R v Debresay (Ruling No 1)
[2016] VSC 487
•16 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0014
| THE QUEEN | |
| v | |
| MUSSIE DEBRESAY | Accused |
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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 access to the child at material times (the others being Jennifer Louey and young A L[1]). The accused had been observed by a witness to discipline the children by putting them into the kitchen of the house and shutting the door. The prosecution allege he gave inconsistent accounts of an incident or incidents said to have occurred overnight on 12/13 May 2005 where he described hearing a bang, getting up and observing that Tonnja had injured herself by striking her head on a coffee table, or by falling off a couch during the night.
[1]I have excluded from this class Ms Samantha Barry, a family friend and occasional babysitter, who visited the flat at about 12.15pm on 13 May for a short period. Although she saw Tonnja while visiting, it seems she was always in the company of Mr Debresay, Ms Jennnifer Louey or both during her visit. There is no suggestion by either of these persons that she was responsible for the child’s injuries.
The accused, in police interviews, denied injuring the child or disciplining her in any way. He said he did not wake up during the night, but at about 5.30 am - 6.00 am he heard a bump. Both he and Jennifer got up, and he went into the lounge room and found Tonnja laying under the coffee table. He put her next to A L on the couch. He said that about half an hour later he heard another noise, which was Tonnja slipping off the couch. He also said that he heard Tonnja fall the night before when she fell from the couch onto the coffee table. He said that a cover had been removed from the cushion of the couch as Tonnja had wet it through her nappy.
This application
The prosecution propose to call A L as a witness in this trial. It is proposed that his evidence-in-chief be constituted by excerpts from various VARE interviews conducted on 13 May 2005, 16 June 2005, 14 July 2005, 17 August 2005, 12 April 2006, 18 August 2006 and 28 January 2015. Additionally, the prosecution propose to lead evidence of various statements made by A L to family members, police, and a treating psychologist in 2005 and 2006. For the purposes of the current argument, it has been accepted that this evidence meets the preconditions of s 66 of the Evidence Act 2008 (‘Evidence Act’) and is therefore exempt from the operation of the hearsay rule. Some of these conversations have been audio-recorded; others not.
Mr Dann QC, who appears with Mr Johnston for the accused, has argued that all representations made by A L, whether in the form of VARE interviews or through the gateway of s 66, ought be excluded either through the operation of s 137 of the Act or in the exercise of the general common law discretion to exclude evidence that would be productive of an unfair trial.[2] The common theme of his submission is that the proposed evidence, coming as some of it does in the form of decade-old utterances from a developmentally immature four-year-old child who in 2016 alternatively professes little recollection or a very different recollection, creates an unfairness that no amount of judicial direction can cure.
[2]See for example Haddara v The Queen (2014) VSCA 100.
Under normal circumstances, I would paraphrase the impugned evidence and aspire to clarity through brevity; in this circumstance I regret that, in my view, it is necessary to reproduce the evidence to be ‘adduced by the prosecutor’[3] in full. To impose my language on that of a four-year-old child would be to substitute my interpretation for the words themselves, which would hardly provide clarity. It should be understood that the passages set out below from the VARE interviews are only a relatively small portion of the overall content of the ten VARE interviews conducted. It should also be understood that discrete submissions about assertedly offensive portions of the impugned evidence will not be considered in this ruling and have been reserved for further argument if necessary.
[3]Section 137 Evidence Act 2008.
Evidence of A L
The following table sets out the impugned evidence of A L. I have blended the s 66 evidence with the VARES to provide a chronological account of A L’s disclosures. Where the answers of A L are proposed to be led ‘in part’, I have marked the proposed deletion with a bold ‘strike through’ emphasis.
| Witness | Date and location | Representation | Ref |
| Amanda Louey | 13 May 2005; consulting room at medical clinic | “I asked him [A L], “What happened to Tonnja?” A L said “Tonnja naughty girl.” “MJ step on her here.” A L was showing his side towards the back on himself.” A L repeated that “MJ has stepped on Tonnja” in the presence of police member Dagmar Anderson. “Whilst A L was sitting on the bed telling us this he moved his leg in a stepping motion up and down.” | P919[2]; T572.17-575.23 P919[3]; T575.24-579.28 |
| Daniel Louey | 13 May 2005; consulting room at medical clinic | “Amanda asked him [A L] what had happened. He said that Tonnja was naughty. A L raised his leg and stomped his foot once. His foot did not connect with the ground because he was sitting on the bed. Amanda asked who did that and A L said “MJ”. Amanda asked why and A L said because she was naughty. I think he also said that she was crying. Amanda asked where and A L, using his hand, indicated his lower back. There was more conversation that this but about this time, my dad came in as well as a policemen I now know as Dharma [sic].” “Amanda again asked the same questions in the presence of Dharma [sic] and my dad. A L repeated that Tonnja had been naughty and he also said something about her being in the kitchen. He repeated the stomping motion again.” “I remember at one time he appeared to do a head butting motion...” At some stage A L also did an action putting his hands over his mouth and he said “can’t breathe.” | P871[2]; T361.2-365.1; T367.20-31 P871[3]-[4]; T365.2- T365.20-366.18 |
| Quang Tran | 13 May 2005; consulting room at medical clinic | Upon questioning by Dagmar Andersen, A L said: “I went to MJ house”, “MJ kick Tonnja”; when asked “How did MJ do that?” A L stomped on the ground with his foot. A L said further that Tonnja was in the lounge room on the floor. When asked “Why did MJ kick her?” A L said “Tonnja bad girl. She had to go to the kitchen.” “Tonnja do wee wee” | P933[6]-935[5]; T599.3-601.18 |
| Mark Louey | 13 May 2005, consulting room at medical clinic | “The police woman was asking A L about Tonnja and what had happened...A L initially said that MJ had told Tonnja she was naughty. A L then moved his right leg up and down in a stomping motion and said at the same time “he did this to Tonnja”. When asked by the police woman where his mum was at the time, A L said she was in the bedroom. | P877[3]; T381.2-385.17; T393.21-394.31 |
| A/Snr Sgt Dagmar Andersen | 13 May 2005; consulting room at medical clinic | Upon questioning by Dagmar Andersen, A L said: “Went to MJ house”, “Tonnja crying...at MJ house”, “sleeping...on the table...MJ from bedroom took her to the kitchen...to use bathroom”, “Tonnja sick...MJ tell her to sit down on kitchen floor (A L then demonstrated vomiting and holding his hand over his mouth, leaning forward)...Tonnja wee wee on the couch...crying...” “MJ took Tonnja to the kitchen...he turn off the lights...”, “Tonnja sleeping, MJ step on” (pointed to the top of his right foot, wearing boots) When asked “Where?” A L said: “...on lounge room Tonnja...” (demonstrated with his hand in the middle of his back, below shoulder blades, pushed himself forward slightly – at the same time as pushing his back, A L also pushed his right foot downwards sharply.) When asked “Why was Tonnja naughty?” He said “Had to go to kitchen...bad girl...MJ gonna hit her”, said “Tonnja was a bad girl”, when asked why - he said: “MJ being silly, he do like this” (demonstrated pushing foot down/kicking motion with his foot swinging). *Police notes of entire conversation made at the time | P957[12]-959[31]; T635.25-640.4 |
| VARE 1 | 13 May 2005 | VARE of 13 May 2005 (entirety of VARE relied upon – depicts A L on the day his sister died) (VARE 1) (STARTS MID SENTENCE) INTERVIEW CONDUCTED AT THE SUNSHINE POLICE STATION. MY NAME IS DAGMAR ANDERSEN AND WE'RE HERE ON FRIDAY THE 13TH OF MAY - (WITNESS): Can I go see Joe? (AUNT): (WHISPERING) - No, that's alright - - - ACTING SENIOR SERGEANT ANDERSEN: - THE TIME IS NOW - (WITNESS): ..... ..... ACTING SENIOR SERGEANT ANDERSEN: - 9.50 PM. (WITNESS): I wanna go. (AUNT): Ssh, that's alright. (WITNESS): Go see Joe. ACTING SENIOR SERGEANT ANDERSEN: - I'M TALKING TODAY - (WITNESS): Oh. ACTING SENIOR SERGEANT ANDERSEN: - WITH A L. (WITNESS): ..... Joe. ACTING SENIOR SERGEANT ANDERSEN: Q Now, here today we've got A L. A I wanna play with ..... see Joe. Q And we've got Amanda. Amanda - - -? (AUNT): So - mm'm? A ..... ..... ACTING SENIOR SERGEANT ANDERSEN: Amanda, can you say your date of birth, please, and - - -? (AUNT): My date of birth is 7th of January, 1980. (WITNESS): I wanna play ..... ACTING SENIOR SERGEANT ANDERSEN: Oh, A L - - -? A I wanna go and see Joe and - - - (AUNT): That's alright, that's okay. It's okay. Q A L? A Go see Joe. (AUNT): It's alright. ACTING SENIOR SERGEANT ANDERSEN: Q A L? (AUNT): A L. A Mm. (AUNT): Shh. You're a good boy, aren't you? (WITNESS): I need Joe. (AUNT): That's alright. Yeah, Joe's in the other room. He's sleeping. We don't want to - he's tired. He's tired. (WITNESS): I wanna play the computer. (AUNT): Oh, no, we'll play on the computer later. Okay? You're a good boy. (WITNESS): I'm cold. (AUNT): Are - are you cold? Yeah. (AUNT): Okay. I'll hug you more. (WITNESS): Got a cold in my mouth. (POINTS TO MOUTH) (AUNT): In your mouth, okay. (WITNESS): Got a sore throat. (POINTS TO THROAT) ACTING SENIOR SERGEANT ANDERSEN: Q Now - - -? A ..... ..... Q A L, what's that on the front of your top there? A (TOUCHES TOP) Q Is that Winnie the Pooh? A (NO VISUAL OR AUDIBLE REPLY) (KNOCKING ON INTERVIEW ROOM DOOR) ACTING SENIOR SERGEANT ANDERSEN: Q I think that's really quite a nice top. A No. Q Excuse me one - - - A Mm. (AUNT): Just wait a second. (ACTING SENIOR SERGEANT ANDERSEN EXITS INTERVIEW ROOM) INTERVIEW SUSPENDED DURING THE SUSPENSION: (AUNT): Look at those lights. See? It's a computer. It's like a computer. See the colours? What colours is that? (WITNESS): Green, red, green. (AUNT): Very good. (WITNESS): I'm going to see if Joe - - - (AUNT): Joe's sleeping. (WITNESS): No. I wanna go. (AUNT): You're gonna be a good boy. (WITNESS): Oh. INTERVIEW CONCLUDED | P977 |
