R v Debresay (Ruling No 3) - [2016] VSC 502

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…

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 3)

Details

AGLC: R v Debresay (Ruling No 3) [2016] VSC 502
Case: [2016] VSC 502
Decision Date: 19 August 2016

CaseChat Overview and Summary

In the matter of R v Debresay, the accused was charged with assault causing death. The dispute arose from the admissibility of evidence concerning the accused's possession and use of a bag during the incident. The case was heard in the Supreme Court of Victoria. The central legal issue was whether references to the bag were temporally connected to the alleged assault and whether the probative value of this evidence outweighed any potential for unfair prejudice.

The court had to determine whether the evidence about the bag was relevant to the events in question and whether it could assist in determining the truth of any fact in issue. The court examined the relationship between the bag and the assault, considering whether the temporal proximity of the bag's use to the incident made it relevant. The court also weighed the probative value of the evidence against the potential for unfair prejudice, guided by provisions in the Evidence Act 2008, specifically sections 55 and 137. The accused argued that the evidence was prejudicial without substantial relevance to the events at hand.

Upon careful consideration, the court found that the evidence concerning the bag was indeed relevant to the timeline of the assault and that its probative value did not unduly prejudice the accused. The court ruled that the evidence was admissible, as it provided a context that could assist in understanding the sequence of events leading to the victim's death. The court's decision hinged on the precise connection between the bag's use and the assault, concluding that the evidence was both relevant and sufficiently probative to warrant its inclusion in the trial.

Orders