R v Debresay (Ruling No 2)

Case [2016] VSC 642


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

DATE OF HEARING:

16 August 2016

DATE OF RULING:

16 August 2016

CASE MAY BE CITED AS:

R v Debresay (Ruling No 2)

MEDIUM NEUTRAL CITATION:

[2016] VSC 642

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CRIMINAL LAW – Coincidence evidence – Evidence Act 2008 ss 98, 101 – Accused charged with murder of an infant – Evidence proposed to exclude alternative hypothesis of accidental injury - Whether or not evidence of injuries to sibling of deceased relevant to issues relating to injuries to the deceased – Whether or not the evidence has significant probative value – Whether or not the probative value substantially outweighs prejudicial effect upon the accused.

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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:

  1. The Director of Public Prosecutions charges that the accused, Mussie Debressay, murdered Tonnja Huynh on 13 May 2005. The deceased was aged two years. The cause of death is said to be blunt force injury to the abdomen of a squeezing type.

  1. The Crown allege that the accused assaulted the deceased at his Footscray apartment by stepping, stamping, or kicking her to the abdomen while she lay prone. The Crown propose to lead evidence of injuries to the deceased’s sister, K H, to establish that the accused committed the fatal assault upon the deceased.

  1. As at 13 May 2005, the accused was in a relationship with Jennifer Louey, the mother of the deceased (then aged 2), A L (then aged 4) and K H (then aged 1). Jennifer Louey and the accused had known each other since about February 2005, and had been in some form of relationship since shortly after that time.

  1. The Crown allege that no serious unexplained injuries had been observed on any of Jennifer Louey’s children prior to her relationship with the accused. Apparently serious injuries to K H were observed by family members shortly before the death of the deceased. Following the death on 13 May 2005, K H was examined at the Royal Children’s Hospital (RCH). She was observed to have a fracture to the left distal radius; a fracture of the distal shaft of the left radius and ulna; bruising around her eyes and left ear; several bruises and abrasions, including on her abdomen and left thigh; and a deep abrasion to nose. 

  1. On 15 July 2016 the Prosecution has filed a Coincidence Notice. On 20 July 2016 an amended notice was filed. Relevantly, the amended notice read:

1. Notice is hereby given pursuant to section 99 of the Evidence Act 2008 (“the Act”) that the prosecution intends to adduce coincidence evidence pursuant to section 98(1) of the Act, that is the improbability of two or more events occurring coincidentally to prove that…

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R v Debresay (Ruling No 2) [2016] VSC 642
Case
[2016] VSC 642
Decision Date

CaseChat Overview and Summary

In the case of R v Debresay, the accused was charged with the murder of an infant. The case came before the court to consider the admissibility of certain evidence under the Evidence Act 2008. The prosecution sought to introduce evidence regarding injuries sustained by the deceased's sibling, aiming to exclude the possibility of an accidental injury to the deceased and to establish the accused's guilt.

The primary legal issue before the court was whether the evidence of injuries to the sibling was relevant to the issues concerning the injuries to the deceased. Additionally, the court had to determine if the evidence had significant probative value and whether this value substantially outweighed any prejudicial effect it might have on the accused. The court was required to balance these considerations under sections 98 and 101 of the Evidence Act 2008.

The court found that the evidence of injuries to the sibling was relevant as it helped to establish the likelihood of the accused's involvement in the deceased's injuries. It was determined that the probative value of this evidence was significant, as it provided a context that supported the prosecution's case. The court concluded that the probative value of the evidence substantially outweighed any prejudicial effect it might have on the accused, thereby deeming it admissible. Consequently, the evidence was allowed to be presented in the trial.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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