R v Debresay (Ruling No 4)
[2016] VSC 643
•5 September 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: | 2, 5 September 2016 |
DATE OF RULING: | 5 September 2016 |
CASE MAY BE CITED AS: | R v Debresay (Ruling No 4) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 643 |
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EVIDENCE – Witness – Unfavourable witness – Prior inconsistent statements – Prosecution application for leave to cross-examine – Discretion to grant leave – Scope of leave - Evidence Act 2008 ss 38, 192.
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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 prosecution have made various applications under s 38 of the Evidence Act 2008 (‘the Act’) to cross-examine their witness, Jennifer Louey. The prosecution submits that this witness:
(a) Has given evidence that is unfavourable to the prosecution (s 38(1)(a)); and
(b) Has made a number of prior statements that are inconsistent with her current evidence (s 38(1)(c)).
Background to the application
The prosecution allegations
The accused man is charged with the murder of Tonnja Huynh, the two-year-old daughter of Jennifer Louey. In May 2005, the accused was in a relationship with Jennifer Louey. On the night of 12 May, Ms Louey and her three children A L (then 4), Tonnja (then 2) and K H (then 1) slept at the accused’s small one bedroom unit in Footscray. The prosecution case, based largely on the evidence of A L, is that at some indeterminate time on the morning of 13 May 2005, the accused left the bedroom where he and Jennifer Louey were sleeping and entered the adjacent lounge room area, where the children were either sleeping or watching television. He discovered that Tonnja had wet her nappy, clothes, and the cushion of the couch. He became angry, took her to the kitchen area (also adjacent to the lounge room) and stamped or stomped on her abdominal area. At some stage he may have head butted her. The accused and Jennifer Louey used the kitchen area in the Footscray flat as a time out room if one of the children misbehaved.
A L, now 15, has given evidence-in-chief in the nature of VARE tapes. Nine of the ten tapes played in Court were of interviews conducted in 2005 or 2006. In 2015, another VARE interview was conducted. I have also admitted into evidence various statements made by A L in 2005 about an incident that occurred involving the accused and Tonnja. Taken at its highest for the prosecution, A L’s evidence discloses that MJ (the accused’s nickname within the family) at some stage emerged from the bedroom into the adjacent lounge room and discovered that Tonnja had done ‘wee wee’ through her clothes and onto the cushion of the couch. He took Tonnja to the kitchen where he told Tonnja to sit down on the floor. Tonnja was sick (A L demonstrated a vomiting motion). MJ stepped or stomped on Tonnja’s lower back[1] or tummy[2]. While this was taking place, Jennifer Louey remained in the bedroom.
[1]Various interpretations of the account provided by A L on 13 May 2005.
[2]Recorded conversation with Amanda Louey and Quang Tran of 15 May 2005.
Dr Ranson, a pathologist, has given uncontradicted evidence that the cause of death was blunt force trauma, resulting in internal abdominal injuries including widespread lacerations of the liver, rupture of the pancreas, and a ragged defect in the anterior wall of the small bowel. The peritoneal cavity of the deceased’s abdomen contained approximately 300 ml of blood. It was Dr Ranson’s opinion that considerable force would have been required to cause the injuries that caused death. The abdominal injuries observed were in keeping with blunt force having been applied to the abdomen, squeezing the abdomen contents between the object applying force and the vertebral column.
Dr Ranson also observed injuries to the deceased’s body in the form of bruises, abrasions or grazes, some of which, in his opinion, may have been related to the cause of death, but were not themselves the cause of death. These injuries included bruising to the forehead, widespread soft tissue injuries to the head, neck, arms, legs, abdomen, chest and back, and superficial laceration to the external genitalia.
Dr Ranson said that a child suffering from the abdominal injuries observed on the deceased might be expected to live for several hours. He said that he could not estimate the time between the infliction of the injuries and death more precisely. He doubted that the injuries could have been caused the night before Tonnja died. He described the likely symptoms of a child suffering these injuries to include faintness and drowsiness, which would increase as time went by. He said he would expect the child to be in pain, and to have difficulty walking.
