R v Debresay (Ruling No 3)
[2016] VSC 502
•19 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: | 18 August 2016 |
DATE OF RULING: | 19 August 2016 |
CASE MAY BE CITED AS: | R v Debresay (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 502 |
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CRIMINAL LAW – Evidence – Admissibility – Description of the use of a ‘bag’ by the accused in relation to assault causing death - Relevance – Whether or not references to the bag temporally connected to alleged assault – Whether or not probative value of evidence outweighs the danger of unfair prejudice – Evidence Act 2008 - s 55, 137.
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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:
I have set out the evidence of A L in Ruling No 1.[1]
[1]R v Debresay (Ruling No 1) (2016) VSC 487R (‘Ruling No 1’).
It will be recalled that A L was four years old when his sister died, and either four or five when he made various statements to his family and/or police that I have admitted as part of that ruling.
In Ruling No 1, I considered a general argument mounted by Mr Dann QC that all of A L's evidence should be excluded, and all hearsay utterances by him to others be similarly excluded under either s 137 of the Evidence Act2008 (‘Act’) or pursuant to my common law discretion to exclude evidence that would be productive of an unfair trial.[2]
[2]See Haddara v The Queen (2014) VSCA 100.
It was understood by all concerned that there may be discrete arguments mounted by the defence as to portions of A L's evidence which could be addressed, if necessary, after I dealt with the general arguments. In that context, Mr Dann has identified an area of A L’s proposed evidence which he contends I ought exclude.
In his statements to others and in his VARE tapes, A L refers, on several occasions, to an episode or episodes where a bag, a plastic bag or a blue bag, is said by A L to be applied to his sister's (the deceased’s) face by the accused in the context of either the accused being a ‘bad guy’ or Tonnja (the deceased) being ‘naughty’.
Mr Dann’s primary submission is that this evidence is so inherently vague and contradictory that the jury could not reasonably conclude that the incident or incidents being referred to were related temporally to the assault on Tonnja, which the prosecution alleged caused death.
Ms Flynn, for the prosecution, submits that if the evidence is temporally related, it is a critical part of the narrative of events leading up to Tonnja's death. Ms Flynn further accepts that if the jury could not conclude that any particular ‘bag incident’ described by the child was part of that final assault, then whilst it may have some admissible value as relationship evidence, the prosecution would not seek to lead it in all the circumstances.
Thus, Mr Dann says firstly that the evidence is irrelevant in the sense that it cannot be said to be part of the final assault and is not sought to be led for any other purpose.[3] Alternatively, he argues that if it is relevant, given the inherent uncertainty of the evidence it is only vaguely so, and the prejudice that would accompany its reception would greatly outweigh its probative value.[4]
[3]See Evidence Act 2008, s 55.
[4]See Evidence Act 2008, s 137.
Before setting out the impugned evidence, I observe that the prosecution case is that in this allegedly murderous assault the accused man became angry because Tonnja had urinated through her nappy and onto the cushion of a couch in the accused’s one-bedroom unit. The couch is said to have been the lounge room.
The prosecution allege that the accused took Tonnja from the lounge room area to the kitchen of the unit and assaulted her by stamping and or stomping on her abdomen area while she laid prone on the ground. The prosecution allege that at the time of the assault, Ms Louey, the child's mother, was in the bedroom of the unit. This bald description comes largely from the various utterances made by A L that I have referred to in Ruling No 1.
The utterances concerning the bag that are objected to by Mr Dann are set out below.
A. 13 May 2005 conversation between A L and others in a consulting room at the medical clinic
There are various versions of this conversation from Amanda Louey, Daniel Louey, Mark Louey and Quang Tran, but the most fulsome version is from Dagmar Anderson, which is the subject of police notes for the entire conversation.
The effect of this conversation is as follows. Upon questioning by Dagmar Anderson, A L said the following:
‘Went to MJ house’, ‘Tonnja crying …at MJ house’, ‘sleeping …on the table… MJ from bedroom took her to 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 weed on couch… crying’.
