Director of Public Prosecutions v Bandali Michael Debs and Jason Joseph Roberts
[2002] VSC 367
•12 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. 4
JUDGE: | Cummins J. | |
WHERE HELD: | Melbourne | |
DATE OF REASONS: | 7 August 2002 | |
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 367 | |
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Criminal law and procedure – murder – joint trial – separate trial application – application refused – 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 |
HIS HONOUR:
The accused Mr Bandali Debs and Mr Jason Roberts each is charged with the murder at Moorabbin on 16 August 1998 of Sergeant Gary Silk (Count 1) and of Senior Constable Rodney Miller (Count 2). Both officers were shot whilst on duty in Cochranes Road, Moorabbin, in the early hours of Sunday 16 August 1998. Sergeant Silk died immediately and Senior Constable Miller died later that morning. The person or persons who were the assailants fled the scene and were not apprehended. Thereafter, a lengthy and exhaustive police investigation into the killings took place. Ultimately, on 25 July 2000, Mr Debs was arrested and charged with two counts of murder respectively of Sergeant Silk and of Senior Constable Miller. On 15 August 2000, Mr Roberts was arrested, he having been arrested also on 25 July 2000 but then released, and charged with two counts of murder likewise.
Forensic evidence from the scene establishes that there were two firearms used in the killing of the police officers, a .357 revolver and a .38 revolver, and that the officers were on different parts of Cochranes Road when each was shot. It is the prosecution case that the crimes charged were jointly committed by the two accused. The prosecution case is that both accused were present at the crime scene when the two deceased were shot, and that each accused had a weapon and used it. The prosecution case is that each accused fired at the deceased with intent to kill. The prosecution joint case primarily is put on the basis of aiding and abetting, and also of common purpose as contemplated in Johns v. R.[1] It is also put on the basis of concert, but Mr Rapke at T. 275-277 reserved his position on concert, saying the question would be reviewed when all the evidence was in. The concert, if it is propounded to verdict, is likely to be concert that sprung up after interception in Cochranes Road, rather than an antecedent concert to kill.
[1][1980] 143 C.L.R. 108.
Each accused denies that he was at Cochranes Road Moorabbin on the night of the shootings and denies he was a shooter.
In comprehensive and helpful submissions, Mr Hill, QC for the second accused, has submitted that the fair trial of the second accused properly is to be achieved by the grant of a separate trial on the two counts of murder from that of the first accused, and that their joint trial on the one presentment involves risk to the fair trial of the second accused.
Essentially the ground of the application by the second accused for a separate trial from that of the first accused is potential prejudice to the second accused from evidence admissible against the first accused but inadmissible against the second accused. Primarily that material is listening device material in which Mr Debs, in the absence of the second accused (and thus inadmissible against him), describes (or is said by the prosecution to describe) the fatal events at Cochranes Road in which there were two assailants, himself (Mr Debs) being one. In those conversations – hearsay to Mr Roberts - Mr Debs does not name the other assailant and does not nominate Mr Roberts. It is that listening device material that is the nub of Mr Hill's submissions for a separate trial. Of course, on a joint trial only evidence admissible against an individual accused is admissible in relation to that accused. Mr Hill submitted 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. Mr Hill submitted that that is so because of the content, quality and cumulation of the Debs conversations inadmissible against the second accused, notably recordings B8, B11, B14, B15, B23, B24 (the high water mark), B49, B51, B54 and B56 - although in none of them does Mr Debs nominate Mr Roberts as the second assailant at the scene. He submitted that the situation here is significantly more deleterious for his client than the (more usual) situation of one accused in a police interview blaming an absent co-accused. Mr Hill submitted that, even if in that situation a jury could readily fulfil a judicial hearsay direction - because the speaking accused demonstrably could be seen to have a motive to shift blame - in the present case that logic supportive of judicial direction is lacking. Indeed, Mr Hill concluded, the opposite jury logic could arise: why would Mr Debs lie to his own supportive family, as distinct from to accusatory police?
Mr Hill acknowledged in submission that the general rule is that it is desirable that all persons allegedly concerned with the one crime should be dealt with in the one trial, but submitted that that rule is subject to the exception where a joint trial would be likely to cause positive injustice to an accused and that then a separate trial should be ordered, that the critical question is whether a joint trial will result in an injustice in the sense that it might deprive the person of a fair trial, and that the interests of the administration of justice should not be permitted to outweigh any positive injustice which a joint trial would cause to an accused. He further submitted that evidence may be so prejudicial that no judicial direction could cure its effect.