| Amanda Louey | 15 May 2005; Royal Children’s Hospital | A L said “Tonnja is a naughty girl, MJ hit her.” When asked about that, he said: “MJ kick her”, “On her tummy”. A L was then seen stamping his foot heavily on the ground. A L also said “she lie down.” | P922[5]- 923[1]; T579.29-580.28 |
| Quang Tran | 15 May 2005; Royal Children’s Hospital | A L said “Tonnja is a naughty girl, MJ hit her.” When asked about that, he said: “MJ kick her”, “On her tummy”. A L then stomped his foot on the ground. A L also said “she lie down.” | P936[2]-[8] |
| VARE 2 | 16 May 2005 | (not relied upon) | P983 |
| Quang Tran | 16 May 2005 – about 5.00pm | When asked whether MJ hits Tonnja, A L said “yes”. When asked “how does MJ hit Tonnja?” A L said: “He get plastic bag and put here” and covered his mouth with his hand. When asked why did he do it, A L said “Tonnja naughty” and “Tonnja pee pee”. When asked where Mummy was he said she was in the bedroom watching a movie. | P937[5]-938[9] |
| Quang Tran | 17 May 2005 – 11.20am Royal Children’s Hospital | Recorded conversation Quang: “Does MJ hit Tonnja?” A L: “Yes” .... Quang: “How did MJ hit Tonnja?” A L: “He hit her.” Quang: “How?” A L: “Use a bag.”... “Done a wee wee.” Quang: “Oh what way? Why did MJ hit Tonnja?” A L: “She done a wee wee.” .... Quang: “Oh. Where was mummy?” A L: “On the bedroom.” | P939[3]; P1412-1413 |
| Amanda Louey | 17 May 2005 – 2.00 to 2.30pm Royal Children’s Hospital | Recorded conversation Amanda: “Yeah. What did you say about Tonnja before?” ..... A L: “She was smacked.” Amanda: “How come she was smacked?” A L: “She was be naughty.” A L: “Where was she being naughty?” A L: “Um, well she was being a bad girl.” Amanda: “Where was she being a bad girl?” A L: “At MJ’s house.” Amanda: “Why?” A L: “She weed on the couch.” A L went on to say he was worried because Tonnja had weed. Amanda: “Yeah. So A L, what happened? What did Tonnja do? What, did you say Tonnja, Tonnja was naughty?” A L: “No she peed, she pee pee.” Amanda: “She pee peed? Oh! What happened?” A L: “Pee peed in the couch.” Amanda: “What? I can’t hear you?” A L: “She pee peed in the kitchen.” Amanda: “Oh! Oh no. And then what happened?” A L: “She was naughty.” .... Amanda: “Yeah. So Tonnja was in the kitchen? Yeah.” A L: “She was pee pee.”... “And she was naughty.” A L said his mother was in the bedroom at the time, he was sitting down in the lounge room. K H was in the lounge room in her pram. | P923[8]; P1413-1415 T1426-1428 |
| VARE 3 | 18 May 2005 | (not relied upon) | P1021 |
| Amanda Louey | 20 May 2005 7.30pm | Recorded conversation (Quang also present) Quang: “When you said that, the other night when I was talking to you last time you said that, you said that MJ hit Tonnja?” A L: “Yeah, no, yeah.” Quang: “Yeah?” A L: “Yeah.” Quang: “How else does MJ hurt Tonnja?” A L: “Use a bag.” ..... Quang: “Does he, you also said that he kicked her. Yeah, remember that?” A L: “She...(inaudible)...here.” Amanda: “Where’s that?” A L: “She do that, he do that.” Quang: “Oh did he where?” A L: “At his house.” Amanda: “At his house?” A L: “Yep.” Amanda: “To Tonnja.” A L: “Yes.” Quang: “So he kicked her?” A L: “Yes. Quang: “How did he kick her?” A L: “With his foot.” Amanda: “What?” Quang: “Oh. Where, on Tonnja?” A L: “He do that.” ..... A L: “He hit Tonnja’s bum.” Quang: “Oh. He kicked her?” A L: “Yep.” Quang: “Was Tonnja standing?” A L: “No.” Amanda: “What happened to Tonnja?” A L: “Cause did mess on the couch.” Quang: “Oh. Did he kick her hard?” A L: “Um yeah.” Quang: “How hard did Tonnja fall?” A L: “No.” Amanda: “Was she crying?” A L: “She did like ooh, ooh, ooh...(inaudible)...to hit her head.” Amanda: “Oh.” Quang: “Oh.” A L: “He do that.” Quang: “He used his, what, his knee or his head?” A L: “His head.” Quang: “His head?” A L: “Yep.” Quang: “His head to hit Tonnja’s head?” A L: “Yeah.” ..... Amanda: “Was Tonnja crying? Huh?” A L: “She was upset.” Amanda: “She was upset? Oh, did you try to help her?” A L: “No.” Quang: “Did Tonnja fall over?” A L: “No she was silly.” Amanda: “Where was, um, K H?” A L: “In the pram.” ..... Amanda: “Where was mummy A L?” A L: “She was in the bedroom.” Amanda: “What was she doing?” A L: “She was watching TV.” Amanda: “Oh by herself?” A L: “Yeah.” Amanda: “Oh. And what were you doing?” A L: “I was sitting down.” Amanda: “Where were you sitting down?” A L: “In the lounge room.” | P924[3]; P1454-1455 P1458-1459 P1461-1462 |
| Amanda Louey | During the months after Tonnja’s death | “During the months after Tonnja’s death A L mentioned on a number of different occasions that he saw MJ stomp on Tonnja whilst they was [sic] at MJ’s house.” | P924[4] |
| VARE 4 | 31 May 2005 | (not relied upon) | P1025 |
| Amanda Louey | 11 June 2005; Templestowe | A L said: “MJ bad man”. When he was asked “How did Tonnja get hurt?” A L made a stomping motion with his foot under the blanket that was over him, saying “MJ does this.” | P924[5]-[8] |
| VARE 5 | 16 June 2005 | Audio only. VARE of 16 June 2005 (extract) (VARE 5) ACTING SENIOR SERGEANT ANDERSEN: … Q Mm. Mm. Is Tonnja a angel? A Q Did someone hurt Tonnja? A MJ did it. Q Did he? A Yes, he's bad guy. Q Oh. A Q What does MJ do? A Keep trying to make this (BANGING SOUND) - - -[4] Q Oh, that's - - -? A Yeah. Q A stamp of your foot on the ground. A He was being naughty. He's a bad guy. …. | P1070 |
| Dagmar Andersen | 16 June 2005 | During VARE: A L said “MJ hurt Tonnja”. Stomping sound can be heard. [Dagmar Andersen can give evidence of what she observed at the time.] | P967[16] |
| Dr Peter Gordon | 16 June 2005; during session | A L said “Tonnja got hurt”. When asked who hurt Tonnja he said “MJ” and said he was a bad man. When told MJ would not hurt him anymore, A L said he only hurt Tonnja. When A L was asked whether is happened in the bathroom, he said it happened in the kitchen. | P828[2] Notes: p866-867 [16/06/05]; T306.30-309.2 |
| Amanda Louey | 17 June 2005; Templestowe | “A L then asked me where MJ was before he said: “He’s a bad guy...he does this to Tonnja.” A L then covered his mouth with his hand. I then told Dagmar what A L had said and Dagmar conducted a recording with A L in my presence.” | P925[2]-[4] |
Dr Peter Gordon | 1 July 2005; during session | A L said MJ made him scared and “MJ hit Tonnja and hurt her. MJ is naughty.” | P828[2] Notes: p866 [01/07/05]; T309.31 |
| Dr Peter Gordon | 8 July 2005; during session | A L said MJ was naughty because he hurt Tonnja. | P828[2] Notes: p866 [08/07/05]; T310.9-314.25 |
| VARE 6 | 14 July 2005 | VARE of 14 July 2005 (extract) (VARE 6) ACTING SENIOR SERGEANT ANDERSEN Q Did something happen ‑ ‑ ‑ A What are you doing, look at me, don’t look at me, look at her. Q Did someone hurt Tonnja? A L, did someone hurt Tonnja? A No, I feel tired now, 'cause I got a sore throat. Q Have you? A Yeah, here. Q Mm. A 'Cause I feel sick. I'm not feel well. Q Oh dear. A Yeah. Q Apart from that, did someone hurt Tonnja? A MJ. Q MJ. A Yep, he's a bad guy. Q A bad guy. A He's very stupid. Q He's stupid? A Yeah. Q Mm. What did MJ do? A My mum's very good ‑ ‑ ‑ Q Mm'hm. A - - - and she’s not very naughty. She been good, and A L’s been stupid. Q And A L’s been stupid. A Don't say that, A L. What did I say that? Work can tell me off. Is poppa gunna tell me off? Q Poppa wouldn't tell you off for telling true things. Poppa would never tell you off for saying things that are true. A Did I say the bad word? Did I? Q Do you think saying, stupid is saying a bad word? A MJ did it. Q What did MJ do? A He's put the bag here (put’s hand on his mouth) and he was being - being naughty, not stupid. Q Naughty. A Yeah, been naughty. Q Tell me about the bag here? A Huh? Q Tell me about the bag here? A No, the bag's over there - over there. Q Mm. I'm confused. A I feel itchy - I feel itchy. Q Tell me more about what MJ did? A L, can you tell me about what MJ did? Mm. You tell me about what MJ did? A He was being naughty and losing them and come on a little - come off all. Q All right. A Yep, a little, come off all. Q That's a different story from MJ and Tonnja though isn't it. A No, not Tonnja and MJ. Not Tonnja, not Tonnja. Tonnja's a good girl. Q Tonnja's a good girl. A Yeah. Q And MJ is naughty. A Yep, he's a bad guy. Q Mm. Why is he a bad guy? A 'Cause my mum wanted to be a friend for him. Q Mm. A Yep, and my mum is being silly. She wanted to be a good friend for MJ. Q Right. A And, and - I don't wanna talk anymore. Q So your mum wanted to be a good friend for MJ? A Yeah. Q But MJ is naughty? A Yeah, big, big trouble. Is this thing me? (points to camera). Q What trouble? A 'Cause he is in trouble. Q Mm. A - - - 'cause he's a bad guy. Can Mel hear me? Q I think Mel can hear you. What stuff does he do that's bad? What makes him bad? A I don't wanna talk anymore, 'cause - don't wanna talk. … | P1117 |
