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R v Dubois (No 8)[2016] QSC 326

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Dubois [2016] QSC 326

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 Peter William Hall

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 to exclude at his trial the evidence of Peter William Hall on the basis that:
  1.  it would be unfair to admit the evidence;

(b) alternatively, it should be excluded on public policy grounds; or

(c) alternatively, it should be excluded because its probative value is outweighed by its prejudicial effect.

  1. According to the applicant, Mr Hall’s evidence was obtained as a result of:
  1.  repeated expressions of disbelief at Mr Hall’s initial denial of having any knowledge of the applicant’s involvement in the offences with which he is charged;
  1.  after being warned that if he did not tell the truth at a Crime and Misconduct Commission (“CMC”) investigative hearing on 14 March 2014, he could be prosecuted for perjury;
  1.  what the applicant describes as the “feeding” to Mr Hall of details of the account the investigators wanted him to provide; and
  1.  being told that his evidence would be used to convince the applicant to co-operate with police.
  1. The respondent denies that the investigators acted improperly in interviewing Mr Hall.  Mr Hall’s evidence at the committal hearing was that he did not feel intimidated or pressured, that he had not been threatened and that he had not been told what to say.  The respondent disputes that the investigators fed details of the account they wanted Mr Hall to provide.  In fact, rather than align his account with scenarios investigators had advanced, in some important respects, Mr Hall:
  1.  gave important new information without prompting;
  1.  gave a different sequence of events; and
  1.  rejected a police theory about the motivation for Mrs McCulkin to be murdered.
  1. In addition to relying upon the unfairness of admitting evidence which was obtained in the manner which is alleged, and whilst acknowledging that unreliability alone is not a basis for exclusion, the applicant relies upon what is said to be the unreliability of Mr Hall’s account because:
  1.  it is contradicted by the evidence of Mr Keith Meredith;
  1.  it was the product of an induced statement and is subject to a qualified indemnity which compels him to give an account inculpating the applicant or risk a perjury charge;
  1.  Mr Hall has previously been involved in criminal activity; and
  1.  there has been a delay of about 40 years between the making of the alleged statements and his reporting them to the police.
  1. The delay is also relied upon separately as a source of prejudice and unfairness.
  2. The applicant submits that warnings to the jury about Mr Hall’s evidence will be insufficient to ensure a fair trial and, for example, a direction to look for other evidence which might corroborate his account is unhelpful because of the risk that the so-called corroborative evidence was supplied to him.

Relevant principles: exclusion on the grounds of unfairness

  1. Section 130 of the Evidence Act 1977 (Qld) allows for the exclusion of evidence on the ground of unfairness. That section provides:

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 High Court in R v Swaffield[1] confirmed that unfairness is concerned with an accused’s right to a fair trial.  That right might be jeopardised, and the Court might risk that an accused person is improperly convicted, if a statement is admitted that was obtained in circumstances which affect its reliability.  However, unreliability alone is not a sufficient reason to exclude evidence. 
  2. In R v Grimes, Justice Peter Lyons, after reviewing the relevant authorities, stated:

“In my view, therefore, the authorities establish two relevant principles. The first is that the unreliability of evidence is not, of itself, a sufficient reason to exclude it. The second is that evidence may be excluded if its admission would result in an unfair trial. Situations in which a trial might be unfair would include cases where the directions of a trial judge may well not be sufficient to enable the evidence to be assessed properly by a jury (such as in cases where its prejudicial nature may continue to affect a jury, notwithstanding the directions of a trial judge); or where evidence which might well be unreliable cannot be tested by cross-examination.”[2]

Were there threats or improper pressure?

  1. R v Falzon[3] is an example of a case in which evidence was excluded, either on the basis of the unfairness discretion or for public policy reasons, where the evidence of an indemnified witness was the product of inducement and threats.  The conduct of the police in that case was “such an affront to proper methods of investigation”, and there was so great a risk that the statements were untruthful, that de Jersey J (as his Honour then was) concluded that they could not be properly dealt with by a warning to the jury.  The applicant seeks to draw parallels between this case and Falzon.  However, for the reasons which follow, the facts of this case are readily distinguishable from those of Falzon.  As the applicant’s submissions note, the discretion was exercised in Falzon in circumstances in which:
  • the witness repeatedly denied involvement in offending;
  • the witness was repeatedly told his denials were not believed;
  • the witness was threatened with imprisonment for non-co-operation;
  • the witness was offered inducements of relief for his criminal conduct;
  • the witness was told his denials on oath would amount to perjury;
  • the witness was threatened with exposure as a police informer;
  • the statements were made only after the above conduct;
  • a real risk existed that the statements were not truthful and reliable;
  • the witness was subject to a conditional indemnity and could be expected to support the statements in court and even deny they were induced by any impropriety;
  • a warning to the jury was insufficient to ensure a fair trial.
  1. This case is readily distinguishable.  Mr Hall was not implicated in the alleged offences.  The investigators made clear that he was not suspected in that regard and there is no suggestion that he was threatened with being charged over anything associated with the disappearance of the McCulkins.  He was warned about the possibility of a perjury charge if he gave false testimony to the CMC investigative hearing.  This was an appropriate warning.  Unlike the witness in Falzon, Mr Hall was not threatened with exposure as a police informant, and he was not told that other people had implicated him in offences.  He was not threatened.  Instead, police did not accept his initial denials of having any knowledge of the applicant’s involvement.  Police appealed to his conscience based upon the fate of the McCulkins.  In this sense, pressure was applied to him to reveal what he knew.  However, I would not regard that pressure as improper.