Jennifer Louey’s evidence
It is against that background that Jennifer Louey gave evidence in this trial. She was called by the prosecution. In short compass, she said that she met the accused in February 2005, and a relationship developed after a time. By May 2005, she and her children would, on occasions, stay overnight at his flat in Footscray. The accused treated the children like ‘a loving father’, and she never saw him inappropriately physically discipline or touch the children. She never indicated to anyone that Tonnja was scared of the accused. Mr Debresay would discipline the children occasionally by putting them in the kitchen for a time out period. She saw the accused put Tonnja in the kitchen once on either the night before she died, or the morning of the day that she died.
Tonnja did not go to sleep on the night of 12 May 2005. The accused went out for a time that evening, but was back before midnight. Ms Louey said that at the time the accused returned, A L was on the couch in the lounge room, Tonnja was standing in front of the television, and K H was in a pram in the lounge room. Both the accused and Ms Louey went to the bedroom.
At some time after midnight, Tonnja had a fall. There was a thump outside the bedroom; the accused went to check. Jennifer went out approximately two minutes later. Tonnja was lying on the floor between the coffee table and the television. Tonnja had apparently hit her head and Jennifer Louey thought Tonnja was lying face down. Tonnja did not cry. Jennifer thinks that Tonnja said that she fell, and that she was okay. Tonnja had a red mark in the middle of her forehead. Jennifer made sure Tonnja was okay and thinks that she then put Tonnja on the couch. She remembered changing Tonnja’s nappy at some stage. She said the accused never changed the children’s nappies.
Jennifer Louey could not recall where the accused man was when she first left the bedroom after waking on 13 May 2005. She checked on the kids and changed Tonnja’s nappy in the bedroom. She thought she noticed marks on Tonnja’s thighs, but not her vagina. She said that the accused was not angry that the couch was wet. Samantha Barry came around at about lunchtime for a time. Jennifer, the accused and the children then they left the flat to go to a Footscray coffee shop. Tonnja was unusually quiet that morning and only walked about half way to the coffee shop before she needed to be carried. At no stage did Jennifer hear Tonnja screaming. She did not recall seeing Tonnja lying on the coffee table or bleeding. At the coffee shop, Tonnja appeared tired and went to sleep on Jennifer’s lap. When Jennifer realised that Tonnja was unresponsive, she took her to the medical centre.
Jennifer said that she did not know how Tonnja sustained the various bruises and abrasions that were found on her body, apart from the injury to her head, which according to Jennifer’s earlier evidence was apparently caused by colliding with the coffee table when she fell. She said she did not cause the injuries to Tonnja’s abdomen and she did not see the accused do anything to cause those injuries. She said that, following Tonnja’s death, she stayed in a relationship with the accused but never became engaged to him.
Legal principles
Section 38 of the Act permits a party, with the Court’s leave, to cross-examine its own witness provided certain preconditions are met. It is now well understood that the previous common law ‘hostile witness’ mechanism, which allowed cross-examination of one’s own witness, has been dramatically altered. The Court is no longer required to conclude positively that a witness was deliberately lying or withholding evidence. The party who called the witness need only establish that the evidence given by the witness is unfavourable to that party, or that the witness is not making a genuine attempt to give evidence about matters the witness might reasonably be supposed to have knowledge, or that the witness has made a prior inconsistent statement. Assuming at least one of these preconditions is met, the Court will then determine whether it ought grant leave in the circumstances. It is apparent that s 38(1)(a) and (c) set the bar much lower than the old common law position.