‘MJ took Tonnja to the kitchen…he turn of the lights’, ‘Tonnja sleeping, MJ step on’ (pointed to the top of his right foot, wearing boots).
When asked ‘where?’ A L said, ‘On a 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 down sharply).
When asked, ‘Why was Tonnja naughty?’ he said, ‘Had to go to kitchen…bad girl… MJ going to 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).
There is no mention of any bag or plastic bag in this conversation, and I do not consider that A L’s description of Tonnja vomiting and either her or the accused (it is not clear) holding a hand over her or his mouth, can sensibly be related to any plastic bag allegation.
I have already ruled that the 13 May 2005 Medical Clinic conversation between Dagmar Anderson, Quang Tran, Daniel Mark and Amanda Louey on the one hand, and A L on the other, are admissible under s 66 of the Act. As I have indicated in my Ruling No 1, this conversation was a very early account from A L about what happened at the house of the accused on the night or morning preceding the death of the deceased.
In the context of this conversation, I do not consider that the jury could conclude, that there was any allegation about a plastic bag, blue bag or similar. I will not exclude the evidence on this basis, but neither will I allow the prosecution to invite the jury to infer that any part of this conversation is an oblique reference to the subsequent bag allegations.
B. 16 May 2005 conversation between A L and Quang Tran
The first mention of a plastic bag is on 16 May, and it is made by A L to Quang Tran in an unrecorded conversation. The following exchange is said to have occurred:
Question: ‘How does MJ hit Tonnja?’
Answer: ‘He gets plastic bag and put here,’ and covered his mouth with his hand.
Question: ‘Why did MJ do it?’
Answer: ‘Tonnja naughty’ (and later) ‘Tonnja pee pee’.
I consider a jury could conclude that this exchange is related to the events in the fatal assault. The link is that A L described ‘Tonnja naughty’ and ‘Tonnja pee pee’. In other conversations A L describes Tonnja urinating as something that occurred immediately prior to the incident involving stomping.
C. 17 May 2005, Recorded conversation involving Quang Tran, Amanda Louey and A L
This recorded conversation contains the following questions and answers:
Quang: Does MJ hit Tonnja?
A L: Yes
…
Quang: How did MJ hit Tonnja?
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.
For the same reasons as I have outlined in regard to the 16 May 2005 conversation above, it would be, in my view, open to the jury to conclude A L’s description of the use of a bag is related to the alleged assault that caused Tonnja’s death.
D. 20 May 2005, Recorded conversation involving Quang Tran, Amanda Louey and A L
A L referred to the use of a bag as follows:
Quang: when you said the other night when I was talking to you last time you said that, you said that MJ hit Tonja?
A L: Yeah, no, yeah
Quang: Yeah?
A L: Yeah
Quang: How else does MJ hurt Tonnja?
A L: Use a bag
Sometime later in that recorded conversation, this exchange occurred:
A L: He hit Tonnja’s bum
Quang: Oh. He kicked her?
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
…
Of the two passages I have set out, I consider that there is no real link between them. There is substantial irrelevant conversation that separates them and I am not satisfied that a jury could conclude that the answer to “How else does MJ hurt Tonnja?” (being, “Use a bag”) relates to the allegedly fatal assault. This question and answer should be excluded from this portion of the 20 May 2005 recorded conversation.
E. 14 July 2005, VARE 6
On 14 July 2005 in VARE 6 in the context of being asked, ‘Did someone hurt Tonnja?’ and A L replying, ‘MJ’, a few questions later A L said this:
Answer to Q 64: ‘MJ did it’.
Question 65: ‘What did MJ do?’
Answer:‘He has put bag here’ (put bag on his mouth), and ‘he was being naughty, not stupid’.