Was Mr Hall improperly “fed” detail of an account which the investigators wished to hear?

  1. Consideration of the conduct of investigators has required me to read very substantial transcripts and it is unnecessary to set out lengthy passages in these reasons.  Before considering examples of instances of alleged “feeding” relied upon by the applicant, as well as counter-examples relied upon by the respondent, I will give a brief overview of the circumstances in which Mr Hall came to speak to investigators. 
  2. In early 2014 two police officers attended at Mr Hall’s residence in order to serve him with documents requiring his attendance at a CMC hearing.  Mr Hall essentially told the police that he had nothing of relevance to offer.  During this initial discussion police gave a general overview of their theory.  Consistent with the later examination of Mr Hall at the CMC hearing on 14 March 2014, the investigators’ theory was that Vincent O'Dempsey was primarily responsible.  The police did not suggest to Mr Hall then, or subsequently, that he was implicated in crimes involving the McCulkins.  Instead, they were interested in whether O'Dempsey or the applicant may have said something when the applicant, Mr Hall and others in the group they then formed in the 1970s may have been “sittin’ around chewin’ the fat”.  Mr Hall was told, “Shorty’s definitely the lesser partner.  But it’s obvious Shorty’s there.  We believe we’ve got a bit of a handle on what happened.  And he’s definitely the lesser party … but he is a party”.
  3. One of the police officers advanced the theory that Barbara McCulkin may have been saying things at the time about the Torino Nightclub bombing.  He referred to a rumour going around back then that she was killed because she was going to inform on individuals who had blown up the Torino Nightclub.  In an appeal for Mr Hall’s co-operation, the officer said “Even if you took that as an excuse, it’s no excuse to kill an 11 and a 13 year old girl obviously … but more importantly raping them in front of their mother before they are murdered.”
  4. If the police were, intentionally or otherwise, feeding Mr Hall with details that they hoped he would give back to them, this did not occur.  When he eventually came to co-operate with the police, Mr Hall rejected the theory about Mrs McCulkin being murdered because her killers were motivated to silence her about the Torino Nightclub bombing.  Mr Hall knew of no such evidence.  In addition, he did not suggest that the daughters were raped in front of their mother.  He gave a different account, based upon what he said the applicant had told him.
  5. When the CMC hearing occurred on 14 March 2014, Mr Hall was informed of his rights, including the protection against self-incrimination for statements made in such a compulsory hearing, except for prosecution as to untruthful statements.  He was told that if he did not tell the truth he could be prosecuted for perjury.
  6. During this hearing, Mr Hall repeatedly denied that the applicant had made statements to him indicating that he had any knowledge of the disappearances.  He also denied that the applicant had told him anything that amounted to a forewarning as to what was to happen to the McCulkins.  During the course of the lengthy hearing, when he reiterated that the applicant had not made any statements to him, it was apparent that counsel assisting and the other investigators did not believe his denial.
  7. In the course of the hearing, the scenario that the applicant was an unwilling participant and “went along out of fear” was put to Mr Hall, and he said he had no knowledge of that. 
  8. Towards the conclusion of the investigative hearing, an exchange occurred which later assumes importance.  Mr Hall was asked whether he had come to learn that “Jimmy” (Keith Meredith) had actually followed the applicant and O'Dempsey out with the McCulkins.  Mr Hall denied ever having heard anything along those lines.  When asked whether he was quite sure, the following exchange occurred:

“Hall Positive, the next day me and Keith went looking for Shorty and that but we didn’t, we didn’t follow them anywhere.

Counsel assisting What do you mean the next day, you went looking?

Hall To try and find Shorty.