Unfavourable
The word ‘unfavourable’ is not defined in the Act. It has been held to mean ‘not favourable’, and not to mean ‘adverse’ in the sense of ‘hostile’.[3] Evidence is unfavourable when it is not favourable to the case that the applicant party is seeking to advance.[4] A party’s case may be identified from the party’s opening, its pleadings, and the evidence the party has already called. Evidence that is inconsistent with or contradictory of that case will ordinarily meet the test of ‘unfavourable’.[5] To the extent that some earlier New South Wales authorities[6] stated that evidence was not to be considered unfavourable merely because it did not fit within a particular case theory postulated by the prosecution, this approach has now been disapproved. The prosecution is entitled to present a version of evidence consistent with the guilt of the accused, and to test the evidence of witnesses that is ‘inconsistent’ with that version.[7]
[3]DPP v Garrett [2016] VSCA 31 at [64]-[66]; R v Souleyman (1996) 40 NSWLR 712 at 715; R v Veleski (No.2) (1997) 93 A Crim R 420; Kanaan v R [2006] NSWCCA 109 at [83].
[4]DPP v Garrett at [67], [69].
[5]DPP v Garrett at [68].
[6]See R v Kneebone [1999] NSWCCA 279.
[7]DPP v Garrett at [70] citing with approval Randall v R (2004) 146 A Crim R 197 at [24].
‘Unfavourable’ evidence does not mean ‘unexpectedly unfavourable’. In Adam v The Queen (2001) 207 CLR 96, the High Court held that s 38 allowed a party (subject to the grant of leave) to call a witness it knew was unfavourable in order to cross-examine the witness (and thereby to have a prior inconsistent statement admitted into evidence).
Cross examination under s 38 must be about one of the three s 38(1) matters (unfavourable evidence, matters upon which it appears a witness is not making a genuine attempt to give evidence, or prior inconsistent statements). A party granted leave cannot undertake wide-ranging cross examination on any matter it wishes.[8]
[8]R v Le (2002) 54 NSWLR 474; R v Hogan [2001] NSWCCA 292.
Discretion to grant leave
Assuming a party applying for leave to cross-examine under s 38(1) has established one or more of the s 38(1) preconditions, it must then still persuade the Court to grant leave under that section.
In determining whether to grant leave, and the scope of any leave granted, the court must take into account the matters specified in s 38(6) and s 192[9], specifically:
[9]Staneovski v R (2001) 202 CLR 115; see also R v SH, MV and KC [2011] ACTSC 198 (‘SH’).
Section 38
…
(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and
(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
Section 192: Leave, permission or direction may be given on terms
(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and
(b) the extent to which to do so would be unfair to a party or to a witness, and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and(d) the nature of the proceeding, and
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
Analysis
Section 38(1)(c) – Prior inconsistent statements
The prosecution initially identified 10 topics within which they submitted the witness has made prior inconsistent statements (s 38(1)(c)). Ultimately, topics 5, 7 and 9 were not pressed. I shall analyse each of the remaining seven topics below, before turning to the Crown’s broader submission concerning ‘unfavourable evidence’ (s 38(1)(a)).
Topic 1: The fall(s)
The prosecution submit that Jennifer Louey has given inconsistent versions of the fall or falls, and of where Tonnja was when she entered the lounge room shortly after (one of) the fall(s).
Trial Evidence
At trial, Jennifer Louey has given evidence that some time after midnight (she could not say when more specifically) she heard a thump from outside the bedroom and MJ went into the lounge room to investigate. Jennifer followed him out of the bedroom approximately two minutes later. Jennifer saw Tonnja was lying on the floor between the coffee table and the television. She thought Tonnja was lying face down. Tonnja had a red mark in the middle of her forehead.
Other evidence said to be inconsistent with trial evidence
(a) Ambulance Officer Bryce:
‘(Jennifer Louey) stated Tonnja had an unwitnessed fall at around 5.00 am…’. ‘The mother further stated that Tonnja had another unwitnessed fall at 10.00 am…’.[10]
[10]Depositions, 804; 661.
(b) Constable Loney: At the medical centre on 13 May 2005, Ms Louey gave the same two unwitnessed falls account as described by Ambulance Officer Bryce.[11]
[11]Statement of Constable Loney of 8 July 2005, Depostions, 1371.
