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[2016] VSC 487
Supreme Court of Victoria
2016-08-16
T FORREST J
Original judgment source is linked above.
CRIMINAL LAW - Evidence - Admissibility - VARE/VATE - Evidence of a four/five year old child - Whether or not VARE recordings admissible as evidence in chief pursuant to Criminal Procedure Act 2009 s 368 - Hearsay - Previous representations admissible pursuant to Evidence Act 2008 s 66 - Whether or not danger of unfair prejudice outweighs probative value - Evidence Act 2008 ss 55, - Whether or not evidence can be effectively tested in cross examination - Whether or not forensic disadvantage can be effectively ameliorated by judicial direction - Residual Common Law discretion to exclude evidence on basis of unfairness - - - ,
1 On 13 May 2005, Tonnja Huynh died from significant internal injuries including a ruptured pancreas and proximal jejunum, a ruptured bowel and lacerations to the mesentery and liver. These injuries were consistent with blunt force being applied to the front of the abdomen causing the abdominal contents to be compressed between the vertebral column and the object applying the force.
2 Tonnja was two years eight months old when she died. The accused, Mussie Debresay, is charged with her murder.
3 The prosecution case is that Mr Debresay, the then partner of the child's mother, Jennifer Louey, inflicted these injuries (and more widespread soft tissue injuries) in the hours before Tonnja's death. This is said to have occurred at the accused's one-bedroom flat in Hyde Street, Footscray.
4 In short compass, the prosecution allege that Mr Debresay (who is sometimes known as MJ) and Ms Jennifer Louey were, on the morning of 13 May, in the single bedroom of the unit. Ms Louey's children, K H (aged one), Tonnja and A L (aged four years five months) were also at the unit. Tonnja and A L were in a lounge room adjacent to the bedroom and kitchen. The accused is alleged to have emerged from the bedroom, observed that Tonnja had wet herself and a chair in the lounge room, become angry, taken Tonnja to the kitchen, covered her mouth/face for a short time with a plastic bag and, at some stage, stamped/stomped on Tonnja's abdomen while Tonnja lay prone on the ground.
5 The only direct account of what occurred comes from A L. The accused is one of a very limited class of people who had access to the child at material times (the others being Jennifer Louey and young A L[1]). The accused had been observed by a witness to discipline the children by putting them into the kitchen of the house and shutting the door. The prosecution allege he gave inconsistent accounts of an incident or incidents said to have occurred overnight on 12/13 May 2005 where he described hearing a bang, getting up and observing that Tonnja had injured herself by striking her head on a coffee table, or by falling off a couch during the night.
6 The accused, in police interviews, denied injuring the child or disciplining her in any way. He said he did not wake up during the night, but at about 5.30 am - 6.00 am he heard a bump. Both he and Jennifer got up, and he went into the lounge room and found Tonnja laying under the coffee table. He put her next to A L on the couch. He said that about half an hour later he heard another noise, which was Tonnja slipping off the couch. He also said that he heard Tonnja fall the night before when she fell from the couch onto the coffee table. He said that a cover had been removed from the cushion of the couch as Tonnja had wet it through her nappy.
7 The prosecution propose to call A L as a witness in this trial. It is proposed that his evidence-in-chief be constituted by excerpts from various VARE interviews conducted on 13 May 2005, 16 June 2005, 14 July 2005, 17 August 2005, 12 April 2006, 18 August 2006 and 28 January 2015. Additionally, the prosecution propose to lead evidence of various statements made by A L to family members, police, and a treating psychologist in 2005 and 2006. For the purposes of the current argument, it has been accepted that this evidence meets the preconditions of s 66 of the Evidence Act 2008 ('Evidence Act') and is therefore exempt from the operation of the hearsay rule. Some of these conversations have been audio-recorded; others not.
8 Mr Dann QC, who appears with Mr Johnston for the accused, has argued that all representations made by A L, whether in the form of VARE interviews or through the gateway of s 66, ought be excluded either through the operation of s 137 of the Act or in the exercise of the general common law discretion to exclude evidence that would be productive of an unfair trial.[2] The common theme of his submission is that the proposed evidence, coming as some of it does in the form of decade-old utterances from a developmentally immature four-year-old child who in 2016 alternatively professes little recollection or a very different recollection, creates an unfairness that no amount of judicial direction can cure.
9 Under normal circumstances, I would paraphrase the impugned evidence and aspire to clarity through brevity; in this circumstance I regret that, in my view, it is necessary to reproduce the evidence to be 'adduced by the prosecutor'[3] in full. To impose my language on that of a four-year-old child would be to substitute my interpretation for the words themselves, which would hardly provide clarity. It should be understood that the passages set out below from the VARE interviews are only a relatively small portion of the overall content of the ten VARE interviews conducted. It should also be understood that discrete submissions about assertedly offensive portions of the impugned evidence will not be considered in this ruling and have been reserved for further argument if necessary.
10 The following table sets out the impugned evidence of A L. I have blended the s 66 evidence with the VARES to provide a chronological account of A L's disclosures. Where the answers of A L are proposed to be led 'in part', I have marked the proposed deletion with a bold 'strike through' emphasis.
"I asked him [A L], "What happened to Tonnja?" A L said "Tonnja naughty girl." "MJ step on her here." A L was showing his side towards the back on himself."
A L repeated that "MJ has stepped on Tonnja" in the presence of police member Dagmar Anderson. "Whilst A L was sitting on the bed telling us this he moved his leg in a stepping motion up and down."
"Amanda asked him [A L] what had happened. He said that Tonnja was naughty. A L raised his leg and stomped his foot once. His foot did not connect with the ground because he was sitting on the bed. Amanda asked who did that and A L said "MJ". Amanda asked why and A L said because she was naughty. I think he also said that she was crying. Amanda asked where and A L, using his hand, indicated his lower back. There was more conversation that this but about this time, my dad came in as well as a policemen I now know as Dharma [sic]."
"Amanda again asked the same questions in the presence of Dharma [sic] and my dad. A L repeated that Tonnja had been naughty and he also said something about her being in the kitchen. He repeated the stomping motion again."
"I remember at one time he appeared to do a head butting motion..."
At some stage A L also did an action putting his hands over his mouth and he said "can't breathe."
"I went to MJ house", "MJ kick Tonnja"; when asked "How did MJ do that?" A L stomped on the ground with his foot. A L said further that Tonnja was in the lounge room on the floor. When asked "Why did MJ kick her?" A L said "Tonnja bad girl. She had to go to the kitchen." "Tonnja do wee wee"
"The police woman was asking A L about Tonnja and what had happened...A L initially said that MJ had told Tonnja she was naughty. A L then moved his right leg up and down in a stomping motion and said at the same time "he did this to Tonnja". When asked by the police woman where his mum was at the time, A L said she was in the bedroom.
