Director of Public Prosecutions v Bandali Michael Debs and Jason Joseph Roberts
[2002] VSC 386
•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 |
Reasons For Ruling No. 5
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF REASONS FOR RULING: | 8 August 2002 | |
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 386 | |
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Criminal law – murder – evidence – admissibility – covert recordings by listening device and telephone interception of conversations of accused – recordings lawfully made – considerations applicable.
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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 |
Reasons for Ruling No. 5
HIS HONOUR:
In this case, a substantial body of evidence is sought to be led by the prosecution of conversations in which one or both accused took part and which were received and recorded covertly by investigating police from domestic premises and vehicles from 11 December 1999 to 24 July 2000. The listening and recording was made pursuant to statute, being s.4A(1) Listening Devices Act 1969 and as from 1 January 2000, s.14(1) Surveillance Devices Act 1999. The recordings were lawfully authorised by warrant and no challenge is made to their legality.
In Ruling No.6 I gave my reasons in relation to the telephone intercepts pursuant to s.45 Telecommunication Interception Act 1979 (Commonwealth) and shall not further refer to them.
Objection is taken by senior counsel for each accused to the admission in evidence of recordings of a substantial number of conversations received and recorded by listening device in which both or one of the accused took part and which the prosecution submits are incriminatory of the two crimes of murder charged against each accused. Defence counsel have submitted that the recordings should not be admitted into evidence essentially on one or more of three grounds: irrelevance and lack of probativeness, unreliability, and prejudice. The second ground, unreliability, goes to the provenance of the recordings. Many parts are inaudible and the defence submits that the 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. 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.
The prosecution submits that the relevance of the impugned conversations arises in one or more of the following ways, the first two being the principal ways. First, direct admissions of the two crimes charged; second, implied admissions of the two crimes charged; third, direct admissions of the Hamada robberies; and fourth, implied admissions as to those robberies.
The implied admissions of the two crimes charged, being the murders of Sergeant Silk and of Senior Constable Miller, are said by the prosecution to fall across a spectrum. They range from interest by the accused in the progress in 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 timespan - through vigilance, to strategies to defeat, deflect and divert the police investigation, including by the destruction of evidence, the killing of further police, and the killing of the widow and child of Senior Constable Miller. The prosecution also says that a number of the conversations reveal a deep hatred by each accused of police, but properly the prosecution does not seek to lead any conversation said to reveal 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 indirectly as contended by the prosecution, in large part are attended by doubt or uncertainty because of their inaudible context so as to be non probative or 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 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 admissibilities of the conversations heard and recorded by listening device I proceed upon the basis of well-known principle. Covert recordings lawfully made of such conversations are admissible if relevant, reliable in the sense that I have defined, and are fair to be admitted. Material is to be excluded if prejudice outweighs probativeness.
I have read all the transcripts of all the recordings more than once, and have listened to the recordings of most (but not all) of the conversations at least once. Listening to the conversations provides a pattern, cadence and interaction that the written page does not provide, or provides but faintly. Of course listening also provides speed, pauses, emphasis and tone.
In determining relevance, probativeness, reliability, fairness and prejudice, regard may be had to other recorded conversations admissible in relation to the respective accused and also to extraneous material admissible likewise. Indeed, often one passage is rendered both meaningful and admissible by reference to other passages or other admissible material. Passages and conversations are not to be considered in isolation. Of course projection and speculation must eschewed and, importantly and fundamentally, the prosecution bears the onus of proof at all times.
The principles applicable to these considerations are helpfully set forth in a number of relevant authorities, most notably Butera v DPP Victoria[1]. That authority conclusively established that a conversation can be proved by the oral testimony of anyone who heard it or by the playing of a recording of the conversation. The circumstance that a conversation or passage needs to be played more than once does not involve its exclusion: Butera[2]. Indeed one of the advantages of the class of evidence of recorded conversations is that it can be played more than once, unlike an ear-witness's evidence of that conversation.
[1](1987) 164 CLR 180.
[2]At 187.