Counsel assisting The next day after what day?

Hall Oh I don’t know.  You said we followed him but I remember going with Keithy, we went for a drive looking for Garry.”  (emphasis added)

  1. Questions then followed about where Mr Meredith and Mr Hall drove to, after which Mr Hall explained that “Shorty” (the applicant) had not come home that morning and so that was the reason they went to look for him.  According to Mr Hall, when they later encountered the applicant they did not bother asking him where he had been. 
  2. At some point after giving evidence at the CMC hearing on 14 March 2014, Mr Hall decided to change his stance.  He spoke to a police officer on the telephone and said he was “going to tell the truth”, but did not indicate what he was going to say.
  3. On 6 May 2014 police again attended Mr Hall’s home.  The recording does not refer to the recent telephone conversation about which Mr Hall gave evidence at the committal.  However, that may explain, in part, why Mr Hall was told that day that the police were not convinced that he had revealed all that he knew.  At an early stage of the interview on 6 May 2014, there was a reference to a conversation on the phone one night, and also to the fact that police had information in relation to the Torino.  The police explained that their attention was on the McCulkins and explained to Mr Hall, “We’re not overly convinced that you revealed all that you know in relation to that”.  A number of reasons were given for this.  The questions then continued and the topic turned to police speculation that Barbara McCulkin may have been killed because of her knowledge of the Torino and a belief that “she was gonna bring everyone down”.  Mr Hall said that he knew nothing about that, that he had never met her and that she was never mentioned in connection with the Torino. 
  4. The police later stated their belief that O'Demspey murdered the McCulkins and their belief that the applicant was probably there.  The police explained that they needed evidence that they could take to the applicant to convince him to “come on board”.  However, at no point was Mr Hall told that the applicant would not be prosecuted.
  5. Mr Hall then gave what he described as his vague recollection, including a statement that the applicant told him that O'Dempsey had strangled Barbara McCulkin.  Mr Hall could not remember what was said about how the girls were killed, but stated that he was told that they were raped.  Importantly, he denied being told that all three McCulkin women had been raped.
  6. The interview then turned back to what Mr Hall described as “beforehand”, and he disclosed for the first time to police a matter which had not been disclosed to him by police or even hinted at.  He said he had encountered the applicant that afternoon, and gave an account of how the applicant had told Hall he was going back to the McCulkin house and had suggested sex was planned.  In retrospect, Hall said that he understood that the night before had “started out as just sex”.
  7. The interview continued the following day when a statement dated 7 May 2014 was taken from Mr Hall.  It incorporated some of the things which had been discussed on 6 May 2014.
  8. The statement taken on 7 May 2014 was in the form of an induced statement, which allowed Mr Hall to give evidence of criminal activity with which he had been associated.  The statement contains greater detail about certain matters than appeared in the conversation that occurred on 6 May 2014.  It is convenient to address certain points raised by the parties in relation to the alleged “feeding” of Mr Hall of details known to police.

The night of the disappearance

  1. At the CMC hearing Mr Hall was asked whether Carolyn Scully had ever mentioned to him that she was telling people that the applicant and O'Dempsey were at her place at around 6.30 on the night that the McCulkins went missing.  Mr Hall said that he had not heard that.[4]
  2. When Mr Hall came to give his account of what he did and who he saw on the night in question, it was based upon his partial disclosure at the CMC hearing that he and Keith Meredith went looking for the applicant “the next day” (being a reference to the day after the night the McCulkins disappeared).  This topic was taken up at the interview on 6 May 2014 after the applicant referred to his understanding that the night had “started out as just sex” and that he and Keith Meredith had been invited to go to the McCulkins but did not go. 
  3. Mr Hall’s witness statement elaborated on events the day before the applicant went missing.  He explained how he was minding children at the house he was sharing with Carolyn Scully while she was off elsewhere and that Keith Meredith was with him.  He recounted how the applicant came back to that house in O'Dempsey’s car to pick up the applicant’s partner.  It was dark at the time and, according to Mr Hall, the applicant told him that the applicant and O'Dempsey were at the McCulkins’ house and asked Mr Meredith and Mr Hall if they “wanted to come along for the fun”.  According to Mr Hall, the applicant told him that O'Dempsey was still back at the McCulkin house and that the applicant was going back there after he dropped his partner home.  According to Mr Hall, Mr Hall and Mr Meredith told the applicant that they did not want to go, and they did not do so. 
  4. Relevantly for present purposes, Mr Hall’s recollection of “the night before” differs from what he had earlier been asked by police about what Carolyn Scully may have said.  Whereas Carolyn Scully was alleged by police to have apparently told people that both O'Dempsey and the applicant were at her place the night before, Mr Hall gives a different version whereby only the applicant visits him, whilst O'Dempsey remains at the McCulkin home.  Mr Hall’s account also contains substantial detail which was not contained in the very brief statement in the course of questioning by police about what they understood Carolyn Scully had told others (but not, it seems, the police).
  5. Counsel for the applicant also relies upon details of the car which the applicant was driving that night.  In his interview with the CMC, Mr Hall was asked what sort of vehicle O'Dempsey had, to which he replied “I think he had one of those two-door Chargers”.  At that stage, Mr Hall could not remember what colour it was and when asked whether it was an orange Charger simply said “it could have been”.  His recollection, unprompted, was that it was a fairly new one.  The applicant relies upon the fact that the colour of the car was suggested to Mr Hall.  However, in my view, little turns on this since it was Mr Hall who nominated the make of the car and some of its features, for example the fact that it had large stripes.