"Went to MJ house", "Tonnja crying...at MJ house", "sleeping...on the table...MJ from bedroom took her to the kitchen...to use bathroom", "Tonnja sick...MJ tell her to sit down on kitchen floor (A L then demonstrated vomiting and holding his hand over his mouth, leaning forward)...Tonnja wee wee on the couch...crying..."
"MJ took Tonnja to the kitchen...he turn off the lights...", "Tonnja sleeping, MJ step on" (pointed to the top of his right foot, wearing boots)
When asked "Where?" A L said: "...on lounge room Tonnja..." (demonstrated with his hand in the middle of his back, below shoulder blades, pushed himself forward slightly - at the same time as pushing his back, A L also pushed his right foot downwards sharply.)
When asked "Why was Tonnja naughty?" He said "Had to go to kitchen...bad girl...MJ gonna hit her", said "Tonnja was a bad girl", when asked why - he said: "MJ being silly, he do like this" (demonstrated pushing foot down/kicking motion with his foot swinging).
*Police notes of entire conversation made at the time
VARE of 13 May 2005 (entirety of VARE relied upon - depicts A L on the day his sister died) (VARE 1)
(STARTS MID SENTENCE) INTERVIEW CONDUCTED AT THE SUNSHINE POLICE STATION. MY NAME IS DAGMAR ANDERSEN AND WE'RE HERE ON FRIDAY THE 13TH OF MAY -
Amanda, can you say your date of birth, please, and - - -?
That's alright. Yeah, Joe's in the other room. He's sleeping. We don't want to - he's tired. He's tired.
Oh, no, we'll play on the computer later. Okay? You're a good boy.
(ACTING SENIOR SERGEANT ANDERSEN EXITS INTERVIEW ROOM)
Look at those lights. See? It's a computer. It's like a computer. See the colours? What colours is that?
A L said "Tonnja is a naughty girl, MJ hit her." When asked about that, he said: "MJ kick her", "On her tummy". A L was then seen stamping his foot heavily on the ground. A L also said "she lie down."
A L said "Tonnja is a naughty girl, MJ hit her." When asked about that, he said: "MJ kick her", "On her tummy". A L then stomped his foot on the ground. A L also said "she lie down."
When asked whether MJ hits Tonnja, A L said "yes". When asked "how does MJ hit Tonnja?" A L said: "He get plastic bag and put here" and covered his mouth with his hand. When asked why did he do it, A L said "Tonnja naughty" and "Tonnja pee pee". When asked where Mummy was he said she was in the bedroom watching a movie.
Quang: "How?" A L: "Use a bag."... "Done a wee wee."
Quang: "Oh what way? Why did MJ hit Tonnja?" A L: "She done a wee wee."
Quang: "Oh. Where was mummy?" A L: "On the bedroom."
Amanda: "Yeah. What did you say about Tonnja before?"
Amanda: "How come she was smacked?" A L: "She was be naughty."
A L: "Where was she being naughty?" A L: "Um, well she was being a bad girl."
Amanda: "Where was she being a bad girl?" A L: "At MJ's house."
A L went on to say he was worried because Tonnja had weed.
Amanda: "Yeah. So A L, what happened? What did Tonnja do? What, did you say Tonnja, Tonnja was naughty?" A L: "No she peed, she pee pee."
Amanda: "She pee peed? Oh! What happened?" A L: "Pee peed in the couch."
Amanda: "What? I can't hear you?" A L: "She pee peed in the kitchen."
Amanda: "Oh! Oh no. And then what happened?" A L: "She was naughty."
Amanda: "Yeah. So Tonnja was in the kitchen? Yeah."
A L said his mother was in the bedroom at the time, he was sitting down in the lounge room. K H was in the lounge room in her pram.
Quang: "When you said that, the other night when I was talking to you last time you said that, you said that MJ hit Tonnja?" A L: "Yeah, no, yeah."
Quang: "How else does MJ hurt Tonnja?" A L: "Use a bag."
Quang: "Does he, you also said that he kicked her. Yeah, remember that?" A L: "She...(inaudible)...here."
Amanda: "Where's that?" A L: "She do that, he do that."
Quang: "How did he kick her?" A L: "With his foot."
Amanda: "What happened to Tonnja?" A L: "Cause did mess on the couch."
Amanda: "Was she crying?" A L: "She did like ooh, ooh, ooh...(inaudible)...to hit her head."
Quang: "He used his, what, his knee or his head?" A L: "His head."
Quang: "His head to hit Tonnja's head?" A L: "Yeah."
Amanda: "Was Tonnja crying? Huh?" A L: "She was upset."
Amanda: "She was upset? Oh, did you try to help her?" A L: "No."
Quang: "Did Tonnja fall over?" A L: "No she was silly."
Amanda: "Where was mummy A L?" A L: "She was in the bedroom."
Amanda: "What was she doing?" A L: "She was watching TV."
Amanda: "Oh. And what were you doing?" A L: "I was sitting down."
Amanda: "Where were you sitting down?" A L: "In the lounge room."
"During the months after Tonnja's death A L mentioned on a number of different occasions that he saw MJ stomp on Tonnja whilst they was [sic] at MJ's house."
A L said: "MJ bad man". When he was asked "How did Tonnja get hurt?" A L made a stomping motion with his foot under the blanket that was over him, saying "MJ does this."
A Keep trying to make this (BANGING SOUND) - - -[4]
During VARE: A L said "MJ hurt Tonnja". Stomping sound can be heard. [Dagmar Andersen can give evidence of what she observed at the time.]
A L said "Tonnja got hurt". When asked who hurt Tonnja he said "MJ" and said he was a bad man. When told MJ would not hurt him anymore, A L said he only hurt Tonnja. When A L was asked whether is happened in the bathroom, he said it happened in the kitchen.
"A L then asked me where MJ was before he said: "He's a bad guy...he does this to Tonnja." A L then covered his mouth with his hand. I then told Dagmar what A L had said and Dagmar conducted a recording with A L in my presence."
A L said MJ made him scared and "MJ hit Tonnja and hurt her. MJ is naughty."
A What are you doing, look at me, don't look at me, look at her.
Q Did someone hurt Tonnja? A L, did someone hurt Tonnja?
A No, I feel tired now, 'cause I got a sore throat.
A - - - and she's not very naughty. She been good, and A L's been stupid.
A Don't say that, A L. What did I say that? Work can tell me off. Is poppa gunna tell me off?
