O'Dempsey v The Queen [2019] HCATrans 128 (21 June 2019)

Last Updated: 26 June 2019

[2019] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B5 of 2019

B e t w e e n -

VINCENT O’DEMPSEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 21 JUNE 2019, AT 9.30 AM

Copyright in the High Court of Australia
MR J.A. GREGGERY, QC: If it pleases the Court, I appear with MS P. MORREAU for the applicant. (instructed by Jasper Fogerty Lawyers)

MR M.R. BYRNE, QC: If it please the Court, I appear with my learned friend, MR D.L. MEREDITH, for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

KIEFEL CJ: Yes, Mr Greggery.

MR GREGGERY: Thank you, your Honour. I propose to address ground two first and then deal with ground one. We submit that the question raised by ground two in this appeal allows this Court to address with certainty the limit to which a jury can consider other evidence suggestive of guilt in a general sense when resolving the preliminary issue of whether a disputed confession was made.

We also submit that that is a question of public importance, because in criminal trials, where evidence of a disputed confession is led, it is rarely the only evidence which is led. It usually falls to be considered in the context of other evidence. And, secondly, disputed confessions, by their nature, can be both sufficient to prove the ultimate fact, if accepted beyond reasonable doubt, or highly unreliable to the point where they have been fabricated.

For such evidence to be used as a threshold question, juries are routinely directed and properly directed that they must be satisfied that the confession was made. Ground two, or the question raised by ground two, was the subject of the observations by the High Court in dismissing the application for special leave in Burns v The Queen (1975) 132 CLR 258. The point was not finally determined and, in our submission, this appeal has sufficient prospects to deal with the question about which observations were made but was not the subject of final determination in that case.

We submit that there was an error in the reasoning process adopted by the Queensland Court of Appeal in the application of the observations made in Burns v The Queen and that is evident, we submit, in the reasons at paragraph [154], which is contained at the application book page 162.

There his Honour the President dealt with our submission below and referred towards the second half of the paragraph that including the question of evidence of guilt generally, there was a suggestion or submission advanced by the defendant through his counsel that the defendant or applicant was unlikely to be the type of person who would make confessions. In that context, and in the context of the broader case, his Honour continued at the end of the paragraph that:

The jury had to consider all of the evidence in the case . . . and whether it raised a doubt about the making of the admissions.

BELL J: I am sorry, are you in paragraph, did you say [152] of the judgment?

MR GREGGERY: [154].

BELL J: I am sorry, yes.

MR GREGGERY: I am sorry, your Honour, yes, paragraph [154].

KIEFEL CJ: His Honour goes on to point out that the need for the jury to consider all of the evidence is consistent with the second proposition drawn from Burns.

MR GREGGERY: Yes. In our submission, his Honour went too far in concluding that nothing said in Burns was contrary to the approach taken by the trial judge in permitting the jury to have regard to all of the evidence, for reasons which I will come to shortly, because the Court made observations in Burns v The Queen about the logical limits or rational limits to which evidence external to the person who is giving evidence about the disputed confession can rationally affect an assessment of that person’s credibility, which always remains the central question.

BELL J: In Burns the consideration was in the context of an allegation that the police had fabricated a confession.

MR GREGGERY: That is so.

BELL J: In that context, one can see that evidence of which the officers who are suggested to have fabricated the confession, evidence of which they were aware, does not really meaningfully assist one to determine whether the suggestion of fabrication has been excluded beyond reasonable doubt.

MR GREGGERY: Yes.

BELL J: Now, that is a matter of logic.

MR GREGGERY: Yes.

BELL J: Evidence of these confessions was – well, I will withdraw that and put it this way. The Court in Burns, as a general proposition, accepted that one would consider whether a confessional statement was made, having regard to the whole of the evidence in the case. Now, in point of principle, what is wrong with that?

MR GREGGERY: Nothing, we submit, but it is the following observations about the limits to which that principle can be applied in the given circumstances of any case, which we say was both reached and exceeded in the present case.

KEANE J: Is your basis for saying that this idea that he was the sort of person who was unlikely to confess his responsibility for something like this? Is that as good as it gets?

MR GREGGERY: No, not in our submission, because here, by reason of the broad reference to all of the evidence in assessing the central question of credibility of each of the confessional witnesses, the jury were able to have regard to the independent evidence of the circumstantial case, described broadly, and in doing so the question of the extent to which the jury were distracted from that task of assessing credibility in an individual sense is enlivened because there is the risk discussed in Burns that great weight would be placed on circumstantial evidence out of the context in which it is being considered.

