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

[2002] VSC 447

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. 11

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	14 October 2002
CASE MAY BE CITED AS:	DPP v Bandali Michael Debs and Jason Joseph Roberts
MEDIUM NEUTRAL CITATION:	[2002] VSC 447

---

Criminal law - evidence – assertion in cross-examination of prosecution witness of corrupt police conduct – consequence for prosecution evidence in response – evidence as to course of police investigation and reasons therefor.

---

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. Objection has been raised, initially by Mr Hill, learned senior counsel for the second accused, but conjoined by Mr Dane, learned senior counsel for the first accused, to the elicitation in evidence-in-chief of Detective Superintendent Sheridan of data contained in a statement filed by way of notice of additional evidence of 11 October 2002, the statement being made on 10 October 2002.  The Detective Superintendent had made an initial statement, on 29 November 2000.  That statement was of essentially historical factual material relating to the Detective Superintendent's actions in the homicide investigation, including the issuing of press releases.  In summary, the Detective Superintendent's second statement provides a road map of the course of the Lorimer Task Force investigation from the date of the killing of the two officers until the charging of the two accused - that is, from 16 August 1998 to 25 July and 15 August 2000.  In the course of that second statement, and it is proposed in the course of evidence-in-chief of the Detective Superintendent, not only are the major steps in the investigation stated but the reasons therefor also are stated.

1. It is appropriate for the Detective Superintendent to be the person who gives this evidence, if it is to be led, because he was the senior officer in charge of the investigation.

1. I consider that a number of the objections taken to the contents of the second statement are erroneous in law.  Mr Hill and Mr Dane have made submissions as to the hearsay nature of the material.  However, the material is not hearsay because it is not led as to the truth of its contents.  Rather it is led to a discrete issue, namely the integrity and course of the police investigation.  The officer is not deposing to the truth or accuracy of evidence led before this jury but rather he is deposing to the reasons for the course that the investigation took.  The material thus is not hearsay. 

1. The antecedent and fundamental question is whether it is relevant and otherwise admissible.

1. I consider that the statement is directly relevant to an issue joined in the trial.  On 23 September 2002 - after the Superintendent's first statement and before his second - the following was put in cross-examination of the senior forensic scientist in the case, Mr Peter Ross of the Victoria Forensic Science Centre, by Mr Dane (p.4079 line 13) when that witness was recalled to give further evidence:  "You were either the instrument of some police officer or officers, or you are working together with the police officers making these findings that the, that is, that the other scientific officers just failed to find, what is it?"  Thereupon I asked Mr Dane “What is your allegation?”  Mr Dane then put to the witness (p.4080 line 2):  "I am putting to you that you are party to a criminal conspiracy to either plant and find; or been the subject of manipulation of finding innocently?"  The forensic officer replied, "Do you want an answer?  Mr Dane:  "Yes".  Mr Ross:  "I am not and never have been.  I have been working as a forensic officer for 25 years.  I am known amongst the courts as a highly moral and ethical worker ..."  He continued, "Everything that I have found was found was there, in fact, is there.  Everything can be tested.  You can find the gunshot residue, the lead on that piece of tape.  You can see.  It will still be there.  It is embedded in there.  You will find the gunshot residue that I got from the glass on the stub I took from the glass.  Anyone who repeats the work on the symbol will find exactly the same result.  It was there.  Live with it."

1. Those propositions put in a murder trial by senior counsel for the first accused demonstrably were not credit questions to a witness but were propositions of corrupt and illegal conduct by the investigation, or parts of the investigation, or the police, or members of the Police Force, in the bringing before the court of Mr Debs.

1. I consider that it legitimately and necessarily follows that the officer-in-charge of the investigation, Detective Superintendent Sheridan, ought be able to answer by evidence that most serious allegation.  I do not consider it is appropriate for it simply to be a traverse apt to a Form of Action.  The officer is entitled to spell out the steps taken in the investigation and the reasons for those steps taken in answer to that most serious of allegations put by senior counsel on behalf of the first accused.

1. Accordingly, I am satisfied that the material set forth in the statement of the officer is relevant and admissible.

1. Senior counsel for the second accused, although invited by me at the time of cross-examination of Mr Ross and again today, perfectly properly has declined to state the position, if any, of the second accused on this fundamental matter.  There is no burden of proof on the second accused and recalcitrance is a perfectly permissible position to be adopted in relation to this allegation.  No application was agitated for a separate trial on behalf of the second accused arising out of the cross-examination which occurred on 23 September 2002.  No application for a separate trial of the second accused has been agitated again today.  Accordingly, I do not know what the ultimate position of the second accused to the jury will be on this issue, and I may never know it because it may remain recalcitrant.  However, it is clear that the cross-examination on behalf of the first accused sets in train the admissibility of the evidence proposed to be led from Detective Superintendent Sheridan as contained in the statement of 10 October 2002.

1. I would like to consider overnight a formulation which I will put to Mr Rapke tomorrow as to the matter which Mr Hill specifically directed close attention to, being the last sentence of the second paragraph of the statement of Mr Sheridan on p.1, namely that "Senior Constable Miller's dying remarks strongly suggested that at least two persons had been involved."  I agree with Mr Hill that it is appropriate to give consideration to some other formula than that, and I will look at that overnight.  I would also like to look overnight at the various media releases which have been handed to me this afternoon by Mr Rapke and I can deal with those matters in the morning.  They, however, are matters of detail and I will finalise them having read the material overnight.

1. Returning to the fundamental question, I am affirmatively satisfied that the material contained in Detective Superintendent Sheridan's statement of 10 October 2002 is relevant and admissible.  It is not hearsay evidence because it is not led or admissible as to the truth of its contents.  Likewise the material is not prejudicial as to the truth of its contents, because it is not led or admissible as to the truth of its contents.  It is not opinion evidence by the Detective Superintendent as to evidence led before the jury or as to what the jury should or should not accept as evidence or as to significance of evidence.  The contents of the information in the officer's hands and the reasons for the course the investigation took are led as to the issue joined in the case and led directly in response to an allegation of centrally relevant police corruption.

-------------