Director of Public Prosecutions v Bandali Michael Debs and Jason Joseph Roberts
[2002] VSC 416
•23 September 2002
| 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. 9C
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 23 September 2002 | |
CASE MAY BE CITED AS: | DPP v Bandali Michael Debs and Jason Joseph Roberts | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 416 | |
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Criminal law and Procedure - murder – evidence – recall of expert witness for further cross-examination – procedure.
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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 | Victoria Legal Aid |
| For the accused Roberts | Mr I.D. Hill QC | Lethbridges |
HIS HONOUR:
For reasons which I have stated in Rulings 9A and 9B, I consider that for the jury to fulfil its sworn duty to give a true verdict according to the evidence it is appropriate that Mr Ross be recalled and certain matters be put to him so the jury has evidence upon which to give a true verdict.
Although no issue was joined by Mr Dane in his s. 13 response, and although nothing was put to Mr Ross who was in the witness box for a week, it now emerges that the defence of Mr Debs maintains that there was criminal conduct by unnamed police in planting evidence falsely and knowingly to have Mr Debs convicted on two counts of murder. As I have previously said, it is difficult to conceive of a more serious allegation. None of it has been put to Mr Ross. None of it was put in the s. 13 response. All that was put to Mr Ross, and was put in the s. 13 response, were questions consistent with ineptitude which would have enabled inadvertent pollution of the evidentiary trail.
For the jury to decide the case according to the evidence, it is necessary for the issue that I have stated properly to be joined before the jury.
Accordingly, I propose to permit the recall of Mr Ross so that the matter can properly be joined in evidence.
As I pointed out to Mr Dane in submissions this morning, it is not my function to force the defence to ask any questions at all, and I will not force the defence of Mr Debs to ask any questions at all. However, if the matters are not put in question form I will give the jury a direction according to the principle of Browne v. Dunn as to puttage.
If Mr Dane does ask questions, I do not know what questions he will ask, nor do I know how far he will go. That all remains to be seen.
What should have occurred was these matters should have been put by Mr Dane to Mr Ross the first time around, when he was giving evidence in the week commencing Monday 9 September. Had they been put then to him as they should have been, the prosecution would have had no notice of them, nor would the witness Mr Ross have had time to research the matter by antecedently looking at the protocols and procedures of the laboratory. It routinely happens in trials that matters are put to witnesses by the defence that they do not expect, and there is nothing wrong at all with that. Surprise is appropriate in presentation of a defence. I would have given the prosecution a proper opportunity to get instructions before re-examination had the matter been put by the defence in cross-examination of Mr Ross, even if that meant standing Mr Ross down for a day or two.
That is what should have occurred.
Mr Rapke, understandably, has submitted, both on Friday in nascent form and today fully articulated, that we have now passed that point and we are at a different stage of procedure. Mr Rapke is entirely right. This is a recall, not initial puttage, and Mr Rapke submits that because it is a later and different procedural stage, namely a recall, he ought to be given a prospective opportunity of conferring with Mr Ross and Mr Ross obtaining relevant evidentiary data.
I am unpersuaded that I should accede to Mr Rapke's submission. I think that the matter ought to be put by the defence initially to Mr Ross, and I will then give the prosecution an opportunity to stand Mr Ross down to obtain the proper evidentiary instructions in conference and then recall him for final re-examination. I consider it proper, and important, for the jury to be able to observe Mr Ross when the defence allegation or allegations first are put to him.
The prosecution says this puts the prosecution in the worst of all worlds and is unfair to the prosecution. I do not think that is so. The jury is not stupid. It will know that Mr Ross was in the witness box for a week and none of this was put to him by the defence and it is now being put to him by the defence. I do not consider that procedure will work as an unfairness upon the prosecution, nor any unfairness on any party. It will simply be obvious to the jury that something is now being put
by Mr Dane on behalf of Mr Debs which was not put earlier. The jury will be aware in due course from evidence from listening devices of Mr Debs' cerebration about diverting the police investigation, but that is a matter yet to come.
Accordingly, I do not propose to accede to Mr Rapke's application that he confer with Mr Ross and lead off in this second stage of Mr Ross's evidence by way of further re-examination.
Mr Rapke also submitted that the cross-examination of Mr Wrobel by Mr Dane properly founded a recall by the prosecution of Mr Ross. I agree with that, but I consider that the nature of the address by Mr Dane through Mr Wrobel to Mr Ross is of much less significance than the allegation now emerged of criminal planting of evidence by police, and it is because of the nature of the defence of Mr Debs now emerged, which I consider is the matter of greater significance, that I think that the procedures I have just outlined should be followed.
Accordingly, at an appropriate time, presumably tomorrow, Mr Dane can make an application and I will deal with that and Mr Ross can be recalled. Mr Dane can further cross-examine him, and Mr Hill if he wishes can further cross-examine him; then Mr Rapke if he wishes to can have the matter stood down while investigations can be made as to the matter freshly put to Mr Ross.
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