Director of Public Prosecutions v Bandali Michael Debs and Jason Joseph Roberts
[2002] VSC 414
•18 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. 9A
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 18 September 2002 | |
CASE MAY BE CITED AS: | DPP v Bandali Michael Debs and Jason Joseph Roberts | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 414 | |
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Criminal law and Procedure - murder – evidence – cross-examination – rule in Browne v Dunn - recall of expert witness.
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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:
The learned senior prosecutor, Mr Rapke, has at the conclusion of Mr Dane's cross-examination of the present witness, a scientist, Mr Wrobel, and also after the cross-examination by Mr Hill of that witness, applied for two matters as a consequence of Mr Dane's cross-examination. The first matter is that I should give now the jury a direction as to the principle of fairness enshrined in Browne v Dunn[1] and its evident breach by Mr Dane. The second is that the prosecution have leave to recall Mr Ross, the person as to whom Mr Rapke submits the unfairness has accrued at the hands of Mr Dane in cross-examining Mr Wrobel.
[1](1894) 6 R 67 (HL).
Mr Rapke has sought a ruling before he re-examines Mr Wrobel so he knows what areas to comprehend in his re-examination. I consider Mr Rapke is entirely entitled to that, certainly before he commences to re-examine Mr Wrobel.
On the first application, that is the application that I give the jury a direction in relation to Browne v Dunn, I am not persuaded that I ought give the jury a direction of that sort at the present time. Such a direction to a jury can have a most deleterious effect upon the credibility of a defence unless it is necessary. It is one thing - which in the absence of the jury I have often done - to give the defence a direction as to fulfilment of the principle in Browne v Dunn. It is quite another thing to give the jury a direction about the same matter.
The rule in Browne v Dunn is not only for the benefit of a party, or for the protection of a witness, but is for the benefit of the fact-finding tribunal. It is designed to avoid non-joinder of issues which can be antipathetic to a true verdict given according to the evidence. In Reid v Kerr[2] Wells, J. said as follows:
"... a judge (or jury) is entitled to have presented to him (or them) issues of facts that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne v Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another like two trains in the night."
The rationale of the principle in Browne v Dunn has been later and conveniently formulated by Hunt J in Allied Pastoral Holdings Pty Ltd v The Commissioner of Taxation[3] as follows:
"It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give to the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn."
[2](1974) 9 SASR 367 at 373-374.
[3][1983] 1 NSWLR 1 at 16.
I must say that in listening to the cross-examination of Mr Ross, the scientist who first gave evidence in this matter, it appeared to me that the cross-examination essentially was of two characters. The first was qualitative and analytical: that is, it was directed to the process whereby were reached, and the weight to be attributed to, the conclusions expressed by the witness. The second factual: that is, whether the methodology in fact utilised by the witness or his officers was incompetent or inept in that it failed to exclude or preclude inadvertent or incompetent pollution of raw data.
When Mr Wrobel gave evidence it seemed to me that a different traverse emerge. This was evident in the questions, the demeanour of puttage, the context of the questions and the drift of cross-examination. It can clearly be seen in question p.3765 line 5 question "How did you miss the particle if it was there in 1998?" The emphasis by Mr Dane in cross-examination was upon the word "if". It was further put at p.3755, "How often does the Victoria Forensic Science Centre give out evidence of GSR where you are not consulted?" That was in questioning emphatically narrowed down to being a rare event. Further, when Mr Wrobel was questioned in relation to his relativity to Mr Ross, Mr Dane chose to make editorial comment as a preface to his questions, notably, "Very loyal, Mr Wrobel, very loyal", p.3756 line 9. On the basis such editorial comment was not surplusage and had a meaning and was purposeful, it did seem to me that an adverse reflection was being made through Mr Wrobel as to Mr Ross. Unlike the cross-examination by Mr Dane of Mr Ross, the cross-examination by Mr Dane of Mr Wrobel had about it a more pregnant character. I must say it was not then entirely clear to me precisely what the implication was.
Now, In his most helpful submissions to me in the absence of the jury, Mr Dane has frankly said that the defence case is that the police in the form of one or more persons have fraudulently and criminally planted evidence at the VFSC as part of a conspiracy to pervert the course of justice and, in effect, Mr Ross, highly experienced and qualified though he is, was a blind fool to that criminal planting. It was thus to me put, in effect, that Mr Ross was a patsy to the criminal conduct of the police. It is difficult to conceive of a more serious allegation. The defence is perfectly entitled to put such a matter in a court of law. However, there are certain consequences in terms of puttage. I would think it is fundamental and rudimentary that if that is going to be put, it ought to be put to the scientist who might conceivably have some evidence, either actual or methodological, to give upon such a matter. There is a gulf between a system which permits ineptitude and one which permits fraud.
I am not persuaded at all that there was any deliberation in the selectivity by Mr Dane not to put the matter to Mr Ross. I think he simply went down one path, when he really should have gone down two paths. One path is challenge to the weight to be put upon the witness's findings and analyses. The other is to the provenance of the antecedent factual substratum - that is, whether the system employed by Mr Ross or under his control permitted the interposition of criminal conduct by others. It is, of course, always a difficult forensic challenge to put an inconsistent and contradictory defence. It is one thing as in civil pleadings to plead in paragraph one, "I was not there" and in paragraph two , "Alternatively, I was there but acted in self-defence", but in a jury trial that is not so easily put. Applying by analogy that difficulty to this case, Mr Dane may have been oppressed by its forensic
(but not technical) corollary. However, it needs to be put to the witnesses who can give evidence on it, both in fairness to the witness and, as I say, in fairness to the jury so the jury can decide on the evidence the issues that are joined in a case.
Accordingly, I consider it is necessary to grant leave to the prosecution for Mr Ross to be recalled so that these matters can be put to him. They may be put to him by the prosecution, and if the defence the second time round chooses to put this, the defence will have that locus.
I am not persuaded I should give to this jury a direction of law on Browne v Dunn at the moment. I think that whilst such a direction would technically be justified, it would so far as the jury is concerned have the potential of significant harm to the viability or credibility of the defence. Such intrusion by direction of law by the judge upon the jury should be avoided if at all possible.
Accordingly, I refuse the first application, which is that a direction of law be given to the jury at present, but I grant the second application, which is that Mr Ross may be recalled and these matters can be put to him.
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