Re Hudson Conway Ltd

[2001] VSC 21

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1437 of 2000

THE QUEEN

v.

KATHLEEN LINDA DEMPSEY

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JUDGE:	HARPER, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	6 FEBRUARY 2001
MEDIUM NEUTRAL CITATION:	[2001] VSC 21

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CATCHWORDS:      Ruling – Criminal trial – Death of an infant – Trial of mother for manslaughter – Defence of marital coercion – Application to admit evidence from undercover operatives of the relationship between husband and wife after death of the child.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. M. Sexton with Mr. J. Dowsley	Peter Wood, Solicitor for Public Prosecutions
For Kathleen Dempsey	Mr. P. Morrissey	Anthony Isaacs

HIS HONOUR:

1. In this trial the question of the relationship between Mr Brendan Dempsey and Mrs Kathleen Dempsey, his wife, is of great significance.  Mrs Dempsey is charged with manslaughter in circumstances in which it is not alleged that she inflicted any direct harm upon her baby child, Bo Dylan Dempsey.  The child, nevertheless, died of severe injuries which were almost certainly inflicted by human hand.  The Crown elsewhere allege that that hand was that of Brendan Dempsey.  His influence over his wife is relevant in this trial because the Crown must satisfy the jury beyond reasonable doubt that to the extent that Mrs Dempsey was neglectful of the child after it suffered injury, that neglect is not explicable by reference to her fear of the reaction of her husband were she to have taken the baby to medical treatment or otherwise reported to persons in authority the fact that the baby had been injured.

1. Evidence of the relationship between husband and wife after the baby died is, it seems to me, relevant to the relationship which existed before the baby died.  The weight that any evidence of the relationship post death might have would depend upon all the circumstances.  But the relationship was, on any view, one which continued from a point before the injuries to the baby until the arrest of mother and father about 12 months later.

1. What happened between the two in the ensuing 12 months is, it seems to me, relevant to an understanding of the relationship before the death of the baby.

1. The Crown now seek to introduce evidence of observations made by two undercover operatives during a period of one week towards the end of 1998, some months after the death of Bo Dylan.

1. As I understand it, the persons from whom the evidence is sought to be adduced were attached to the Covert Investigation Unit of the Victoria Police and were entrusted with the covert investigation of Mr and Mrs Dempsey from accommodation which the operatives rented within a distance of a few metres from a caravan then being occupied by Mr and Mrs Dempsey.  The operatives each made a statement outlining their observations.  In each case the statement contains materials which, in my view, clearly ought not be led in this trial.  That material includes statements about the consumption of drugs and the concealment of goods said to have been stolen.  The statements also contain what, in my opinion, is opinion evidence, that is, of conclusions drawn by the operative about the state of the relationship between husband and wife.  It is said, for example, by one of the operatives that she "found Kathleen to be the dominant partner".  It is said by the other that "it was Kathleen who seemed to take charge of Brendan".  Observations of this kind, it seems to me, should not be led in this trial.  They are conclusions formed upon the basis of no more than one week's observation of the couple, and any probative value which they might have is, in my opinion, greatly outweighed by the prejudicial effect which their presentation to the jury would occasion.

1. As a matter of fairness it seems to me that opinions of that kind ought not be put before the jury.

1. There remain observations of behaviour by Kathleen towards her husband which, if accepted, would suggest a degree of affection on her part towards him.  Such affection is obviously difficult to reconcile with the picture which, as I understand it, she would have the jury accept; always, of course, bearing in mind there is no burden of proof upon her.  That picture is, as I have indicated, one of a person who was so frightened by her husband that she dare not report to medical authorities serious injuries to her child.

1. It was submitted on Mrs Dempsey's behalf by her counsel, Mr Morrissey, that the observations to which I have just referred should, nevertheless, not be admitted.  There are, as I understand it, two principal bases for this submission.  The first is that the evidence sought to be tendered was not disclosed to Mr Morrissey until very recently.  The statements themselves were not in his hands until, in the one case, last night, and in the other this morning.  He was forewarned of the possibility that the prosecution might seek to rely upon evidence of this general kind perhaps towards the end of last week, but I accept that the detail of the evidence sought to be led by the Crown was not available for Mr Morrissey's consideration until very recently indeed.

1. In these circumstances Mr Morrissey submits he was not in a position to cross-examine previous Crown witnesses about the post-death relationship as he would have done had he been fully informed or, indeed, informed at all about the evidence now sought to be led.  Indeed, Mr Morrissey submits that he may well have conducted the defence in ways which would have been materially different from the course which he has, in fact, adopted.  He has pointed to the disadvantage which the defence suffers as a result of not having the opportunity to test the evidence in such a proceeding as a committal proceeding, and while acknowledging a Basha inquiry might be held, nevertheless points out that it is now too late to recast the general thrust of the defence, at least as it relates to the relationship of the couple after the death of their child.

1. The second principal submission put by Mr Morrissey in support of the proposition that I should not allow the Crown to lead any evidence of Mrs Dempsey's affection toward her husband is that it adds nothing to material which the Crown is already in a position to put before the jury.  The Crown can go to the jury on the basis that

1. Mrs Dempsey continued to live with Brendan Dempsey after the death of Bo Dylan, that she became pregnant to him, as I recall shortly after that death, that she said in a conversation with another police covert operative that she retained an affection for her husband, and I think there were one or two other evidentiary matters to which

1. Mr Morrissey drew my attention in relation to this point.

1. In short, Mr Morrissey submitted that the Crown has material sufficient to mount whatever case it thinks appropriate in support of the proposition that the relationship between the couple after Bo Dylan Dempsey died was such as to negate any doubt the jury might otherwise have about the influence which Brendan Dempsey had on Kathleen Dempsey before the death of Bo Dylan and after the baby was injured.

1. In my opinion, if any part of the evidence presently sought to be adduced by the Crown were to be allowed it would only be the evidence of Mrs Dempsey's affection towards her husband.

1. I think the issue is one that is not easy to resolve.  In the end however I am satisfied that I should not allow any of this evidence to go before the jury.  I am particularly influenced in coming to this conclusion by the fact that it was at this very late stage in the trial that the evidence was first sought to be put forward.

1. Ms Sexton for the Crown relied upon what she submitted were significant changes in the position of a number of witnesses called on behalf of the Crown.  Those differences were between statements made or evidence given by those witnesses on previous occasions from that which they gave at the trial.  They do indeed exist.  It nevertheless seems to me that the changes were not so significant as to warrant the introduction, at this late stage, of evidence the relevance of which, it seems to me, could have been foreseen no matter what course the trial might have taken.

1. In those circumstances I think it would be unfair, and improperly unfair, to allow the evidence to go before the jury.

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