On the other hand, of course, such evidence very often involves significant difficulty as to either the attribution of the speaker, or more generally, as to its provenance and reliability in the sense that I have stated, namely whether it is audible, whether it is reliable in a context and whether the context is audible.
The courts have regularly admitted into evidence recordings which are in part inaudible. Enhancement is now routinely permitted as a court procedure: R v Taylor[3] and R v O'Neill[4], unreported, 14 December 2001. There the Court of Appeal admitted into evidence a tape recording three quarters of which was said to be unintelligible. Ormiston JA. in paragraph 5 of his judgment said that upon a repeated second or third playing, the recording was "far more intelligible and more importantly much of the part of the tape which contained the critical admissions or statements .. became relatively easy to pick up." In other jurisdictions, a similar resolution of initial inaudibility has been adopted. In R v Menzies[5] that was so. Likewise R v Taylor that I have referred to, R v Dellapatrona and Duffield[6], Krakouer v R[7] and Eastman v R[8].
[3](1993) 1 NZLR 647 at 650.
[4](2001) VSCA 227.
[5](1982) 1 NZLR 40.
[6](1993) 31 NSWLR 123.
[7](1996) 16 WAR 1.
[8](1997) 76 FCR 9.
In R v Smith, Ashford and Schevella[9] the court held at 451 that the question for the trial judge was to decide whether the quality of the tapes was so poor that the jury could not form a fair and reliable assessment of the conversations or that there was a real risk the jury might misconstrue the conversations in a manner which would be unfairly prejudicial to the accused. In that case the court, on the facts before it, concluded that it was open to the trial judge to conclude that the tapes were of sufficient quality to be admitted in evidence.
[9](1990) 50 A Crim R 434.
The test for admissibility adopted in Smith, Ashford and Schevella derived from R v Robson and Harris[10] in which Shaw J at 456 stated:
"During the course of the evidence and argument on the issue of the admissibility of the recordings were played back many times. In the end I came to the view that in continuity, clarity and coherence, their quality was at the least adequate to enable the jury to form a fair and reliable assessment of the conversations which were recorded and that with an appropriate warning, the jury would not be led into an interpretation unjustifiably adverse to the accused."
[10](1972) 56 Cr App R 450.
I conclude from the review of that authority that it is a proper function of the trial judge to exclude material which is of insufficient provenance that a jury, properly instructed, could lawfully act upon it in proof of guilt of the crime charged. That is, after all, a basal principle of admissibility of evidence which, in this instance, applies to this material. That is a function that I have exercised in this case.
Turning to the categories of evidence which are under consideration, plainly material which is directly incriminatory as to the crimes charged is admissible. The second category, and this is a category very much in dispute in this matter, is inculpatory statements concerning the police investigation. The prosecution has submitted that those statements, so far as they occur, are implied admissions as to the crimes charged, or are properly capable of so constituting. The defence has submitted that they are not probative in any proper sense of the crimes charged and at the highest are no more than the reflection of material in the public domain and the exercise by persons legitimately of the freedom of speech of comment about public matters. Plainly, on their face, if the statements of an accused merely showed interest in a matter in the public domain that could not properly be led in proof of guilt of the crimes charged and it would be entirely unacceptable if the ordinary exercise of free speech as to a matter in the public domain were, simply because it was picked up on a listening device, transformed into an admission of guilt. Something significantly greater is needed to make the material capable properly of being an implied admission or an inculpatory statement.
I am satisfied in this case that there is a range of material, the specificity of which I will come to in a moment, which is properly capable of constituting inculpatory admissions by the accused as to the two crimes charged. It is necessary in considering this critical matter to look at the interrelationship of one part to another for it may properly or initially appear that a statement by an accused person is simply a statement of general interest, but when related to another matter, or when repeated, or when constantly returned to, or when characterised by an obsessive and overwhelming interest, can properly as a matter of law be capable of being inculpatory. For that reason it is the spectrum of statements which, in my view, gives them their admissibility and probativeness. The statements, indeed, range from statements of interest about the police investigation, through vigilance about that investigation, to strategies to defeat that investigation. Statements of interest in matters in the public domain as to the police investigation into the killings of Sergeant Silk and Senior Constable Miller nonetheless, as a matter of law, are capable of being incriminatory if by reason of their nature, content, degree, constancy and time span, they can properly be characterised as significantly different from, and going beyond interest which is, on its face, non-inculpatory. Further, when those matters of inculpatory interest are linked to vigilance, and when vigilance and those inculpatory statements are linked in turn to strategies to defeat the police investigation, then the corpus of material forms a unity and each part gains admissibility by its relativity to the other and by its part of the corpus rather than in isolation. Thus it is, in my view, that there is a corpus of material which constitutes inculpatory statements - at the one end of the range being incriminatory interest and at the other end of the range being contemplation of further murders to defeat the police investigation.
