Director of Public Prosecutions v Bandali Michael Debs and Jason Joseph Roberts
[2002] VSC 413
•12 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. 8
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 12 September 2002 | |
CASE MAY BE CITED AS: | DPP v Bandali Michael Debs and Jason Joseph Roberts | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 413 | |
---
Criminal law and Procedure - murder – evidence – re-examination – oral evidence and demonstration.
---
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 scientist, Mr Peter Ross, in evidence-in-chief deposed to his expert opinion as to damage to the metal of the rear hatch of the vehicle OJI-862, which the prosecution says was the vehicle involved in the shootings at the scene of the two deceased officers at Cochranes Road, Moorabbin, on 16 August 1998. As to the tailgate on the Hyundai 3 door hatch vehicle, Mr Ross in chief deposed not only to broken glass in the vehicle which glass he said was consistent with broken glass on the roadway at Cochranes Road, but also deposed to damage to the upper outside quadrant extension of the metal run of the hatch on the passenger side[1]. He said that that damage (albeit later disguised) upon close examination revealed a distortion in the metal. The distortion was a depression consistent with being struck by a bullet from outside the vehicle, the bullet travelling through glass and rubber and leaving an angled depression. In that area he also found primer residue particles. Accordingly he cut out the relevant metal section (item 436) which has been tendered before the jury as Exhibit 26[2].
[1]T.3276-3296.
[2]T.3290.
The defence of each accused is he was not there, did not shoot anyone, did not discharge any firearm and the vehicle, by inference, was not there either. Thus the matter of bullet damage to the Hyundai is clearly of high significance to the issues joined in the trial.
Mr Dane for the first accused entirely properly in cross-examination joined issue as to the damage to the metal and at 3347 he put:
"’If a piece of steel-like substance was secured in the back of a Hyundai and was sticking out beyond the closure of the tailgate and resting against that door jamb - have you got the image of a piece of steel resting at that point where the exhibit would come down and touch that door jamb?’ Answer, ‘Yes.’ Question, ‘If it was just poking out and you closed the tailgate, that would be capable of damaging the metal and breaking the window, wouldn't it, without touching the door jamb below it? Have you got what I want?’ Answer, ‘I think so’."
The witness disagreed with the proposition put and said:
"’An object in the boot when you close the boot it is going to come into contact not with the rim, it is going to come into contact with the opening.’ Question, ‘You know that, do you?’ Answer, ‘Without a doubt.’ Question, ‘I see?’ Answer, ‘It is common sense.’ Question, ‘I see, whose common sense?’ Answer, ‘My common sense.’ Question, ‘You say - - -‘ Answer, ‘I think if we were to have a look at one of the doors, I think it would be made fairly clear.’ Question, ‘We will do that’."
The issue was pursued by Mr Dane as appears at p.3349 commencing at line 13 as follows:
"’If you had the rod sticking beyond the door jamb that you have told us about, you could damage the point of metal and then on to the glass without damaging the door jamb point ... below the glass and metal exhibit?’ Answer, ‘No’, and the answer went on.”
The following then occurred:
"Will we be able to demonstrate that on your exhibit?---It would be far better if we had a car with a - - -
Yes, that's right, but will we be able to do it with the exhibit of OJI that we have in court?---Look, probably not, because that is only a door and it doesn't include the enclosure. If we had a vehicle, a vehicle available, I think it would be, as we closed it with an object going through, we would certainly see contact at that widened interior part of the door frame. It is not just one object, it is two, you have got a door - - -
That's right?--- - - - moving, so the door by itself to an extent won't tell the full story, the door mounted in the boot certainly will."
Plainly, therefore, the matter is not only relevant and important but it is clearly joined in issue. I add important because I would not permit pursuit of minor matters in re-examination in the way that is sought by the prosecution and to which I shall come.
Learned senior counsel, Mr Rapke, for the prosecution, in re-examination has sought to extrapolate the denial of the witness "no" by full exposition in re-examination in order to support the denial. Mr Rapke seeks to re-examine the witness by reference to a Hyundai 3 door hatch (similar to the one examined by Mr Ross) parked in the courtyard of the Court. The car is some 10 or 20 metres from the courtroom, adjacent to the court. To that end the jury will need to leave the jury box and walk out into the courtyard adjacent. Mr Dane for the first accused objects to the pursuit in re-examination of the subject topic, and objects to the proposed method also. Mr Hill for the second accused joins Mr Dane in that duality of objection.