Mr Hall’s account of searching for the applicant

  1. It was Mr Hall, not the police, who disclosed that Mr Hall, in company with Keith Meredith, went searching for the applicant “the next day”.

The circumstances in which the alleged confession occurred

  1. In questioning Mr Hall, the police seemingly had a theory (possibly based upon what Thomas Hamilton had told an informant) that after the applicant returned he told Hall and others what had happened.  Rather than closely conform with this suggestion by giving an account of the applicant telling him and Mr Hamilton what he had done as soon as they next met him, Mr Hall gave a different and more detailed account.
  2. Mr Hall’s account is that after looking for the applicant in all the usual places and having checked with Mr Hamilton, they could not find him.  It was part way through the next day that the applicant turned up, and initially he would not say where he had been the night before, save to say that he had “got tied up with something”.  According to Mr Hall, the applicant was vague and Mr Hall could tell something was not right.  The applicant did not want to go out “cruising” and it was unusual for him not to talk to his close friends about what he had done when he had been out, especially if it had been a good night.  According to Mr Hall, the applicant was not himself and could not settle down.  The next day, O'Dempsey arrived at the applicant’s mother’s place and Mr Hall observed a conversation between them.  Mr Hall and the others knew something had gone on by that time, but the applicant had not told him anything at that point. 
  3. A day or so later, when the group was at the applicant’s mother’s place, O'Dempsey arrived and Mr Hamilton is said to have confronted O'Dempsey and asked him if he was involved in the disappearance of the McCulkins.  He denied it and said he was being “set up by the coppers”. 
  4. Mr Hall says it was a few days later when he learned what had happened.  According to his witness statement:

“30. A few days later [I] learned what had happened. Tom [Hamilton] and I were there when Shorty told us what had happened to the McCulkins. We were in the car for the conversation or for the first part of the conversation. I think Keith was there for this conversation. He may have not been there for that first conversation, but he knew about what had happened. He was pretty horrified by what had happened. Because of what had been said the night before we had some idea that they had been with the McCulkin [sic]. He told us that they took the girls for a drive. He said he didn’t know what was in O'Dempsey’s head at first, but Vince tied them up. He said they drove them to the bush and that’s were [sic] it happened. He said Vince took Barbara away into the dark and strangled her. He said that Barbara was not raped, he thought that’s what it was going to be but he just killed her. He said he couldn’t see it but he could hear the gurgling sound. He said he felt sick and it seemed to take for ever [sic]. He said he knew then that the kids were going to be killed.

31. He said that O'Dempsey raped one of the girls and insisted that he rape the other. He said he didn’t want to but was not game to refuse. He said that Vince then killed the girls. He said O'Dempsey asked him to kill the other one, but that he couldn’t do it. He didn’t say specifically how the girls were killed but he was clear that he didn’t kill anyone. Vince killed them all. He made mention of Warwick but didn’t say where.

32. He said they were buried. He said that they had been buried. He said that they had both been digging. Shorty said he felt even worse when the sun came up and he had to look at them, they were laying there.”

This account differs in point of detail from that suggested by police when they first spoke to Mr Hall.  As noted above, the police sought to appeal to Mr Hall’s conscience by referring to the possible reason for Barbara McCulkin being killed, but saying that was no excuse to kill an 11 and 13 year old girl.  The police had said “But more importantly raping them in front of their mother before they were murdered”.  This version was not accepted by Mr Hall in his interview on 6 May 2014 or in the statement which he gave on 7 May 2014.  The sequence is different, with Barbara McCulkin being killed first while out of sight, and then the girls being raped before being murdered.  He gives an account of Barbara McCulkin being strangled.  This means of death had not been suggested to Mr Hall.  Mr Hall did not accept any suggestion that had been conveyed to him at his first meeting with police that the girls had been raped in front of their mother. 

