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

[2002] VSC 458

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. 12

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	22 October 2002
CASE MAY BE CITED AS:	DPP v Bandali Michael Debs and Jason Joseph Roberts
MEDIUM NEUTRAL CITATION:	[2002] VSC 458

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Criminal law and procedure - murder - evidence –  re-examination – application by prosecution to elicit subsequent criminality – 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 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. Learned senior counsel for the prosecution, Mr Rapke, has applied for leave to elicit evidence of criminal activity by Mr Debs (and which would also involve Mr Roberts) after the killings of the two police officers charged on this presentment.  The purpose of his application is to demonstrate that the two accused were clueless that they were being listened to by the police or that they were under close covert surveillance. The reason for seeking to elicit that ignorance in re-examination is to rebut an anticipated proposition by the defence on behalf of Mr Debs that Mr Debs was aware of police surveillance of him.  By surveillance, for the purposes of this ruling, I mean covert surveillance which on its face was not known to Mr Debs.

1. Plainly, certain actions of police were visible, and indeed designed to be visible, on the Crown's own case.  They were overt actions by police in relation to Mr Debs, and also to Mr Roberts.  The prosecution has frankly stated that a number of actions were done in order to seek to ascertain whether consequently on covert devices the accused would make incriminatory statements.  All of that has been admitted by me previously in Ruling No. 5 and has now been given in evidence.

1. The issue is not those overt actions or stimuli by the police and known to the respective accused - that which might be called proddings.  The issue is that which on its face was not known to the accused and not intended to be known to them including, of course, listening devices as pre-eminently covert surveillance.

1. Mr Dane as a theme throughout his cross-examination of the senior officer Detective Superintendent Sheridan, commencing at p.5274, put to the officer that there was extensive surveillance of Mr Debs and also of Mr Roberts.  Mr Dane was perfectly entitled to put that to the witness and presumably will found the comment in final addresses that the surveillance did not produce much from an accused said to be guilty of the crimes charged .

1. Mr Dane however went further and put these questions: p.5298, "I am suggesting to you that you applied the blow torch to Mr Debs, all investigative stops were pulled out?"; at p.5299, "And surveillance was applied to him, was it not?";  next question, "How do you know he wasn't conscious of that?".  When the answer concluded ".... surveillance is meant to be covert",  Mr Dane asked:  "It is supposed to be.  Have you ever known them to come across their target?"

1. If it is to be put on behalf of Mr Debs that he was conscious of covert surveillance, as distinct from the external prodding I have stated, that would have to come by way of evidence, and at present there is no evidence of it.  Of course, Mr Debs can give evidence to that effect and be cross-examined upon it.  If he did not give evidence of it, then it cannot be asserted that he was conscious of it, unless there is other material from which that inference properly could be elicited.

1. The prosecution, not unnaturally, is concerned that that question, "How do you know he wasn't conscious of that?", combined with the `blow torch' theme of Mr Dane's cross-examination on the matter of surveillance, is a harbinger of a proposition to the jury that Mr Debs was conscious of the covert surveillance.

1. As I say, that cannot be put unless there is an evidential basis for it.  Mr Debs may give evidence of it.  If so he can be cross-examined.  If he does not, unless there is other evidence, it is not going to be put by the defence.

1. It seems to me, accordingly, that the elicitation of post-criminality to demonstrate the accused were unaware that they were being covertly listened to or otherwise covertly surveilled is not founded.  In any event it would have a prejudicial effect.  But the antecedent matter is whether it is relevant to the issues joined, and the issue I consider is not yet joined as I have stated.

1. Accordingly I refuse the application.

1. In relation to D14, the jury have seen what they have seen.  I think it would now be academic not to mark D14 in absolutely, and I propose so to admit it.  As I have said to counsel in discussion, the reason I marked it for identification only was that I did not know the demonstration was coming, I immediately thought there might be some corollaries of an evidentiary sort which might be adverse to Mr Debs, and a as matter of prudence I did not receive it absolutely in case that was an act of judicial finality which could not be remedied and which might later have harmed Mr Debs.  In the circumstances I will mark it in absolutely.  The jury have seen what they have seen anyway.

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