R v Debresay (Ruling No 2)
[2016] VSC 642
•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 |
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:
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.
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.
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.
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.
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 a person performed a particular act or had a particular state of mind. 2. The two “events” relied upon are the injuries sustained by the deceased and her sister, K H. 3. The prosecution seeks to use coincidence evidence to rebut the suggestion that the injuries caused to the deceased were accidental. 4. The evidence of the injuries sustained by K H is relevant because it allows the conclusion that the deceased’s injuries which caused her death were not caused by accident. There is such similarity between the circumstances of the injuries causing the death of the deceased and the evidence of the injuries sustained by K H that it is most unlikely that the deceased’s death was caused by accident. 5. In short, those similarities are: - The injuries sustained by K H were proximate to the timing of the injuries sustained by the deceased which caused her death; - The injuries sustained by both K H and the deceased were extremely serious; - Neither child had sustained such serious injuries before; - Both children were very young at the time, aged 1 (K H) and 2 (the deceased); and - Both children were in contact with the accused at or around the time of sustaining injuries. 6. The coincidence evidence relates to the following fact in issue in the proceeding: whether the accused caused the death of the deceased. 7. The substance of the evidence which will be adduced, and particulars of the date, time and place at and the circumstances in which that conduct occurred, and the name of each person who saw, heard or otherwise perceived that conduct, are indicated in Table A below. |
Table A – Substance of the evidence
| DESCRIPTION OF EVIDENCE | DATE | DETAILS | WITNESS |
| Injuries to the deceased | 13 May 2005 | Autopsy Report (prepared by Dr David Ranson) - The deceased’s body showed signs of widespread soft tissue injuries to the head, neck, arms, legs, abdomen, chest and back. - Widespread injury to the region of the abdomen with evidence of haemorrhage tracking in the retroperitoneal tissues down to the levis and into the mediastinum. - The damage comprised rupture of the pancreas and proximal jejunum together with lacerations to the mesentery and lacerations to the liver. - The appearances were in keeping with blunt force having been applied to the front of the abdomen squeezing the abdominal contents between the object applying the force and the vertebral column at the back of the abdomen. Medical report related to the death of the deceased (prepared by Dr Keith Stokes) - The child showed extensive soft tissue injuries in the form of bruising, abrasions and lacerations involving the head and neck, chest and abdomen and four limbs. - The injuries that proved to be fatal were those involving the abdominal organs as a result of blunt force trauma to the abdomen. Major injuries included liver trauma, ruptured jejunum with associated lacerations to the small bowel mesentery and rupture of the pancreas. - It is likely that the major abdominal injuries occurred only a short time prior to death, up to two hours. | Dr David Ranson Dr Keith Stokes |
| Injuries to K H | Apprx 5 – 13 May 2005 | Samantha Barry used to babysit the children. On Thursday, 5 May 2015, she went with Jenny and K H to the accused’s place. She noticed a red mark all over K H’s face. She took K H to the doctor on Friday, 6 May 2005. After that day, the redness became swelling on K H’s face, mainly on the right and then it moved to the left. On Monday, 10 May 2005, she saw K H, she was purple and bruised around the cheeks and they were swollen. On Tuesday, 11 May 2005, she bathed the children at the mother’s home. K H’s face was much worse than it was on the Friday. It looked like swelling and bruising around the eyes. - Fracture left distal radius; - Fracture of the distal shaft of the left radius an ulna; - Bruising around eyes and left ear; - Several bruises and abrasions including on abdomen and left thigh; - Deep abrasion to nose. As to the timing of the injuries, the trauma to the head and left arm occurred some days prior to admission to the RCH on 13 May 2005. | Samantha Barry Christina Louey Anthony Louey Daniel Louey Mark Louey Amanda Louey Quang Tran Constable Greg Loney Snr Sgt Dagmar Anderson Snr Sgt Dagmar Anderson Dr Christiane Remke |
| Both children were in contact with the accused at or around the time of sustaining injuries | Approx 6 – 13 May 2005 | During the week or so prior to Samantha Barry making her statement (on 16 May 2005), the children and their mother, Jennifer Louey, had stayed at the accused’s house every night bar one or two nights. | Samantha Barry |
| The accused says the deceased was injured accidentally during the night before her death. | 13 May 2005 | When interviewed by police on 13 May 2005, the accused said: - He heard a bump in the night and when he went to the lounge room where the children were sleeping, Tonnja was on the floor on her stomach under the coffee table. He put Tonnja back on the couch. - About an hour later on he heard a bang again but it wasn’t as loud. The accused found her to “have slipped down”. - He heard he hit her head between two and four time during the night. - In the morning he saw injuries on Tonnja’s head, saying “it was a little bit bruised, blood”, shaped like a circle sort of thing and it looked purple/black like a bruise. | ROI on 13 May 2005: (Q/A 242) (Q/A 285-307) (Q/A 411-421) |
