603 at 616 [34] – [37]; R v Lester (2008) 190 A Crim R 468 at 479 [44]; [2008] QCA 354 at [44]; R v Robertson [2015] QCA 11 at [58] – [59]; Sio v The Queen [2016] HCA 32 at [69] – [71]..

[9]  Committal transcript 2-39 ll 23-33.

[10]  Committal transcript 2-39 l 45.

[11]  The evidence is that they were drinking all night, not that they were smoking cannabis all night: Committal transcript 2-37. 

Close

Editorial Notes

  • Published Case Name:

    R v Dubois

  • Shortened Case Name:

    R v Dubois (No 6)

  • MNC:

    [2016] QSC 324

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    31 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 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 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 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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