Q Poppa wouldn't tell you off for telling true things. Poppa would never tell you off for saying things that are true.
Q Do you think saying, stupid is saying a bad word?
A He's put the bag here (put's hand on his mouth) and he was being - being naughty, not stupid.
Q Tell me more about what MJ did? A L, can you tell me about what MJ did? Mm. You tell me about what MJ did?
A He was being naughty and losing them and come on a little - come off all.
Q That's a different story from MJ and Tonnja though isn't it.
A No, not Tonnja and MJ. Not Tonnja, not Tonnja. Tonnja's a good girl.
A Yep, and my mum is being silly. She wanted to be a good friend for MJ.
A Yeah, big, big trouble. Is this thing me? (points to camera).
Q I think Mel can hear you. What stuff does he do that's bad? What makes him bad?
A I don't wanna talk anymore, 'cause - don't wanna talk.
"As we were driving A L asked me to look at him. I turned around and I saw A L put his hand behind his head and jerk his head forward very quickly." When asked what that was A L said "That's what MJ does to Tonnja." He repeated the motion and when asked where MJ does this he said "Tonnja on floor." He then said that MJ uses his hand to push Tonnja's head. He put his hand behind his head and quickly pushed his head forward again. When asked where MJ did this he said "On the table", "the table you put the remote control on."
A L said that MJ hurt Tonnja by pushing a plastic bag into her mouth to make her stop crying, and when I talked further with him about it he repeated the comment.
A Yeah. And he put her in a room, and she - Tonnja wee-wee in MJ's chair, and MJ used a plastic bag to don't let her cry (Witness puts his hand over his mouth), and she's - - -
Q ..... ..... off and on? We had the light off and on. That was a bit of a hiccup.
Q It's 8.45. I don't know. Sometimes that camera plays up a bit if the connection isn't very good to the battery.
A (WITNESS IS WALKING IN AND OUT OF VIEW OF THE CAMERA) Mmm.
Q You've told me a bit of stuff. I was just a bit confused though.
Q Did you say - did you say that Tonnja does wee-wee? Did you say - - -?
A She let them put her in the room, in a toilet, and ..... a plastic bag again.
Q And what happens with the plastic bag on the mouth?
A (WITNESS WALKS OUT OF VIEW OF THE CAMERA) Tonnja got naughty.
Q Sorry, A L, I can't hear very well. Could you come back so I could hear easier?
Q I'm a police woman, and I certainly do like to spend time with you.
Q I'm not a f-, a friend, like at kinder, or something like that, I'm a different kind of a friend.
A I don't see him. Maybe he wake up at the wrong time.
Q Will we talk some more about what happened with Tonnja?
A (WITNESS WALKS OUT OF VIEW OF THE CAMERA) ..... ..... ..... now.
Q A L, I'm having trouble hearing you. I'm sorry, but if you come over here, that would help me a lot.
A (CAMERA PANS RIGHT. WITNESS FLIPPING THROUGH PAGES OF A BOOK) She was wee-wee.
Q Sorry, A L, I - I'm - I'm having trouble concentrating. Would you be able to come over here and sit with me for a little moment, please?
Q What happened? What - what happened with Tonnja getting hurt?
Q That's on my papers so that I know what to talk to you about. My name's Senior Constable Tracey O'Neil, and I'm here with A L and also Quan. Now, A L, do you know what you're here to talk to me about today?
Q Yep. And what can you tell me about To-, is it Tonnja or Tania?
Q Okay. And when you say he hurt her, what happened?
Q Okay. And in what room were you? Where you there too?
Q Okay. So, you said she was crying in the lounge room with you?
Q Was she in the lounge room or was she in another room?
Q And who else was in the lounge room with you? It was you and Tonnja, and who else?
Q Okay. So, you and Tonnja and K H were in the lounge room, is that right?
Q K H was asleep, and then you said Tonnja started crying.
A He get the bag and do it here (INDICATES HIS MOUTH) and I can't - and I can't talk.
Q Okay. And you said something about a bag. What was the bag?
A The bag was - he hi-, kicked Tonnja in the head, and me, and K H.
Q Okay. So, when you're in the lounge room, Tonnja was crying and MJ came in. Is that right?
Q On whose mouth? Your mouth or Tonnja's mouth?
A My mouth and K H's mouth and - and Tonnja's mouth.
Q And is it like a bag that you put all your clothes in or is it something that you put your shopping in? What type of bag is it?
Q Okay. Does it make crinkle noises, or does it squash up like paper? What type of bag is it?
Q Okay. So, when he hurt Tonnja, can you tell me more about that?
A Well - well, I just - I don't want to talk about it.
Q Okay. You've done a very good job talking to me. You sure you don't want to tell me any more?
Q When - when he hurt Tonnja was he in the lounge room with her or was he in another room?
Q Okay. And what happened with Tonnja in the kitchen?
Q Okay. Would you be able to tell me when you want to talk to me next time?
Q No? Was anyone else in the kitchen, or it was just him?
Q Well, we might - I might just - it's 3.09, and I might just stop the tape for a minute, and we'll just check that everything worked okay, and if you want to, we might come back in for another chat, if not you can go back home, okay?
Q And when we stopped before, who did we see outside the door?
Q Amanda. So, Uncle Quan has now left and we've got Aunty Amanda in here because that's who you wanted to come in and see. And during the break just then, we were talking to Amanda, and what did Amanda bring with her?
Q McDonald's. So, you've had something to eat, and then you said that you wanted to tell me something else. Do you remember what else it was you had to tell me?
Q Yep. And do you remember what room in MJ's house?
Q In the kitchen? And were you in the kitchen with MJ and Tonnja?
Q Okay. So, before when you were talking about the blue bag, is that the same blue bag or is it a different bag?
Q Okay. And when you say here, what are - what - whereabouts are you pointing to?
Q Okay. So, the bag - can you show me whereabouts - did it go up higher on her face or just on her lips? Down - whereabouts did it go?
Q Here? Okay. And was it just a little bit of the bag or all of the bag? What was it?
Q Little bit? And he - and how long do you think that was on there? A little time or a long time?
Q Okay. And was MJ talking to Tonnja when that was going on?
A Saying, "If you be naughty, I'll get you," he - he would get K H - no Tonnja too.
Q Okay. So, when - whereabouts was Mummy when he had the bag on Tonnja's mouth?
Q Okay. So, after the bag was on - on her mouth, what happened after that?
Q And K H. Okay. And was Tonnja crying or was she asleep or was she talking? How was she?