| Neither child had sustained such serious injuries before | Sep 2003 – May 2005 | Samantha Barry used always gave the children a bath when babysitting them at night. She was in a position to see bruises or injuries. She never saw anything that caused her concern over the treatment of the kids. They had occasional minor bruises or scratches from falling over etc. Anthony Louey, uncle of the deceased’s mother, had not seen the children with facial injuries other than when he saw K H around Mother’s Day 2005 (being Sunday, 8 May 2005). Dimitra Arvanitidis was a friend of Jennifer Louey’s. They had children around the same age. She never saw injuries on the children, apart from about a week before Tonnja died, when K H’s face was very swollen. Prior to Mother’s Day 2005, Daniel Louey (Jennifer Louey’s brother) had never seen any juries to the children to cause concern apart from the usual scratches and bumps that kids get from day to day playing. Prior to 6 May 2005 when Christina Louey (mother of Jennifer Louey) saw K H’s left eye swollen and puffy, she had not seen the children with any injuries that had caused her concern. Amanda Louey (sister of Jennifer Louey) had seen minor playground type injuries on the children before but not serious injuries that concerned her. Quang Tran, brother-in-law of Jennifer Louey (and partner of Amanda Louey), until recently had never seen injuries on the children, other than the usual scrapes and bumps that children get. General Practitioner medical records show: - Between 9 December 2002 and 22 February 2005, the deceased had attended the doctor for minor ailments including eye discharge, coughing, vomiting, sore throat, colds and one incident of having apparently suffered a fall in the mall (she was found to have a tiny scalp would on her head); - Between 29 October 2003 and 6 May 2005, K H had attended the doctor for eye discharge and on the final occasion for a rash on her face for which she was referred to Sunshine Hospital casualty. | Samantha Barry Anthony Louey Dimitra Arvanitidis Daniel Louey Christina Louey Amanda Louey Quang Tran Dr Xuan Dung Tran |
I do not propose to set out the evidence concerning the injuries to K H and the deceased in any further detail than that contained in the table above. The defence made no attack upon this statement of the evidence.
Legal Principals
Coincidence evidence is evidence that two or more events occurred, adduced to prove (in this case) that the accused did a particular act or acts on the basis that, having regard to any similarities in the events alleged and their surrounding circumstances, it is improbable that the events occurred coincidentally.[1] The touchstone of this form of admissibility is similarity.[2] Circumstances or events do not need to be identical for two or more events to be admitted as coincidence evidence, however the degree of similarity will influence whether the evidence has the necessary significant probative value.[3]
[1]See s 98; also Part 1 of the Dictionary to the Act.
[2]PNJ v DPP (Vic) (2010) 27 VR 146.
[3]Samadi and Djait v R [2008] NSWCCA 330 at [85].
Striking similarity is not always required for coincidence evidence to have significant probative value;[4] nor does evidence need to have features of ‘underlying unity, or pattern, or signature or system’,[5] although such characteristics will assist the party seeking to introduce the evidence in demonstrating that the evidence has significant probative value. Regardless of the phrase used to describe the evidence or circumstances said to be related, the relationship must be sufficiently strong that it is highly unlikely that the events or their surrounding circumstances could be explained by mere coincidence. In cases where there is no direct evidence of the accused’s commission of the offence charged, there is a greater need for ‘striking similarity or signature’ between the coincidence events.[6]
[4]CW v The Queen [2001] VSCA 288 at [22].
[5]CV v The Queen [2014] VSCA 58 at [9], citing with approval Phillips v The Queen (2006) 225 CLR 303.
[6]Tognolini v R [2011] VSCA 394 at [7].
Evidence admissible for a coincidence purpose under to s 98 of the Act may be excluded by s 101(2), which provides that: “…coincidence evidence about an accused that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.”
Parties’ submissions
Crown submissions
The Crown accept that they are unable to argue that the fact of injuries to K H directly suggests (by coincidence reasoning) that the accused inflicted the injuries that caused the death of the deceased. Instead, they propose to use the evidence for the narrow purpose of rebutting the hypothesis that the injuries causing death were occasioned by accident. This use would provide support to the Crown’s medical evidence, which they say effectively excludes accident as the cause of the deceased’s fatal injuries.
Following the death of the deceased, accounts of her falling and hitting her head on a coffee table were provided by the accused and Jennifer Louey to police and ambulance officers. At the time the fall accounts were given at the Millennium Medical Centre, the cause of death was not yet known, however Tonnja’s visible injuries included a prominent bruise on her forehead, as well as bruising to the abdomen. The Crown submit that as accidental injury is squarely raised on this material, there is significant probative value in rebutting that hypothesis.