In paragraph 14 of his written submission to which he eloquently spoke, Mr Hill stated that "The critical issues are in respect to the accused, Jason Roberts, (1) were there two shooters; (2) if so, was he one of them?" He submitted that "on the direct evidence there is a silence as to what occurred in Cochranes Road" and that "this void in the evidence is repeatedly answered by taped conversations between (Mr Debs) and third parties", which conversations are inadmissible against Mr Roberts. Although in those hearsay conversations Mr Debs did not nominate Mr Roberts as being present at Cochranes Road, Mr Debs did recount that there were two assailants. Thus, Mr Hill argued, the hearsay statements would be likely, despite judicial direction, impermissibly to influence the jury on one vital matter in the case against the second accused, namely were there two shooters, and could also impermissibly influence the jury on the second quotation, was Mr Roberts one of the shooters?
I consider that Mr Hill's submission that there is a void in direct evidence admissible in relation to his client as to the events and persons at Cochranes Road is incorrect and that it overstates the evidentiary situation. As to the listening device material, certainly there is nothing admissible against Mr Roberts of the extrapolated nature of recording B24 (15 February 2000) admissible only against Mr Debs, and there is substantially more talking by Mr Debs. However, there exists listening device material admissible against Mr Roberts that is significant and which is capable of being inculpatory directly of the crimes charged - in B37, line 52, Mr Roberts said "I kill Ds", and in B103, line 146, a conversation in which Mr Roberts was an active participant and was present and which the prosecution says concerned Cochranes Road, when Mr Debs said "No-one was there but us", Mr Roberts not only did not dissent from that statement, but did not even query it. In that conversation Mr Roberts himself went on twice to say "no-one was there". He also said that two of the ways the police think it happened were "backwards". The prosecution relies upon those statements by Mr Roberts as direct admissions by him of presence at the killings, and as to the initiating statement of Mr Debs ("No-one was there but us") the prosecution in relation to Mr Roberts relies upon the principle of adoptive admissions to which I shall come. The prosecution relies also on B27, a vehicular conversation in which the prosecution says Mr Roberts referred to the aftermath of the killings ("we were coming that way and they flew down this fucking way"). There also is a substantial body of material in the listening device recordings admissible in relation to Mr Roberts and which the prosecution says constitutes implied admissions of the crimes charged. There is a body of other evidence bearing upon the question whether there were one or two assailants and which is capable of implicating Mr Roberts as an assailant at Cochranes Road if accepted. That evidence is in particular the presence - which the prosecution says it can scientifically establish - at the scene of the murders of the Hyundai Excel motor vehicle owned by the daughter of the first accused, Nicole, and who was the partner of the second accused, the dying declaration of Senior Constable Miller that there were two assailants, the use of two guns by the assailants (a .357 revolver and a .38 revolver), and the presence of the deceased on different parts of Cochranes Road when each was shot. The prosecution also relies upon the body of Hamada evidence in which there were two assailants in each robbery and which as I reviewed in Ruling No. 2 involves the identification of each accused in one robbery.
The law is clear that generally when persons are charged jointly with an offence then, subject to prejudice, their trial should be heard jointly and there are strong reasons both of principle and policy for such a rule. The rule is well established in authority that I do not need to recite in detail, in particular R v Demirok,[2] Webb v R,[3] R v Gibb and McKenzie[4] and R v Vollmer & Ors.[5] Particularly in Demirok at 254 the reasons for the rule were set forth, including the desirability to reach finality, the avoidance of inconsistent verdicts, the burden upon witnesses, and general principles of proper administration, including proper utilisation of court time and avoidance of unnecessary public expense. I must say that the most cogent reason in my view for joint trials, subject to prejudice, is that which was set forth in R v Glover[6] per King CJ, in whose judgment Jacobs J substantially and Millhouse J agreed, where his Honour said:
"....where two accused persons are charged with offences arising out of an incident in which they have both participated it is, generally speaking, highly desirable in the interests of justice that they should be tried together. It is, generally speaking, very unsatisfactory for jurors to have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. In order to arrive at the truth of the matter it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident. There are cases, of course, in which that important consideration has to give way to other considerations. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative but, generally speaking, participants in the same incident alleged to have been of a criminal nature or to have resulted in the commission of criminal offences ought to be tried together."
