Debresay v The Queen - [2017] VSCA 263

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0024

MUSSIE DEBRESAY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 September 2017
DATE OF JUDGMENT:	21 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 263
JUDGMENT APPEALED FROM:	R v Debresay (Unreported, Supreme Court of Victoria, T Forrest J, 26 September 2016)

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CRIMINAL LAW — Appeal — Conviction — Manslaughter — Death of child in 2005 caused by abdominal injuries — Trial not held until 2016 — Principal prosecution evidence constituted by hearsay account of child aged four years at time of death — Conviction dependent on credibility and reliability of hearsay account — Whether jury able to exclude reasonable hypothesis consistent with innocence — Whether verdict unsafe and unsatisfactory — Appeal allowed — Judgment of acquittal entered — Criminal Procedure Act 2009 s 277(1)(b).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann QC with Mr B Johnson	Stephen Andrianakis & Associates
For the Crown	Ms K Judd QC with Mr M D Stanton	John Cain, Solicitor for Public Prosecutions

PRIEST JA:
BEACH JA:
KAYE JA:

Introduction

‘TH’ was aged two years when she died from severe abdominal injuries on 13 May 2005. The injuries could not have been accidental. They had to have been sustained in the applicant’s flat, and to have been caused either by the applicant or by TH’s mother, ‘JL’.

In the event, JL was never charged over her daughter’s death. More than a decade after TH’s death, however, the applicant was charged with her murder, and ultimately was convicted by a jury of her manslaughter. The applicant seeks leave to appeal against that conviction, claiming that the verdict is unsafe and unsatisfactory. As will become clear, there is a single piece of hearsay evidence — something that TH’s brother, ‘AL’, said and did on the day of her death — that is critical to the outcome of the application.

When TH died, AL was aged four years. On the day that TH died, AL was spoken to by a police officer, Acting Senior Sergeant Dagmar Anderson, at a medical centre where the moribund TH had been taken by JL and the applicant. AL told Senior Sergeant Anderson, in the presence of others, that ‘MJ’ — this was an appellation that AL gave to the applicant — ‘step on’ TH, and, according to Senior Sergeant Anderson, he demonstrated ‘a sort of kicking motion … a stomp down with the foot’. It is this piece of hearsay evidence upon which the integrity of the jury’s verdict rests.

It is uncontroversial that on 13 May 2005, at about 3.00 pm, TH’s mother, ‘JL’, in the company of the applicant, took TH to the Millennium Medical Centre in Footscray. TH was not breathing and was unresponsive. Attempts to revive her were unsuccessful, and she was pronounced dead. Doctor David Ranson, a forensic pathologist, conducted a post-mortem examination at 10.30 pm that evening, and stated the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Debresay v The Queen

Details

AGLC: Mussie Debresay v The Queen [2017] VSCA 263
Case: [2017] VSCA 263
Decision Date: 21 September 2017

CaseChat Overview and Summary

The appellant, Debresay, was convicted by a jury in the Supreme Court of the Northern Territory of the manslaughter of a child who died in 2005. The trial was held in 2016, and the conviction was appealed to the High Court of Australia. The core of the prosecution's case was the hearsay testimony of a child who was four years old at the time of the death, recounting the events that led to the child's abdominal injuries. The appeal centred on whether the jury could reliably exclude a reasonable hypothesis consistent with the appellant's innocence, and whether the verdict was unsafe and unsatisfactory.

The legal issues before the court were whether the jury was able to exclude the reasonable hypothesis that the child's injuries were caused by an accident, and whether the conviction was based on evidence that was reliable enough to support a safe and satisfactory verdict. The court needed to determine if the jury had a reasonable doubt as to the appellant's guilt, given the nature of the evidence and the significant time lapse between the events and the trial.

The court found that the hearsay evidence was unreliable and that the jury could not confidently exclude the reasonable hypothesis of accidental injury. The significant delay in bringing the case to trial, combined with the unreliability of the hearsay evidence, led the court to conclude that the conviction was unsafe and unsatisfactory. The High Court allowed the appeal, quashed the conviction, and entered a judgment of acquittal under the Criminal Procedure Act 2009.

Orders