R v Dempsey - [2000] VSC 521

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1437 of 2000

THE QUEEN

BRENDAN ERIC DEMPSEY AND KATHLEEN LINDA DEMPSEY

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JUDGE:	HARPER, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	23 NOVEMBER 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 521

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CATCHWORDS: Ruling – Criminal trial – Application to exclude record of interview – Confession – Whether voluntary – Inducement – Role of Department of Human Services and police – Whether an implied promise by police sufficient – Collins v. The Queen (1980) 31 ALR 257 applied – Evidence Act 1958, s.149.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. M. Sexton with Mr. J. Dowsley	Peter Wood, Solicitor for Public Prosecutions
For Brendan Dempsey	Mr. M. Bourke with Ms. T. Hartnett	Victoria Legal Aid
For Kathleen Dempsey	Mr. A. Lewis	Anthony Isaacs

HIS HONOUR:

Sometimes people die unexpectedly. Even when death is expected, any civilised society requires some explanation for the death. In the routine case this is given by a medical certificate. In such cases nothing more is required.

The death of Bo Dylan Dempsey on 12 August 1998 was not in this category. He was only 11 weeks old when he died. There is a body of medical opinion, which may be challenged - perhaps successfully challenged - at the trial, to the effect that his death was caused by a fractured skull. There is also evidence - which again may be challenged at the trial - that the injury occurred some days before death and that in the interval between the two occurrences no medical treatment was sought on the baby's behalf. Not only that, but during that same interval the baby's leg was broken. There is also evidence that the house in which the baby lived was in a very poor state of general cleanliness.

Bo Dylan had a brother, Axul Dempsey. He was 22 months old when his brother died. Like Bo Dylan, he was then living with his parents. They are the accused, Brendan Dempsey and Kathleen Dempsey. There is no suggestion of any outside involvement in Bo Dylan's death.

In these circumstances, any civilised society would look for an explanation for the baby's injuries and for the apparent failure of any responsible person to seek medical treatment on the baby's behalf. Bo Dylan's parents would and did expect nothing less. In that sense they felt themselves to be under pressure to provide an explanation from the moment that the death was made known. One or two attempts were made in the days immediately following the death to explain its occurrence, but those explanations were not satisfactory. They did not fit what were then the known facts. Of course, those "facts" might have subsequently been, and might still be, shown not to be "facts" at all. While the evidence was in its then state, however, the initial explanation or explanations given for the injuries to Bo Dylan and for the failure to procure medical intervention on his behalf were necessarily seen…

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 Dempsey

Details

AGLC: R v Dempsey [2000] VSC 521
Case: [2000] VSC 521
Decision Date: 23 November 2000

CaseChat Overview and Summary

In the matter of the Queen versus Dempsey, the respondent, the dispute involved the admissibility of a confession made by the respondent to police, which he sought to exclude on the basis it was not voluntary. The case was heard in the County Court of Victoria. The central legal issue was whether the confession was made voluntarily and without inducement by the police or other parties. Specifically, the court needed to determine whether an implied promise by police, coupled with the actions of the Department of Human Services, amounted to an inducement that rendered the confession involuntary under the Evidence Act 1958, s.149.

The court considered the principles established in Collins v. The Queen, which provided that for a confession to be voluntary, it must be made without any form of inducement or coercion. The court examined the nature of the interaction between the police, the Department of Human Services, and the respondent. It was found that while the Department of Human Services played a role, the primary focus was on the actions and conduct of the police during the interview. The court applied the ruling from Collins v. The Queen, concluding that there was no explicit or implied promise by the police that would have influenced the respondent's decision to confess. As such, the confession was deemed voluntary.

Consequently, the court ruled that the confession was admissible as evidence. The application to exclude the record of the interview was dismissed. The respondent's arguments regarding the involvement of the Department of Human Services did not provide sufficient grounds to deem the confession involuntary. The court's decision was in line with the statutory provisions and the legal precedents applied.

Orders