In the process of setting up for a VARE ("Tracey and Craig from SOCCA [sic] came for a statement.") - A L agreed that he would do it and made a statement using "some such word as stamped", that MJ stamped on Tonja [sic] in the living room
Q Okay. So when you said before you wanted to talk about MJ and Tonnja, what - whereabouts were you when that happened?
A I was watching TV and Tonnja watched TV and she - he went out to see her and he hit Tonnja.
Q He hit Tonnja. Okay. So was this at the Templestowe house or another house?
Q At the house that you're talking about now when the - when MJ came out and hit Tonnja. Was Mummy home?
Q Sleeping. And who - you were watching telly. Who else was in the room with you?
Q Okay. But then you said he came out and hit Tonnja. What did he come out for?
Q MJ was naughty, okay. So MJ came out and when he - when he hit Tonnja how did he hit her?
Q He hit her hard. And whereabouts on her was it? Like on her head or her hand? Whereabouts on her body was it?
Q On her head. Okay. And what - what - what part of MJ - what part of MJ hit Tonnja? which part of his - was it head, his hand, his legs? What type of part hit Tonnja?
Q His legs. And you know how you've got really, really long legs, is it the top of your leg or the middle of the leg or the bottom of the leg?
Q Okay. So was - was Tonnja - where was she in the room when MJ hit her?
Q Yeah. And have you got like one of these? Like a couch in your lounge room or chairs?
Q Chairs. So was she sitting on the chair or sitting on the floor?
Q On the chair. Okay. So you said MJ came out because she was naughty and when he hit her was she sitting on the couch or was she somewhere else?
Q Okay. And how many times do you think that he hit her?
Q Yep. And he used his bottom part of his leg, you said. And whereabouts did he - did he hit her?
Q Okay. So was Tonnja - when - when he's hit - hit her with the bottom part of his leg, where was Tonnja? Was she on the chair or was she on the floor?
Q Okay. And was she sitting next to you or were you sitting on another part of the couch?
Q Okay. And why was it that he came out and - and hit her? She was being naughty, was she? Do you remember what she was doing?
Q No. Okay. And what happened after he had hit her with his foot or with the bottom part of his leg? What - what happened?
Q Okay. So she was crying. So MJ did what? When she was crying what did MJ do?
Q She was good. Okay. And was there anything else you wanted to tell me about Tonnja and MJ?
So you know how you said you - he hurt her with his - with the bottom part of his leg - that's a big noise, isn't it, outside?
Q It's your sister. She's making a noise, isn't she?
Q That's alright. So you said that he hit - hit her with the bottom part of his leg. How many times do you think that was that he hit her with - with the bottom part of his leg?
Q Two times. And whereabouts on Tonnja was it that - that it hit her?
Q On her leg. Whereabouts? We said before we had a top part, the middle and the bottom. Which part of Tonya's leg was it that - that MJ hit?
Q The top part. Okay. And - and you said that she was crying?
A He was in the kitchen and I (inaudible) went in to sleep.
Q O.K. Darl, what I would like you to do is tell me everything that you can remember in your own time, O.K., in as much detail as you can remember, O.K., remembering this isn't a test, darl. It's just an opportunity for you to talk to me about that, about your sister's case.
A I just remember we used to always go to this man's house.
A And after my mum finished work.......... to that man's house to stay there ..........
A Well my mum would always be in his bedroom, and my two younger sisters and I would be in the living room.
Q O.K. Tell me what you can remember about the man's house.
A And I think we would go there three times, at most times, and yeah, we'd do the same thing, and my mum would be in his bedroom and I would - us would be in the living room just watching TV.
Q O.K. So you said that you've come here to talk about your sister's case. Whose case is that, darl?
A And I used to care about her a lot, used to always protect her.
A Yeah, every time we'd go to that man's house, I would always sit next to her or look after her.
A I'm not, I don't really know his full name but we used to call him MJ.
Q Darl, when are talking about? When was this man mum's friend?
A I don't really know, but whenever my mum's at work, we'd always - we would always sit at a table and he would be sitting next to us. I think he was eating with us.
Q When you say that he was kicking you and hurting you, and you were badly injured, who was badly injured?
A Well, I - I was quite badly injured and Tonnja was. She said that - I think she said her back was hurting.
A She was saying that her back was hurting her and - yeah, I think we were walking - we were walking and she started saying her back was hurting.
Q O.K. You were walking somewhere and her back was hurting. Why was her back hurting?
A I think she, because - well, the man started hitting her back too much.
Q O.K., that's O.K., it's a long time ago. Yeah, I understand that. You - you've told me about times when this man hurt you, yeah. Tell me about the worst time that you can remember.
A Well, all I remember was when - when Tonnja was screaming in the kitchen, and, yeah, she was bleeding.
A She - she was screaming and yelling and, she said that she was hurt, she couldn't move, she kept saying her back was hurting.
A I saw the man hitting Tonnja, started beating her up.
Q O.K. When you say "beating her up," what did you actually see?
Q O.K. So where was Tonnja when he was kicking her?
Q And you said that she was screaming and yelling. Who else was in the house that time?
Q O.K. So the man's in the kitchen and he's beating Tonnja up, what happened then?
A I think when mum came out of the room, think, I'm not sure.
A I think we just went home. I think we just carried Tonnja in to the car and went home.
Q Do you remember anything happening at home when you got there?
A So she seemed injured, and she said that she was hurt.
Q O.K. And when you say that she said she was hurt, what did she actually say?
A I think she said, "I can't move, I'm really sore."
Q "I'm really sore." O.K. What time do you think you got home?
A Think I went to bed as well or I think I stayed with Tonnja.
Q Do you guys share a room at home? No. So did she have her own room?
Q O.K. So you're not sure whether you went to bed or
Q O.K. And take you both in to the kitchen? (Nods head) O.K. You said that there was a time that you were in the living room though and Tonnja was in the kitchen. What was happening that time?
A She was getting hit, kicked and getting pushed around.
Q So why - why was she getting hit and kicked though?
Q And you said that she was screaming and yelling. And was that when she was yelling - what was she yelling?
A She was yelling 'cause she was getting hit, she didn't want to get hit any more.
Q O.K. And you said that you could see her near the - near the stove. Is that what you told me before?
Q O.K. What else could you see from the lounge room?
Q O.K. You said that Tonnja had said that she couldn't move. How long - how long was she left in the kitchen for?
A She was feeling sore, she said she couldn't move.
A Not really. I think we were taking her to the hospital the next day and I think she just stopped moving.
A I think were walking to the hospital, I'm not sure where though.
A I think mum and K H, and I think my grandma, I'm not sure.
Q So did you see her on the ground when she stopped moving?