| Amanda Louey | 19 July 2005; driving the car | “As we were driving A L asked me to look at him. I turned around and I saw A L put his hand behind his head and jerk his head forward very quickly.” When asked what that was A L said “That’s what MJ does to Tonnja.” He repeated the motion and when asked where MJ does this he said “Tonnja on floor.” He then said that MJ uses his hand to push Tonnja’s head. He put his hand behind his head and quickly pushed his head forward again. When asked where MJ did this he said “On the table”, “the table you put the remote control on.” | P925[5]-926[6] |
| Dr Peter Gordon | 12 August 2005; during session | A L said that MJ hurt Tonnja by pushing a plastic bag into her mouth to make her stop crying, and when I talked further with him about it he repeated the comment. | P828[2] Notes: p865 [12/08/05]; T314.26-315.8 |
| VARE 7 | 17 August 2005 | VARE of 17 August 2005 (extracts) (VARE 7) ACTING SERGEANT ANDERSEN … Q Tell me about MJ. A MJ hurt Tonnja. Q He hurt Tonnja? A Yeah. And he put her in a room, and she - Tonnja wee-wee in MJ's chair, and MJ used a plastic bag to don't let her cry (Witness puts his hand over his mouth), and she's - - - (VIDEO TAPE CUTS OUT) Hey, it's on. (UNIDENTIFIED SPEAKER): It's on. Q ..... ..... off and on? We had the light off and on. That was a bit of a hiccup. A What - - - Q That was a technical mistake. A Why's it go on and off? Q It's 8.45. I don't know. Sometimes that camera plays up a bit if the connection isn't very good to the battery. A (WITNESS IS WALKING IN AND OUT OF VIEW OF THE CAMERA) Mmm. Q Now, A L? A Mmm. Q You've told me a bit of stuff. I was just a bit confused though. A Mm'm. Q Did you say - did you say that Tonnja does wee-wee? Did you say - - -? A Yeah, the chair. Q The chair? And then what happened? A She let them put her in the room, in a toilet, and ..... a plastic bag again. Q Okay. And whose plastic bag? A For the mouth. Q And what happens with the plastic bag on the mouth? A (WITNESS WALKS OUT OF VIEW OF THE CAMERA) Tonnja got naughty. Q Sorry, A L, I can't hear very well. Could you come back so I could hear easier? A Ah. Q Thanks for that. A Tonnja got naughty. Q Got naughty? A Yeah, MJ's a bad guy. Q MJ's a bad guy? A Yeah. Q Mm'm. A Are you my friend? Q I'm a police woman, and I certainly do like to spend time with you. A ..... ..... - - - Q I'm not a f-, a friend, like at kinder, or something like that, I'm a different kind of a friend. A ..... ..... my friend then. Q Yeah? A Yeah. Q He's a friend too, isn't he? A Where's Uncle Quan? Q I think he was having a sleep. A I don't see him. Maybe he wake up at the wrong time. Q Will we talk some more about what happened with Tonnja? A Nah, I just see the camera. Q Was Tonnja hurt? A Nup. Q Did someone hurt Tonnja? A Yeah, MJ. Q Tell me about Tonnja getting hurt. A Getting hurt, what? Q What happened? A (WITNESS WALKS OUT OF VIEW OF THE CAMERA) ..... ..... ..... now. Q Yeah. A She was got hurt, and - - - Q A L, I'm having trouble hearing you. I'm sorry, but if you come over here, that would help me a lot. A That one is that, Tonnja is being naughty. Q Tonnja was being naughty? A Yeah. Q And then what happened? A (CAMERA PANS RIGHT. WITNESS FLIPPING THROUGH PAGES OF A BOOK) She was wee-wee. Q She was wee-wee? A Yeah. Q And then what happened? A She got hurt. Q Who got hurt? A Tonnja. Q Tell me about Tonnja getting hurt. A She get hurt ..... and she was getting hurt. Q How was she getting hurt? A Getting hurt - ah. Getting hurt. Q Sorry, A L, I - I'm - I'm having trouble concentrating. Would you be able to come over here and sit with me for a little moment, please? A I have to go see Amanda. Q What happened? What - what happened with Tonnja getting hurt? A I don't want to talk. … | P1127 |
VARE 8 | 12 April 2006 | VARE of 12 April 2006 (extracts) (VARE 8) SENIOR CONSTABLE O'NEIL Q That's on my papers so that I know what to talk to you about. My name's Senior Constable Tracey O'Neil, and I'm here with A L and also Quan. Now, A L, do you know what you're here to talk to me about today? A (NODS HEAD) Q What's that? A Tonnja. Q Can you say it in a big voice for me? A Tonnja. Q And who's Tonnja? A My sister. Q Yep. And what can you tell me about To-, is it Tonnja or Tania? A Tonnja. Q Tonnja. What can you tell me about Tonnja? A MJ hurt her. Q And who's MJ? A The black guy. Q The black guy? A Yeah. Q And where's he from? A He's from - I don't know. Q Okay. And when you say he hurt her, what happened? A He - he hurt - he hurt Tonnja in the head. Q Can you tell me what happened? A Tonnja was crying. Q Yep. A And MJ hurt her. Q And how did he hurt her? A She - 'cos she was naughty. He was naughty. Q Okay. So where was Tonnja when MJ hurt her? A At his - at MJ's house. Q Okay. And in what room were you? Where you there too? A No. Q No? What room were you in at MJ's house? A The lounge room. Q And where was Tonnja? A In the lounge room with me. Q Okay. So, you said she was crying in the lounge room with you? A (NODS HEAD) Q Where was Mummy? A Mummy was in MJ's house. Q Was she in the lounge room or was she in another room? A Another room. Q Okay. A At MJ's room. Q In MJ's room? A (NODS HEAD) Q And who else was in the lounge room with you? It was you and Tonnja, and who else? A No – K H was in the pram. Q K H? Who's K H? A My sister. Q How old's she? A She's 2. Q And she was in a pram, was she? A Yeah, yep. Q Okay. A She was sleeping. Q Sleeping. And where was MJ? A He was with my Mum in - in - in MJ's room. Q Okay. So, you and Tonnja and K H were in the lounge room, is that right? A (NODS HEAD) Q K H was asleep, and then you said Tonnja started crying. A (NODS HEAD) Q What happened after that? A He get the bag and do it here (INDICATES HIS MOUTH) and I can't - and I can't talk. Q Okay. So, who - who came in the room? A MJ. Q Okay. And you said something about a bag. What was the bag? A The bag was - he hi-, kicked Tonnja in the head, Q Okay. So, when you're in the lounge room, Tonnja was crying and MJ came in. Is that right? A (NODS HEAD) Q And what did he do then? A Get the bag and do it here. (INDICATES MOUTH) Q On whose mouth? A Q Okay. And what was the bag? Where was that from? A From the - the bag - the bag in the cupboard. Q Okay. And is it like a bag - - -? A Blue. Q A blue bag? A Yeah. Q And is it like a bag that you put all your clothes in or is it something that you put your shopping in? What type of bag is it? A Put my clothes in. Q Okay. Does it make crinkle noises, or does it squash up like paper? What type of bag is it? A Squash up like paper. Q Okay. So, what colour was it? A Blue. … Q Okay. So, when he hurt Tonnja, can you tell me more about that? A (SHAKES HEAD) Q You can't? A Well - well, I just - I don't want to talk about it. Q Okay. When he came in, though - - -? A I want no more now. Q You don't want any more now? A Yeah. Q Did he put the bag on her mouth too? A (NODS HEAD) … Q Okay. So, when you said - - -? A I don't want to talk any more. Q Okay. You finished? A Yeah. Q Okay. You've done a very good job talking to me. You sure you don't want to tell me any more? A (NO VISUAL OR AUDIBLE REPLY) Q When - when he hurt Tonnja was he in the lounge room with her or was he in another room? A In the kitchen. Q Okay. And what happened with Tonnja in the kitchen? A He ..... ..... here. Q Beg your pardon? A Here. (INDICATES MOUTH) Q Okay. And what else happened? A I don't want to talk. Q Okay. Would you be able to tell me when you want to talk to me next time? A (NO VISUAL OR AUDIBLE REPLY) Q No? Was anyone else in the kitchen, or it was just him? A Just him and me. Q And you? And where was Tonnja? A In the lounge room. Q Okay. A With K H. Q With K H? Okay. A ..... what happened? (UNCLE): Just ..... SENIOR CONSTABLE O'NEIL: Q Well, we might - I might just - it's 3.09, and I might just stop the tape for a minute, and we'll just check that everything worked okay, and if you want to, we might come back in for another chat, if not you can go back home, okay? A (NO VISUAL OR AUDIBLE REPLY) Q Alright. So, we'll just suspend at 3.09. A I want to go to ..... ..... - - - INTERVIEW SUSPENDED OKAY. THE TIME IS 3.22. SENIOR CONSTABLE O'NEIL: Q And when we stopped before, who did we see outside the door? A (POINTS NEXT TO HIM) Q And who's this? A Yi Yi (AUNTY): What's my name? (WITNESS): Amanda. (AUNTY): Amanda. Q Amanda. So, Uncle Quan has now left and we've got Aunty Amanda in here because that's who you wanted to come in and see. And during the break just then, we were talking to Amanda, and what did Amanda bring with her? A McDonald's. Q McDonald's. So, you've had something to eat, and then you said that you wanted to tell me something else. Do you remember what else it was you had to tell me? A (NODS HEAD) Q What was that? A Tonnja. Q Tonnja. What can you tell me about Tonnja? A Tonnja, and MJ hurt her. Q Yep. And how did he hurt her? A Hit her in the head - in the head. Q He - sorry? A In the