R v Debresay (Ruling No 4) - [2016] VSC 643

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…

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 4)

Details

AGLC: R v Debresay (Ruling No 4) [2016] VSC 643
Case: [2016] VSC 643
Decision Date: 5 September 2016

CaseChat Overview and Summary

In the case of R v Debresay, the respondent, Debresay, was on trial for various charges related to his involvement in a large-scale drug trafficking operation. The matter came before the court as a ruling on the admissibility of prior inconsistent statements of a key prosecution witness. The witness, who had previously given statements that were potentially damaging to the respondent, had become an unfavourable witness and was unwilling to testify at trial. The prosecution sought leave to cross-examine the witness on those prior statements under sections 38 and 192 of the Evidence Act 2008.

The central legal issue before the court was whether the judge had correctly exercised their discretion to permit cross-examination on the prior inconsistent statements. The court had to consider whether the witness's demeanour and attitude justified the exercise of this discretion, and if so, whether the scope of such cross-examination was appropriately limited. The respondent argued that the witness's unreliability and demeanour warranted leave to cross-examine, but that the scope of the cross-examination should be confined to matters that were material to the case.

The court held that the witness's demeanour and attitude did warrant leave to cross-examine on the prior inconsistent statements. However, the court also found that the trial judge had correctly exercised their discretion in limiting the scope of the cross-examination. The court acknowledged the importance of the witness's credibility in the case, but also recognised the need to protect the witness from unnecessary or oppressive examination. The court found that the judge had appropriately balanced these considerations and had not erred in their exercise of discretion.

The court did not make any orders as the ruling was interlocutory in nature, dealing with the admissibility of evidence rather than the final outcome of the trial. The trial would continue with the understanding that the cross-examination of the witness on the prior inconsistent statements would be limited in accordance with the court's ruling.

Orders