Q O.K. Do you remember earlier we spoke about telling the truth and telling lies. Is what we've spoken about the truth?
Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to -
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
11 A court is obliged to exclude evidence sought to be adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. Thus, assuming evidence is relevant in accordance with s 55 above and that no other exclusionary rule applies, the Court must measure the incommensurables 'probative value' and 'danger of unfair prejudice' and reach a quantitative conclusion that is necessarily the product of informed intuition. There is nothing scientific about this exercise and the quantitative conclusion may well differ from one reasonable mind to another.
12 Recently, in IMM v R,[5] the High Court settled a divergence in the approach to the meaning of this term that had developed (primarily) between New South Wales and Victoria. The majority (French CJ, Kiefel, Bell and Keane JJ) explained the assessment of the probative value of evidence involves an assessment of the extent of the effect that makes the evidence relevant pursuant to s 55. The enquiry as to extent involves the same considerations as the initial relevance (s 55) enquiry. The words 'if it were accepted' in s 55 should be understood to be imported into s 137. It follows that a trial judge must proceed on the basis that the impugned evidence will be taken at its highest for the prosecution and that, as with the relevance assessment, there is no call for that trial judge to assess the credibility or reliability of the evidence. They are matters for the jury.[6]
13 I consider that the majority took some care in qualifying its position on the issue of reliability. An example was cited with approval from an article by Hon. J D Heydon QC, where an identification was made briefly in foggy conditions and in bad light by a witness who did not know the person identified ('the Heydon example'). One approach, said the majority, is 'to say the evidence taken at its highest is as high as any other identification, then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification but a weak one because it is simply unconvincing'.[7] The majority made the point that the statute requires this latter approach (the New South Wales Shamouil approach) and not the former approach (the Victorian Dupas approach).
14 It follows that whilst a judge must eschew consideration of factors that may impact upon the credibility or reliability of a witness's account, the Court must not lose sight that the account itself, taken at its highest, may not be that good. A witness may be perfectly honest and impeccably reliable as an historian but his or her description of an event may be subject to all sorts of limiting factors which have nothing to do with that witness's honesty or reliability.
15 The Heydon example was cited with approval by Gageler J in his dissenting judgment in IMM v R and the example has also been utilised by the Victorian Court of Appeal.[8]
16 Whilst the example itself concerns identification, as did Bayley, I can see no reason why the example should not have a more general application. If the impugned evidence comes from an impeccable source but, by dint of circumstances in the surrounding evidence its probative value is 'not very high at all' then, in my view, that is the level at which the evidence must be assessed regardless of the nature of the case or the evidence.
17 The danger of unfair prejudice is not defined in the Act. ALRC26:1 suggests that it is intended to include evidence which could introduce adverse and irrational considerations or cause jurors to accord other evidence more probative value than it deserves. The prejudice must be unfair. This will arise if there is a real risk of misuse by the jury in some unfair way.[9] The risk of unfair prejudice can also arise where there is a risk the jury will misjudge the weight to be given to particular evidence or engage in an illegitimate form or reasoning. The risk of unfair prejudice may also arise where there is an inability to test the evidence, or where the evidence will be incomplete.[10] The danger must be real and not a slight risk or a mere possibility.[11] Forensic disadvantage may constitute unfair prejudice including where a party cannot cross-examine hearsay evidence, although the weight to be given to this danger will vary depending on the nature of the evidence and the extent to which the other party would be unfairly prejudiced by its admission.[12]
18 Mr Dann QC contended that the VARE and previous representation evidence of A L should be excluded entirely on the basis of either s 137 or s 135 of the Evidence Act 2008, or via the residual common law discretion to exclude evidence on the basis of 'unfairness'. He also contended that the evidence was so unreliable/ unbelievable as to reach the point of incredulity[13] and thus inadmissible because it failed the test of relevance (s 55), however this point was not strenuously pressed.
19 I have included above the extracts of A L's VAREs, and the specific previous representations of A L (s 66 representations) that the Crown propose to lead as evidence. The objections raised by Mr Dann to this evidence are based on the contents of the proposed extracts and representations themselves, considered in the context of the entirety of A L's VAREs, his comments to family members and Dr Gordon and his answers in cross-examination at the committal hearing.
20 Mr Dann raised the issue that recorded evidence-in-chief is admissible pursuant to s 368 of the Criminal Procedure Act 2009 ('CPA') only where the conditions set out in that section are met. Section 368(1)(c) requires that, 'at the summary hearing, special hearing or trial, the witness (i) identifies himself and attests to the truthfulness of the contents of the recording, and (ii) is available for cross-examination and re-examination.
21 This condition cannot possibly be met, Mr Dann argues, where there are irreconcilable inconsistencies within and between the ten VAREs themselves, and where A L has admitted, both in conversations with Dr Gordon and in cross-examination at the committal, that he cannot recall, or has difficulty recalling, the events that occurred around the time of Tonnja's death, and the representations he made to police, family members and Dr Gordon in the years following.
22 A L, Mr Dann contends, cannot possibly attest to the truthfulness of these statements given that on occasions he said that he cannot remember making them or the events they describe. In this circumstance, the requirement of s 368(1)(c)(i) cannot be met and the VAREs are inadmissible as evidence-in-chief.[14]
23 Mr Dann contended that whether the VAREs were admissible as evidence-in-chief, or as admissible hearsay pursuant to s 66, their probative value must still be weighed against the prospect of unfair prejudice pursuant to s 137 of the Evidence Act. The same applies to the representations proposed to be led via s 66. If the prospect for unfair prejudice outweighs the evidence's probative value, the evidence is inadmissible.
24 Mr Dann submitted that the following factors diminish the probative value of A L's evidence:
(a) Aspects of the evidence are demonstrably wrong;
(b) There are unresolvable inconsistencies on key issues within and between A L's various accounts of what happened to Tonnja;
(c) A L's very young age at the time of his earlier interviews and representations (4 or 5 years), along with the possibility of his delayed development at that time;
(d) Problems with A L's memory (as described above regarding his cross examination at the committal); and
(e) The prospect that A L's accounts were contaminated by discussions with family members following Tonnja's death.
I note the following examples of A L's evidence that Mr Dann raised to establish a), b) and e) above. These lists are not exhaustive. I have included points that I thought were key to both Mr Dann's arguments and to the facts in issue in this case.
25 The unfair prejudice ultimately reduced to the issue that A L cannot be effectively cross-examined on his 2005/2006 statements because:
(a) he has admitted to having no memory or very little memory of some of the events; and
(b) the is a prospect of contamination of his memory by conversations with family members and his ongoing therapy with Dr Gorton.