A number of questions and answers followed, but the above answer was not expanded upon. It is not clear to me that A L was talking about the final fatal assault in this passage, and I do not believe a jury could conclude that he was. It would involve impermissible speculation. I will exclude this extract of VARE 6 from the evidence.
F. 12 August 2005, Records of Dr Gordon
Following a description of A L’s play activities with Dr Gordon that day, Dr Gordon’s clinic notes of 12 August 2005 record:
“…Then he had me writing names and mentioned that Dagmar would be coming to visit and I asked why. He said ‘she wants to help (sic) Tonia’ and I asked if he would talk about what happened to T and he said ‘MJ hurt T’ and I said ‘how did he do it’ he said, ‘he pushed a plastic bag in her mouth to make her stop crying’ I asked more about that and he repeated it. I suggested he tell D about that.”
Dr Gordon’s notes of this day do not contain any further reference to MJ or Tonnja. As is my view concerning the ‘bag comment’ in VARE 6 above, it would not be open to the jury to reasonably conclude that this description is referrable to the alleged fatal assault.
G. 17 August 2005, VARE 7
The following extract begins at Question 32 of VARE 7.
Question 32: ‘Did you say Tonnja does wee wee?’
Answer: ‘Yeah, the chair.’
Question 33: ‘The chair? And then what happened?’
Answer: ‘She let them put her in room in a toilet and … plastic bag again.’
Question 34: ‘Okay. And whose plastic bag?’
Answer: ‘For the mouth.’
Question 35: ‘And what happened with the plastic bag on the mouth? (Witness walks out of view of the camera).’ ‘Tonnja got naughty’
Not long after, also contained in VARE 7, apparently in the context of discussing ‘Tonnja being naughty’:
Question 54: ‘And then what happened?’
Answer: ‘She was wee wee.’
Question 55: ‘And then what happened?’
Answer: ‘She get hurt.’
In my view, it would be open to a jury to conclude that this incident occurred during the final assault for the same reasons that I have set out above, concerning the 16 May 2005 conversation. Again, the essential link is A L’s description that ‘Tonnja wee wee’ or ‘Tonnja pee pee’.
H. 12 April 2006, VARE 8
On 12 April 2006, in VARE 8 the following questions and answers are found:
Questions and Answers 6- 55
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)
QAnd who else was in the lounge room with you? It was you and Tonnja, and who else?
A No - Kelly was in the pram.
Q Kelly? Who's Kelly?
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.
QOkay. So, you and Tonnja and Kelly were in the lounge room, is that right?
A (NODS HEAD)
Q Kelly was asleep, and then you said Tonnja started crying.
A (NODS HEAD)
Q What happened after that?
AHe 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, and me, and Kelly.
QOkay. 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? Your mouth or Tonnja's mouth?
A My mouth and Kelly's mouth and - and Tonnja's mouth.
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.
QAnd 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.
QOkay. 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 Blue. And where did he put it on your mouth?
A Here. (INDICATES MOUTH)
Q And how long did he keep it there for?
A No, he get his hand ..... here. (INDICATES MOUTH)
Q He put his hand on there?
AYeah. And I couldn't talk. (COVERS HIS MOUTH) And I was - and I kept cry-, crying.
Q You did cry?
A Yeah.
Q Okay. And did this happen the same night when MJ hurt Tonnja?
A Yeah.
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)
QOkay. 'Cos you said before that he put it on your mouth and Kelly's mouth and Tonnja's mouth. Is that right?
A (NODS HEAD)
Q Okay. So, when you said - - -?
A I don't want to talk any more.
Q Okay. You finished?
A Yeah.
…
Questions and Answers 71 – 102
QMcDonald'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)
QOkay. 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)
QOkay. 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.
QOkay. 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)
QHere? Okay. And was it just a little bit of the bag or all of the bag? What was it?
A A little.
QLittle 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?
ASaying, "If you be naughty, I'll get you," he - he would get Kelly - 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)
QOkay. So, when - whereabouts was Mummy when he had the bag on Tonnja's mouth?