As I said to counsel in discussion, a criminal trial is not a mere pleadings exercise where a traverse of two letters, the word "no", is regarded as sufficient for all probative purposes. The prosecution at the end is entitled to have extrapolated through the witness in re-examination the reasons in support of the word "no". Thus the aim of the prosecution in re-examination is entirely permissible. This is not an exercise by the prosecution in re-examination of cloaked evidence-in-chief on broken glass. This is a legitimate exercise, namely re-examination to meet a point as to damaged metal causation put specifically in cross-examination in the passages I have cited.
The question arises then as to the method that is sought by the prosecution. What is sought by the prosecution is twofold: the giving of oral evidence (in re-examination) by the witness by reference to the physical vehicle, and, presumably, movement of the tailgate of the vehicle. Thus what is sought is real oral evidence and also part demonstration. Mr Rapke rightly contends that oral evidence given by reference to the vehicle is, given the particularity of the issue now joined, superior to evidence given by reference to two-dimensional photographs or to charts. As to the element of demonstration, the ratio and dicta in Scott v Numurkah Corporation and the other cases cited by counsel are to be borne centrally in mind. Demonstrably a procedure which is vague and imprecise and involves uncertainty of replication ought not be permitted as part of real evidence (nor, of course, as a view, which is not evidence): Scott v Numurkah Corporation[3] (attempted replication of sound in situ - although a “view”), Van Den Hoek v R[4] (demonstration of angle of knife entering body), and R v Quinn and Bloom[5] (film of replication of striptease adorned by a snake). Here, although movement is proposed to be involved, it is movement of fixed and stable parts, unlike the last two cases cited.
[3](1954) 91 CLR 300.
[4](1986) 161 CLR 158.
[5](1962) 2 QB 245.
I consider the present application falls far short of the vice articulated in cited cases. Further, the present application is for a specific, finite and limited factual matter clearly joined in cross-examination and sought ultimately to be dealt with in re-examination. It does not have the scope, imprecision, and uncertainty of the cases cited. I consider this case does not fall within the vice properly counselled against in those authorities.
It is necessary, and a condition of re-examination, that the prosecution does with precision contain itself to the issue joined in cross-examination and the hypothesis articulated by Mr Dane as part of that joinder. I will not permit the prosecution to go on a broader frolic in re-examination than the limited matter put by Mr Dane.
The final matter which concerns me is I do not want the accused to suffer some prejudice by the matter being highlighted by the peculiarity of the jury leave the jury box and going into the courtyard. I think the accused will not be prejudiced by that. A number of car parts have been brought into the courtroom and a whole car plainly cannot be. I would think the jury would not regard it as peculiar or extraordinary if they simply step 10 metres outside the court and look at a car which cannot be driven through the doorway of the courtroom.
Finally, I would not permit a demonstration by way of real evidence in re-examination without two things. First, the right of Mr Dane and Mr Hill to further cross-examine after the re-examination in the presence of a car if they wish. I have already said I would grant that. Secondly, I will not permit it if the accused are not able to be present. That is because it is a demonstration as part of real evidence and not a view, which is not evidence. The accused should be present for all evidence. Further, the accused are practical people and this is a practical demonstration. The accused may well have instructions they wish to put to their counsel having seen the evidence led, and the accused certainly should have locus to do that.
A corollary of that is I will not have the accused manacled or even handcuffed in the presence of the jury. If arrangements cannot be made for them to be present without handcuffs then I will not permit the demonstration to occur. That as a matter of practical arrangement.
I am satisfied, accordingly, that the matter is relevant and proper for re-examination; that it is finite and discrete; that it is to be contained to that finite ambit; and that it is not unfair or prejudicial for the matter to be led in the way that I have defined. For those reasons I will permit the re-examination.
Plainly the matter cannot be dealt with this afternoon because arrangements will have to be made and instructions obtained. Accordingly, it should be held before the jury tomorrow morning. I think it would be better if we proceeded with other matters of evidence this afternoon for an hour so the jury is occupied and then I will send the jury away until tomorrow morning.
-------------
0
2
0