Director of Public Prosecutions v Bandali Michael Debs and Jason Joseph Roberts

[2002] VSC 493

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. 17

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	6 November 2002
CASE MAY BE CITED AS:	DPP v Bandali Michael Debs and Jason Joseph Roberts
MEDIUM NEUTRAL CITATION:	[2002] VSC 493

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Criminal law and procedure – murder - evidence – re-examination – post offence criminality – application to lead evidence 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 with Mr G. Georgiou	Victoria Legal Aid
For the accused Roberts	Mr I.D. Hill QC with Ms S.K. Dawes	Lethbridges

HIS HONOUR:

1. I am unpersuaded by Mr Rapke's submission that he ought be permitted to introduce in re-examination through Detective Sergeant Thomas, or generally, the post-offence criminality of Mr Debs or, for that matter, Mr Roberts.

1. Mr Dane has twice said to me, both now and at page 5393, that it is not going to be put to the jury on the present evidentiary material that his client was aware of covert surveillance.  Plainly if Mr Debs gives evidence and says that he was so aware, that matter then is in evidence;  but absent that happening there is no evidentiary material to support an assertion by Mr Dane that his client was aware of the covert surveillance, and Mr Dane has directly said he is not going to put it.

1. I do not consider that the inappropriate inclusion of "the presence of the surveillance officers 24 hours a day nigh on" (p.5612 lines 16-17) in a list of pressures founds the introduction of highly damaging material to Mr Debs in re-examination.  I think what happened was Mr Dane put a whole list of things, which he was perfectly entitled to put, and as can happen when one is on one's feet, he slightly over-shot the mark, and I think the matter should be left there.

1. In relation to Mr Rapke wishing to elicit the post-offence criminality in order to shore up that the word "D's" means detectives, I am unpersuaded the post-offence criminality ought to be admitted to that end.  There is ample material in the listening devices to show that "D's" meant detectives.  No doubt that will be argued between the parties, but the Crown is certainly not short of material on it and I consider that, like with CPs, it is a matter which the Crown has ample material upon which to go to the jury.  To admit post-offence criminality, which would be highly harmful to Mr Debs and Mr Roberts, to shore up material which I consider the Crown already has is, I think, inappropriate and should not be permitted.

1. Accordingly, although the meaning of "D's" is in dispute, I am not persuaded that letting in post-behaviour ought to occur.  I consider it would be highly prejudicial and harmful and is not justified.  After all, the first step in the enquiry is the sounds

themselves.  The jury have the sounds.  As to the meaning, the prosecution has the context.  To admit extraneous and harmful behavioural material to assist the jury about the sound I consider is inappropriate.

1. Mr Rapke also made a wider submission.  He submitted that post-offence criminality of the two accused ought be admitted in rebuttal of a defence proposition that the accused were stimulated to talk (as recorded on the covert devices) about the Cochranes Road killings and the police investigation therein, by police activity towards or interest in them.  Mr Rapke submits that the circumstance that the accused were continuing to act criminally tends to negate the suggested consciousness in the accused of police activity or interest in them, thus removing the substratum of the defence contention.  I am unpersuaded by Mr Rapke's wider submission.  I do not consider it has sufficient analytical or factual import to outweigh the plain prejudice which would attend the reception of the sought for evidence.

1. Returning to Mr Rapke's first and narrower submission, I add the prosecution also has the evidence of Mrs Fardon at p.4018 that Mr Roberts was "frantic" and looking for bugs above the fridge and in the bookshelf when he was told that he had been covertly surveilled.  As the prosecution would link the accused together in their actions and knowledge, that is relevant in relation to knowledge or ignorance in Mr Debs.

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