Director of Public Prosecutions v Bandali Michael Debs and Jason Joseph Roberts
[2002] VSC 296
•19 July 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. 5
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 19 July 2002 | |
CASE MAY BE CITED AS: | DPP v Bandali Michael Debs and Jason Joseph Roberts | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 296 | |
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Criminal law – murder – evidence – covert recordings by listening device and telephone interception of conversations of accused – recordings lawfully made – admissibility – ruling only.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J.W. Rapke QC with Mr P.B. Kidd and Mr J.J. Serong | OPP |
| For the accused Debs | Mr C. Dane QC | Victoria Legal Aid |
| For the accused Roberts | Mr I.D. Hill QC | Lethbridges |
Ruling No. 5
HIS HONOUR:
Objection is taken by senior counsel for each accused to the admission in evidence of recordings of a substantial number of conversations in which both or one accused took part and which the prosecution submits are incriminatory of the two crimes of murder charged against each accused. The recordings were lawfully authorised. Defence counsel has submitted that the recordings should not be admitted into evidence essentially on one or more of three grounds: irrelevance, prejudice or unreliability. The third ground, unreliability, goes to the provenance of the recordings. Many parts are inaudible and the defence submits that audible segments in an inaudible context should not be admitted if the audible could be or is likely to be affected, qualified or negated by the inaudible.
Covert recordings lawfully made of conversations are admissible if relevant, reliable in the sense I have defined, and whose prejudice does not outweigh their probativeness.
The prosecution submits that the relevance of the impugned conversations arises in the following ways: first, direct admissions of the two crimes charged; second, implied admissions of the two crimes charged; third, direct admissions of the Hamada robberies, the antecedent to the murders; and fourth, implied admissions of those robberies.
The implied admissions of the two crimes charged, the murder of Sergeant Silk and the murder of Senior Constable Miller, are said by the prosecution to fall across a spectrum. They range from interest by the accused in the progress of the police investigation of the killings which interest is said by the prosecution to be inculpatory by reason of its nature, content, degree, constancy and time span, through vigilance and strategies to mislead the police investigation including the destruction of evidence, to the killing of further police and of the widow and child of Senior Constable Miller in order to divert that investigation away from the accused.
The prosecution also says that a number of the conversations reveal a deep hatred by each accused of police, but, properly, does not seek to lead any conversation revealing that hatred unless it is otherwise justifiable as evidence of the two crimes charged.
The defence submits that the conversations involve no direct admissions of the crimes charged, are not inculpatory by their indirect admission as contended by the prosecution, in large part are so attended by doubt or uncertainty because of their inaudible context as to be unsafe to admit, and in part are prejudicial and ought to be excluded. The defence also submits that some of the conversations reveal post-offence criminality which is inadmissible and which should be excluded. The defence further submits that some of the conversations were the consequence of contrived stimuli by the police which contrivance, particularly as to conversations in the home or other places of privacy, ought found their exclusion from evidence.
In considering the admissibility of the conversations I proceed upon the basis of well known principle. Covert recordings lawfully made of incriminatory conversations are admissible if they satisfy the criteria of relevance, reliability and lack of prejudice. By reliability I mean material of sufficient provenance that a jury, properly instructed, could lawfully act upon it in proof of guilt of the crimes charged. In determining relevance, reliability and prejudice, regard may be had to other recorded conversations admissible in relation to the respective accused and to extraneous material admissible likewise. Passages and conversations are not to be considered in isolation. On the other hand, projection and speculation must be eschewed. And most fundamentally, the prosecution bears the onus of proof at all times. The basal principles are to be found in particular in Butera v DPP of Victoria[1], Smith Ashford and Schevella[2], R. v O'Neill[3] and R. v Taylor[4]. I apply those criteria in the determination of the admissibility of the impugned conversations.
[1][1987] 164 C.L.R. 180.
[2][1990] 50 A.Crim.R. 434.
[3][2001] V.S.C.A. 227 (14 October 2001).
[4][1993] 1 N.Z.L.R 647.
There were 178 conversations recorded, which when transcribed, occupied 1805 pages. The prosecution, in responsible application of mind, has limited the number of conversations sought to be led to 84, which occupy 495 pages of transcript.
Detailed evidence was given at the committal by Detective Sergeant Thomas of the method utilised for reducing the recordings to transcript. That evidence was subjected to cross-examination. In this Ruling I proceed upon the basis of the transcript created by Detective Sergeant Thomas by the means he deposed to at the committal.
All counsel in submission before me attended to the transcripts with great care and particularity. I compliment them and those assisting them upon their work.
It is necessary, in order that the parties know with precision what is and is not admissible, that I state in respect of each individual conversation, that which is admissible. The matter cannot be articulated simply categorically. I have authorised the distribution, unrevised, this afternoon of this Ruling so that counsel may have it over the weekend in order to have, with particularity, the passages I rule upon. That should assist the preparation of the case for trial, in particular as to editing by the prosecution and as to the obtaining of expert opinion by the defence. I will later publish my full reasons for each individual passage and a more articulated reference to legal principles applicable and as to which I have only briefly alluded.