References to Warwick

  1. There are references in various parts of the police interviews to Warwick.  These references are somewhat confusing.  The applicant observes that paragraph 31 of Mr Hall’s 7 May 2014 statement refers to Warwick.  However, this appears to have been drawn from an exchange (the details of which are set out in paragraph 55 of the applicant’s submissions) in which Mr Hall was asked about whether the applicant mentioned anything about any association with O'Dempsey or where they went.  Mr Hall said “the bush somewhere” and said that no property was mentioned.  Mr Hall continued:

“Somewhere.  I don’t know whether it was Warwick or, or up that way.  Up near Warwick.  Somewhere.”

The passage indicates that although Mr Hall was unsure and did not know the area himself, he thought that it was near Warwick somewhere.  During this exchange, Mr Hall concluded “I’m pretty sure Warwick was mentioned”.

Suggested motive

  1. As noted, police floated a theory or rumour with Mr Hall that Barbara McCulkin had been murdered because she knew about the involvement of individuals in the bombing of the Torino Nightclub and was at risk of disclosing this.  Mr Hall rejected the suggestion and said that he has never heard it.  To the extent that the police “fed” a suggested motive to Mr Hall, he refused to swallow it.

Confrontations with Billy McCulkin

  1. During the CMC hearing, reference was made to a statement by Keith Meredith about an occasion when Billy McCulkin asked whether Mr Meredith and others had seen O'Dempsey or his wife and children.  Mr Hall said he could not recall that occasion.  However, he could recall an occasion when he was with Keith Meredith, Thomas Hamilton and the applicant, and they had been confronted by McCulkin.[5]  This example shows a difference of recollection, and Mr Hall not recalling the occasion suggested to him but recalling a different occasion.  It does not support a case of improper feeding. 

Conclusion

  1. In seeking to enlist the co-operation of Mr Hall, the relevant investigators disclosed some general matters and some points of detail.  The general matters concerned the view that O'Dempsey had murdered the McCulkins and that the applicant was the “lesser partner” who perhaps went along with things “out of fear”, feeling that he had no choice.  Mr Hall ultimately attributed the actual murders to O'Dempsey, however, did not suggest that the applicant had simply been present and, as a result, knew what had happened.  Importantly, Mr Hall’s recollection of what the applicant told him implicated the applicant in the actual rape of one of the McCulkin daughters.
  2. In various respects, Mr Hall provides information which was not given to him by the police.  He also disputes the suggested motive for the killing of Barbara McCulkin.  He gives a different sequence to the crimes to that suggested to him.  Some information which appears in his statement might have its origins in prompting during the course of lengthy interviews.  However, I am not persuaded that the investigators improperly fed Mr Hall details of the account they wanted him to provide.
  3. The extent to which Mr Hall was told things by investigators which ended up in his statement is capable of being analysed and being the subject of cross-examination at trial. 
  4. I conclude that, to the extent that certain details were given to Mr Hall in the course of extensive questioning and to the extent to which some details might be characterised as having been “fed” to him, I am not persuaded that these details were deliberately fed to him in order to influence his statement.  The police had the difficult task of persuading a reluctant witness to give evidence and, apart from appealing to Mr Hall’s conscience, police seemingly wished to impress upon him that they had a reasonable grasp of matters and were not entirely dependent upon him.  To the extent they may have referred to information they had already obtained, the applicant does not seem to suggest that this was done with an improper purpose. 

The suggestion that Mr Hall’s evidence would be used to enlist the co-operation of the applicant

  1. The police indicated their intention to assemble evidence from Mr Hall and others against the applicant, and to use this as a basis upon which to gain the applicant’s co-operation against Mr O'Dempsey.  The applicant submits that the investigators falsely told Hall that their real purpose in obtaining his account was to use it to ensure the applicant’s co-operation against Mr O'Dempsey.  There is no evidence that the police did not intend to seek the applicant’s assistance in the case against Mr O'Dempsey.  I am told, and there is no dispute, that investigating police approached the applicant and his legal representatives with such an offer, but it was refused.  The police did not tell Mr Hall that, if he co-operated, the applicant would not be charged.  The police were clearly seeking evidence against both the applicant and against Mr O'Demspey, and had the view that Mr O'Dempsey was primarily responsible for the murders with the applicant having played a secondary part, perhaps out of fear. 
  2. The police did not conceal their intention to arrest both the applicant and Mr O'Dempsey, if possible.  On 6 May 2014 Inspector Dowie indicated to Mr Hall that the police’s purpose was to know what happened so they could “take it to” the applicant, with the applicant being able to give them direct evidence.  The police’s understanding at the time was that the applicant was the only one present with Mr O'Demspey.  The police hoped to convince the applicant to give direct evidence against Mr O'Demspey.  Inspector Dowie also made clear his desire to arrest both of them and “lock em both up”.  However, he thought his best prospect of doing so was if he could convince the applicant to “come on board”.[6]  There was nothing deceptive in the police explaining their plan to use Mr Hall’s evidence in an attempt to enlist the support of the applicant.

