R v Debresay (Ruling No 1)

The case of R v Debresay (Ruling No 1) involved the admissibility of evidence given by a four to five-year-old child in a criminal trial. The child, A L, had made various statements to family members, police, and a treating psychologist between 2005 and 2006, some of which were audio-recorded. The prosecution sought to lead this evidence, including excerpts from various Victim/Witness Assistance and Rehabilitation Education (VARE) interviews, in the child's evidence-in-chief. The defence argued that this evidence should be excluded either pursuant to section 137 of the Evidence Act 2008 or through the exercise of the general common law discretion to exclude evidence that would be productive of an unfair trial.

The court was required to determine whether the probative value of the evidence outweighed the danger of unfair prejudice to the accused, as required by section 55 of the Evidence Act. The court also had to consider whether the evidence could be effectively tested in cross-examination and whether any forensic disadvantage could be ameliorated by judicial direction. Additionally, the court needed to assess whether the evidence could be excluded on the basis of unfairness under the residual common law discretion. The court considered the principles established in cases such as Haddara v The Queen (2014) VSCA 100, IMM v R (2016) HCA 14, and Bayley v R, [2016] VSCA 160.

In reaching its decision, the court considered the nature of the evidence, the age and developmental stage of the child, and the potential for unfair prejudice. The court concluded that the probative value of the evidence outweighed the danger of unfair prejudice, and that the evidence could be effectively tested in cross-examination. The court also found that any forensic disadvantage could be ameliorated by judicial direction. As a result, the court ruled that the evidence should be admitted, subject to certain conditions to ensure fairness to the accused. The court's decision was based on a careful consideration of the relevant legal principles and the unique circumstances of the case.