(c) Senior Sergeant Dagmar Anderson: The witness is said by Ms Anderson to have given her an account of two separate ‘thumps/bangs’, but did not offer times.
(d) Detective Senior Constable Euvrarde: D/S/C/ Euvrarde was present at the Millennium Medical Centre at 5.15 when Jennifer Louey told D/S/C/ Tabbitt that she heard two bangs, the first between midnight and 5.00 am, the second at 5.00 am., and that Tonnja hit her head on the coffee table.
(e) Record of Interview No.1 (13 May 2005) with Jennifer Louey: Qs 89[12], 91[13] and 195[14], to which she answered, in effect, (to Q 89) that Tonnja hadn’t wanted to go to sleep, Mussie put her on the couch and then ‘after a while we hear this bang’. Mussie went out to see what was wrong and said that Tonnja had hit her head on the coffee table. Jennifer went to see what was going on. Tonnja didn’t cry. Jennifer went back to the bedroom. (To Q 90) that during the time just before Sam Barry arrived on 13 May 2005, Jennifer saw Tonnja face down on the floor. (To Q 195) That Mussie went out to Tonnja after hearing a bang. Mussie told Jennifer that Tonnja had banged her head on the table, but she wasn’t crying. Jennifer then went back into the bedroom because Tonnja was fine.
[12]Depositions, 1655.
[13]Depositions, 1656.
[14]Depositions, 1667.
(f) Record of Interview No.1 (13 May 2005) with Jennifer Louey: Qs 206 and 207 To which she said, in effect, that after coming out into the lounge room following the bang, she saw Tonnja on the couch.
(g) Jennifer Louey’s witness statement to police of 25 May 2005: Jennifer states that she heard a loud bang from the lounge room at around 5.00 am. MJ went out from the bedroom to check. She followed him out a couple of minutes later. She asked MJ ‘what’s wrong?’ and he told her that Tonnja fell and hit her head on the coffee table. Tonnja had a red mark on her forehead. Tonnja said ‘my head’ but did not cry.
(h) Record of Interview No.2 (1 September 2005), Q 125: At 10.00 am, when Jennifer got up, Tonnja was face down on the floor.
(i) Committal Transcript, 518: Jennifer thought Tonnja fell just before they went to bed. There was a loud bang. Mussie went out first, Jennifer went out shortly after. Tonnja was standing in front of the television.
Conclusion
I consider that there are demonstrable inconsistencies in some of these prior accounts when considered against Jennifer Louey’s evidence-in-chief. These inconsistencies concern the number of falls, the timing of the fall or falls, and Tonnja’s position when the witness first saw her after the fall(s). I do not consider that items (e) and (g) above (i.e. Record of Interview No.1, Qs 89, 91, 195; and Jennifer Louey’s 25 May 2005 statement to police) contain any real inconsistencies.
Mr Dann QC for the accused conceded that inconsistency had been demonstrated so far as the fall or falls were concerned. With regard to the s 38(6) and s 192 factors, it is my view that, provided the cross examination is limited to examining Jennifer Louey’s inconsistencies concerning the number of ‘thumps’ or falls, the timing of these, and the position in which she saw Tonnja following a ‘thump’ or fall, it is appropriate to allow the Crown to cross examine on this evidence.
I accept that it may be that the defence will likely also put these inconsistencies to Ms Louey in their cross-examination (s 38(6)(b)), however, in my view, the attack made on Ms Louey’s credibility or reliability by the Crown will be conducted with a different emphasis to an attack by the defence. By this I mean that I anticipate the manner in which the defence frames any questions to this witness about these inconsistencies will differ from the Crown formulation. If I left the issue to be resolved until after the defence cross examination, it would have the effect that (were I to then grant the Crown leave) the defence would have lost the advantage of final cross-examination of the witness. Mr Dann considered that this outcome would be ‘less palatable’ for the accused than the Crown proceeding first in any cross-examination.