Inducement and indemnity

  1. The police explained to Mr Hall that his statement would be an induced statement.  Mr Hall had earlier been warned of the risk of perjury at the CMC hearing and the induced statement mentions that the statement would not be used against him in any court proceedings “other than in proceedings in respect of the falsity of information provided by [him]”.  No promise of an indemnity was made and before signing the statement Mr Hall had the opportunity to seek legal advice.
  2. Subsequently, Mr Hall received an undertaking from the Attorney-General dated 19 November 2015 that he would not be prosecuted for any evidence he gave “other than in proceedings in respect to the falsity of any evidence you may give or have previously given in respect of the proceedings specified in the Schedule hereto”.  A new undertaking was given on 24 November 2015 which provided an indemnity “other than in proceedings in respect to the falsity of any evidence you may give”.  There is scope to debate the effect of each undertaking and the extent to which the undertaking provided protection in respect of a charge for perjury over the evidence which Mr Hall had originally given to the CMC investigative hearing.  As the respondent notes, a prosecuting guideline indicates that it is not the policy of the Director of Public Prosecutions to prosecute witnesses who recant their perjury at a later CMC hearing and so Mr Hall was not in a position of risk over what he had said on 14 March 2014 about not being able to recall certain matters. 
  3. The applicant contends that the undertakings either relieve Mr Hall of the compulsion to tell the truth or amount to a threat that he will be prosecuted for perjury unless he continues to give the evidence which he has given inculpating the applicant.  I am not satisfied that the indemnities which he has been provided compel him to give false evidence.  Depending on what view is taken of where the truth lies, the indemnity may be a powerful inducement for him to tell the truth. 
  4. Importantly, Mr Hall is not being indemnified as an alleged accomplice to crimes allegedly committed by the applicant and Mr O'Demspey in respect of the McCulkins.[7]  I am not persuaded that this is a case in which the indemnity he has been provided jeopardises the applicant’s right to a fair trial.

Exclusion on the grounds of unfairness based on how Mr Hall’s evidence was obtained

  1. I am not satisfied that the account of Mr Hall was obtained improperly.  It was not obtained by threats or offers of inducement to relieve Mr Hall of prosecution for crimes he allegedly committed in association with the persons against whom he is going to give evidence.  The case is quite unlike Falzon.
  2. The investigators did not act improperly in telling Mr Hall that his initial denials of knowledge were not believed.  Mr Hall was appropriately warned about the possibility of perjury charges if he gave false testimony to the CMC.  This was correct advice.  Mr Hall was not unfairly pressured or coerced.  His sworn evidence at the committal hearing is that he did not feel he was being intimidated or pressured.  Mr Hall gave an apparently plausible explanation for changing his mind and being more forthcoming with police about what he knew and, in particular, what the applicant had told him soon after the events in question.  He explained to an investigative hearing on 23 February 2015, at which he adopted his 7 May 2014 statement, that he had not told the truth previously to the CMC because he was “never part of it”, because of mistrust and because “probably old habits die hard”.  He said he had decided to tell the truth because “well this sort of knowledge is pretty hard to keep to yourself over such a long period of time.  Since the old days I’ve married – I haven’t stepped out of line in any way.  I’ve had children of my own. A person changes.”[8]
  3. I decline to find that Mr Hall’s statement of 7 May 2014, as supplemented by his statement of 2 February 2015, or the other evidence which he gave implicating the applicant, was the product of improper pressure or coercion.  It may have been the product of persistent questioning, but that is a different matter.
  4. In short, I decline to exercise the discretion to exclude because I am not persuaded that the police acted improperly, let alone illegally, in obtaining Mr Hall’s evidence. 
  5. In addition, whilst the alleged unreliability of evidence is not a sufficient reason to exclude it, the circumstances in which Mr Hall’s evidence was obtained does not, in my view, render it clearly unreliable.  I consider that directions will be sufficient to enable the evidence to be assessed properly by a jury, including the extent to which details given by Mr Hall may have had their origins in things said to him in the course of earlier questioning.  The jury can be warned of the danger of relying upon other evidence to corroborate Mr Hall to the extent that such evidence was disclosed to Mr Hall in the first place and that he was told things he did not already know.  Mr Hall’s evidence will be subject to various directions requiring the jury to scrutinise it with great care.  This is a case, like others, in which the events leading to the making of the statements can be explored at a trial and the jury can be directed about them.[9] 
  6. Mr Hall is not an indemnified accomplice and, in any case, that fact alone would not justify the exclusion of his evidence. 