I consider that that corpus is established in this case and as a corpus that material is admissible.
With a number of specific recordings, I have excluded material because the material is attended, in my view, by doubt or uncertainty or is otherwise unsafe to admit. Such items, which I shall come to in a moment, in my view properly are to be excluded because no material should be admitted which is unsafe so to be admitted. A strict and firm view of exclusion needs to be adopted in material of this type so that no material is admitted which is unsafe to be admitted. That is especially so when there are passages themselves which contain inaudibilities if the inaudibility, bearing in mind that the onus of proof at all times is upon the prosecution, might fairly affect that which is audible. Unsafety may also arise by reason of material which is itself audible but which is surrounded by a sea of inaudibility. A responsible judgment needs to be exercised so that material which is stand-alone, that is, is audible, can properly be regarded as safe to admit when it is in a sea of inaudibility.
On some occasions I consider that stand-alone material is safe to be admitted because of its character and its internal cohesion. On other occasions I have concluded that material, although stand-alone in the sense that it is all audible, is so surrounded by a sea of inaudibility or is such a snippet that, in the interests of safety, it ought not be admitted.
I am unpersuaded that any material should not be admitted by reason of police stimuli. The law permits conduct by the police where the police act in clear and defined ways which are covert and misleading in order to obtain incriminatory evidence: an undercover police officer is an obvious example. Such tactics are permitted by the law as long as they do not breach the fundamental principles of propriety and fairness, are lawful, and the conduct (including utterances) of the accused is voluntary. The law goes as far as R v Swaffield[11] although I would draw the line at the point of arrest of an accused. In this case, there is nothing by way of police conduct which, in my view would justify the exclusion of any material voluntarily enunciated by the accused. That criterion includes the circumstance that the enunciations were in the homes of the accused and places of privacy. I take that matter into account but there is nothing in either the stimuli proffered by the police, the circumstance of the places of the utterances by the accused, or the circumstance of the voluntariness of the statements, in my view properly to found their exclusion.
[11](1997) 192 CLR 159.
Finally, I have considered the question of prejudice and I have concluded that reference to the contemplation of killing police officers - two police officers, other police officers, or Detective Sergeant Thomas - is admissible in relation to Mr Debs and ought not be excluded on the grounds of prejudice. I consider such expression of contemplation is highly relevant and probative. It is highly relevant and probative because if accepted it evinces a determination to defeat the police inquiry into the deaths of Sergeant Silk and Senior Constable Miller, which determination properly viewed is highly incriminatory. Mr Dane for the first accused has submitted that the statements by his client as to other killings should not be admitted as they are or appear to be bravado, boastful and empty and cannot properly be said to be inculpatory. I disagree. The statements are repeated over time and in various circumstances and are a developmental phenomenon. On their face they do not appear to be merely momentary anger (except one matter in B114, p.15 line 674 to which I shall come), infelicitous expression or bravado. No evidence has been called from Mr Debs that they were. Such statements of contemplation are, in my view, highly relevant and cogent. Of course, there can be a substantial prejudice in such evidence. However, I consider that its potential prejudice is significantly outweighed by its probative quality and cogency because of its direct interaction and interface with the two crimes charged.
