Director of Public Prosecutions v Bandali Michael Debs and Jason Joseph Roberts
[2002] VSC 387
•9 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 (Continued)
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
| DATE OF REASONS FOR RULING CONTINUED: | 9 August 2002 | |
DATE OF RULING | 9 July 2002 | |
CASE MAY BE CITED AS: | DPP v Bandali Michael Debs and Jason Joseph Roberts | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 387 | |
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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 (Continued)
HIS HONOUR:
I next turn to the second category, the admissibility of inculpatory statements by one or other accused concerning the police investigation. The prosecution puts these matters as implied admissions of the two crimes charged, and as I said yesterday, this material falls across a spectrum ranging 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 timespan - through vigilance, to strategies to defeat the police investigation - including by the destruction of evidence and the expressed contemplation of the killing of further police to defeat the police investigation. I have already excluded, on the grounds of prejudice, the expressed contemplation of the killing of the widow and child of Senior Constable Miller to defeat the police investigation.
That material forms a pattern. As I said earlier, items are not to be taken in isolation. There are a number of items which in my view properly fall within this category, which taken in isolation and by themselves could not properly be said to appear to be incriminatory in the sense I have stated. Their incriminatory character derives from the pattern and interrelationship of them with other parts. They form a corpus. It is their character of belonging to that corpus which renders them inculpatory.
Inculpatory interest is interest capable properly of being incriminatory of the two crimes of murder charged. In this category hereafter, I shall not repeat the word "incriminatory" before I use the word "interest", but that is what is meant by the word "interest". Plainly, it would be both wrong in law, and grossly unfair, for mere interest to be utilised by the prosecution, or permitted by the court to be utilised, as incriminatory. The interest needs to be significantly beyond mere interest for it to be admitted as incriminatory..
I turn to the material admitted under this category of inculpatory statements concerning the police investigation.
Recording B11, admissible against Mr Debs only, is admissible in the following particular: p.1, line 26, to p.2, line 75. That is admissible because it is capable properly of exhibiting interest in the police investigation of the killings and also includes an objectively factual statement, at line 74: "Nobody seen nothing".
Recording B13, as to Mr Debs only, is admissible in the following particular: p.3, line 93 to p.6, line 250, as interest in the police investigation including examination of glass and also as including deflection of the police investigation concerning glass.
Recording B14, as to Mr Debs only, is admissible as deflection of the police investigation as I have already reviewed and shall not repeat.
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 as deflection of the police investigation, including in line 78, "Another two have to go" and line 639, the car investigation.
Recording B19, as to Mr Debs, is in part inadmissible. Page 2, line 56 to line 74 is inadmissible because there are too many inaudibles and the passage is too unreliable safely to be admitted. Page 2, line 76 to p.3, line 136 is admissible as interest in the police investigation. Page 8, line 345 to line 353 and p.9, line 407 to line 411 are admissible because of relevant exposition of terms or formulae used by Mr Debs elsewhere. The following passages are inadmissible: p.11, line 485 to line 504 because it exhibits general criminality and general use of guns not overtly connected with the killings or with the Hamada robberies and thus is prejudicial and irrelevant and is excluded; and p.15, line 662 to p.16, line 733 because it exhibits general criminality and general use of gloves not overtly connected with the killings or with Hamada.
Recording B20 is admissible in whole as to both accused as interest in the police investigation.
Recording B21 is admissible as to both accused in the following particular: p.3, line 94 to line 137 as interest in the police investigation, with the following qualification. I exclude the reference in lines 101 to 104 to the plumbing criminality, and consider a formulaic reference of a non prejudicial sort to that passage as stated by Mr Rapke at transcript 976 is permissible. Also in Recording B21, the passage from p.6, line 235 to p.8, line 355 is admissible as interest in the police investigation. The words "I could say you've done it" and "M'm, yeah, you did it" at lines 330 and 332 are not admissions as that is an ironic exchange between the speakers. The balance of B21 is inadmissible because it reveals post criminality and as to lines 401 to 402 is otiose. By otiose, when I use that term now and hereafter, I mean that the material is relevant but on its own is not significant, is repeated elsewhere, and in the interests of balance and of not overburdening the trial and containing this material to its proper limits is excluded. Such repetitive material I characterise as otiose. One of the proper considerations in ensuring a fair trial is not to overload and unbalance the trial by unnecessary, repetitive material.
Recording B22 is admissible, as to both accused, in the following particulars: at p.3, line 93 to line 111; p.9, line 305 to line 395; p.10, line 445 to line 446; and p.11, line 482 to line 493. That material is admissible as interest in the police investigation, including stress in relation thereto. I rule as inadmissible the passage at p.13, line 586 to the end of the recording at p.14, because there is inappropriate reference to penalty, which I think should not be led before the jury, and it is otiose.