A In the lounge room.
QOkay. 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 Kelly.
QAnd Kelly. Okay. And was Tonnja crying or was she asleep or was she talking? How was she?
A She was ..... - she was watching TV.
…
In my view, it is clear enough in these passages that it would be open to a jury to conclude that A L is talking about the bag in the context of the night that he asserts MJ hurt Tonnja. It is also, I think, tolerably clear that from question 103 onwards (not included in the extract above) that it is likely that he is talking about other times. As indicated in my Ruling No 1, the prosecution do not seek to lead Questions and Answers 103 onwards of VARE 8, but I make this point because, in my view, it distinguishes A L’s earlier answers (above) from later answers in which he is clearly referring to other occasions.
Evidence Act, s 55
It follows that I consider that a jury would be entitled to conclude the following references to the ‘bag’, or ‘plastic bag’ or ‘blue bag’, are sufficiently related to the alleged fatal assault on Tonnja Huynh, as to have occurred at about the same time as that incident. That is, the impugned passages in the 16 May 2005 statement of Quang Tran, the audio recorded conversation of 17 May 2005, the 17 August 2005 VARE 7 (Questions 32 - 35, and 54 - 55), and the 12 April 2006 VARE 8, (Questions 6 – 55, and 71 – 102). The critical link is either through direct narrative by A L that included the use of a bag in what is contended to be the fatal assault, or by reference to Tonnja being ‘naughty’ by doing ‘wee wee’ or ‘pee pee’, which is associated with the use of the bag, and which is also, in his evidence, is associated with the stomping assault.
Evidence Act, s 137
Insofar as the s 137 aspect of the argument is concerned, if the evidence that I have identified is taken at its highest for the prosecution, as it must be,[5] then the probative value of this evidence, in my view, is high. It is part of the narrative of the final fatal assault. Together with the accompanying evidence, it is capable of being used by the jury to determine what occurred and, if the jury exclude accident, the intention of the person who caused death.
[5]See IMM v R (2016) HCA 14.
The defence contend there is a danger of unfair prejudice in that if the jury do not accept that A L was talking about the final fatal assault but instead was talking about some earlier occasion then the jury may misuse the evidence and indulge in impermissible tendency reasoning. In my view this risk can be mitigated to an acceptable level by judicial direction.
It was also argued that a jury may be inflamed by the apparent cruelty of the plastic bag allegations. The jury will be directed that their task is intellectual, and will be warned both in my opening and closing remarks against acting on prejudice or sympathy.
Conclusion
I am not satisfied that the danger of unfair prejudice in the evidence that I have identified outweighs the probative value, and it follows that I admit the relevant evidence that I have identified in paragraph [31] above, that is, the evidence concerning ‘the bag’ set out under headings B., C., G. and H. of these reasons.
Pursuant to s 55 of the Act, I exclude from the evidence the reference to a bag in VARE 6 of 14 July 2016 on the basis that the jury could not reasonably infer that this reference to a ‘bag’ is connected to the incident contended by the prosecution to have caused Tonnja’s death. With no tendency argument mounted by the prosecution, this evidence is not relevant to a fact in issue in this case. For the same reason, I exclude the evidence sought to be led from Dr Gordon that on 12 August 2005 A L said that MJ hurt Tonnja by pushing a plastic bag into her mouth, and I exclude the reference to a bag in the recorded conversation between Quang, Amanda and A L of 20 May 2005. That is, the references to the bag in the evidence set out under headings D., E. and F. are excluded.
As I have indicated, I do not exclude the part of Dagmar Anderson’s 13 May 2005 records that describe A L ‘holding his hand over his mouth’ (set out under A.), however I will not permit the prosecution to invite the jury to infer that this motion is a reference to a bag being placed on or in Tonnja’s mouth. The same applies to other references to A L gesturing at or towards his mouth absent a description of a bag, and to depictions of him making such gestures in the VARE tapes.
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