I have excluded reference to the utterances by Mr Debs of contemplation of killing of the widow and child of Senior Constable Miller, because I consider that although logically that matter is also highly relevant and probative, it is of such a gratuitous and cruel quality, and has such a haunting character about it, that a jury would be likely to be prejudiced by it adverse to the speaker and I consider it ought to be excluded in the interests of ensuring a fair trial. Accordingly, I have ruled that evidence of utterance as to contemplation of the killing of the widow and child of the deceased senior constable, ought be excluded in the interests of ensuring a fair trial.
I also have excluded a number of items of post-offence criminality ("post criminality"). As I have said, the prosecution itself has not sought to lead material of post-offence criminality unless it, the prosecution, considers that the material otherwise has a relevance. In a number of instances I have excluded reference to post-offence criminality where the prosecution has submitted that it has other offence relevance because I consider that the material falls on the side either of irrelevance or, more generally, of prejudice. For that reason I have excluded a number of items which reveal post-offence criminality.
I turn then to the categories of evidence which I rule admissible and those which I rule inadmissible. I commence with the central category, direct inculpatory statements as to the crimes charged.
I rule, in relation to listening device B8, admissible in relation to the first accused, Mr Debs - but not the second accused, Mr Roberts who was absent - p.4, line 141 to line 163 and p.5, line 186 to line 194. I consider those passages are properly capable of referring to the killings of the two police officers. The passage on p.5 is admissible to establish that the passage on p.4 by Mr Debs refers to the killings and is admissible in that contextual way.
Recording B14 is admissible as to the first accused Mr Debs at p.15, line 680 to line 684 being evidence capable of constituting an admission as to the disposal of guns used in the killings. It is also admissible under a separate heading, the deflection of police investigations to which I shall come. B14 is admissible as to Mr Debs in its entirety for those two reasons, except the following passages which I exclude on the basis of prejudice: p.16, line 724 to p.17, line 750, p.18, line 726 to line 819, p.20, line 890 to p.21, line 921 and finally, p.24, line 1061 to line 1069. That last passage is the passage concerning contemplation of the killing of the widow and child of the deceased, Senior Constable Miller. I have already referred to that and exclude it for the reasons I have stated. The other parts also are excluded on the grounds of prejudice, including reference to the sexual assault at p.726 and references to New South Wales criminality which I exclude both on the grounds of irrelevance and prejudice at line 795 and following, and finally as to the Pigout criminality which is irrelevant, p.20, line 890.
Recording B24 is admissible in relation to Mr Debs as direct admissions of the crimes charged, at p.4, line 142 to p.12, line 542. I exclude from those passages p.6, line 270 to p.7, line 310, because that is reference to the Hallam shooting which is irrelevant. I also exclude p.9, line 400 to line 410, which is a statement only by Malic and it also involves inappropriate reference to penalty. I also exclude the passage at p.1, line 32 to p.2, line 50, because it is an irrelevant and unnecessary reference to the Walsh Street killings.
Next, Recording B27 is admissible in relation to both accused, being admissible as to events on the night of the crimes charged (the "they flew down this fucking way"
conversation). That is admissible from p.1, line 28 to p.2, line 80, and at p.5, line 205 to line 213 in relation to both accused as direct admissions of facts relevant to the crimes charged.
Recording B37 is admissible in relation to both accused as direct admissions of the crimes charged (the "I killed Ds" statement by Mr Roberts at p.2, line 53, with Mr Deb responding, "Yeah, I know."). That is admissible from p.1, line 31 to p.2, line 54 as being properly capable of constituting admissions as to the crimes charged. I have listened to the tape of that conversation and it does not have the sound of misplaced humour or irony about it. No evidence has been called from either accused to say it was.
Next, Recording B103 is admissible in relation to both accused as direct admissions as to the crimes charged. At p.4, line 146, Mr Debs states: “No-one was there but us.” Mr Roberts does not dissent from or dispute or even query that statement by Mr Debs and Mr Roberts was an active participant present in that conversation. In that conversation Mr Roberts went on twice himself to say “No one was there” and that two of the ways the police think it happened were “backwards”. That material is admissible against both accused. Also the whole passage from p.3, line 104 to p.21, line 948 is admissible generally for that reason, as interest in the police investigation, a category I am yet to come to.
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