head. Q What - what did he do to her head? A He hit. Q Okay. What did he hit her head with? A His hand. Q His hand. And whereabouts did that happen? A In - in MJ's house. Q Yep. And do you remember what room in MJ's house? A In the lounge, in - - - Q In the - - -? A In the kitchen. Q In the kitchen? And were you in the kitchen with MJ and Tonnja? A (NODS HEAD) Q Yeah. And what else happened? A He ..... the bag and put here. (INDICATES MOUTH) Q Okay. So, before when you were talking about the blue bag, is that the same blue bag or is it a different bag? A Same. Q Okay. And what did he do with it? A Just put it here. (INDICATES MOUTH) Q Okay. And when you say here, what are - what - whereabouts are you pointing to? A Here. (INDICATES MOUTH) Q And what's that called? A Lip. Q Lip. Okay. And what did he do with the bag? A Put it here. (INDICATES MOUTH) Q And how long did he keep it there for? A No, he get his hand. Q He put his hand? Where? A Around the top. Q The top of what? A The top next to the bag. Q Okay. So, the bag - can you show me whereabouts - did it go up higher on her face or just on her lips? Down - whereabouts did it go? A Here. (INDICATES MOUTH) Q Here? Okay. And was it just a little bit of the bag or all of the bag? What was it? A A little. Q Little bit? And he - and how long do you think that was on there? A little time or a long time? A A long time. Q Okay. And was MJ talking to Tonnja when that was going on? A (NODS HEAD) Q What was he saying? A Saying, "If you be naughty, I'll get you," he - he would get K H - no Tonnja too. Q Sorry, say that again? A Get Tonnja to the - to the - to the police. Q So, he said that to Tonnja? A (NODS HEAD) Q Okay. So, when - whereabouts was Mummy when he had the bag on Tonnja's mouth? A In the lounge room. Q Okay. So, after the bag was on - on her mouth, what happened after that? A He - he go to his room. Q Okay. And where was Tonnja? A Tonnja was with me. Q Okay. And how was she then? A She was - she was with me and K H. Q And K H. Okay. And was Tonnja crying or was she asleep or was she talking? How was she? A She was ..... - she was watching TV. … | P1136 |
| Dr Peter Gordon | 18 August 2006; Dr Gordon’s rooms | In the process of setting up for a VARE (“Tracey and Craig from SOCCA [sic] came for a statement.”) – A L agreed that he would do it and made a statement using “some such word as stamped”, that MJ stamped on Tonja [sic] in the living room | Notes: p859 [18/08/06] T330.17-333.2 |
| VARE 9 | 18 August 2006 | VARE of 18 August 2006 (extracts) (VARE 9) SENIOR CONSTABLE TRACEY O'NEIL Q Okay. So when you said before you wanted to talk about MJ and Tonnja, what - whereabouts were you when that happened? A I was watching TV and Tonnja watched TV and she - he went out to see her and he hit Tonnja. Q He hit Tonnja. Okay. So was this at the Templestowe house or another house? A Temple -, another house. Q Okay. And was Mummy at this house? A Which one? Q At the house that you're talking about now when the - when MJ came out and hit Tonnja. Was Mummy home? A Yeah. Q Where was she? A She was in the room sleeping. Q Sleeping. And who - you were watching telly. Who else was in the room with you? A Tonnja and K H and me. Q And where was MJ? A In the room asleep. Q Okay. But then you said he came out and hit Tonnja. What did he come out for? A To see Tonnja to hit her. Q And why did he do that? A Because Tonnja was naughty. Q She was naughty. What was she doing? A MJ was. Q MJ was naughty, okay. So MJ came out and when he - when he hit Tonnja how did he hit her? A Hit her hard. Q He hit her hard. And whereabouts on her was it? Like on her head or her hand? Whereabouts on her body was it? A On her head. Q On her head. Okay. And what - what - what part of MJ - what part of MJ hit Tonnja? which part of his - was it head, his hand, his legs? What type of part hit Tonnja? A His legs. Q His legs. And you know how you've got really, really long legs, is it the top of your leg or the middle of the leg or the bottom of the leg? A The bottom of the leg. Q Okay. So was - was Tonnja - where was she in the room when MJ hit her? A In the lounge room. Q Yeah. And have you got like one of these? Like a couch in your lounge room or chairs? A There's chairs. Q Chairs. So was she sitting on the chair or sitting on the floor? A Sitting on the chair. Q On the chair. Okay. So you said MJ came out because she was naughty and when he hit her was she sitting on the couch or was she somewhere else? A Sitting on the couch. Q Okay. And how many times do you think that he hit her? A Hit one time. Q One time. And then what happened? A I saw MJ hit Tonnja. Q Yep. And he used his bottom part of his leg, you said. And whereabouts did he - did he hit her? A She hit (inaudible) leg. Q Okay. So was Tonnja - when - when he's hit - hit her with the bottom part of his leg, where was Tonnja? Was she on the chair or was she on the floor? A A chair. Q Okay. And was she sitting next to you or were you sitting on another part of the couch? A Another part of the couch. Q Okay. And why was it that he came out and - and hit her? She was being naughty, was she? Do you remember what she was doing? A No. Q No. Okay. And what happened after he had hit her with his foot or with the bottom part of his leg? What - what happened? A (Inaudible) she - Tonnja was crying. Q Okay. And then what happened? A MJ went to sleep. Q Okay. So she was crying. So MJ did what? When she was crying what did MJ do? A He went in - in the room to sleep. Q Okay. And what hap-, what - what did Tonnja do? A Tonnja was sitting down. Q Yep. And how was she? A She was good. Q She was good. Okay. And was there anything else you wanted to tell me about Tonnja and MJ? A (Shakes head) Q No? A (NO AUDIBLE REPLY) Q Okay. (LOUD BACKGROUND NOISE) SENIOR CONSTABLE O'NEIL: So you know how you said you - he hurt her with his - with the bottom part of his leg - that's a big noise, isn't it, outside? A That's my sister. Q It's your sister. She's making a noise, isn't she? A (NO AUDIBLE REPLY) Q That's alright. So you said that he hit - hit her with the bottom part of his leg. How many times do you think that was that he hit her with - with the bottom part of his leg? A Two times. Q Two times. And whereabouts on Tonnja was it that - that it hit her? A On her leg. Q On her leg. Whereabouts? We said before we had a top part, the middle and the bottom. Which part of Tonya's leg was it that - that MJ hit? A The top. Q The top part. Okay. And - and you said that she was crying? A Yeah. Q Yeah. And what happened after that? A (inaudible)… was naughty. Q He was naughty. What happened? A He was in the kitchen and I (inaudible) went in to sleep. | P1154 |
| VARE 10 | 28 January 2015 | VARE of 28 January 2015 (extracts) (VARE 10) DETECTIVE SENIOR CONSTABLE KNOX … Q O.K. Darl, what I would like you to do is tell me everything that you can remember in your own time, O.K., in as much detail as you can remember, O.K., remembering this isn't a test, darl. It's just an opportunity for you to talk to me about that, about your sister's case. A I just remember we used to always go to this man's house. Q Yeah. A And after my mum finished work.......... to that man's house to stay there .......... Q Yeah. A .......... that's all I really know. Q O.K. Tell me about the man's house. A Well my mum would always be in his bedroom, and my two younger sisters and I would be in the living room. Q Mm'hm. … Q O.K. Tell me what you can remember about the man's house. A It was not that big, it was quite small. Q Mm'hm. A And I think we would go there three times, at most times, and yeah, we'd do the same thing, and my mum would be in his bedroom and I would - us would be in the living room just watching TV. Q Who was "us"? A My two younger sisters and I. Q O.K. What are your sisters' names, darl? A K H and Tonnja. Q O.K. So you said that you've come here to talk about your sister's case. Whose case is that, darl? A Tonnja. Q O.K. So tell me - tell me about Tonnja. A Well, she was - she's the second oldest. Q Yeah. A And I used to care about her a lot, used to always protect her. Q Yeah. So what's the age difference between ‑ ‑ ‑ A Two years. Q O.K. A Yeah, every time we'd go to that man's house, I would always sit next to her or look after her. Q O.K. And why was that, darl? A Not really sure. Q O.K. So who is that man? A I’m not, I don't really know his full name but we used to call him MJ. Q O.K. And what relationship was he ‑ ‑ ‑ A I think he was one of my mum's friends. Q Darl, when are talking about? When was this man mum's friend? A I don't really know, but whenever my mum's at work, we'd always - we would always sit at a table and he would be sitting next to us. I think he was eating with us. Q And how long ago was this? A About, 10 years ago. … Q A … Q O.K. Tell me about Tonnja - Tonnja's injuries. A She was saying that her back was hurting her and - yeah, I think we were walking - we were walking and she started saying her back was hurting. Q Sorry, you were walking somewhere? A Yeah, but I'm not - yeah, I'm not sure where. Q O.K. You were walking somewhere and her back was hurting. Why was her back hurting? A I think she, because - well, the man started hitting her back too much. … Q O.K., that's O.K., it's a long time ago. Yeah, I understand that. You - you've told me about times when this man hurt you, yeah. Tell me about the worst time that you can remember. A Well, all I remember was when - when Tonnja was screaming in the