Prosecution v Prosecution

A. Should an unreliable evidence direction be given?

1. An unreliable evidence direction, sought because of a witness' inability to accurately recall some matters, will not be given.

B. Delay and recent refreshing of memory relied upon

1. At the conclusion of the prosecution case, the defence indicated Maskell would be calling no evidence.[1] After closing addresses,[2] the defence sought a direction "on unreliable evidence"[3] with respect to a witness.
2. That witness was Dr Tanya Yuen ("Yuen"). Yuen is a neurosurgeon based at Royal Melbourne Hospital. She treated the deceased, John Burke ("Burke"), for a few weeks commencing almost immediately after he had been assaulted by the accused, Troy Maskell ("Maskell").
3. Maskell was tried in 2023 for killing Burke. Yuen was not called as a witness at that trial. Maskell's manslaughter conviction was overturned by the Court of Appeal.[4]
4. Late last year, Yuen was told that the prosecution intended to call her as a witness in this trial. Accordingly, in late 2025 Yuen refreshed her memory for the first time about events relating to the treatment of Burke in 2021.

1. At the start of her cross-examination, Yuen accepted that she only had a vague recollection of some matters. She also gave evidence that her memory had been enhanced by reading medical notes.
2. During her evidence, Yuen made a number of errors about what had occurred in 2021.
3. For example, she gave evidence in chief that she had administered a drug to Burke to reverse the effects of another drug that had played a key role in Burke's treatment. Under cross-examination, Yuen accepted that a reversal of that drug had not been implemented. Further, she gave evidence that she had been told in 2021 that Burke had been hit in the head by a bottle. Under cross-examination, Yuen realised that she was in error and acknowledged she had only learnt about that fact at a relatively recent conference.
4. The defence identified no other "significant matters".[5]

1. It was not submitted (and the defence closing address made no suggestion that) Yuen's errors referred to above (as initially made) were not ultimately properly corrected by Yuen before her evidence was complete. Further, neither party has sought to rely upon the erroneous evidence as being correct.
2. The defence made clear that Maskell was not contending that Yuen lacked expertise as a neurosurgeon, nor that she was unreliable or clumsy with respect to evidence she gave about her specialised knowledge. It was expressly stated that her clinical opinions were not being challenged.
3. The "delay risking honest but erroneous memory" direction was sought simply on the basis that Yuen's memory was understandably flawed because of the passage of time. It was submitted a warning was required because the demonstrated errors had revealed the fallibility of Yuen's memory, which had the consequence that the defence could not demonstrate all potential errors. It was also submitted that there was a forensic disadvantage as the defence could not scrutinise every aspect of Yuen's memory because the defence did not "have the resources".
4. In summary, it was submitted the direction should be made so that the jury would be alert to the risk that, despite Yuen's honesty, she might be mistaken.
5. In seeking the direction, the defence accepted that the circumstances did not "neatly fit" within section 32 and involved "both a section 32 and section 39 type of direction".[6]

1. There are good reasons why it would be inappropriate to give the direction sought.[7]
2. Without being exhaustive:

(1) Yuen was not an unreliable witness in any significant way. Noting for completeness that the basis of the application for a direction does not involve anything within the non-exhaustive definition of "evidence of a kind that may be unreliable",[8] the specified matters identified by the defence as required[9] were insignificant when the evidence was considered as a whole.

(2) It may well be misleading and give rise to confusion if the direction were given. There is no suggestion that whatever semblance of unreliability may be found in Yuen's evidence was of a nature that any substantive matter that was the subject of her evidence was incorrect when the evidence was considered as a whole.

(3) The defence has not satisfied me that Maskell has experienced "a significant forensic disadvantage" in any relevant sense.[10] The suggested disadvantage was referred to in the abstract and is entirely speculative. In circumstances where there is a large volume of medical notes that were (again)[11] the subject of extended cross-examination, it is instructive that the defence did not give a single specific example that identified any material forensic disadvantage.[12]

1. For completeness, the charge to the jury will include the usual directions concerning credibility and reliability. Those directions are more than adequate to address the matters raised.

[1] This is to be contrasted with the first trial in which a forensic pathologist gave evidence for the defence. That forensic pathologist served an updated report (which was not in evidence) shortly before this trial commenced.

[2] The direction sought was foreshadowed before closing addresses commenced, but counsel agreed it was more efficient for submissions to be made after closing addresses when the defence position would be fully apparent: see Jury Directions Act 2015 (Vic), s 12(b).

[3] Jury Directions Act, s 32.

[4] Maskell v The King [2025] VSCA 170.

[5] See Jury Directions Act, s 32(2)(a).

[6] Section 39 of the Jury Directions Act is concerned with directions for "significant forensic disadvantage": s 39(2).

[7] If the defence seeks that a direction be given to the jury, then a judge must give that direction unless there are good reasons for not doing so: Jury Directions Act, s 14(1).

[8] Specific categories of evidence are listed in s 31 of the Jury Directions Act as being "evidence of a kind that may be unreliable" as that term is used in s 32(1). It was acknowledged that none of them applied.

[9] Jury Directions Act, s 32(2)(a).

[10] Ibid, s 39(2).

[11] Maskell v The King [2025] VSCA 170, [268] (Emerton P, Kennedy and Kidd JJA), noting that Yuen was not a witness in the first trial.

[12] This was done by the defence in a different context and has been ruled upon separately.