An assessment of credibility is an inherently personal matter and it is not open, at the end of the logical spectrum, to substitute an assessment of credibility by an assessment of weight of independent circumstantial evidence. Indeed, the assessment of credibility of another witness in lieu of that point or, indeed, ultimately an assessment in this case, which was the point that your Honour Justice Keane adverted to, where it was in fact used to rebut a submission from the Bar table after the evidence had been admitted that the jury would be unlikely to be satisfied it was made because the defendant was unlikely to make it.

KIEFEL CJ: That was part of the defence case, you concede that?

MR GREGGERY: We do, but it was

KIEFEL CJ: Does that not point to the need for the jury to have regard to the whole of the evidence to consider the question of his credibility, in light of that assertion?

MR GREGGERY: In my submission, no, because it was a submission advanced to the jury by his counsel, which can be distinguished from the statement from the dock in Burns, and the other Victorian cases to which we refer, where the content of the admission disclosed a fact not known to the person who was giving evidence about the disputed confession.

In each of those circumstances, it was that critical point – that is, there was a specific point in the evidence which rendered the broader question of evidence generally admissible on that preliminary point. In each of those cases, the jury were specifically directed that they were to have regard to specific points of evidence when assessing that threshold question of whether they accepted the confession was made, the logic being that if the content of the confession contained something which was not known to the witness, it bolstered the second proposition that the admission was true because it was independently corroborated and therefore reasoning in reverse was made.

Here there was nothing about the confessions which, considered alone, demonstrated any knowledge which might not be available to the witness in a general sense, as was observed in the course of the reasons. The background and the context in relation to fires at nightclubs was notorious knowledge. There had been some previous proceedings in respect of the applicant and it had gone essentially as an unsolved case in the Brisbane area for many, many years. The confessions were brief, and were bare admissions to having been responsible for doing it.

BELL J: Why was it not open to the jury to reason from the fact that two people unknown to one another independently gave an account that the applicant had made a statement capable of being seen as a confessional statement to that witness?

MR GREGGERY: In my submission, because it was such a distraction from the central question of credibility of the witness under whose evidence was being considered that there was a tendency to substitute the credit of another witness for the credit of the witness that they were assessing.

BELL J: It is not a question of substituting the credit of one witness for another. It is more a matter of the improbability of events occurring by coincidence, if anything, is it not?

MR GREGGERY: That is certainly how it was approached in the court below and we submit that that was taken too far in this case because of the observations later made in Burns, after dealing with that very preliminary proposition, that even if logically relevant, there are limits to the application of the principle. The limits are when there is a risk that the jury will give the evidence undue weight, as opposed to the assessment of credit, or that the fact that the assessment of credit hinges on the cogency of the account of the person actually giving it and here there was nothing particularly cogent about the account given by any of the witnesses.

KEANE J: Well, but in relation to the confession to KerriAnn Scully, there is the book, “Shotgun and Standover”, with your client’s fingerprints and her fingerprints in the book.

MR GREGGERY: That is so.

KEANE J: That is pretty powerful corroboration of her account of the circumstances in which she says the confession to her occurred.

MR GREGGERY: We conceded below, and we will concede here, that that was one of the specific features which we accept the jury were permitted to have regard to, but it went no further than that.

KEANE J: Well, yes. It is also an example of your client, in particular circumstances where he is speaking to someone not a policeman, being seen to be quite proud of his lethality.

MR GREGGERY: That was, in my submission, a feature which ought to have been confined to the context in which it was given – that is, the assessment of the credit and reliability of the person who was giving that account. It did not particularly suggest that a witness who was otherwise substantially damaged in terms of her credibility might be able to cling to the general weight of the prosecution case as a buttress for her own credibility, in my submission. That was taking the logic of the question in Burns too far.

Yes, ultimately, we submit that, of course, the assessment of a witness’ credibility starts with an assessment of the features particular to the circumstances of the making of the confession and the features identified in the challenge to that witness’ credit, and that remains the central question. It is only where other features carry sufficient probative weight that they might be regarded as being relevant to that threshold question.

In a case where the prosecution advanced three alternative routes to conviction, that being the circumstantial case alone, one or more of the confessions alone, or a combination of both, it was a point, in our submission, which swamped that preliminary question where the strength of the prosecution case, if it lay anywhere, was in the confessional evidence. In our submission, in one or more of those and before any of them could be used by the jury in that broad sense, they had to determine that threshold question. So the issue of precisely what was relevant was critical to the fairness of the trial.

Can I turn now to ground one. The applicant’s submissions on the appeal to the Queensland Court of Appeal, both written and oral, were that before the evidence of motive could be adduced, there was a preliminary question of law or admissibility which was whether the evidence was capable of permitting the inferences contended for by the Crown, the inference being that Dubois had a motive to commit murder.