Concerning the s 192 factors, I agree with the prosecution submission that this evidence is of high importance to the Crown case.[15] The ‘fall(s)’ account provides a possible alternative explanation for the injury to Tonnja’s forehead. An incriminating conduct notice concerning to the accused’s provision of varying ‘fall accounts’ has yet to be determined. Insofar as the proposed cross-examination would examine the inconsistencies within Jennifer Louey’s ‘fall accounts’, this is an area that the Crown is entitled to explore.
[15]Section 192(2)(c).
I do not see that granting leave limited to exploring these inconsistencies would add significantly or unduly to the length of the proceeding.[16] Neither is it my view that allowing the Crown to put these inconsistencies to this witness would cause unfair disadvantage to the accused or to the witness.[17]
[16]Section 192(2)(a).
[17]Section 192(2)(b).
I do not consider the nature of the proceeding,[18] a criminal trial, to be determinative in my exercise of this discretion. I note the approach indicated Adams J in R v Pantoja[19] and Greg James J in Kneebone[20] (commented upon by Refshauge J in SH[21]) both of whom considered that leave should not readily be granted to the Crown in a criminal trial. However, I do not accept that that position outweighs the reasons favouring this grant of leave on this topic.
[18]Section 192(2)(d).
[19]R v Pantoja [1998] NSWSC 565.
[20]R v Kneebone (1999) 47 NSWLR 450.
[21]At [41].
Finally, I have considered, as an alternative,[22] allowing the Crown to lead some of these earlier accounts to revive the witness’s memory in court under s 32. It is my view that given the number and variety of the inconsistencies, and the limited scope of the leave for cross-examination that I propose, the s 32 course would result in a fundamentally similar exercise in any case.
[22]Section 192(2)(e).
I note that the Prosecution also rely upon Jennifer Louey’s varying accounts of the number and timing of the falls as part of their ‘unfavourable evidence’ argument. I will return to this point.
Topic 2: Whether Tonnja slept during the night
Trial Evidence
Tonnja did not sleep during the night. Jennifer did not remember Tonnja going to sleep.
Other evidence said to be inconsistent with trial evidence
Jennifer Louey Record of Interview No. 1 (13 May 2005):
Q 299:
‘…she (Tonnja) was probably sleeping for four or five hours before we left to go to Footscray.’[23]
[23]Depositions, 1677.
Conclusion
This answer is inconsistent with the witness’s trial evidence. In consideration of the discretionary factors, I repeat my analysis concerning Topic 1. I do not agree with Mr Dann’s argument that this inconsistency is trivial in the context of this trial. Jennifer’s assertion that Tonnja had not slept during the night provides a possible account for her tiredness on 13 May 2005, which Dr Ranson described as symptomatic of her injuries. I propose to grant the prosecution leave to cross-examine on this inconsistency.
Topic 3: How Tonnja travelled from Footscray to the Nicholson Street coffee shop.
Trial evidence
Tonnja walked about half way and Jennifer carried her after that.
Other evidence said to be inconsistent with trial evidence
Jennifer Louey’s account to D/S/C Euvrard (as recorded by D/S/C Euvrard): ‘Was Tonnja walking too?- - - Tonnja was in the pram’.[24]
[24]Depositions, 1357.
Conclusion
This answer is inconsistent with the witness’s trial evidence. In my view, it is relatively inconsequential, however, given the symptomology of tiredness and difficulty walking that was postulated by Dr Ranson, I propose to grant the prosecution leave to cross examine on this issue for the same reasons as for Topic 2.
Topic 4: Where the accused was when Ms Louey left the bedroom in the morning.
Trial Evidence
Jennifer could not remember whether the accused was still asleep when she got up in the morning or whether he was out in the lounge room.
Alleged inconsistencies
(j) Record of Interview No. 1 (13 May 2005), Qs 274-277: When she got up Mussie was outside in the lounge room.
(k) Record of Interview No. 2 (1 September 2005), Qs 109-115: Mussie was up first but she did not know what he was doing.
