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

[2002] VSC 415

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. 9B

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	19 September 2002
CASE MAY BE CITED AS:	DPP v Bandali Michael Debs and Jason Joseph Roberts
MEDIUM NEUTRAL CITATION:	[2002] VSC 415

---

Criminal law and Procedure - murder – evidence – recall of expert witness for further cross-examination – procedure.

---

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. Counsel, a matter I did not deal with in my ruling last evening, because I wished to consider it overnight, was the procedure to be followed in the presence of the jury as to the recalling of Mr Ross and as to his further examination.  I have considered the matter overnight.

1. In submissions in the absence of the jury by Mr Dane it emerged, albeit only after considerable questioning by me, that the defence of the first accused was, as Mr Dane put it at p.3792 lines 10 to 11, "There has been a salting of the mine for innocent men like Mr Ross to find it".  As I said in my Ruling No.9, it is necessary for it to be put to Mr Ross that the system he partook in and supervised was such as to permit the planting of evidence, as distinct from the inadvertent and unintended contamination of evidence.

1. It seems to me that as it is now known what is being put, the proper, fair and appropriate course is for the prosecution to recall Mr Ross and make him available to be cross-examined by Mr Dane so that Mr Dane can put, and put fairly and squarely, such of those matters he announced yesterday in the absence of the jury as bear upon Mr Ross's evidence.  The prosecution then will have the opportunity to re-examine Mr Ross when the puttage by Mr Dane has in fact been made.

1. In the circumstances, although it would be competent for the prosecution to confer with Mr Ross prior to his recall - because he has been excused (see Rule 46 Bar Rules) - I think it would be proper and fair if no conference were held by the prosecution with Mr Ross as to the matters Mr Dane stated yesterday in the absence of the jury at pp.3792-3794 until such of those matters as bear upon Mr Ross are put to him by Mr Dane in the presence of the jury.

1. I will give all counsel, including Mr Hill, locus to make submissions to me as to the proper course to be followed that I have foreshadowed and counsel can make those submissions upon considering what I have said and before Mr Ross is recalled.  To that end my Associate is now distributing Ruling No. 9 although not finally revised - there are no lines on the page, et cetera, but that is merely a matter of form - and I will distribute this Ruling I have given this morning unrevised, which I will call Ruling 9B.  Then counsel will have the whole matter in print before them and that, I trust, will assist all counsel in considering what I have said and in making any submissions to me upon it before Mr Ross is recalled in the presence of the jury.  I shall remark Ruling No.9 as Ruling No.9A.

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