kitchen, and, yeah, she was bleeding. Q Tell me about that. A She - she was screaming and yelling and, she said that she was hurt, she couldn't move, she kept saying her back was hurting. Q And where were you when that happened, darl? A I think I was in the living room. Q And where was Tonnja when that happened? A She was in the kitchen. Q Tell me what you could see. A I saw the man hitting Tonnja, started beating her up. Q O.K. When you say "beating her up," what did you actually see? A Think, kicking her, pushing her around. Q O.K. So where was Tonnja when he was kicking her? A In the kitchen. Q Yeah. Whereabouts in the kitchen? A Just near the stove, just lying on the floor. Q Near the stove lying on the floor. A Think so. Q And you said that she was screaming and yelling. Who else was in the house that time? A My mum and K H, but K H was asleep. Q O.K. So where was K H? A She was in a pram, just in the lounge room. Q And where was mum? A In the man's room. Q O.K. So the man's in the kitchen and he's beating Tonnja up, what happened then? A Don't really remember it. Q O.K. Do you remember how it stopped? A I think when mum came out of the room, think, I’m not sure. Q That's O.K. Do you remember what happened then? A I think we just went home. I think we just carried Tonnja in to the car and went home. Q O.K. Carry Tonnja to ‑ ‑ ‑ A The car. Q - - - to man's car? A I think so. Q Who carried Tonnja to the car, darl? A I think my mum. Q What happened after that? A Not really sure. Q O.K. Do you remember getting home? A Not really. Q Do you remember anything happening at home when you got there? A I think we took Tonnja to her bed, I think, but ‑ ‑ ‑ Q That's O.K. And how did she seem then? A So she seemed injured, and she said that she was hurt. Q Who did she say that to, darl? A I think she said it to mum and I, I think. Q O.K. And when you say that she said she was hurt, what did she actually say? A I think she said, "I can't move, I'm really sore." Q "I'm really sore." O.K. What time do you think you got home? A I'm not really sure. Q O.K. So you took Tonnja to bed. What did you do? A Think I went to bed as well or I think I stayed with Tonnja. Q Do you guys share a room at home? No. So did she have her own room? A No. She slept with mum. Q O.K. So you're not sure whether you went to bed or ‑ ‑ ‑ A Not sure. … Q A She was getting hit, kicked and getting pushed around. Q So why - why was she getting hit and kicked though? A Not sure. … Q And you said that she was screaming and yelling. And was that when she was yelling - what was she yelling? A She was yelling 'cause she was getting hit, she didn't want to get hit any more. Q O.K. And you said that you could see her near the - near the stove. Is that what you told me before? A Yeah. Q And what could you see? A Could see her lying on the floor and crying ‑ ‑ ‑ Q Mm'hm. A - - - asking for help. Q O.K. What else could you see from the lounge room? A Not much. Q And who - who else was in the kitchen? A No-one else. Q So just Tonnja. Anyone else other than Tonnja? A (NO AUDIBLE REPLY – shakes head) Q So where did the man go then? A Think he went back to his room. Q O.K. You said that Tonnja had said that she couldn't move. How long - how long was she left in the kitchen for? A Think about five minutes. Q And what happened then? A She was crying and I went in to help her. Q Mm'hm. A .......... Q O.K. So when you went home she went to bed? A I think so. Q O.K. And how was she feeling? A She was feeling sore, she said she couldn’t move. Q And did she - did you see her moving after that? A Not really. I think we were taking her to the hospital the next day and I think she just stopped moving. Q O.K. And what happened then? A She just fell on the ground. Q And where was that? A I think were walking to the hospital, I'm not sure where though. Q Yeah. And what happened when she fell down? A She didn't move. Q O.K. And who was with you then? A I think mum and K H, and I think my grandma, I'm not sure. Q So did you see her on the ground when she stopped moving? A Yeah. … Q O.K. Do you remember earlier we spoke about telling the truth and telling lies. Is what we've spoken about the truth? A (NO AUDIBLE REPLY – nods head) … | P1167 |
[4]There has been some discussion about the transcription of this answer. I do not propose to resolve that issue in this ruling, but note that the Crown content the transcript should read ‘Hit Tonnja like this (BANGING SOUND) - - -‘.
Legal principles
Section 55
Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to—
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
Section 137
Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
A court is obliged to exclude evidence sought to be adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. Thus, assuming evidence is relevant in accordance with s 55 above and that no other exclusionary rule applies, the Court must measure the incommensurables ‘probative value’ and ‘danger of unfair prejudice’ and reach a quantitative conclusion that is necessarily the product of informed intuition. There is nothing scientific about this exercise and the quantitative conclusion may well differ from one reasonable mind to another.
Probative value
Recently, in IMM v R,[5] the High Court settled a divergence in the approach to the meaning of this term that had developed (primarily) between New South Wales and Victoria. The majority (French CJ, Kiefel, Bell and Keane JJ) explained the assessment of the probative value of evidence involves an assessment of the extent of the effect that makes the evidence relevant pursuant to s 55. The enquiry as to extent involves the same considerations as the initial relevance (s 55) enquiry. The words ‘if it were accepted’ in s 55 should be understood to be imported into s 137. It follows that a trial judge must proceed on the basis that the impugned evidence will be taken at its highest for the prosecution and that, as with the relevance assessment, there is no call for that trial judge to assess the credibility or reliability of the evidence. They are matters for the jury.[6]
[5][2016] HCA 14 (‘IMM v R’).
[6]IMM v R, [37]-[41], [43]-[44] and [47]-[52].
I consider that the majority took some care in qualifying its position on the issue of reliability. An example was cited with approval from an article by Hon. J D Heydon QC, where an identification was made briefly in foggy conditions and in bad light by a witness who did not know the person identified (‘the Heydon example’). One approach, said the majority, is ‘to say the evidence taken at its highest is as high as any other identification, then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification but a weak one because it is simply unconvincing’.[7] The majority made the point that the statute requires this latter approach (the New South Wales Shamouil approach) and not the former approach (the Victorian Dupas approach).
[7]IMM v R, [50].
It follows that whilst a judge must eschew consideration of factors that may impact upon the credibility or reliability of a witness’s account, the Court must not lose sight that the account itself, taken at its highest, may not be that good. A witness may be perfectly honest and impeccably reliable as an historian but his or her description of an event may be subject to all sorts of limiting factors which have nothing to do with that witness’s honesty or reliability.
The Heydon example was cited with approval by Gageler J in his dissenting judgment in IMM v R and the example has also been utilised by the Victorian Court of Appeal.[8]
[8]Bayley v R, [2016] VSCA 160 (‘Bayley’) at [51]-[55]).
Whilst the example itself concerns identification, as did Bayley, I can see no reason why the example should not have a more general application. If the impugned evidence comes from an impeccable source but, by dint of circumstances in the surrounding evidence its probative value is ‘not very high at all’ then, in my view, that is the level at which the evidence must be assessed regardless of the nature of the case or the evidence.
Danger of unfair prejudice
The danger of unfair prejudice is not defined in the Act. ALRC26:1 suggests that it is intended to include evidence which could introduce adverse and irrational considerations or cause jurors to accord other evidence more probative value than it deserves. The prejudice must be unfair. This will arise if there is a real risk of misuse by the jury in some unfair way.[9] The risk of unfair prejudice can also arise where there is a risk the jury will misjudge the weight to be given to particular evidence or engage in an illegitimate form or reasoning. The risk of unfair prejudice may also arise where there is an inability to test the evidence, or where the evidence will be incomplete.[10] The danger must be real and not a slight risk or a mere possibility.[11] Forensic disadvantage may constitute unfair prejudice including where a party cannot cross-examine hearsay evidence, although the weight to be given to this danger will vary depending on the nature of the evidence and the extent to which the other party would be unfairly prejudiced by its admission.[12]
[9]R v BD (1997) 94 A Crim R 131 at 139; approved in Papascomas v R (1999) 196 LCR 297, [91] per McHugh J.
[10]Dupas v The Queen [2012] VSCA 328, [175].
[11]R v Shamouil [2006] NSWCCA 112, [72] per Spigelman CJ; Dupas v The Queen [2012] VSCA 328, [175].
[12]R v Sutekski [2002] NSWCCA 509, [126]-[127]; Galvin v The Quen [2006] NSWCA 66, [40].