Conclusion
Jennifer Louey’s answers to police in the records of interview are inconsistent with her trial evidence. The issue of the relative waking times of Jennifer Louey and the accused is important to the prosecution narrative. By a number of A L’s accounts, his mother was asleep in her bedroom at the time that the accused assaulted Tonnja. I propose to grant leave to the Crown to cross-examine the witness on this issue. I repeat my Topic 1 analysis of the s 38(6) and 192(2) discretionary factors.
Topic 6: Whether the bruises on Tonnja’s thighs were discussed between Ms Louey and the accused.
Trial evidence
Jennifer Louey said she did not speak to Mussie about the marks she saw on Tonnja’s thigh.
Alleged inconsistencies
Police Statement of 25 May 2005:
When Jennifer changed Tonnja’s nappy she saw bruises on Tonnja’s thighs. She asked the accused how she got the bruises and he told her he didn’t know.
Conclusion
The prior statement is inconsistent with the witness’s trial evidence. While I accept Mr Dann’s submission that this inconsistency will be likely put by him to the witness, it is my view that the emphasis of the defence puttage will be significantly different from that of the Crown. I propose to grant leave to the Crown to cross examine on this inconsistency.
Topic 8: The timing of Tonnja’s being placed in the kitchen.
Trial evidence
The only occasion that the accused put Tonnja in the kitchen would have been the night before her death when she and the children stayed over at the accused’s flat. She could not recall what time this occurred.
Alleged inconsistencies
Jennifer Louey, Witness Statement of 25 May 2005: The last time Jennifer saw the accused put Tonnja in the kitchen was on the morning of Friday 13 May. She did not know what time this occurred but it was just after she got up about 10.00 am.
At the committal, Jennifer Louey said that the accused did not place Tonnja in the kitchen either on the night of 12 May 2005 or on 13 May 2005.
Conclusion
The prior statement is inconsistent with the witness’s trial evidence. Accounts of the accused putting Tonnja in the kitchen also go to the core of the Crown case. I accept again that the defence are likely to cross-examine on the inconsistency with Ms Louey’s committal evidence, however, I again propose to grant leave to the Crown to explore this area in cross examination for the purpose of examining the Witness Statement inconsistency.
Topic 10: Whether Ms Louey had concerns about the accused’s treatment of her children.
Trial Evidence
Jennifer Louey said that the accused treated her children like a loving father and she never saw him touch Tonnja in an inappropriate physical way. She has never voiced concerns about how the accused treated A L or Tonnja. She has never indicated to anyone that the accused was rough with Tonnja. She has never indicated to anyone that Tonnja was scared of MJ.
Alleged inconsistencies
(a)Amanda Louey Tran, witness statement 10 April 2006: Amanda said she asked Jennifer Louey ‘Why is Tonnja scared of MJ?’ and Jennifer replied, ‘Because they don’t listen to me and they are scared of him’. This evidence was not given at trial.
(l) Samantha Barry, witness statement 16 May 2005: This evidence not given at trial. Samantha was concerned at the way the accused spoke to the children and tugged at them to say ‘come here’. She thought he was rough with the girls. Samantha discussed this with Jennifer and they agreed they should speak to the accused about this.
(m)Ly Duong, Statement of 30 May 2005: Prior to Tonnja’s death she was visiting Jennifer Louey on 3 May 2006. Jennifer was getting ready to visit MJ’s house when Jennifer asked Tonnja whether she wanted to visit MJ’s house. Tonnja started crying, as did K H…
I asked Jennifer why the kids were crying. She told me the kids were really scared of MJ. She told me the kids didn’t listen to her and had to listen to someone. She told me it was good they were scared of him because the(y) listen to MJ.
(n) Jennifer Louey, Record of Interview of 1 September 2005, response to Q 44:
I think I mentioned that I didn’t like the way he was handling the kids.
