Director of Public Prosecutions v Bandali Michael Debs and Jason Joseph Roberts

[2002] VSC 281

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. 4

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	12 July 2002
CASE MAY BE CITED AS:	DPP v Bandali Michael Debs and Jason Joseph Roberts
MEDIUM NEUTRAL CITATION:	[2002] VSC 281

---

Criminal law and procedure – murder – joint trial – separate trial application – ruling only.

---

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 with Mr G. Georgiou	Victoria Legal Aid
For the accused Roberts	Mr I.D. Hill QC with Ms S.K. Dawes	Lethbridges

Ruling No. 4

HIS HONOUR:

1. Counsel on behalf of the second accused, Mr Roberts, have applied for the separate trial of the second accused from that of the first accused, Mr Debs, on two counts of murder preferred against him.  Each of the accused is presented on two counts:  Count 1, the murder on 16 August 1998 at Moorabbin of Sergeant Gary Michael Silk, and Count 2, the murder at that time and place of Senior Constable Rodney James Miller.

1. In most comprehensive and helpful submissions, Mr Hill QC has submitted that the fair trial of the second accused properly is to be achieved by the grant of a separate trial from that of the first accused, and that their trial on the one presentment involves risk to the fair trial of the second accused.  Essentially the ground of the application is potential prejudice to the second accused from evidence admissible against the first accused but inadmissible against the second accused.  Of course, on a joint trial only evidence admissible against an individual accused is admissible to be used in relation to that accused.  Mr Hill submits that the effect or tendency or potential in a joint trial of evidence admissible only in relation to the first accused is that it will or might influence the jury in an inadmissible, irrelevant or prejudicial way in its consideration of the case in relation to the second accused, despite proper judicial direction.

1. I have been most assisted by Mr Hill's submissions and his review of the prosecution evidence to that end. However, having considered those submissions, I am unpersuaded that there is any ground for an order that the second accused be tried in a separate trial from the first accused on the two counts of murder preferred against the second accused.  I am affirmatively satisfied on the material before me that Mr Roberts can receive a fair trial in its full sense in a joint trial.

1. As I said in the previous Ruling, there is a partial interface between the application on behalf of the second accused for a separate trial and submissions (on behalf of

both accused) for the exclusion of listening device and telephone intercept material.  That is because properly to consider the separate trial application it is necessary to know with precision what evidence of the listening device and telephone intercept material is and is not admissible, and, conversely, the decision as to the separate trial application may affect admissibility of that material.  I am to rule on the admissibility of that listening device and telephone intercept material next Friday.  As it will then become apparent what is and is not admitted in evidence, and as there is a partial interface between that Ruling and this, it is appropriate that I give my reasons for both Rulings at the one time. 

1. No separate trial application has been made on behalf of the first accused, Mr Debs, for understandable reason.

1. On the matter of admissibility of the listening device and telephone intercept evidence, I have reviewed all the material which can bear upon the separate trial application and have reached finality as to that material.  Accordingly, I now rule on that separate trial application.

1. The application for a separate trial on behalf of Mr Roberts is refused.

- - -