Defence submissions
Overview
Mr Dann QC contended that the VARE and previous representation evidence of A L should be excluded entirely on the basis of either s 137 or s 135 of the Evidence Act 2008, or via the residual common law discretion to exclude evidence on the basis of ‘unfairness’. He also contended that the evidence was so unreliable/ unbelievable as to reach the point of incredulity[13] and thus inadmissible because it failed the test of relevance (s 55), however this point was not strenuously pressed.
[13]See IMM v R.
I have included above the extracts of A L’s VAREs, and the specific previous representations of A L (s 66 representations) that the Crown propose to lead as evidence. The objections raised by Mr Dann to this evidence are based on the contents of the proposed extracts and representations themselves, considered in the context of the entirety of A L’s VAREs, his comments to family members and Dr Gordon and his answers in cross-examination at the committal hearing.
Criminal Procedure Act 2009, s 368
Mr Dann raised the issue that recorded evidence-in-chief is admissible pursuant to s 368 of the Criminal Procedure Act 2009 (‘CPA’) only where the conditions set out in that section are met. Section 368(1)(c) requires that, ‘at the summary hearing, special hearing or trial, the witness (i) identifies himself and attests to the truthfulness of the contents of the recording, and (ii) is available for cross-examination and re-examination.
This condition cannot possibly be met, Mr Dann argues, where there are irreconcilable inconsistencies within and between the ten VAREs themselves, and where A L has admitted, both in conversations with Dr Gordon and in cross-examination at the committal, that he cannot recall, or has difficulty recalling, the events that occurred around the time of Tonnja’s death, and the representations he made to police, family members and Dr Gordon in the years following.
A L, Mr Dann contends, cannot possibly attest to the truthfulness of these statements given that on occasions he said that he cannot remember making them or the events they describe. In this circumstance, the requirement of s 368(1)(c)(i) cannot be met and the VAREs are inadmissible as evidence-in-chief.[14]
[14]I note that this contention doesn’t address the alternative argument put by the Prosecution – that if the VARES are inadmissible as evidence-in-chief they are admissible pursuant to s 66 of the Evidence Act 2008.
Evidence Act 2008, s 137
Mr Dann contended that whether the VAREs were admissible as evidence-in-chief, or as admissible hearsay pursuant to s 66, their probative value must still be weighed against the prospect of unfair prejudice pursuant to s 137 of the Evidence Act. The same applies to the representations proposed to be led via s 66. If the prospect for unfair prejudice outweighs the evidence’s probative value, the evidence is inadmissible.
Probative value
Mr Dann submitted that the following factors diminish the probative value of A L’s evidence:
(a) Aspects of the evidence are demonstrably wrong;
(b) There are unresolvable inconsistencies on key issues within and between A L’s various accounts of what happened to Tonnja;
(c) A L’s very young age at the time of his earlier interviews and representations (4 or 5 years), along with the possibility of his delayed development at that time;
(d) Problems with A L’s memory (as described above regarding his cross examination at the committal); and
(e) The prospect that A L’s accounts were contaminated by discussions with family members following Tonnja’s death.
I note the following examples of A L’s evidence that Mr Dann raised to establish a), b) and e) above. These lists are not exhaustive. I have included points that I thought were key to both Mr Dann’s arguments and to the facts in issue in this case.
a) Aspects of A L’s Evidence Demonstrably Wrong
· In the recorded conversation between Amanda, A L and Quang on 20 May 2005, A L said that he could not remember being at the house of the accused, that he didn’t go there, and that his mummy did not go there;
· At the committal hearing A L said that he did not stay at the house of the accused on the night of 12 May 2005, but had last been there on the night of 11 May 2005;
· In VARE 10 he said that after Tonnja was hurt by MJ they returned to his mother’s house;
· At the committal hearing A L maintained that his grandmother had driven Tonnja and the family to the medical centre from his mother’s house on 13 May 2005;
b) Unresolvable Inconsistencies
· A L stated at the committal and in VARE 10 that Tonnja was assaulted in the kitchen of MJ’s apartment, however in VAREs 8 and 9 he stated that the assault happened in the lounge room;
· A L stated in VARE 10 that he was in the lounge room while Tonnja was assaulted in the kitchen. However, there is also evidence that he told Dr Gorton that he went into the kitchen to see what happened;
· There are inconsistencies between A L’s accounts about whether or not MJ ever hurt or hit him;
· A L has given varying accounts about the location of his mother at the time that he says he saw MJ assault Tonnja (including that she was in the bedroom eating, that she was in the bedroom sleeping, that she went to the kitchen to make a sandwich);
· A L has given varying accounts about the assault he says he saw MJ inflict on Tonnja (whether Tonnja was hit, kicked, pushed, stomped on or stepped on, and whether the assaults were directed to her head or to her body)
e) Contamination
· Dr Gordon’s clinical notes indicate that A L’s grandmother made comments in front of A L to the effect that A L had been naughty and told lies to Dr Gordon about being afraid of his mother
· Dr Gordon’s notes indicate that Dr Gordon may have ‘reminded’ A L that MJ had hurt Tonnja in attempts to engage him on this topic
· Leading questions were asked by Quang and Amanda during the recorded conversation of 20 May 2005.
Unfair Prejudice
The unfair prejudice ultimately reduced to the issue that A L cannot be effectively cross-examined on his 2005/2006 statements because:
(a) he has admitted to having no memory or very little memory of some of the events; and
(b) the is a prospect of contamination of his memory by conversations with family members and his ongoing therapy with Dr Gorton.
The evidence relied upon to establish unfair prejudice consisted broadly of the same examples as were said to diminish the probative value of the evidence. Mr Dann contended that the inability to effectively cross-examine is particularly prejudicial as there are inconsistencies between A L’s earlier accounts that mean his reliability and credibility cannot be properly explored before a jury. Further, as A L now claims he has no memory of or never made statements to Dr Gordon to the effect of being afraid of his mother, the defence are rendered unable to explore the reasons why such comments were recorded in Dr Gordon’s report.
The defence also argue that their opportunity to explore contamination issues, for example, concerning the incident involving A L’s grandmother at Dr Gordon’s office, has largely been lost, where A L now says he has no memory of making comments about fearing his mother at all.
The prosecution submissions
Ms Flynn, who appeared with Ms Coghlan for the prosecution, contended that most of the limitations in A L’s evidence that were identified by Mr Dann were matters that attached to his reliability and thus were not matters capable of consideration by a judge embarking on the s 137 exercise. In particular, Ms Flynn contended that all of the impugned evidence was highly relevant to the prosecution of Mr Debresay. A L is an eyewitness to a central issue in the case – whether the accused caused Tonnja’s death.
Ms Flynn further contended that the probative value of the evidence was very high. A L’s disclosures to his family and police commenced to be made on the day of his sister’s death and continued intermittently over months. The disclosures were by and large to open questioning by either his family or police officers and, particularly very soon after Tonnja’s death, there was no real opportunity for contamination. Even as time went by, Ms Flynn argued, there is no real evidence of contamination and, whilst the accused may assert that A L’s grandmother Christina had an agenda to influence the child to inculpate the accused and exculpate A L’s mother, there is no evidence to support that assertion.
The prosecution further contended that A L’s disclosures about his sister’s death are supported by the forensic evidence. At the time he first indicated MJ (the accused) had ‘stamped’ on Tonnja the cause of death was unknown and yet those causative injuries, once revealed, were entirely consistent with A L’s first few disclosures. Additionally, the head butt that A L described corresponded to an injury to Tonnja’s forehead. A L’s account of his sister ‘doing wee’ on the cushion of the couch is also supported forensically and by admissions made by the accused.[15]
[15]As to the fact that Tonnja’s nappy was wet through and as a consequence the cushion cover had been removed.
Ms Flynn, whilst accepting that the unusual circumstances of the case meant that there was a danger of unfair prejudice, contended that that danger could be ameliorated by:
(a) An unreliable witness warning pursuant to s 32 of the Jury Directions Act 2015 (‘JD Act’); and
(b) The excision of any particularly ‘inflammatory’ portions of the VARE interviews or the s 66 representation; and
(c) If necessary, a forensic disadvantage direction pursuant to s 39 of the JD Act.
Ms Flynn further submitted that if the VARE interviews were inadmissible due to a technical defect (for instance if the witness, through a failing memory, could not attest to the truth of some of the evidence therein as required by s 368 of the CPA) then the VARE interviews were admissible through the gateway of s 66 of the Evidence Act as representations made when the happening of the asserted fact was fresh in the memory of the person who made the representation and that person was to be called to give evidence.
Ms Flynn contended that there was no work left for the common law fairness exclusionary discretion if I was not persuaded that s 137 might operate to exclude the evidence.
Analysis
Criminal Procedure Act, s 368
Whether in the trial A L attests to the ‘truthfulness’ of the contents of the VARE recordings will only be known after the relevant questions are asked of him before the jury. Certainly at the committal he attested to their truth and I have proceeded to determine the current argument on the basis that s 368(1)(c) of the CPA will be satisfied. It is premature to determine the s 368 issue raised by Mr Dann but I note that if A L does not attest to the truth of the contents of the recordings the prosecution have signalled an intention to argue for their admission under s 66 of the Evidence Act.
Evidence Act, s 137
In making the s 137 assessment, I must first assess the probative value of the impugned evidence and then measure it against what I conclude is the danger of unfair prejudice. As I have explained, since IMM matters of reliability that previously in this State would have been part of the probative value assessment are no longer. Notwithstanding that, it is clear that certain circumstances in the surrounding evidence may impact upon that assessment.
Probative value
It is of assistance to examine the timing of A L’s various disclosures.