Turning to the similarities in the circumstances of the injuries (as outlined in ‘Table A’), the Crown submit that, until Jennifer Louey’s relationship with the accused, neither child was observed by friends, family or medical practitioners to have any serious unexplained injuries. The medical evidence concludes that the injuries to both children are unlikely to have been accidental, though the Crown concedes the medical evidence in relation to the injuries to K H is not as definitive as in respect to the deceased.
Ultimately, the Crown say that the evidence shows that the injuries were inflicted in intentional circumstances, but is accepts that it not capable of linking the injuries to any action by the accused specifically. The possibility that both sets of injuries were caused by another person who had access to both children (the most obvious example of such a person being the children’s mother) cannot be excluded based on the injuries alone.
The Crown further accepts that there is a danger that the jury would use the evidence impermissibly in a propensity manner. They argue that this risk can be effectively mitigated by a strong judicial direction on the confined purpose for which the evidence is led. The jury is presumed to be capable of understanding and following such directions.
Defence submissions
The defence argues primarily that the evidence lacks the requisite ‘significant probative value’ to be admissible under s 98, and in the alternative, that if the evidence is admissible under s 98, it should be excluded pursuant to s 101.
There is no direct evidence that the injuries to K H were inflicted by the accused, or while K H was in his care. So much is accepted by the Crown. Dr Remke, in her opinion on K H’s injuries, left open the possibility of accident for the injuries to the orbital region, the injury to the nose and left ear, the fracture to the left forearm and a fracture to the right forearm. Dr Padma Rao similarly indicated that the fractures to the arms could have been cause be a fall. Jennifer Louey has previously provided accounts that indicate these injuries were caused by accident, including that the kids were falling over all the time, that K H had hit her head while sleeping, that K H had bumped her face or hit something, and that K H may have bumped her head into a timber framed window.
Bone scans taken between 13 May 2005 and 12 June 2005 revealed multiple additional sites of injury to K H’s bones including to the upper limbs, sternum and sternoclavicular regions. While it is suggested that these injuries strongly indicated inflicted trauma, accident is not explicitly excluded.
Aside from the exculpatory ‘accident’ accounts provided by Jennifer Louey, there is no direct evidence of how the injuries to K H were caused. The circumstances surrounding the injuries cannot be said to possesses sufficient common or similar features to the charged offence.
If there is sufficient probative value for admission of the evidence via s 98, the defence contends that this probative value does not significantly outweigh prejudicial affect to the accused. The evidence of serious injuries to a young child is confronting and is likely to excite strong feelings within the jury. There is a clear risk that the fact of injury will be used in an impermissible propensity manner. Further, as the injuries to K H are far more equivocally linked to deliberate infliction than those to Tonnja, the likely path or reasoning would be to work backwards from the injuries to Tonnja to conclude that the injuries to K H were deliberately inflicted. To then use that finding of fact to fortify a conclusion on whether the injuries to the deceased were accidental would be circular and logically flawed.
Analysis
In my view, the injuries to K H do not meet the threshold of significant probative value. While I accept that accident as the cause of the death of the deceased is squarely raised by the material, the fact of K H’s injuries does little to strengthen the Crown hypothesis of deliberate infliction of the injuries to Tonnja.
The medical evidence describes the injuries causing death to be squeezing type injuries to the infant’s abdomen. On the Crown case, some other injuries to the body of the deceased are said to be related to the charged offence. For example, the evidence of A L is said to support an allegation that the accused head-butted the deceased as part of the fatal assault. A number of further injuries noted at autopsy are not linked by the prosecution to the charged offence. The injuries to K H do not bear a ‘striking similarity or signature’ to those linked to the charged offence on the deceased. Though bruising to the face was common to both infants, there is no evidence to suggest a ‘squeezing’ type injury to K H. At its highest, the similarity of the injuries to the children on the medical evidence was that the injuries (the squeezing injury in the case of the deceased, and the combination of injuries in the case of K H) were consistent with deliberate infliction.
Further, in the case of K H, accident was left open as a cause on about each and every injury site. The hypothesis of deliberate infliction of Tonnja’s abdominal injuries is supported less equivocally by the medical evidence. In the absence of any direct evidence of how K H sustained her injuries (save for Jennifer Louey’s accounts of accident), this evidence is not significantly probative to the Crown case in terms of rebutting accidental injury to Tonnja. Further, as was accepted by the Crown, the evidence is not at all probative in separating the accused from the alternative suspect as the inflictor of the injuries.
If it is that the evidence is probative on rebutting accident, that marginal value does not significantly outweigh prejudicial effect and ought be excluded pursuant to s 101. The danger of propensity reasoning is high, particularly given the emotive nature of this evidence. In my view, the intellectual justification of excluding accident cannot effectively be separated from the danger of prejudice attached to the evidence by judicial direction.
For these reasons, I conclude that the injuries to K H are not admissible in Mr Debresay’s trial.
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