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

[2002] VSC 460

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. 14

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	24 October 2002
CASE MAY BE CITED AS:	DPP v Bandali Michael Debs and Jason Joseph Roberts
MEDIUM NEUTRAL CITATION:	[2002] VSC 460

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Criminal law and procedure - murder - evidence – judge’s warning to jury to engage in conscious decision-making.

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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 learned senior counsel Mr Rapke's submission that I should leave well enough alone.  I do understand his submission that as a matter of law there are well laid down modes of reasoning and criteria applicable to circumstantial evidence.  I also understand his submission that this sort of warning could affect those circumstantial directions.  However, I do consider there is a necessity in this case for this jury, having just heard two months of evidence about the tragic events on Cochranes Road and evidence about the Hamada robberies, to be alerted by the trial judge to the necessity for exercising their judgment as to the meaning of the words they are to hear on these listening devices.

1. I consider there is, absent a warning by the judge, a potential psychologically speaking of unconscious, automatic attribution, namely that the instant a juror hears words which could refer to some overt event at Cochranes Road or Hamada, a juror, without further thinking, would conclude that therefore the words do refer to those external facts.  The function of a warning is not to put to the jury that they should not conclude that the words refer to the external facts.  Rather, it is to alert the jury to the psychological danger of unconscious and automatic conclusion-making occurring by reason of the fact that the juror has just heard evidence about these external facts.

1. Accordingly, I consider it is necessary, in order to secure a true verdict according to the evidence, that the jury eschew projection and apply proper reasoning to their task in assessing the issue. 

1. The issue here is whether the words that each accused respectively said, referred to the events in the external world, being Cochranes Road and Hamada or not. The warning is necessary to secure a true verdict on the evidence as to that issue.

1. Accordingly, I propose to give the jury that direction.

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