I have reproduced at [10] of these reasons the various disclosures said to be made by A L in chronological order. It can be seen that his account of what happened to his sister emerged at a very early stage of the investigation.
Within perhaps an hour of his sister’s death on 13 May 2005, A L provided Amanda Louey (to an open question) the stepping/stomping account that has characterised many of his subsequent accounts. “Tonnja naughty girl. MJ step on her here (indicating his side)”. He essentially repeated this account very shortly thereafter to Police Officers Anderson and Quang Tran, and repeated it again on 15 May 2005. On 16 May, to leading questions from Quang Tran, he replied that MJ hit Tonnja by putting a plastic bag over her mouth because Tonnja was naughty – ‘Tonnja pee pee’. On 17 May 2005 he repeated this account in a recorded conversation to Quang Tran, again in response to leading questions. In that recording he also repeated to Amanda Louey that Tonnja had ‘pee pee’d’ on the couch. On 20 May 2005 he expanded on these disclosures, saying that MJ had kicked Tonnja because she’d done ‘a mess’ on the couch, that MJ had he used his head to hit Tonnja’s head, and that his mother was in the bedroom at the time of this assault. During the months after his sister’s death, whilst in the family environment, he mentioned (according to Amanda Louey) MJ stomping on Tonnja, and in VARE 5 conducted on 16 June 2005 (audio only) he repeated the stomping allegation by demonstration. He told his psychologist Dr Gordon on the same day that MJ hurt Tonnja in the kitchen. Through July and August 2005 A L continued to make assertions about MJ hurting his sister by placing a bag over her mouth, hitting her in the head with his hand (VARE 8) and foot (VARE 9) (the ‘VARE 9 allegation’ is said to have occurred on the couch).
A L is the only witness available to the prosecution who gives an account of how his sister was injured. Jennifer Louey, who apparently will apply to be excused from giving evidence for psychological reasons, has made a statement supporting the accused’s account. The injuries observed on pathology provide, in my view, support for A L’s initial accounts. There were widespread soft tissue injuries (including bruising and swelling) to the head, neck, arms, legs, abdomen, chest and back. I have already observed that the pancreas and proximal jejunum were ruptured (as was the bowel) and that the mesentery and the liver were lacerated. Further pathological examinations demonstrated injuries to the external genitalia. Dr Stokes, a paediatric surgeon, was of the view that the soft tissue injuries seemed to have been caused at different times based on various stages of bleeding and scarring.[16] He thought the fatal injuries to the abdomen were likely to have been caused about two hours prior to the death of the deceased.
[16]I have yet to determine whether some or of all the older injuries will be before the jury.
It is clear that A L is a very important witness for the prosecution. As I have said, he is the only witness who identifies the accused as carrying out violent activity to the deceased infant’s abdominal area in the time before her death. Without his evidence, and given that there were two adults and a robust four year old in the unit at the relevant time, it may prove hard for the prosecution to get past the first element of either murder or manslaughter. Having said that, in my view it is important not to confuse the importance of the impugned evidence to the prosecution case with the assessment of its probative value. The dubious identification in the ‘Heydon example’ may be critical to a hypothetical prosecution case, perhaps as the only evidence of identification, but that cannot enhance its quality. A ‘dodgy’ identification will remain ‘dodgy’ no matter how important it is to the Crown case.
I consider the probative value of the impugned evidence, save for VARE 10, to be high. The disclosures were made at a time when the events must have been fresh in A L’s memory. His account is supported by pathology evidence and, to some extent, by the presence of urine on the couch cushion cover. I do not accept that simply because he was four years and five months old at the time he made these observations, that factor alone ought constitute a surrounding circumstance that diminishes the probative value of his evidence. In a different context, the ALRC said this about the evidence of children:
Children as witnesses: recent research[17]
14.19 Recent research into children's memory and the sociology and psychology of disclosing remembered events has established that children's cognitive and recall skills have been undervalued.[18] At the same time other research has demonstrated that adult testimony is not always reliable, showing that mature witnesses' memories can be equally fragile and susceptible to the distorting influences of suggestion and misinformation.[19] The presumed gulf between the reliability of evidence from children and that from adults appears to have been exaggerated.[20]
14.20 Children, including very young children, are able to remember and retrieve from memory large amounts of information, especially when the events are personally experienced and highly meaningful.[21] However, children, and adults to a lesser degree, have significant memory loss after long delays. They recall less correct information over time while maintaining as a constant the inaccurate information.[22] Studies demonstrate that ability to remember and describe an event accurately, both at the time of questioning and at later dates, can be dependent on interviewing method.
14.21 Interviews, if skilfully conducted, can help both child and adult witnesses to consolidate and retain their memories.[23] However, using misleading and suggestive questioning techniques during an interview adversely affects young children's ability to recall an event accurately, just as to a somewhat lesser degree it adversely affects older children and adults.[24] Repeating a question within a single interview session can also lead to young children changing their answer to that question, perhaps because they interpret the repetition of the question as an indication that their first answer was wrong.[25] In addition, when young children are asked to recount, in a free recall narrative, everything they remember, they typically remember less detail than older children or adults, although the information they do recall is generally just as accurate.[26] More details of the events can be recalled during questioning that provides non-leading cues to memory for those details not spontaneously supplied.[27]
[17]ALRC 84 (1997) at [14.19].
[18]JR Spencer & R Flin The Evidence of Children: The Law and the Psychology Blackstone Press London 1990, 238.
[19]Ibid.
[20]Ibid.
[21]S Ceci & M Bruck 'Suggestibility of the child witness: A historical review and synthesis' (1993) 113 Psychological Bulletin 403, 434.
[22]D Poole & L White 'Tell me again and again: Stability and change in the repeated testimonies of children and adults' in M Zaragoza et al (eds) Memory and Testimony in the Child Witness Sage Publications Thousand Oaks 1995, 24; JR Spencer & R Flin The Evidence of Children: The Law and the Psychology Blackstone Press London 1990, 249–251.
[23]D Poole & L White 'Tell me again and again: Stability and change in the repeated testimonies of children and adults' in M Zaragoza et al (eds) Memory and Testimony in the Child Witness Sage Publications Thousand Oaks 1995, 30–31. See also C Brainerd & P Ornstein 'Children's testimony: the developmental backdrop' in J Doris (ed)The Suggestibility of Children's Recollections American Psychological Association Washington 1990.
[24]S Ceci & M Bruck 'Suggestibility of the child witness: A historical review and synthesis' (1993) 113 Psychological Bulletin 403, 434. See also G Davies et al 'Close encounters of the witness kind: Children's memory for a simulated health inspection' (1989) 80 British Journal of Psychology 415; J Bringham et al 'Accuracy of children's eyewitness identifications in a field setting' (1986) 7 Basic and Applied Social Psychology 295. The rate of error appears to be directly related to the complexity of the questions posed: G Goodman et al 'Child sexual and physical abuse: Children's testimony' in S Ceci et al (eds) Children's Eyewitness Memory Springer-Verlag New York 1987, 1; MA King & JC Yuille 'Suggestibility and the child witness' in S Ceci et al (eds) Children's Eyewitness Memory Springer-Verlag New York 1987, 24.
[25]WS Cassel & DF Bjorklund 'Age differences and suggestibility of eye witnesses' Paper Children's Memory for Real World Events: Implications for Testimony Symposium conducted at annual meeting of the Conference on Human Development April 1992.
[26]G Goodman et al 'Children's concerns & memory: Issues of ecological validity in the study of children's eyewitness testimony' in R Fivush & J Hudson (eds) Knowing and Remembering in Young Children Cambridge University Press Cambridge 1990, 249; G Davies et al 'Close encounters of the witness kind: Children's memory for a simulated health inspection' (1989) 80 British Journal of Psychology 415.
[27]G Davies et al 'Close encounters of the witness kind: Children's memory for a simulated health inspection' (1989) 80 British Journal of Psychology 415; J Bringham et al 'Accuracy of children's eyewitness identifications in a field setting' (1986) 7 Basic and Applied Social Psychology 295.
Section 165A was inserted into the Commonwealth and New South Wales Evidence Acts in 2008 and enacted at that time in the Victorian Act. The provision implemented Recommendation 18-2 of ALRC 102 to provide that a s 165 unreliability warning cannot be given solely an account of the age of a child.[28] In Victoria, this statutory recognition that a child’s evidence ought not be presumed to be unreliable has been carried over into s 33 of the JD Act. This section not only prohibits a trial judge giving any sort of warning on the basis of age alone but it also prohibits both the judge and counsel from suggesting in any way that children as a class are unreliable witnesses, their evidence is inherently less credible, or that a particular witness is less reliable because that witness is a child.
[28]Recommendation 18-2 of the ALRC 102 considered the passage cited above from ALRC 84 [14.19].
I consider it likely that the age of the child is a ‘surrounding circumstance’ as countenanced by the ‘Heydon example’ but, in the circumstances of this case, and, given the timing of A L’s disclosures and the relatively open questions that produced them, the fact of his age alone does not impact significantly on the probative value of the impugned evidence.
There is some evidence that in 2005 A L suffered from a mild developmental delay. Dr Gordon, a DHS appointed psychologist who has treated A L for many years, considered the 2005 child to be ‘developmentally immature in terms of his ability to communicate’.[29] He accepted that there were some limitations in respect to his rational functioning. If this is a ‘surrounding circumstance’ capable of impacting probative value, then I doubt that its impact is particularly great. There is no evidence as to how these limitations affected the boy’s capacity to recall. A L’s capacity to communicate what he says he saw and heard, in my view, is not so limited as to devalue the substance of his accounts to any real extent. I make this observation having had the advantage of viewing and/or listening to all ten VARE tapes and listening to the recorded conversations set out in paragraph [10] of these reasons.