It is that insight into the duty of the jury to give a true verdict according to the evidence which is particularly cogent in the hearing of a trial of co-offenders together. That is highly desirable in the interests of the administration of justice. Here, if the critical issues are in respect of the second accused, (1) were there two shooters, and (2) if so was he one of them, it is highly desirable that the jury have all admissible material before them in relation to that matter. Numerous cases establish that where one accused seeks to cast blame on the other, it is desirable that, subject to prejudice, one jury hear the matter: R v Grondkowski[7] and R v Vollmer & Ors which I have already cited. Plainly, it is in the interests of justice that the jury should have the whole picture presented to them, and not half of it, and should see the person on whom blame is sought to be cast (if it is), as well as the person seeking to cast it. The Crown also relies upon the concept of adoptive admissions as contemplated in R v. Salahattin[8] (per McInerney and Murray JJ citing R v. Smith[9] per Hawkins J), R v. Alexander[10] per curiam and R v. Gallagher[11] per Ashley AJA. It is notable in the listening device recordings that the personalities of the two accused appear to be different, and it is appropriate and desirable that the same jury assess the demeanour and conduct of each accused in the event that a matter of relativity becomes an issue in the trial, either generally, in relation to an issue joined with the prosecution, or in relation to the question of adoptive admissions.
[2](1976) V.R. 244.
[3](1994) 181 C.L.R. 41.
[4](1983) 2 V.R. 155.
[5](1996) 1 V.R. 95.
[6](1987) 46 S.A.S.R. 310 at 312.
[7][1946] 1 K.B. 369.
[8][1983] 1 V.R. 521 at 527.
[9](1897) 18 Cox C.C. 470 at 471.
[10](1994) 2 V.R. 249 at 262-263.
[11](1998) 2 V.R. 671 at 697-699.
Here, the cases against each accused are capable of clear definition: R v Portillo[12] (per Phillips CJ at para. 27 and in whose judgment Ormiston and Callaway JJA agreed) and R v Frugtniet and Frugtniet[13] per curiam. That again is an important matter in the decision as to the joinder or separation of two trials. It is easily demonstrable here, as a matter of law and of fact, what is the admissible evidence against each accused, and a properly instructed jury, in my view, would have no difficulty in following such instructions, and in my view would also be well capable, psychologically, of fulfilling the judicial instructions as to admissibility. I see no reason to doubt that a jury would fulfil a judicial hearsay direction. That direction is clear and simple, the listening device conversations can readily be compartmentalised as to admissibility, and there is nothing in the material hearsay to the second accused like the prejudicial material in Jones and Waghorn[14] or in Demirok above cited. The first accused in hearsay material does not nominate the second accused as the other assailant. And on the question whether there were two assailants, the prosecution has available to it evidence admissible against the second accused capable of proving the joint modus of the Hamada robberies including the possession by each of the Hamada robbers of a firearm, the use at Cochranes Road of two firearms, the different places where the two deceased were when each was shot, the dying declaration of Senior Constable Miller that there were two assailants, and the presence if proved of Nicole Debs' vehicle at the scene, as well as the statements of Mr Roberts in the listening device recordings which the prosecution says contain direct and indirect admissions and to which I have earlier referred. There is no reason to think the jury would be unable or unlikely to comply with the judicial hearsay direction.
[12][1999] V.S.C.A. 70.
[13](1999) 2 V.R. 297 at 328-329.
[14](1991) 55 A.Crim.R. 159.
Although Mr Hill did not in terms isolate it as a separate category, I have also considered the question whether the second accused is at risk of prejudice from evidence admissible only against the first accused of his (the first accused's) expressed contemplation of killing other police officers to divert the police investigation into the deaths of Sergeant Silk and Senior Constable Miller. I do not consider the second accused is at risk of prejudice. As I have said, the listening device material is readily capable of clear allocation by the jury as to each respective accused. I consider the jury will be well able to fulfil the judicial hearsay direction as to this topic as well.
The prosecution says that if separate trials were granted, most of the evidence which would have been led in a joint trial would be led in each separate trial. That repeated evidence is that which I have reviewed as joint material, the exception being (in each separate trial) about half the listening device conversations. Indeed the prosecution has foreshadowed a submission that the statements of the respective accused to investigating police are admissible against the absent accused on the basis of a concerted false story: Khan & Anor v R,[15] Boykovski and Atanasovski[16] per Crockett and Teague JJ, Murphy J dissenting, and Katsuno[17] per curiam. That submission can be made at the appropriate time.
[15](1967) A.C. 454.
[16](1991) 58 A.Crim.R. 436 at 442.
