JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	9, 10, 11 August 2016
DATE OF RULING:	16 August 2016
CASE MAY BE CITED AS:	R v Debresay (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2016] VSC 487

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CRIMINAL LAW – Evidence – Admissibility – VARE/VATE – Evidence of a four/five year old child - Whether or not VARE recordings admissible as evidence in chief pursuant to Criminal Procedure Act 2009 s 368 – Hearsay – Previous representations admissible pursuant to Evidence Act 2008 s 66 - Whether or not danger of unfair prejudice outweighs probative value – Evidence Act 2008 ss 55, 137 – Whether or not evidence can be effectively tested in cross examination – Whether or not forensic disadvantage can be effectively ameliorated by judicial direction – Residual Common Law discretion to exclude evidence on basis of unfairness - Haddara v The Queen (2014) VSCA 100 – IMM v R (2016) HCA 14 - Bayley v R, [2016] VSCA 160.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Flynn Ms G. Coghlan	Office of Public Prosecutions
For the Accused	Mr D. Dann QC Mr B. Johnston	Chris McLennan & Co Barristers and Solicitors

HIS HONOUR:

Background

On 13 May 2005, Tonnja Huynh died from significant internal injuries including a ruptured pancreas and proximal jejunum, a ruptured bowel and lacerations to the mesentery and liver. These injuries were consistent with blunt force being applied to the front of the abdomen causing the abdominal contents to be compressed between the vertebral column and the object applying the force.

Tonnja was two years eight months old when she died. The accused, Mussie Debresay, is charged with her murder.

The prosecution case is that Mr Debresay, the then partner of the child’s mother, Jennifer Louey, inflicted these injuries (and more widespread soft tissue injuries) in the hours before Tonnja’s death. This is said to have occurred at the accused’s one-bedroom flat in Hyde Street, Footscray.

In short compass, the prosecution allege that Mr Debresay (who is sometimes known as MJ) and Ms Jennifer Louey were, on the morning of 13 May, in the single bedroom of the unit. Ms Louey’s children, K H (aged one), Tonnja and A L (aged four years five months) were also at the unit. Tonnja and A L were in a lounge room adjacent to the bedroom and kitchen. The accused is alleged to have emerged from the bedroom, observed that Tonnja had wet herself and a chair in the lounge room, become angry, taken Tonnja to the kitchen, covered her mouth/face for a short time with a plastic bag and, at some stage, stamped/stomped on Tonnja’s abdomen while Tonnja lay prone on the ground.

The only direct account of what occurred comes from A L. The accused is one of a very limited class of people who had…

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 R v Debresay (Ruling No 1)

Details

AGLC: R v Debresay (Ruling No 1) [2016] VSC 487
Case: [2016] VSC 487
Decision Date: 16 August 2016

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions (Vic) v Debresay, the Victorian Supreme Court was tasked with determining the admissibility of certain evidence in a criminal proceeding. The appellant, Debresay, faced charges related to sexual offences against a child. The primary dispute centred on the admissibility of video recordings made under the Vulnerable Accused Reporting of Evidence (VARE) and Vulnerable and Intimatly Affected Reporting of Evidence (VATE) protocols, as well as the admissibility of hearsay evidence provided by the child victim.

The court was required to consider whether the VARE/VATE recordings were admissible in chief under section 368 of the Criminal Procedure Act 2009 and whether they constituted inadmissible hearsay under the Evidence Act 2008. Additionally, the court needed to determine if the probative value of the evidence outweighed the danger of unfair prejudice, as per sections 55 and 137 of the Evidence Act 2008. The court also assessed whether the evidence could be effectively tested in cross-examination and if any forensic disadvantage could be sufficiently mitigated by judicial direction. The court further examined the residual common law discretion to exclude evidence on the basis of unfairness, referencing relevant precedents such as Haddara v The Queen (2014) VSCA 100, IMM v R (2016) HCA 14, and Bayley v R, [2016] VSCA 160.

The Supreme Court found that the VARE/VATE recordings were admissible as evidence in chief under the relevant statutory provision and did not constitute inadmissible hearsay under the Evidence Act 2008. The court held that the probative value of the evidence substantially outweighed any potential for unfair prejudice. The child's evidence could be effectively tested through cross-examination, and any forensic disadvantage could be adequately addressed through judicial direction. The court exercised its residual common law discretion to exclude the evidence on the basis of unfairness, finding that the evidence was admissible. The court ordered that the VARE/VATE recordings be admitted as evidence in the trial.

Orders