R v Debresay (Ruling No 2) - [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:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Debresay (Ruling No 2)

Details

AGLC: R v Debresay (Ruling No 2) [2016] VSC 642
Case: [2016] VSC 642
Decision Date: 16 August 2016

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