Delay and unfairness

  1. Another matter relied upon by the applicant as rendering the trial an unfair one is the lengthy period between the alleged confession of the applicant to Mr Hall and Mr Hall’s disclosure of it: a period of approximately 40 years.  This is said to severely limit the ability of the applicant to mount a defence against Mr Hall’s claim.  Many witnesses are said to be now dead and it is submitted to be virtually impossible for the applicant to marshal evidence of events or of his whereabouts at relevant times, either to disprove his involvement in the alleged offences or to disprove the truthfulness of his making of the alleged confession.  The applicant is limited to attacking the credit and reliability of Mr Hall. 
  2. Of course, the passage of time provides a basis upon which to attack the reliability of Mr Hall’s evidence as well as his credibility.  To the extent that delay prejudices the applicant, this is not a case in which a defendant is being asked for the first time to reflect upon matters that occurred in January 1974.  The evidence before me indicates that the applicant (and Mr O'Demspey) were confronted shortly after the disappearance of the McCulkins and asked to explain their whereabouts and whether they had any involvement in the disappearance.  They each took the allegations seriously, it seems, because they left Brisbane soon after, concerned about being accused of being involved in the McCulkins’ disappearance.  They must have thought at the time about their recent movements and where they were when the McCulkins disappeared.
  3. I am not persuaded that the reduced ability to locate witnesses unfairly falls upon the applicant.  Appropriate directions can be given to the jury pointing out the prejudice suffered by the applicant by reason of the delay.  I am not persuaded that such a direction is insufficient to ensure the applicant’s trial will be a fair one.

Conclusion – exclusion on the grounds of unfairness

  1. I decline to exercise my discretion to exclude the evidence of Mr Hall on the basis that it would be unfair to admit it in the applicant’s trial.

Public policy discretion

  1. This case is not one in which evidence was obtained because of illegal or improper police conduct.  It is quite different to the improper conduct considered in Falzon or the intimidatory police conduct considered more recently in Wills.[10]
  2. The discretion to exclude on the grounds of public policy extends beyond unlawful official conduct to official conduct which is improper.   This is not such a case.  I decline to find that the police engaged in misconduct or improper conduct in securing the evidence of Mr Hall.  It is not contended that the conduct was unlawful.  Instead, the combination of factors referred to earlier is submitted to have been calculated to pressure Mr Hall.  I have declined to find that there was improper pressure or threats of detriment.  The only threat of detriment (if it could be described as a threat) was the warning about possible exposure to perjury in giving false evidence to the CMC.  For the reasons which I have given, it was not inappropriate for the investigators to express their disbelief in Mr Hall’s initial denials or to engage in extensive questioning of him.  The appeal to his conscience in respect of the alleged rape and murder of two teenagers was appropriate. 
  3. No occasion to exercise the discretion arises.  If, however, I had formed the view that police acted improperly in, for example, disclosing details which only found their way into Mr Hall’s eventual statement because of such disclosure then I would not have exercised my discretion to exclude.  I have not been asked to find that such conduct was deliberate, rather than inadvertent.  It is not suggested that the conduct was carried out as part of some broader process, sanctioned by higher authorities, to secure unreliable evidence by such means. 
  4. Factors which favour the admission of the evidence include its importance to the prosecution case and that the offences charged are extremely serious.  Moreover, I am not persuaded that any improper pressure (the same having been denied by Mr Hall) affected the reliability or cogency of the evidence he gave.  Instead, Mr Hall, after disclosing some details to the police originally and some details at the CMC hearing, says that he reflected on matters and was prepared to be more forthcoming.  This is not implausible.
  5. I decline to exclude the evidence of Mr Hall on public policy grounds. 

Is the probative value of the evidence outweighed by its prejudicial effect?