The motive was identified in the reasons of the Court of Appeal as essentially being that advanced by the Crown, that one member of the Clockwork Orange gang, particularly Dubois, undertook what I will describe as a cost benefit analysis, out of fear of being falsely implicated in arson and 15 murders, of sufficient degree of concern that he was prepared to actually commit one or more murders to conceal an arson.

The body of evidence adduced in support of the motive came from Barbara McCulkin, her two daughters, and Ellen Gilbert, her work friend. The evidence was put broadly in the context that Barbara McCulkin was gossiping about the Torino and the Whiskey Au Go Go fires, and that therefore that might have come to the attention of Dubois and those sequence of dominoes might have fallen.

BELL J: Given the milieu in which these events occurred, it hardly strains credulity to think that if the deceased McCulkin was talking loosely, suggesting that she had knowledge of the Torino fire, that might make its way to her associates, including Dubois.

MR GREGGERY: In our submission, that reasoning involved speculation, rather than the drawing of rational inference, for this reason. Her account to her neighbour was described as an account in the context of conversations to a person to whom she confided. He gave no evidence that he disclosed the nature of it. And, indeed, her conversation was limited to the Whiskey Au Go Go fire, of which Dubois was not alleged to be part.

The conversation of her two daughters, or the statements of her two daughters to school friends, were also restricted to the Whiskey Au Go Go fire, and bore no relevance to the Torino fire, or no relationship to them. The only evidence led, and it was bare in its detail, was the scant reference to telling her work colleague something about the Torino fire one day but the evidence went no further – that is, she never did say anything.

BELL J: It is suggested that she had esoteric knowledge of the Torino fire and in the context of the Whiskey Au Go Go fire occurring not long after the Torino fire, one might reason that those involved in the Torino fire had concerns.

MR GREGGERY: The evidence of Peter Hall was called to establish the link between his broad concerns and Dubois as being part of the same gang but he did not give evidence that he had a particular source of concern about his false implication, or that he was motivated, being part of the same gang, to kill anybody, or that he was aware of Barbara McCulkin gossiping, to use the word loosely.

It was at that preliminary point that really what was being asked of the jury was to engage in a series of assumptions, not the rational drawing of inference, that that one conversation made its way somehow to the Clockwork Orange gang, and then somehow to Dubois, and things flowed from there.

Although the motive, as a question of legal significance, was light, admittedly weak on the part of the respondent, his Honour the President identified that it was an essential part of the narrative when dealing with this ground and, in our submission, that is an accurate characterisation of the factual significance of the case because it truly was the glue which held the circumstantial case together.

Without it, and without the prejudice that flowed by reason ultimately of association with arson and murder, notorious arson and murder, the jury were left with the absence of any motive for what appeared to be, and was inferentially accepted to be a social visit on the night that the McCulkins disappeared, in the context of a developing social relationship.

BELL J: A social visit can take on a certain complexion when the persons visited are never seen again and are accepted to be dead.

MR GREGGERY: Certainly it can.

BELL J: Those circumstances, combined with the making of confessions, on the prosecution case, to two unrelated independent individuals and one prison informer, form an important aspect of the factual basis of the prosecution case. The account to the prison informer, namely, “She had to be dealt with”, had significance in light of the evidence of the suggested motive.

MR GREGGERY: That is a point that we make. That motive was not insignificant alone, but very strong correlations were drawn between confessional evidence and evidence of motive, essentially to boost every part of the case, without the requisite scrutiny firstly on the question of whether the confessions were made and what evidence was relevant and, secondly, in our submission, by really adopting a gloss on the very sparse nature of evidence from which the inference about motive arose.

KIEFEL CJ: You say sparse evidence. Do you say that it was insufficient for the jury to be able to draw an inference?

MR GREGGERY: We do.

KIEFEL CJ: That is not how it was put in the Court of Appeal.

MR GREGGERY: That is why I commenced my submissions on this ground by identifying that our written submission and our oral submission put it that way. It was certainly not described that way in the reasons for judgment.

KIEFEL CJ: The alternative ground was pressed, was it not, in the Court of Appeal, that its probative value was outweighed by its prejudicial effect – the inferential evidence?

MR GREGGERY: Both were put, the second in the alternative, and the first was put very strongly because this was a threshold question of the drawing of inferences, which we say involved speculation, not rational inference, on the evidence available.

KIEFEL CJ: I see the light, Mr Greggery.

MR GREGGERY: Thank you.

KIEFEL CJ: We need not trouble you, Mr Byrne.

We do not consider that there is any reason to doubt the correctness of the decision of the Court of Appeal. This application for special leave is dismissed.

The Court will adjourn to reconstitute.

AT 9.53 AM THE MATTER WAS CONCLUDED