Director of Public Prosecutions v Bandali Michael Debs and Jason Joseph Roberts
[2002] VSC 563
•6 December 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. 28
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 6 December 2002 | |
CASE MAY BE CITED AS: | DPP v Bandali Michael Debs and Jason Joseph Roberts | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 563 | |
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Criminal law and procedure – murder – applications for discharge of jury without verdict – applications refused.
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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:
At the end of the prosecutor's final address and of four months' trial and the calling of 161 witnesses, learned senior counsel Mr Dane for the first accused applied for the discharge of the jury without verdict. On different grounds Mr Hill, learned senior counsel for the second accused, as regards the second accused also applied for a discharge of the jury without verdict.
Yesterday, as is recorded at p.7072, I refused each application for discharge and said I would give my reasons when the jury was excused today and I now do so.
Mr Dane's application for discharge, in my view, was misconceived both in law and in fact.
Mr Dane submitted that the particularity of the prosecution's final address was absent from its opening address which, so he submitted, caused great unfairness to the conduct of the defence and as such effectively denied the defence being put or explored and, accordingly, founded discharge of the jury.
The prosecution opening and closing had the following continuous elements. First, that the two accused were present at the scene of the deaths of the two officers. Second, that each accused was an actor and aided and abetted the other. Third, that there was the discharge of two weapons, one by each of the accused. Fourth, that Sergeant Silk was shot by two different weapons. All those matters were known to the defence from the start and to the end. The various potentials in those constituents could have been pursued by the defences during the trial had the defences chosen to do so. Indeed the defence of the second accused has pursued the thesis that there was only one offender.
The essential difference between the opening and the closing was that in the closing address the prosecution put to the jury the hypothesis that the first shot was fired by Mr Roberts into Sergeant Silk after Sergeant Silk had called Mr Roberts away from the Hyundai, that then Senior Constable Miller was shot from inside the vehicle by Mr Debs and shortly afterwards Mr Debs fired two further shots into Mr Silk's prone body. In its closing the prosecution also put that Mr Debs was the driver of the Hyundai and Mr Roberts the passenger. That particularity, that is to say who was the driver and who was the passenger of the Hyundai, the sequence of the shootings, and the identification of the shooters as posited by Mr Rapke in his final address was absent from his opening address. However, the essential matters of fact and of law, that is to say, presence at the scene, two shooters and two weapons, each accused firing and each aiding and abetting the other, all were present, as was the position of Sergeant Silk's body away from the Hyundai on the south side of Cochranes Road.
The defence of Mr Debs is that he was not present at the scene, as is the primary defence of Mr Roberts.
It is not unusual that there is greater particularity in a closing address for the prosecution than in an opening, including of the fatal acts. Indeed in his opening Mr Rapke provisionally put that the apparent movement of Sergeant Silk across the front of the Hyundai was “consistent, you might think” with the officer proceeding “in order, perhaps, to check the registration label of the car”(T.1856-1857). But as I have stated, the essential elements in the prosecution case have not changed, nor has the essential element in the defence cases (non-presence).
It is a measure of each application, although not the final test, that after Mr Rapke's final address Mr Dane first made an exception as to what was said to be a Jones v Dunkel point. That commenced at p.7020. Mr Dane submitted that that exception could be dealt with by direction. He then made the application for discharge of the jury on the ground I have stated, as recorded at p.7035.
Mr Dane, as is evident from a perusal of the transcript from p.7024 onwards, on a number of occasions was asked by me what had he been denied that he would have put otherwise, or in what respect had the defence been prejudiced. Mr Dane replied that he would have further explored the issue of self-defence (the defence of Mr Debs being that he was not present). Further, that he would have explored with the pathologist that Mr Debs fired into a dead body. When I asked Mr Dane what would firing into a dead body be eloquent of as to antecedent aiding and abetting animus, Mr Dane was unable to articulate a response. All of that, in my view, demonstrates that no prejudice has occurred to the defence of the first accused by the particularity in the closing as distinct from the opening.
It may well be that the jury reject the prosecution final hypothesis as precisely who did what at the scene, but be satisfied beyond reasonable doubt that each accused is guilty of murder as charged by being present at the scene, discharging the weapons and aiding and abetting each other. The prosecution final hypothesis is not a necessary hypothesis to prove the guilt of each accused of murder. Nor is it an unfamiliar situation when two persons are at the scene and acting, that a jury convicts persons as aiding and abetting whilst not making any conclusive finding as to the precise actions of one or the other.
I am satisfied that there is no substance in Mr Dane's complaint and, as I have said, I consider it is misconceived both in fact and in law. Accordingly, I rejected that application.
I do not call in aid, because I do not consider it is necessary to do so, the circumstance of the line of authority as to a high degree of need required for discharge at the conclusion of all the evidence. I note that this trial has been proceeding for four months with 161 witnesses, and that if one were moved to conclude that there were any substance to Mr Dane's submission that is a matter one would need to consider before acceding to it. However, I consider there is no substance in the submission for the reasons I have stated.
Mr Hill, learned senior counsel for the second accused, made an application for discharge on separate grounds to which I shall come. However, because of Mr Dane's application preceding it, I asked Mr Hill whether he joined in Mr Dane's application. Just as Mr Dane's application took some time before ultimately it was articulated, so too with Mr Hill on the question of whether there had been a
prejudice to the defence in the particularity of the closing as distinct from the opening. As appears at p.7041, I asked Mr Hill, "Before you move to the failure of the prosecution to separate the respective cases; what do you say is the consequence of the failure which has occurred as regards the non-puttage?" Mr Hill, "It would lead to a discharge, Your Honour." Question, "But you are not applying for it?" Answer, "Well, if it be necessary, we are, Your Honour".
Mr Hill's submission, as distinct from that of Mr Dane, was that the prosecution failed properly to distinguish between the evidence admissible in relation to Mr Roberts on the one hand and Mr Debs on the other, and that the prosecution had melded together inadmissible evidence with admissible evidence to one composite case which was flawed because it was based upon evidence inadmissible against Mr Roberts.
I consider the submission does not found any ground for discharge of the jury. The jury were given clear instructions from me at the start and they will be given clear instructions by me at the end to separate out evidence admissible against the respective accused. This primarily relates to the listening device material. The direction of law is quite simple to apply. Every listening device item has at the commencement in its transcript aid the identity of who was present. The jury know and will remain in the knowledge of who was present and who was not at each conversation. It is quite a simple thing, and also legally required because I will tell them to do it, that they separate out the speakers and do not use the material in relation to an absent person. I consider thus no vice has occurred because the jury will have received Mr Rapke's global address with those categorical differences in mind and will be further required to apply them in their consideration of the evidence.
Accordingly, I consider there is no ground in Mr Hill's complaint to discharge the jury.
For those reasons I refused the two applications, as I stated yesterday at p.7072.
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