Derick (D) is on trial for the murder of a business associate, Veronica (V). According to the prosecution, D pushed V off the 12th storey balcony of D's inner-city Sydney flat at about 8 pm on the evening of 1 June 2020. The prosecution case is that it was a revenge killing. D felt that V had cheated him on a business deal.

The prosecution plans to call Charlie (C), D's 20 year-old son, who was there at the time. Unfortunately, C suffered severe brain damage in a serious car accident a few years earlier. In a pre-trial hearing, the defence handed the trial judge a medical report indicating that C had the intellectual capacity of a seven-year-old. The trial judge proposed to talk with C to see whether he could be called. Defence counsel submits, 'your Honour, we strenuously object to C being called. Given his disabilities, C's evidence would be of very little use, but requiring him to testify would seriously damage his relationship with his father'.

The trial judge said, 'noted' and proceeded. At one point the trial judge asked C, 'how do you feel talking to me about your father? Does it upset you?' C replied, 'I like to help. Is it helpful?' The trial judge said, 'Yes, thank you.' The trial judge said, 'you do know that you must tell the truth, even if this is upsetting for you?' C answered, 'yes, I am fine. I know not to lie.' The trial judge indicated that C could give sworn evidence for the prosecution.

After the jury was empanelled, the prosecution applied to the judge for a viewing of D's flat, so that the court could get an impression of how easy or difficult it would be for someone to go over the balcony, accidentally, voluntarily or by force. The defence objected, in part on the basis that protestors against violence to women had maintained a vigil outside the block of flats ever since V's death, bearing signs which, among other things, called for 'Justice for Veronica'. Moreover, defence counsel indicated that the defendant felt unable to go back to the site of V's tragic death. A further problem was that, for safety reasons, it would not be possible for all the jurors, the trial judge and the lawyers to all be out on the balcony at the same time. They would have to go out, six at a time. The trial judge held that the viewing should nevertheless be held, suggesting that police might clear away the protestors while this occurred. Police took the hint, clearing away protestors, and the viewing went ahead.

Back in court, in examination-in-chief, C testified that his bedroom window looks out onto the balcony. He said that he saw his father and V out there arguing. They were at the balcony rail, with D's hands on V's shoulders. Suddenly V went over the rail.

In cross-examination, defence counsel asks C, 'your father was trying to save V from falling. Isn't that what happened?' C replies, 'I don't know. Maybe.' Defence counsel asks, 'you couldn't really see clearly what happened, could you?' C replies, 'no, I had a good view.' Defence counsel asks, 'And your memory is not very good is it? Do you think this might be a story that you are making up?' C replies, 'my memory... ? No, it isn't a story. It is what happened.'

The prosecutor next calls Detective Plod (DP) who says he interviewed C on 8 June. He pulls out his notebook, saying 'this is a note I made at the time of interview'. He reads 'C says that he saw his father argue with V, putting his hands on her shoulders. She struggled but he forced her over the balcony.'

At this point the trial judge asks DP, 'are you quoting C's actual words?' DP says, 'yes, your Honour, I believe so.' The trial judge asks, 'are you sure? Would C express himself like that?' The prosecutor, says, 'your Honour, with respect ...' The trial judge says, 'okay, we'll leave it at that'. The defence does not cross-examine DP.

The prosecution closes its case, and the defence calls D. D testifies that, on the night in question, he was on the balcony with V, but that they didn't argue. V was very upset over some unsuccessful business dealings. D testifies, 'V kept repeating, "I'm ruined. I'll never come back from this."' D says that he went in to get them both another drink and when he came back she had already gone over the edge.

During cross-examination, over defence counsel objections, the prosecutor asks D, 'so now you claim that you weren't even on the balcony when V went over. You've just made this up, haven't you?' D replies, 'no, I gave a true account'.

The prosecution then asks D, 'prior to your separation with C's mother, you had an affair with V, didn't you?'. Defence counsel objects, 'your Honour, this is highly irregular, that was more than ten years ago'. The prosecutor says, 'your Honour, we are seeking a full picture of what has gone on between the defendant and the deceased'. Noting that the trial judge was looking at his watch the prosecutor says, 'we need not pursue that further'.

During the summing up, the trial judge tells the jury:

You have heard the prosecution's evidence. According to the prosecution, D deliberately pushed V to her death from his 12th storey balcony. The defence has raised other possibilities. Perhaps V was suicidal and D was trying to save her. Perhaps D was not even there at the time. Now you must be persuaded beyond reasonable doubt of the prosecution case to convict. If you consider it a reasonable possibility either that D was trying to save V, or was not there at the time, then you must acquit. But these must be reasonable possibilities, not fanciful possibilities. The law does not require proof beyond any doubt, which would be an impossibility and give criminals impunity.

Comment on any evidential issues arising.