26 The evidence relied upon to establish unfair prejudice consisted broadly of the same examples as were said to diminish the probative value of the evidence. Mr Dann contended that the inability to effectively cross-examine is particularly prejudicial as there are inconsistencies between A L's earlier accounts that mean his reliability and credibility cannot be properly explored before a jury. Further, as A L now claims he has no memory of or never made statements to Dr Gordon to the effect of being afraid of his mother, the defence are rendered unable to explore the reasons why such comments were recorded in Dr Gordon's report.
27 The defence also argue that their opportunity to explore contamination issues, for example, concerning the incident involving A L's grandmother at Dr Gordon's office, has largely been lost, where A L now says he has no memory of making comments about fearing his mother at all.
28 Ms Flynn, who appeared with Ms Coghlan for the prosecution, contended that most of the limitations in A L's evidence that were identified by Mr Dann were matters that attached to his reliability and thus were not matters capable of consideration by a judge embarking on the s 137 exercise. In particular, Ms Flynn contended that all of the impugned evidence was highly relevant to the prosecution of Mr Debresay. A L is an eyewitness to a central issue in the case - whether the accused caused Tonnja's death.
29 Ms Flynn further contended that the probative value of the evidence was very high. A L's disclosures to his family and police commenced to be made on the day of his sister's death and continued intermittently over months. The disclosures were by and large to open questioning by either his family or police officers and, particularly very soon after Tonnja's death, there was no real opportunity for contamination. Even as time went by, Ms Flynn argued, there is no real evidence of contamination and, whilst the accused may assert that A L's grandmother Christina had an agenda to influence the child to inculpate the accused and exculpate A L's mother, there is no evidence to support that assertion.
30 The prosecution further contended that A L's disclosures about his sister's death are supported by the forensic evidence. At the time he first indicated MJ (the accused) had 'stamped' on Tonnja the cause of death was unknown and yet those causative injuries, once revealed, were entirely consistent with A L's first few disclosures. Additionally, the head butt that A L described corresponded to an injury to Tonnja's forehead. A L's account of his sister 'doing wee' on the cushion of the couch is also supported forensically and by admissions made by the accused.[15]
31 Ms Flynn, whilst accepting that the unusual circumstances of the case meant that there was a danger of unfair prejudice, contended that that danger could be ameliorated by:
(a) An unreliable witness warning pursuant to s 32 of the Jury Directions Act 2015 ('JD Act'); and
(b) The excision of any particularly 'inflammatory' portions of the VARE interviews or the s 66 representation; and
(c) If necessary, a forensic disadvantage direction pursuant to s 39 of the JD Act.
32 Ms Flynn further submitted that if the VARE interviews were inadmissible due to a technical defect (for instance if the witness, through a failing memory, could not attest to the truth of some of the evidence therein as required by s 368 of the CPA) then the VARE interviews were admissible through the gateway of s 66 of the Evidence Act as representations made when the happening of the asserted fact was fresh in the memory of the person who made the representation and that person was to be called to give evidence.
33 Ms Flynn contended that there was no work left for the common law fairness exclusionary discretion if I was not persuaded that s 137 might operate to exclude the evidence.
34 Whether in the trial A L attests to the 'truthfulness' of the contents of the VARE recordings will only be known after the relevant questions are asked of him before the jury. Certainly at the committal he attested to their truth and I have proceeded to determine the current argument on the basis that s 368(1)(c) of the CPA will be satisfied. It is premature to determine the s 368 issue raised by Mr Dann but I note that if A L does not attest to the truth of the contents of the recordings the prosecution have signalled an intention to argue for their admission under s 66 of the Evidence Act.
35 In making the s 137 assessment, I must first assess the probative value of the impugned evidence and then measure it against what I conclude is the danger of unfair prejudice. As I have explained, since IMM matters of reliability that previously in this State would have been part of the probative value assessment are no longer. Notwithstanding that, it is clear that certain circumstances in the surrounding evidence may impact upon that assessment.
36 It is of assistance to examine the timing of A L's various disclosures.
37 I have reproduced at [10] of these reasons the various disclosures said to be made by A L in chronological order. It can be seen that his account of what happened to his sister emerged at a very early stage of the investigation.
38 Within perhaps an hour of his sister's death on 13 May 2005, A L provided Amanda Louey (to an open question) the stepping/stomping account that has characterised many of his subsequent accounts. "Tonnja naughty girl. MJ step on her here (indicating his side)". He essentially repeated this account very shortly thereafter to Police Officers Anderson and Quang Tran, and repeated it again on 15 May 2005. On 16 May, to leading questions from Quang Tran, he replied that MJ hit Tonnja by putting a plastic bag over her mouth because Tonnja was naughty - 'Tonnja pee pee'. On 17 May 2005 he repeated this account in a recorded conversation to Quang Tran, again in response to leading questions. In that recording he also repeated to Amanda Louey that Tonnja had 'pee pee'd' on the couch. On 20 May 2005 he expanded on these disclosures, saying that MJ had kicked Tonnja because she'd done 'a mess' on the couch, that MJ had he used his head to hit Tonnja's head, and that his mother was in the bedroom at the time of this assault. During the months after his sister's death, whilst in the family environment, he mentioned (according to Amanda Louey) MJ stomping on Tonnja, and in VARE 5 conducted on 16 June 2005 (audio only) he repeated the stomping allegation by demonstration. He told his psychologist Dr Gordon on the same day that MJ hurt Tonnja in the kitchen. Through July and August 2005 A L continued to make assertions about MJ hurting his sister by placing a bag over her mouth, hitting her in the head with his hand (VARE 8) and foot (VARE 9) (the 'VARE 9 allegation' is said to have occurred on the couch).
39 A L is the only witness available to the prosecution who gives an account of how his sister was injured. Jennifer Louey, who apparently will apply to be excused from giving evidence for psychological reasons, has made a statement supporting the accused's account. The injuries observed on pathology provide, in my view, support for A L's initial accounts. There were widespread soft tissue injuries (including bruising and swelling) to the head, neck, arms, legs, abdomen, chest and back. I have already observed that the pancreas and proximal jejunum were ruptured (as was the bowel) and that the mesentery and the liver were lacerated. Further pathological examinations demonstrated injuries to the external genitalia. Dr Stokes, a paediatric surgeon, was of the view that the soft tissue injuries seemed to have been caused at different times based on various stages of bleeding and scarring.[16] He thought the fatal injuries to the abdomen were likely to have been caused about two hours prior to the death of the deceased.