Recording B23 is admissible, as to Mr Debs only, in the following particulars: p.3, line 100 to line 115; and p.6, line 269 to p.9, line 397, as interest in the police investigation and at line 302 to line 397 as deflection of the police investigation.
Exhibit B26 is admissible, as to both accused, in the following particulars: p.1, line 28 to p.2, line 80, as exposition of terminology including "Ds" and "rods". I exclude line 71, the statement of Mr Roberts "I'd love to hit a joint like this", because it is post criminality and is prejudicial.
Recording B51 is admissible as to Mr Debs only, in the following particular: p.1, line 36, to p.3, line 107, as interest in the police investigation. I exclude the passage on p.4, line 141 and thereafter, because that passage is too general, is uncertain, and involves reference to the Russell Street and Walsh Street killings which are irrelevant and prejudicial. I also exclude, from Recording B51, the passage at p.7, line 294-297, which I consider is too uncertain, and unsafe, to be admitted as a reference to Cochranes Road.
Recording B54 is admissible, as to Mr Debs only, in the following particular: page 10, line 419-439, as interest in the police investigation and as deflection of the investigation. The next line, line 440, said by Malik, is inadmissible. As to that which appears on pp.1-9, that material, in the terms there set forth, 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 1-9. I will give a ruling on that, if counsel need a ruling, as to the terms of that formulaic presentation; otherwise, it can be settled between counsel. The comment by Malik concerning Mr Roberts, at p.10, line 441-442, is inadmissible, and is excluded.
Recording B62 is admissible, as to Mr Debs, in the following particulars: p.6, line 251, to p.7, line 312 as deflection of the police investigation; and p.11, line 486, to p.13, line 590, as interest in the police investigation. The passage at p.14, lines 610-611, is inadmissible, because it is merely evidence of opinion by Mr Debs of Mr Roberts, and is excluded.
Recording B64 is admissible, as to both accused, in the following particulars: p.4, line 157, to p.11, line 473, as interest in the police investigation. As I have already said, the prosecution should check the attribution of line 280 on p.7, as Mr Rapke foreshadowed at p.1047-8 of the transcript. The passage from p.16, line 711, to p.25, line 1140, is admissible as interest by the accused in the knowledge, or ignorance, of the police conducting the investigation.
Recording B65 is admissible, as to both accused, in the following particular: p.5, line 208, to p.6, line 246, to prove the meaning of the term "CPs". The passage at p.3, line 118-136, is not sought to be led by the prosecution, and properly so, because it is irrelevant and prejudicial, and is excluded.
Recording B66 is admissible, as to Mr Debs, in the following particular: p.4, line 164, to p.5, line 228; and p.7, line 311 to line 315, as interest in the police investigation and including exposition of the term "this matter".
Recording B72 is admissible, as to Mr Roberts, in whole as interest in the police investigation.
Recording B76 is admissible, as to Mr Debs, in whole as interest in the police investigation.
Recording B77 is admissible, as to both accused, in the following particular: p.6, line 247, to p.9, line 393, as opportunistic interest in the police investigation.
Recording B78 is admissible, as to both accused, 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 as interest in the police investigation.
Recording B79 is admissible, as to Mr Debs , in the following particulars: p.1, line 33, to p.2, line 70; and p.4, line 143, to p.5, line 225, as interest in the police investigation. The prosecution has conceded it will not lead p.8, line 323 to line 351, and that material is inadmissible. Also inadmissible is the passage from p.12, line 552, to the end of the recording, at p.14, line 604, because, in my view, it is too cryptic and speculative to be led.
Recording B80 is admissible, as to both accused, in the following particular: p.1, line 37 to p.2, line 91, as interest in the police investigation.
Recording B81 is admissible, as to Mr Debs, 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 as deflection of the police investigation.
Recording B97 is admissible, as to both accused, 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 as interest in the police investigation.
Recording B98 is admissible, as to Mr Roberts, in the following particulars: p.1, line 33 to p.2, line 55; p.3, line 125 to line 132; and p.5, line 196 to line 205 as interest in the police investigation.
Recording B99 is admissible, as to both accused, 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. That is because I consider they are in that context too uncertain to constitute evidence of an Hamada modus and otherwise are inadmissible.
Recording B110 is admissible, as to both accused, in the following particulars: p.2, line 58 to line 86; and p.6, line 253 to line 257 as an exposition of the terminology used by the accused.
Recording B116 is admissible, as to both accused, in the following particular: p.2, line 78 to p.3, line 104, because that passage is properly capable of referring to the Treasure Restaurant in the Hamada corpus; and p.3, line 131 to p.4, line 163, as deflection of the investigation by contemplation of the killing of Detective Sergeant Thomas.
Recording B117 is admissible, as to both accused, in the following particular: p.3, line 123 to p.4, line 174 as interest in the police investigation.