I turn to the individual listening device recordings.
Recording B2, the "smashed her face" recording, is inadmissible.
Recording B3 is inadmissible.
Recording B5 is inadmissible.
Recording B6 has been conceded by the prosecution not to be led and is inadmissible as to p.10. As to pp. 14-15 the following passages are admissible: p.14, line 626 to p.17, line 774. The balance is inadmissible.
Recording B8 is admissible in the following particulars: p.4, line 141 to line 163; and p.5, line 186 to line 194.
Recording B11 is admissible in the following particular: p.1, line 26 to p.2, line 75.
Recording B13 is admissible in the following particular: p.3, line 93 to p.6, line 250.
Recording B14 is admissible in its entirety except for the following prejudicial passages: p.16, line 724 to p.17, line 750; p.18, line 796 to line 819; p.20, line 890 to p.21, line 921; and finally p.24, line 1061 to line 1079. That last passage is a reference to the contemplation by the first accused of killing the widow and child of the deceased, Senior Constable Miller. I exclude that on the ground of prejudice. However, as will become apparent, I have ruled admissible the other references in the recordings to the proposed or contemplated killing of police officers to divert the investigation, including the killing of Detective Sergeant Thomas. All that material, other than reference to the widow and child, is admissible.
Recording B15 is admissible in the following particulars: p.1, line 29 to p.2, line 90, and p.6, line 267 to p.15, line 647.
Recording B19 is admissible in the following particulars: p.2, line 76 to p.3, line 136; p.8, line 345 to line 353; and p.9, line 407 to line 411. I exclude on the grounds of prejudice the passages at p.11, line 485 to 504, and at p.15, line 662 to p.16, line 733.
Recording B20 is admissible in whole.
Recording B21 is admissible in the following particulars: p.3, line 94 to line 137, with the following qualification. I exclude the reference in lines 101-104 to the plumbing criminality and consider a formulaic reference of a non-prejudicial sort to that passage as stated by Mr Rapke at p.976 of his submissions is permissible. Also in B21, the passage from p.6, line 235 to p.8, line 355, is admissible. The balance of B21 is inadmissible.
Recording B22 is admissible in the following particulars: p.3, lines 93 to 111; p.9, lines 385 to 395; p.10, lines 445 to 446; and p.11, lines 482 to 493. I rule inadmissible the passage at p.13, line 586 to the end of the recording transcript at p.14.
Recording B23 is admissible in the following particulars: p.3, lines 100 to 115; and p.6, line 269 to p.9, line 397.
Recording B24 is admissible in the following particular: p.4, line 142 to p.12, line 542, with the following exceptions from that passage which I rule inadmissible, namely p.6, line 270 to p.7, line 310 and p.9, lines 400 to 410. I also exclude from B24 the passage at p.1, line 32 to p.2, line 50.
Recording B26 is admissible in the following particular: p.1, line 44 to p.2, line 61.
Recording B27 is admissible in the following particulars: p.1, line 28 to p.2, line 80; and p.5, line 205 to line 213.
Recording B29 has been conceded by the prosecution not to be led and is inadmissible.
Recording B30, "You're talking masks", is inadmissible.
Recording B32 is inadmissible.
Recording B37, "I kill Ds", is admissible in the following particular: p.1, line 31 to p.2, line 54.
Recording B41 is inadmissible.
Recording B46 is inadmissible.
Recording B48 is inadmissible.
Recording B49 is inadmissible.
Recording B51 is admissible in the following particular: p.1, line 31 to p.3, line 107. The balance is inadmissible.
Recording B54 is admissible in the following particular: p.10, lines 419 to 439. The next line, what was said by Malik at 440, is inadmissible. As to that which appears on pp.1 to 9, that material in terms is inadmissible but a formulaic presentation, as proposed by Mr Rapke at p.1037 of the transcript, may be used in relation to those pages 1 to 9.
Recording B55 is inadmissible wholly, unless the first accused wants it led in exculpation as discussed with counsel at p.1040 of the transcript.
Recording B56 is inadmissible.
Recording B62 is admissible in the following particulars: p.6, line 251 to p.7, line 312; and p.11 line 486 to p.13, line 590. The passage at p.14, lines 610 to 611 is inadmissible.
Recording B64 is admissible in the following particulars: p.4, line 157 to p.11, line 473. The prosecution, however, should check the attribution of line 280 on p.7, as Mr Rapke foreshadowed at p.1047-8 of the transcript. Also in recording B64 the following passage is admissible: p.16, line 711 to p.25, line 1140.
Recording B65 is admissible in the following particular: p.5, line 208 to p.6, line 246.
Recording B66 is admissible in the following particulars: p.4, line 164 to p.5, line 228; and p.7, lines 311 to 315.
Recording B67, "It's time for a job. Bang, bang", is inadmissible.
Recording B71 is not proposed to be led by the prosecution and is inadmissible.
Recording B72 is admissible in whole.
Recording B76 is admissible in whole.
Recording B77 is admissible in the following particular: p.6, line 247 to p.9, line 393.
Recording B78 is admissible in the following particulars: p.1, line 35 to p.3, line 133; p.4, line 169 to p.5, line 222; and, p.8, line 331 to p.11, line 494.