Conclusion
The above statements are inconsistent with the evidence given by Ms Louey in answer to a question from the prosecution, that the accused treated the children like ‘a loving father’. Despite this inconsistency, I decline to exercise my discretion to grant the prosecution leave to cross-examine about the children’s apparent fear of the accused, and the assertion that the accused was ‘rough’ with the children. In particular, with regard to s 192(2)(c), it is my view that allowing the prosecution to cross examine on this issue would invite impermissible tendency reasoning where no tendency notice has been served. The prosecution argue that they do not seek to use the evidence for a tendency purpose but rather to attack Jennifer Louey’s credit, particularly in regard to her relationship with the accused, and that the danger of unfair prejudice may be effectively ameliorated by a strong jury direction. I do not agree. In my view, the danger of the jury misusing this evidence cannot be sufficiently cured by a direction.
Unfavourable Evidence
In addition to the inconsistencies that I have considered, the prosecution made a more general s 38(1)(a) application, to the effect that Jennifer Louey’s evidence a) concerning her inconsistent accounts of the fall or falls, b) that she did not hear Tonnja cry out in pain at all during the night of 12 May or morning of 13 May 2005, and c) that did not know or realise that Tonnja was very unwell in the hours leading up to the Millenium Medical Centre attendance, is, separately and in combination, unfavourable to the Crown case. Ms Flynn contends that, given the significant pain Tonnja would have experienced (according to Dr Ranson) from the infliction of the injuries, Jennifer Louey’s evidence that she did not hear the sounds of the alleged assault and/or the sound of Tonnja crying out in pain in the small one bedroom flat is unfavourable to the Crown narrative that the child was violently assaulted at this location while Jennifer Louey was inside the apartment. The Crown further contend that this witness’s account of the falls is unfavourable, in that it provides an alternative explanation for the injury to Tonnja’s forehead to the alleged ‘headbutt’. They argue that the inconsistencies between Jennifer Louey’s accounts of the fall or falls provide some basis for the assertion that Jennifer Louey in fact did not hear or witness any fall or falls, and that indeed no fall occurred. They apply to put this to the witness.
Without reference to s 38(1)(b), the prosecution have alluded to a premise that Jennifer Louey has not provided a full and true account in her evidence concerning 12 and 13 May 2005. Although Jennifer Louey’s apparent devotion to the accused was signalled as a motive to provide a false account, the Crown backed away from alleging any collusion between this witness and the accused.
I do not consider that there is any basis in fact to assert that Jennifer Louey did not hear or witness Tonnja fall on 12 May 2005 or 13 May 2005. Though the injury to Tonnja’s forehead may alternatively be explained by a headbutt from the accused, this alternative explanation does not exclude the possibility that the child also fell over and hit her head. The Crown did not lead any evidence from A L about whether or not he witnessed Tonnja fall at the accused’s flat.
In Tran v The Queen[25], the Federal Court in its appellate jurisdiction considered a prosecutor’s duty of fairness in the conduct of a trial. In the course of their reasons, their Honours articulated that “although a prosecutor may legitimately invite the jury to draw inferences from such facts as are proved, the prosecutor must not encourage the jury to engage in mere speculation of conjecture.”[26] In my view, allowing the Crown to cross examine this witness to the effect that she did not hear or observe any fall would be to allow it to advance an unsubstantiated theory. The same extends to the Crown putting to her that, contrary to her evidence in chief, she must have heard Tonnja cry out in pain and (possibly) the noise of the alleged assault. I decline to grant leave to the prosecution to cross examine on these ‘unfavourable evidence’ bases.
[25](2000) 105 FCR 182 (‘Tran’).
[26]Tran, para 130.
This ruling does not to preclude the Crown from inviting the jury in their closing submissions to draw adverse conclusions about this witnesses credibility or reliability. Such submissions may reasonably be based on the inconsistencies in Jennifer Louey’s accounts (and what arises from the cross-examination I have allowed concerning these inconsistencies), along with the submissions that the Crown has made in this application concerning this witness’s apparent devotion to the accused, the size of the apartment, and the pain that Dr Ranson hypothesised Tonnja would have experienced.
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