[29]Committal Transcript, 302.
I have set out the various submissions made by Mr Dann, which are aggregated under the headings:
(a) Evidence demonstrably wrong.
(b) Fundamental inconsistencies.
(c) Risk of contamination.
(d) Loss of memory.
(e) Problems with memory.
Evidence demonstrably wrong or fundamentally inconsistent
I consider that most of the evidence that Mr Dann contends can be demonstrated to be incorrect or fundamentally inconsistent with other of A L’s evidence, is evidence that attaches to the credibility or reliability of the witness and these are matters for the jury to consider in assessing the weight, if any, they ought give to the impugned evidence. A considerable number of Mr Dann’s criticisms concern either VARE 10 or A L’s evidence at the committal. The accounts within these sources come from A L’s 2015/2016 memory. In my view the ten-year time lapse between event and account is a surrounding circumstance that diminishes the probative value of these accounts very significantly. It is the equivalent, I consider, of the fog and the poor light in the ‘Heydon example’. To the extent that his earlier accounts are sought to be impugned by these later disclosures I consider these are properly a matter for the jury and do not go to the exercise that I am now conducting.
Risk of contamination
The risk of contamination is a surrounding circumstance that may impact upon the probative value of impugned evidence. In Bayley v R,[30] the Court of Appeal concluded that the difficulties associated with an identification witness viewing an image of her alleged rapist on Facebook prior to formally identifying him from a photo board were surrounding circumstances properly to be taken into account in assessing the probative value of the asserted identification. These included the fact that by the second identification there was an acute danger of contamination of the witness’s memory by the displacement effect.
[30][2016] VSCA 160.
The onus rests with the defence to demonstrate contamination. Mr Dann submitted that there were clearly two suspects initially who were both subjected to cautioned interviews – Ms Jennifer Louey and the accused. Mr Dann advanced the hypothesis that Jennifer Louey’s family, with whom A L resided after his sister’s death, were determined to reunite A L with his mother and thus actively encouraged A L to view MJ as a ‘bad guy’ and Jennifer Louey as blameless in Tonnja’s death. It is true that there is some evidence that Christina Louey (A L’s grandmother) may have sought to influence A L towards feeling favourably towards his mother[31] and that in 2010 in a session with Dr Gordon when A L asked why he could not spend more time with his mother, Dr Gordon told him it was because MJ killed Tonnja and hurt his younger sister K H.
[31]See, for example, evidence of Dr Gordon, Committal Transcript 303, 304, 319, Dr Gordon’s notes 2 June 2005, 14 October 2005, 31 October 2005 and 10 February 2006.
I accept that as time went by there arose a potential for contamination, being the potential for this young witness to be conditioned into thinking that MJ was the person who killed his sister and that his mother was blameless. However, this conditioning, if it occurred, was likely factually based on A L’s initial accounts which, on the evidence, in my view, were not conditioned at all. I do not regard contamination as having a material impact on the substance of his 2005/6 allegations against the accused. I am less certain about its impact on the 2015 VARE 10.
Mr Dann submitted that in the 20 May 2005 recorded conversation between A L, his aunt Amanda and Quang Tran, A L was improperly prompted on a range of topics. I have listened to all the recordings twice with the assistance of transcripts. I do not agree that he was improperly prompted during this conversation. Quang, at one stage (after 17 minutes of apparent avoidance by A L), did say ‘…when I was talking to you last time…you said that MJ hit Tonnja…’ and shortly thereafter, ‘…you also said that he kicked her…’. Had A L not disclosed this information earlier then it would clearly be inappropriate questioning. However, directing the child back to something the child had already said in my view does not constitute an improper prompt.
I have some reservations about the manner of questioning in VAREs 8 and 9, but this has more to do with the manner of the interrogator than with any improper prompting. As I indicated in discussion, I will entertain further submissions about VAREs 8 and 9 should it be necessary.
Danger of unfair prejudice
I consider the most significant danger confronting the accused, if I allow this evidence to be called, is that he may well have lost some of the capacity to test A L’s 2005/2006 accounts through A L’s 2016 recollection. A L’s evidence-in-chief, if admitted, will be constituted in large part by his VARE interviews of the 2005/2006 period. His other utterances of that time are sought to be admitted through the gateway of s 66 of the Evidence Act. However admitted, the prosecution are relying upon evidence drawn from A L’s memory as a four and five year old. Now, ten years later, that memory is distant and A L has expressed doubts to his psychologist that he will be able to remember everything.
If I admit this evidence, I consider it will put the defence at a real forensic disadvantage.
I cannot predict how the evidence will play out, but should the witness have no current recollection of events, or a very different recollection of events (as seems to be the case in the 2015 VARE 10), the prosecution will be able to answer these criticisms by directing the jury to 2005/2006 when A L’s recollection was intact and consistent.
Occasionally, criminal defence counsel are required to deal with evidence that cannot be tested. Usually this is the result of the admission of hearsay evidence where the witness is not called or has no recollection of the impugned events. The fact that his one-time recollection cannot be tested is not necessarily fatal to the reception of the disputed evidence.[32] If there is a danger the jury may overvalue the weight to be accorded to the evidence then this will constitute an unfair prejudice within the meaning of s 137,[33] but the extent of that danger must be measured against the probative value. This evaluation must occur after consideration is given to techniques available to the trial judge to ameliorate this danger.
[32]Bray v The Queen [2014] VSCA 216.
[33]Dupas v The Queen [2012] VSCA 328 at [175].
I consider the danger presented by this type of unfair prejudice can be ameliorated in this case to some extent by a strong forensic disadvantage direction, perhaps augmented by an unreliability direction based not solely on the child’s age but (assuming this to be the evidence) also upon his apparent developmental immaturity and the stressors that confronted him as an apparent witness to his sister’s death. The potential for contamination of his evidence as time went by may also need to be part of this direction.
I also consider that the defence have not totally lost the opportunity to test A L’s 2005/2006 evidence. They have the full transcript of the VARE tapes which extend well beyond the evidence the prosecution seeks to adduce and which are said to contain many inconsistencies and factual errors. These can be the subject of cross-examination and submission in addresses. In a similar category, the defence have the fulsome notes of Dr Gordon, which seem to provide a fertile source of inconsistent accounts. Whilst these inconsistencies and errors do not go to my assessment of the probative value of the evidence to be adduced by the prosecution, they remain in the accused’s brief to be used, if thought appropriate, in testing the reliability of the witness.
Mr Dann also contended that any capacity that may have existed to cross-examine the witness about his occasionally expressed fear of his mother was now gone. Mr Dann argued that ten years have passed by, the boy has been conditioned to believe his mother was blameless, and he now denies that he was ever scared of her. In a case where there are only two realistic suspects (assuming that the jury excludes accident) then the loss of the witness’s capacity to recall why he was scared of those suspects is, Mr Dann contended, an example of a real danger of unfair prejudice. Whilst I accept that there may be some prejudice flowing from this apparent loss of recollection, I do not accept the prejudice to the defence will be as great as the defence contend. There is still an abundance of evidence that the child, on occasions, expressed fear of his mother to other adults. The defence will certainly be able to establish evidence supporting the fact of this fear and can address arguments if it wishes about that fact. This asserted forensic disadvantage may also need to be part of a forensic disadvantage direction, but some residual danger of unfair prejudice will remain.
I assess the danger of unfair prejudice as quite high, even allowing for the amelioration by direction and the residual material available for cross-examination to which I have just referred.
After considerable reflection I am not satisfied that the danger of unfair prejudice outweighs the probative value of the evidence sought to be adduced by the prosecutor, save for VARE 10. It follows that, subject to any other exclusionary rulings that I may make about discrete portions of the evidence, I will allow the prosecution to lead the impugned evidence. I consider VARE 10 has less probative value given its timing and the potential for contamination. The danger of unfair prejudice, in my view, does outweigh the probative value and, if the defence persist with its exclusionary application, I will exclude VARE 10 pursuant to s 137. Having said that, given the balance of the ruling, I could readily understand the defence abandoning its application to exclude VARE 10.
Common Law Unfairness
In Haddara v The Queen,[34] the majority confirmed that the common law discretion to exclude evidence unfair to an accused continued to be part of the Law of Evidence. It rejected the prosecution contention that the Evidence Act has codified all judicial discretions to exclude evidence. The majority observed that the ‘fairness discretion was never confined to confessional evidence and has been enlivened to exclude identification evidence and real evidence’.[35] Their Honours also stated:
That there is a general discretion which inheres in a trial judge to exclude admissible evidence in order that the accused receive a fair trial. That general discretion is an indispensable tool if a trial judge is to have the capacity in all the circumstances to discharge their overriding duty of ensuring the accused receives a fair trial.[36]
[34][2014] VSCA 100.
[35]Ibid, [14].
[36]Ibid, [16].
I decline to exercise this Common Law discretion for largely the same reasons that applied to my s 137 determination. I accept that there will be some residual unfair prejudice to the accused regardless of the content and nature of judicial directions that I may give, however I do not accept that this unfairness is at such a level as to render the proposed trial unfair. It is often said that the right to a fair trial is not a right to a perfect trial.[37] I accept that counsel for the accused will be presented with some challenges in the cross-examination of A L, but with the material they have in their brief and with adequate judicial directions I consider that the impugned evidence is capable of being fairly considered by a jury.
[37]See for example Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84, Brooking J at [90] (citing Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, especially per Brennan J. at 49-50 and 54; R v Glennon[1992] HCA 16; (1992) 173 CLR 592 especially at 614-617 per Brennan J.; Dietrich v R[1992] HCA 57; (1992) 177 CLR 292, especially per Brennan J. at 325).
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