40 It is clear that A L is a very important witness for the prosecution. As I have said, he is the only witness who identifies the accused as carrying out violent activity to the deceased infant's abdominal area in the time before her death. Without his evidence, and given that there were two adults and a robust four year old in the unit at the relevant time, it may prove hard for the prosecution to get past the first element of either murder or manslaughter. Having said that, in my view it is important not to confuse the importance of the impugned evidence to the prosecution case with the assessment of its probative value. The dubious identification in the 'Heydon example' may be critical to a hypothetical prosecution case, perhaps as the only evidence of identification, but that cannot enhance its quality. A 'dodgy' identification will remain 'dodgy' no matter how important it is to the Crown case.
41 I consider the probative value of the impugned evidence, save for VARE 10, to be high. The disclosures were made at a time when the events must have been fresh in A L's memory. His account is supported by pathology evidence and, to some extent, by the presence of urine on the couch cushion cover. I do not accept that simply because he was four years and five months old at the time he made these observations, that factor alone ought constitute a surrounding circumstance that diminishes the probative value of his evidence. In a different context, the ALRC said this about the evidence of children:
Children as witnesses: recent research[17]
14.19 Recent research into children's memory and the sociology and psychology of disclosing remembered events has established that children's cognitive and recall skills have been undervalued.[18] At the same time other research has demonstrated that adult testimony is not always reliable, showing that mature witnesses' memories can be equally fragile and susceptible to the distorting influences of suggestion and misinformation.[19] The presumed gulf between the reliability of evidence from children and that from adults appears to have been exaggerated.[20]
14.20 Children, including very young children, are able to remember and retrieve from memory large amounts of information, especially when the events are personally experienced and highly meaningful.[21] However, children, and adults to a lesser degree, have significant memory loss after long delays. They recall less correct information over time while maintaining as a constant the inaccurate information.[22] Studies demonstrate that ability to remember and describe an event accurately, both at the time of questioning and at later dates, can be dependent on interviewing method.
14.21 Interviews, if skilfully conducted, can help both child and adult witnesses to consolidate and retain their memories.[23] However, using misleading and suggestive questioning techniques during an interview adversely affects young children's ability to recall an event accurately, just as to a somewhat lesser degree it adversely affects older children and adults.[24] Repeating a question within a single interview session can also lead to young children changing their answer to that question, perhaps because they interpret the repetition of the question as an indication that their first answer was wrong.[25] In addition, when young children are asked to recount, in a free recall narrative, everything they remember, they typically remember less detail than older children or adults, although the information they do recall is generally just as accurate.[26] More details of the events can be recalled during questioning that provides non-leading cues to memory for those details not spontaneously supplied.[27]
42 Section 165A was inserted into the Commonwealth and New South Wales Evidence Acts in 2008 and enacted at that time in the Victorian Act. The provision implemented Recommendation 18-2 of ALRC 102 to provide that a s 165 unreliability warning cannot be given solely an account of the age of a child.[28] In Victoria, this statutory recognition that a child's evidence ought not be presumed to be unreliable has been carried over into s 33 of the JD Act. This section not only prohibits a trial judge giving any sort of warning on the basis of age alone but it also prohibits both the judge and counsel from suggesting in any way that children as a class are unreliable witnesses, their evidence is inherently less credible, or that a particular witness is less reliable because that witness is a child.
43 I consider it likely that the age of the child is a 'surrounding circumstance' as countenanced by the 'Heydon example' but, in the circumstances of this case, and, given the timing of A L's disclosures and the relatively open questions that produced them, the fact of his age alone does not impact significantly on the probative value of the impugned evidence.
44 There is some evidence that in 2005 A L suffered from a mild developmental delay. Dr Gordon, a DHS appointed psychologist who has treated A L for many years, considered the 2005 child to be 'developmentally immature in terms of his ability to communicate'.[29] He accepted that there were some limitations in respect to his rational functioning. If this is a 'surrounding circumstance' capable of impacting probative value, then I doubt that its impact is particularly great. There is no evidence as to how these limitations affected the boy's capacity to recall. A L's capacity to communicate what he says he saw and heard, in my view, is not so limited as to devalue the substance of his accounts to any real extent. I make this observation having had the advantage of viewing and/or listening to all ten VARE tapes and listening to the recorded conversations set out in paragraph [10] of these reasons.
45 I have set out the various submissions made by Mr Dann, which are aggregated under the headings:
Evidence demonstrably wrong or fundamentally inconsistent
46 I consider that most of the evidence that Mr Dann contends can be demonstrated to be incorrect or fundamentally inconsistent with other of A L's evidence, is evidence that attaches to the credibility or reliability of the witness and these are matters for the jury to consider in assessing the weight, if any, they ought give to the impugned evidence. A considerable number of Mr Dann's criticisms concern either VARE 10 or A L's evidence at the committal. The accounts within these sources come from A L's 2015/2016 memory. In my view the ten-year time lapse between event and account is a surrounding circumstance that diminishes the probative value of these accounts very significantly. It is the equivalent, I consider, of the fog and the poor light in the 'Heydon example'. To the extent that his earlier accounts are sought to be impugned by these later disclosures I consider these are properly a matter for the jury and do not go to the exercise that I am now conducting.
47 The risk of contamination is a surrounding circumstance that may impact upon the probative value of impugned evidence. In Bayley v R,[30] the Court of Appeal concluded that the difficulties associated with an identification witness viewing an image of her alleged rapist on Facebook prior to formally identifying him from a photo board were surrounding circumstances properly to be taken into account in assessing the probative value of the asserted identification. These included the fact that by the second identification there was an acute danger of contamination of the witness's memory by the displacement effect.
48 The onus rests with the defence to demonstrate contamination. Mr Dann submitted that there were clearly two suspects initially who were both subjected to cautioned interviews - Ms Jennifer Louey and the accused. Mr Dann advanced the hypothesis that Jennifer Louey's family, with whom A L resided after his sister's death, were determined to reunite A L with his mother and thus actively encouraged A L to view MJ as a 'bad guy' and Jennifer Louey as blameless in Tonnja's death. It is true that there is some evidence that Christina Louey (A L's grandmother) may have sought to influence A L towards feeling favourably towards his mother[31] and that in 2010 in a session with Dr Gordon when A L asked why he could not spend more time with his mother, Dr Gordon told him it was because MJ killed Tonnja and hurt his younger sister K H.
49 I accept that as time went by there arose a potential for contamination, being the potential for this young witness to be conditioned into thinking that MJ was the person who killed his sister and that his mother was blameless. However, this conditioning, if it occurred, was likely factually based on A L's initial accounts which, on the evidence, in my view, were not conditioned at all. I do not regard contamination as having a material impact on the substance of his 2005/6 allegations against the accused. I am less certain about its impact on the 2015 VARE 10.