Recording B79 is admissible in the following particulars: p.1, line 33 to p.2, line 70; and p.4, line 143 to p.5, line 225. The prosecution has conceded it will not lead p.8, lines 323 to 351 and that material is inadmissible. Also inadmissible is the passage from p.12, line 552 until the end of the recording at p.14, line 604.
Recording B80 is admissible in the following particular: p.1, line 37 to p.2, line 91.
Recording B81 is admissible in the following particulars: p.7, line 301 to p.8, line 360; and p.10, line 415 commencing with the words "Do you know what" to p.12, line 543.
Recording B84, the helicopter conversation, is inadmissible.
Recording B95 is inadmissible.
Recording B97 is admissible in the following particulars: p. 1, line 30 to line 45; p.2, line 64 to p.3, line 99; and p.9, line 399 to the end of the recording at p.10, line 433.
Recording B98 is admissible in the following particulars: p.1, line 33 to p.2, line 55; p.3, lines 125 to 132; and p.5, lines 196 to 205.
Recording B99 is admissible in the following particular: p.1, line 41 to p.3, line 94, with the following exception: the words on p.2 at line 82, "Listen, I think wear masks" are inadmissible.
Recording B100 is inadmissible.
Recording B103, "No-one was there but us", is admissible in the following particular: p.3, line 104 to p.21, line 948.
Recording B104 has been conceded not to be led by the prosecution and is inadmissible, as likewise are Recordings B106 and B109.
Recording B110 is admissible in the following particulars: p.2, lines 58 to 86; and p.6, lines 253 to 257.
Recording B111 is inadmissible.
Recording B114 is inadmissible.
Recording B116 is admissible in the following particulars: p.2, line 78 to p.3, line 104; and p.3, line 131 to p.4, line 163.
Recording B117 is admissible in the following particular: p.3, line 123, to p.4, line 174.
Recording B119 is admissible in the following particular: p.1, line 33, to p.3, line 117.
Recording B120 is admissible in the following particulars: p.1, line 28, to p.2, line 59; and p.3, line 113 to p.9, Line 399.
Recording B124 has been conceded not to be led by the prosecution and is inadmissible.
Recording B126 is admissible in whole.
Recording B127 is admissible in whole.
Recording B129 is admissible in the following particulars: p.1, line 32, to p.2, line 61; p.6, line 254 to p.12, line 540; p.14, lines 598 to 599; p.15, line 660 to p.17, line 752; and p.18, line 788 to p.19, line 853.
Recording B130 is admissible in the following particular: p.2, line 57 to p.7, line 307.
Recording B131 is admissible in the following particulars: p.9, line 368 to p.12, line 544; p.15, line 677 to p.16, line 730; and p.19, line 827 to line 840.
Recording B132 is admissible in the following particular: p.1, line 28 to p.8, line 355.
Recording B133 is admissible in the following particulars: p.1, line 39 to line 44 and p.4, line 155 to line 160.
Recording B137 is admissible in the following particulars: p.11, line 473 to line 493; and p.14, line 593 to p.15, line 658.
Recording B145 is inadmissible.
Recording B146 is admissible in the following particulars: p.2, line 51 to p.3, line 112; p.6, line 230 to line 236; p.12, line 541 to p.13, line 562; and p.15, line 661 to p.16, line 702, concluding with the three words: "and sell them." The reference immediately thereafter to "gooks" is excluded, as conceded by the prosecution, rightly.
Recording B150 is admissible in the following particulars: p.13, line 565 to line 579; and p.15, line 654 to line 672.
Recording B151 is admissible in the following particulars: p.3, line 112 to p.5, line 184; p.12, line 507 to line 543; p.14, line 636 to p.16, line 689; p.18, line 805 to p.24, line 1084; and p.25, line 1125 to line 1134.
Recording B152 has been conceded by the prosecution not to be led and is inadmissible and likewise, Recording B154.
Recording B158 is admissible in the following particular: p.27, line 1206 to p.28, line 1270.
Recording B163 is admissible in the following particular: p.6, line 275 to p.12, line 510, the end of the recording.
The final determination of the leading of Recording B164 is suspended until learned counsel Mr Hill can discuss the matter with Mr Rapke, as contemplated in transcript 1190.
Recording B166 is admissible in the following particulars: p.1, line 31 to p.4, line 183; p.21, line 916 to line 959; and p.23, line 1048 to p.24, line 1070.
Recording B167 is admissible in the following particulars: p.1, line 28 to p.3, line 137; and p.6, line 231 to p.8, line 337.
Recording B169 is admissible in the following particular: p.1, line 43 to p.5, line 201.
Recording B170 is admissible in the following particular: p.3, line 100 to p.4, line 165.
Recording B171 is admissible in the following particulars: p.2, line 88 to p.4, line 150; p.6, line 266 to p.7, line 320; and p.9, lines 370 to 394.
Recording B175 is admissible in the following particular: p.1, line 38 to p.2, line 69.
And finally Recording B176 is admissible in the following particular: p.6, lines 257 to 271.
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