  1. Evidence may be excluded on the grounds that its probative value is outweighed by its prejudicial effect.  This discretion is particularly exercised where the evidence has little or no weight but may be gravely prejudicial to the accused.  The prejudicial effect of evidence in this context is not concerned with the fact that the evidence may prejudice a defence in making it more likely that the prosecution case will succeed.  Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted.  Evidence is unfairly prejudicial if there is a real risk that the evidence will be misused by the jury in some unfair way.
  2. I have earlier addressed the alleged deficiencies in the evidence of Mr Hall.  The applicant’s submissions on this basis for exclusion assume that I will find that the evidence is deficient because it was obtained as a result of threats and pressure.  I have not found that.  However, other aspects of Mr Hall’s evidence will require warnings.  I have noted some of these previously.  The jury will need to be directed about being satisfied that the information given by Mr Hall is the product of his recollection, and not based upon information that he only learned from police.  The fact that Mr Hall’s evidence is inconsistent with earlier denials given to police and contrary to evidence given on oath will be an important matter, as will be Mr Hall’s explanation for his change of heart.  The fact that Mr Hall is an indemnified witness will be the subject of appropriate warnings along with the possibility that he may perceive his best interests are in maintaining the account which he gave in his statement, lest he risk prosecution for perjury.  His delay in giving evidence will be the subject of challenges to his credibility and reliability.  Directions will be given about the consequences of delay on the applicant’s marshalling of evidence.
  3. Whilst Mr Hall’s evidence will be the subject of extensive challenge at trial and appropriate warnings, I am not persuaded that the matters I have mentioned will result in it having only slight probative value. 
  4. As for Mr Hall’s evidence being inconsistent with other evidence, Mr Keith Meredith on 7 October 2014 said he had no recollection of the applicant making the statements which Mr Hall recalls.  Mr Meredith said:

“Dubois has never told me anything about any involvement that he had in the McCulkin’s [sic] disappearance. If Dubois told anybody about his involvement it would have been Tom because they were very close.  Hall and Hamilton have never told me about any person’s involvement in the McCulkin’s [sic] disappearance.”

The jury will be required to assess the reliability of Mr Hall and the reliability of Mr Meredith.  This will include consideration of whether Mr Meredith cannot genuinely recall conversations which he might be expected to recall and the possible influence of similar factors to those which Mr Hall says originally persuaded him to give an incomplete account of his recollection.  On the other hand, the jury may be influenced by Mr Meredith’s evidence and rely upon it to discount or even reject Mr Hall’s evidence.  The assessment of Mr Hall’s evidence, his credibility and reliability, along with an assessment of the credibility and reliability of other witnesses, should be entrusted to the jury.

  1. I am not persuaded the grounds upon which Mr Hall’s evidence is open to challenge and the need to warn the jury about many aspects of it result in his evidence having little or no weight.  It is open to the jury to accord it substantial weight if they are persuaded that his recollection is reliable.  Although Mr Hall may be vague on certain details, if the applicant disclosed his involvement in the disappearance of the McCulkins and his involvement in their murder and the rape of the two McCulkin daughters, then this is a disclosure that he would not easily forget, even over a long period.
  2. I am not persuaded that there is unfair prejudice to the applicant in the sense that there is a real risk that this evidence will be misused by a jury.  The risk exists that a jury may give undue weight to the evidence of Mr Hall.  One area of concern is that the jury may wrongly regard it as corroborating other evidence or as being corroborated by other evidence.  The jury will be instructed to be careful about ensuring that his evidence is appropriately corroborated by independent evidence and not to rely upon parts of Mr Hall’s evidence which may have been sourced from what police told him, rather than his own recollection.
  3. In all the circumstances, I am not persuaded that Mr Hall’s evidence has little or no weight.  Identified sources of prejudice can be addressed by challenges to the reliability of Mr Hall’s evidence through cross-examination and appropriate warnings. 
  4. I decline to exclude Mr Hall’s evidence on the ground that its probative value is outweighed by its prejudicial effect.
  5. I decline the application to exclude the evidence of Mr Hall.

Footnotes

[1]  (1988) 192 CLR 159 at [18] and [53].

[2]  [2012] QSC 229 at [44].

[3]  [1990] 2 Qd R 436.

[4]  CMC 6 of 6 14/17.

[5]  Applicant’s submissions, para 31(a); footnote 31.

[6]  6 May 2014, p 11.

[7]  Compare the example of an indemnified alleged accomplice in R v McLean and Funk ex parte Attorney-General of Queensland [1991] Qd R 231 at 239, 241, 251 – 253.

[8]  Page 8 of 10.

[9]R v Wills, unreported, Burns J, 9 February 2015, at 10-11.

[10]R v Wills, unreported, Burns J, 9 February 2015.

Close

Editorial Notes

  • Published Case Name:

    R v Dubois

  • Shortened Case Name:

    R v Dubois (No 8)

  • MNC:

    [2016] QSC 326

  • 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 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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