[17](1997) 99 A.Crim.R. 350 at 370-371.
The prosecution here says that the general nature of the evidence against each of the accused is the same, in that they jointly committed a series of armed robberies between March and July 1998 and that they had planned to commit a further armed robbery together on the Silky Emperor Restaurant on the night of the murders. The prosecution thus relies upon a provable criminal association between the two accused prior to the murders, relevant, as I have ruled in Ruling No. 2, as a matter of identity and motive, to the killings in this case. The prosecution further says that it has evidence to establish that each of the accused was present at the scene of the murders, and was armed, and that each fired with murderous intent. The prosecution relies, in particular, upon the presence - which it says it can scientifically establish - at the scene of the murders of the Hyundai Excel motor vehicle owned by the daughter of the first accused, Nicole, who was the partner of the second accused, Mr Roberts. In approximately one half of the listening device conversations both accused took part, and the prosecution relies upon the material in which they both took part, some of which I have already cited. Each accused denied presence at the scene, and the prosecution seeks to lead the whole of the antecedent matters, together with all the relevant material in relation to the murders admissible as to each respective accused.
Mr Hill has submitted that the evidence against the first accused is significantly stronger and different from that against the second accused and that the second accused is likely to be caught up in a prejudice by reason of the strength and quality of the case against the first accused and which is inadmissible against him. On the other hand, the prosecution says that there is a common body of evidence available to the prosecution which it seeks to lead and thus is distinguishable from Guldur[18] per Street CJ (in whose judgment Maxwell and Campbell JJ agreed) who applied the criterion enunciated in R v Darby[19] (a conspiracy case) at 678 that separate trials should be granted where the evidence admissible against one accused is "significantly different from" the evidence admissible against the other. In Guimond v R[20] (also a conspiracy case and which the Court in Darby at 678 cited for the proposition I have just stated), Richie J (with whom the majority agreed) at 497 spoke of the evidence against one being "substantially stronger" than against the other. The prosecution also seeks to rely upon the principle enunciated in Festa v R[21] of association of the second accused with the first accused. That will be a matter for submission later in the trial, but the principle is capable of application on the evidentiary material presently anticipated.
[18](1986) 25 A.Crim.R. 271 at 275.
[19](1982) 148 C.L.R. 668.
[20](1979) 44 C.C.C. (2d) 481.
[21](2001) 185 A.L.R. 394.
The relevant matters helpfully were enunciated by Hunt J in R v Middis[22] where at p. 4 is Honour said:
"The principles upon which separate trials will be ordered ... were laid down by the Supreme Court of Canada in Guimond v R ... and approved by the High Court in Darby v R ... the relevant principles are that (1) where the evidence against the applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and (2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and (3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial."
Kirby J in R v Patsalis and Spathis[23] cited that passage, noted that the requirements were not cumulative, and in my opinion correctly (if I may respectfully say so) stated that the criterion was "risk of positive injustice" rather than proof of the existence of it. The risk needs to be a real one.
[22]Supreme Court of N.S.W., 27 March 1991, unreported, 1990 No. 70413.
[23](1999) 107 A.Crim.R. 433 at 435.
There are, of course, many cases of joint trials where the evidence is stronger in relation to one accused than another.
The prosecution here submits that the nature of the evidence against each accused is of a similar type, that the evidence in relation to the second accused is not significantly weaker than that against the first accused, and that there is no material external to the facts giving rise to the charges which is of a differential nature and that is a further matter relevant for consideration: R v. Ditroia and Tucci[24] per curiam ("Undoubtedly, it is only in exceptional cases ..."), R v. Gibb and McKenzie above cited at 161-166 per curiam, and always bearing clearly in mind the analysis adumbrated by Crockett J in Jones and Waghorn above cited at 164 as to unreal, contrived and convoluted judicial directions.
[24](1981) V.R. 247 at 257-258.
Applying the criteria I have alluded to, and having considered the matters I have stated, I am not satisfied that there is any real risk that the second accused will suffer any prejudice in his trial if he is tried with the first accused. Indeed, I am affirmatively satisfied that the jury will be able to return a proper verdict on evidence admissible only in relation to the second accused without being affected by or prejudiced by evidence admissible only against the first accused.
Further, I am satisfied that the affirmative reasons for a joint trial, particularly those enunciated by King CJ in R v. Glover and those laid down in R v Demirok, are here present.
For those reasons I ruled as I did in Ruling No. 4, that the separate trial application on behalf of the second accused be refused.
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