Director of Public Prosecutions v Bandali Michael Debs and Jason Joseph Roberts
[2002] VSC 507
•14 November 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1527 of 2001
| Director of Public Prosecutions |
| v |
| Bandali Michael Debs and Jason Joseph Roberts |
Ruling No. 20
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 14 November 2002 | |
CASE MAY BE CITED AS: | DPP v Bandali Michael Debs and Jason Joseph Roberts | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 507 | |
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Criminal law and procedure – murder – application for discharge of jury – excluded evidence – application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr J.W. Rapke QC with Mr P.B. Kidd and Mr J.J. Serong | OPP |
| For the accused Debs | Mr P.C. Dane QC | Victoria Legal Aid |
| For the accused Roberts | Mr I.D. Hill QC | Lethbridges |
HIS HONOUR:
Learned senior counsel Mr Hill for the second accused has applied for a discharge of the jury in relation to his client without verdict. The application for the discharge is that before the jury yesterday Detective Inspector Collins gave evidence which had hitherto not been led from Detective Sergeant Thomas who is the officer who gave evidence about the listening devices and the sounds emanating there from as follows: “there was a lead-in by Mr Debs that said, ‘Really, they probably want a fuck. Look out. Look at them’. And Mr Roberts said, ‘Five, five Ds sitting down there eating tea’. Ben, ‘Serious?’ Jason talking, ‘You seen ‘em, yeah.’ It follows on from there”. That part of the listening device B26 had not been led by the prosecution, because of inaudibles in that section. The conversation led before the jury commenced at line 48 which was Mr Debs saying, “You seen ‘em” and Mr Roberts replying, “Yeah”. All of this occurred in the Holden Commodore of Mr Debs as he and Mr Roberts were driving round the suburbs of Melbourne on the 15th of February 2000 after 8:30 p.m.
The evidence before the jury is that Detective Sergeant Thomas spent many, many hours listening to these listening device tapes and supervising the creation of a transcript which he then deposed was accurate. He said his central criterion was to put “inaudible” if he was not confident that he could positively state words he heard. That is what he did in this section.
In his submissions yesterday Mr Hill put that the prosecution has sought to “engineer this position, and, without notice but through the last witness, improperly, so as to highlight this issue” (T.6213). I shall come to the matter of lack of notice in a minute. However, I do not consider Mr Hill’s assertion of impropriety is correct. The genesis of Mr Rapke’s request last Sunday 10 November to Detective Inspector Collins appears to me to be preparation by Mr Rapke for cross-examination of the anticipated Professor Butcher, a forensic phonetics expert who may be called by Mr Hill. In so preparing, Mr Rapke listened to the full tape of B26 and having heard what he thought he heard, he asked the present witness (the final prosecution witness) to listen to it himself. There is nothing improper in that, either by Mr Rapke or by Detective Inspector Collins. Mr Rapke did not communicate the contents of what he thought he had heard to Mr Collins at the time. Mr Collins repeatedly listened to it, made a note of what he thought he heard, and gave evidence accordingly yesterday.
However, the leading of the evidence was without notice to the two accused. Clearly notice should have been given of it before it was led, both for its own sake and so that the difficulty which has now arisen would not have arisen. Mr Hill’s criticisms of the prosecution as to the lack of notice are entirely correct.
The fact is, however, that it has occurred and the question arises as to what is to be done.
I must say listening to the CD myself I thought I heard what the Detective Inspector said he heard, subject to this: the word “Ds” in the “Five, five Ds sitting down there eating tea”, I was not confident that I heard. Because the question mark in my mind is the word “Ds”, which is the pivotal sound, I think I should proceed upon the basis of the initial evidence given by the experienced person in the field, Detective Sergeant Thomas, that the word “inaudible” is the appropriate expression. That is what appears in the depositions at p.6737.
Had this argument occurred at the start of the trial I would have been inclined to let this evidence in, if Detective Sergeant Thomas had given like further evidence to that of Detective Inspector Collins. But we are now at the last witness for the case for the prosecution and I think conservatism and prudence ought be exercised at this juncture.
Accordingly, I conclude that there is no sufficient material, aurally speaking, to permit the evidence to remain before the jury as given by Detective Inspector Collins.
As to the application for discharge, I am entirely unpersuaded that it is justified. This is a substantial and full prosecution case. There are other references to “Ds” in the various transcripts. Mr Roberts was questioned about it on the 15th of August 2000 by investigating officers between questions 507-528 and 630-643. The prosecution doubtless will say that his answers were selective and dishonest, and that is for the prosecution to argue. At question 638 Mr Roberts said he might have used the word “Ds” – not referring of course to this passage – meaning detectives.
At all events, I am affirmatively satisfied there is not only no high degree of need, sometimes tautologically called a high degree of necessity, but there is no need whatsoever and no ground to discharge the jury.
I am entirely confident that the jury will be able and will in fact fulfil my direction to them to put aside the evidence of Detective Inspector Collins yesterday on this point. Why they will be able to act in accordance with that direction is, apart from the fact it comes from the judge, that Detective Sergeant Thomas has been held out by the prosecution as the person who has heard these sounds for many, many hours, whereas Detective Inspector Collins has not been qualified before the jury in that way, and neither the tape nor the transcript earlier than line 46 is before the jury. The jury, I consider, will simply regard it as an idiosyncrasy of the Detective Inspector. The jury of course have not ever heard this part of the CD B26.
Accordingly, I refuse the application for discharge of the jury. I will give the jury the direction I have foreshadowed and we will get on with the case in the usual way.
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