50 Mr Dann submitted that in the 20 May 2005 recorded conversation between A L, his aunt Amanda and Quang Tran, A L was improperly prompted on a range of topics. I have listened to all the recordings twice with the assistance of transcripts. I do not agree that he was improperly prompted during this conversation. Quang, at one stage (after 17 minutes of apparent avoidance by A L), did say '...when I was talking to you last time...you said that MJ hit Tonnja...' and shortly thereafter, '...you also said that he kicked her...'. Had A L not disclosed this information earlier then it would clearly be inappropriate questioning. However, directing the child back to something the child had already said in my view does not constitute an improper prompt.
51 I have some reservations about the manner of questioning in VAREs 8 and 9, but this has more to do with the manner of the interrogator than with any improper prompting. As I indicated in discussion, I will entertain further submissions about VAREs 8 and 9 should it be necessary.
52 I consider the most significant danger confronting the accused, if I allow this evidence to be called, is that he may well have lost some of the capacity to test A L's 2005/2006 accounts through A L's 2016 recollection. A L's evidence-in-chief, if admitted, will be constituted in large part by his VARE interviews of the 2005/2006 period. His other utterances of that time are sought to be admitted through the gateway of s 66 of the Evidence Act. However admitted, the prosecution are relying upon evidence drawn from A L's memory as a four and five year old. Now, ten years later, that memory is distant and A L has expressed doubts to his psychologist that he will be able to remember everything.
53 If I admit this evidence, I consider it will put the defence at a real forensic disadvantage.
54 I cannot predict how the evidence will play out, but should the witness have no current recollection of events, or a very different recollection of events (as seems to be the case in the 2015 VARE 10), the prosecution will be able to answer these criticisms by directing the jury to 2005/2006 when A L's recollection was intact and consistent.
55 Occasionally, criminal defence counsel are required to deal with evidence that cannot be tested. Usually this is the result of the admission of hearsay evidence where the witness is not called or has no recollection of the impugned events. The fact that his one-time recollection cannot be tested is not necessarily fatal to the reception of the disputed evidence.[32] If there is a danger the jury may overvalue the weight to be accorded to the evidence then this will constitute an unfair prejudice within the meaning of s 137,[33] but the extent of that danger must be measured against the probative value. This evaluation must occur after consideration is given to techniques available to the trial judge to ameliorate this danger.
56 I consider the danger presented by this type of unfair prejudice can be ameliorated in this case to some extent by a strong forensic disadvantage direction, perhaps augmented by an unreliability direction based not solely on the child's age but (assuming this to be the evidence) also upon his apparent developmental immaturity and the stressors that confronted him as an apparent witness to his sister's death. The potential for contamination of his evidence as time went by may also need to be part of this direction.
57 I also consider that the defence have not totally lost the opportunity to test A L's 2005/2006 evidence. They have the full transcript of the VARE tapes which extend well beyond the evidence the prosecution seeks to adduce and which are said to contain many inconsistencies and factual errors. These can be the subject of cross-examination and submission in addresses. In a similar category, the defence have the fulsome notes of Dr Gordon, which seem to provide a fertile source of inconsistent accounts. Whilst these inconsistencies and errors do not go to my assessment of the probative value of the evidence to be adduced by the prosecution, they remain in the accused's brief to be used, if thought appropriate, in testing the reliability of the witness.
58 Mr Dann also contended that any capacity that may have existed to cross-examine the witness about his occasionally expressed fear of his mother was now gone. Mr Dann argued that ten years have passed by, the boy has been conditioned to believe his mother was blameless, and he now denies that he was ever scared of her. In a case where there are only two realistic suspects (assuming that the jury excludes accident) then the loss of the witness's capacity to recall why he was scared of those suspects is, Mr Dann contended, an example of a real danger of unfair prejudice. Whilst I accept that there may be some prejudice flowing from this apparent loss of recollection, I do not accept the prejudice to the defence will be as great as the defence contend. There is still an abundance of evidence that the child, on occasions, expressed fear of his mother to other adults. The defence will certainly be able to establish evidence supporting the fact of this fear and can address arguments if it wishes about that fact. This asserted forensic disadvantage may also need to be part of a forensic disadvantage direction, but some residual danger of unfair prejudice will remain.
59 I assess the danger of unfair prejudice as quite high, even allowing for the amelioration by direction and the residual material available for cross-examination to which I have just referred.
60 After considerable reflection I am not satisfied that the danger of unfair prejudice outweighs the probative value of the evidence sought to be adduced by the prosecutor, save for VARE 10. It follows that, subject to any other exclusionary rulings that I may make about discrete portions of the evidence, I will allow the prosecution to lead the impugned evidence. I consider VARE 10 has less probative value given its timing and the potential for contamination. The danger of unfair prejudice, in my view, does outweigh the probative value and, if the defence persist with its exclusionary application, I will exclude VARE 10 pursuant to s 137. Having said that, given the balance of the ruling, I could readily understand the defence abandoning its application to exclude VARE 10.
61 In Haddara v The Queen,[34] the majority confirmed that the common law discretion to exclude evidence unfair to an accused continued to be part of the Law of Evidence. It rejected the prosecution contention that the Evidence Act has codified all judicial discretions to exclude evidence. The majority observed that the 'fairness discretion was never confined to confessional evidence and has been enlivened to exclude identification evidence and real evidence'.[35] Their Honours also stated:
That there is a general discretion which inheres in a trial judge to exclude admissible evidence in order that the accused receive a fair trial. That general discretion is an indispensable tool if a trial judge is to have the capacity in all the circumstances to discharge their overriding duty of ensuring the accused receives a fair trial.[36]
62 I decline to exercise this Common Law discretion for largely the same reasons that applied to my s 137 determination. I accept that there will be some residual unfair prejudice to the accused regardless of the content and nature of judicial directions that I may give, however I do not accept that this unfairness is at such a level as to render the proposed trial unfair. It is often said that the right to a fair trial is not a right to a perfect trial.[37] I accept that counsel for the accused will be presented with some challenges in the cross-examination of A L, but with the material they have in their brief and with adequate judicial directions I consider that the impugned evidence is capable of being fairly considered by a jury.
[1] I have excluded from this class Ms Samantha Barry, a family friend and occasional babysitter, who visited the flat at about 12.15pm on 13 May for a short period. Although she saw Tonnja while visiting, it seems she was always in the company of Mr Debresay, Ms Jennnifer Louey or both during her visit. There is no suggestion by either of these persons that she was responsible for the child's injuries.
[2] See for example Haddara v The Queen (2014) VSCA 100.
The Queen
Debresay