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

[2002] VSC 492

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. 16

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	30 October 2002
CASE MAY BE CITED AS:	DPP v Bandali Michael Debs and Jason Joseph Roberts
MEDIUM NEUTRAL CITATION:	[2002] VSC 492

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Criminal law – murder - evidence – admissibility – possession of firearms – lawful and covert listening device material.

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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. The prosecution seeks to lead further evidence in relation to the possession and use in the year 2000 by the accused Mr Debs, some in the presence of Mr Roberts, of scanners.

1. The further material which is now sought to be led is listening device and telephone intercept tapes, notably C10 and C11 just after midnight on 1 January 2000, in which Mr Roberts was the caller and in which a scanner can be heard in the background of the call; B178, a conversation at Springfield Drive, Narre Warren, at which both accused were present, on 11 January 2000 in which Mr Debs says, "Because I listen to scanners I know all about it"; B9, on 31 January 2000, of Mr Debs in the absence of Mr Roberts, at Springfield Drive; and B40, Mr Debs, in the absence of Mr Roberts, at Springfield Drive, Narre Warren.

1. None of this material is new.  It has all been given in a derivative form without any objection by Detective Sergeant Thomas.

1. In his evidence-in-chief Detective Sergeant Thomas at p.5525 was asked a direct question by Mr Rapke, "In the course of your monitoring of the conversations of both Mr Debs and Mr Roberts, did you record either conversations or telephone calls which established that either or both of the accused had access to electronic devices that enabled them to listen to police channels?"  Answer, " Yes, we did."  Question, "Can you tell us about that?".  Despite the flagging of what was to come, there was no objection on behalf of either accused as to the elicitation of that evidence.  Thereupon over the next three pages the Detective Sergeant gave precise but derivative evidence as to the matters which are now sought to be called in direct form.  He gave evidence first of three listening device items: 11 January 2000, 31 January 2000 and 21 February 2000, and then to listening device conversations of 1 January 2000 a minute apart.

1. It is not now suggested on behalf of either accused that the material now sought to be led is irrelevant, nor scarcely could it be as it was not objected to when it was led.  The submission by Mr Dane is that the material is surplusage.  That is not a ground for rejecting material if it is admissible and probative unless the surplus involves a question of prejudice.  That was not argued, nor in my view could it be argued in view of the contents of this material and the other contents of material which has already been led before the jury.

1. Mr Dane further put that the material is late.  That is admitted by the prosecution, and the prosecution has frankly said that it was only when the defence requested certain witnesses be called about scanners that they sat down and attended to this matter in its original form, as distinct from its derivative form led on 25 October from Detective Sergeant Thomas.  In those circumstances the Crown now seeks to lead the original material.  That is not a ground of itself to exclude it.

1. Mr Hill for the second accused, apart from the matters I have already canvassed, has also submitted the material involves a prejudice, namely that there is "extraneous animosity", to use Mr Hill's term, in relation to part of B178 at the second page.  However, I consider that that does not involve prejudice to the accused Mr Roberts beyond its probative capacity, both of itself and in the context of this trial.

1. The question of Mr Roberts not being a party to the material is again a matter for argument on the face of the material.  Mr Roberts was a party to the conversation in which Mr Debs said, "Because I listen to the scanners".  Indeed, in the telephone conversations C10 and C11 the prosecution says it is Mr Roberts ringing from Mr Debs' home when we can hear the scanner in the background.

1. Accordingly, it seems to me the material is clearly admissible.  It will, of course, be a matter of argument before the jury whether the jury accepts the reasoning the prosecution seeks to advance that the presence of the material, being the scanners in 2000, can properly be related back to 1998.  As a matter of analysis it can be, but whether the jury accept that is another matter which is for later submissions to the jury.

1. For those reasons I rule that the material in its raw form is admissible.

1. I should add that the prosecution also submits the material is admissible relation to Mr Roberts' interview of 25 July, questions 246 to 268.  In my view it is not necessary to have recourse to that matter to justify the admissibility of this material.  It is prospectively admissible in its own right.

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