Recording B119 is admissible, as to Mr Debs, in the following particular: p.1, line 33 to p.3, line 117 as interest in the police investigation and deflection of the investigation by contemplation of killing Detective Sergeant Thomas.
Recording B120 is admissible, as to Mr Debs, in the following particulars: p.1, line 28 to p.2, line 59 as interest in the investigation; and p.3, line 113 to p.9, line 399 as deflection of the investigation by contemplation of killing Detective Sergeant Thomas.
Recording B126 is admissible, as to both accused, in whole as interest in the police investigation.
Recording B127 is admissible, as to both accused, in whole as interest in the police investigation.
Recording B129 is admissible, as to both accused, in the following particulars: p.1, line 32 to p.2, line 61; p.6, line 254 to p.12, line 540; p.14, line 598 to line 599; p.15, line 660 to p.17, line 752; and p.18, line 788 to p.19, line 853 as interest in the police investigation and deflection of the police investigation by the various means there stated, including not driving the car, not talking in the car, the hair style of Mr Roberts and the Yarra River search.
Recording B130 is admissible, as to both accused, in the following particular: p.2, line 57 to p.7, line 307 as interest in the police investigation.
Recording B131 is admissible, as to both accused, in the following particulars: p.9, line 386 to p.12, line 544; p.15, line 677 to p.16, line 730; and p.19, line 827 to line 840 as interest in the police investigation and deflection of the police investigation.
Recording B132 is admissible, as to both accused, in the following particular: p.1, line 28 to p.8, line 355, as interest in the police investigation.
Recording B133 is admissible, as to both accused, in the following particulars: p.1, line 39 to line 44 as interest in the police investigation; and p.4, line 155 to line 160, as deflection of the police investigation. That deflection commences with Mr Debs speaking of "the everyday fucking wanker" which reappears in B137, continues with Mr Roberts at p.14, line 104 saying, "I'm going to walk straight in like a wanker", and proceeds to p.15 of B137 line 656, when Mr Debs says, "Talk like a cockhead", and Mr Roberts says, "That's what I'm going to do. Fucking oath. We decided." Those passages link up with B133, p.4, line 155 to line 160.
Recording B137 is admissible, as to both accused, in the following particulars: p.11, line 473 to line 493; and p.14, line 573 to p.15 line 658, as deflection of the police investigation, for the reasons I have just stated in relation to B133.
Recording B146 is admissible, as to both accused, 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." Those passages are admissible as interest in the police investigation. The reference to "Gooks" on p.16, line 702 after the words "and sell them" is excluded, as rightly conceded by the prosecution.
At p.2, line 79 of B146 where Mr Roberts says "no comment", that is a statement by him as to his intention and is admissible, unlike B145, p.7, line 297, which reveals legal advice and which is inadmissible and to which I shall refer in the inadmissible section I am yet to reach. The difference is that B146, p.2, line 79 reveals Mr Roberts' intention and is admissible, whereas B145, p.7, line 287 reveals legal advice given by a lawyer and is inadmissible.
Recording B150 is admissible, as to both accused, in the following particulars: p.13, line 565 to line 579; and p.15, line 564 to line 672, as deflection of the police investigation.
Recording B151 is admissible, as to both accused, in the following particulars: p.3, line 112 to p.5, line 184, as interest in the police investigation; p.12, line 507 to line 543 as interest in the police investigation; p.14, line 636 to p.16, line 689 as interest in the police investigation; p.18, line 805 to p.24, line 1084 - in that passage the reference by Mr Roberts at p.22, line 987 to "a hail of bullets" is a reference to a Herald Sun article and not an admission to Cochranes Road and can only be used in that way - and p.25, line 1125 to line 1134, as interest in and deflection of the police investigation.
Recording B158 is admissible, as to both accused, in the following particular: p.27, line 1206 to p.28, line 1270, as interest in the police investigation.
Recording B163 is admissible, as to Mr Debs, in the following particulars: p.6, line 275 to p.12, line 510 as interest in the police investigation; and p.10, line 457 to p.11, line 475 as deflection of the police investigation - "another two will go down again" and "They're not going to know what the fuck's going on."
Recording B154 is capable of being admissible as to both accused but is presently not proposed to be led by the prosecution. It will not be led unless it is sought for defence purposes that it be led, as discussed with Mr Rapke at p.1190. That is a matter for Mr Hill to pick up upon appropriate consideration, if he wishes.
That finalises the segment of implied admissions, as the prosecution would call it, that is inculpatory statements concerning the police investigation.
Finally I turn to the third category, that is matters I rule inadmissible directly. Some of these matters have been touched upon in order to discriminate between certain parts of recordings which I have ruled partially admissible but I turn to this category in its own right.
The following matters I rule inadmissible.
Recording B2: p.10, line 432-436 (the "smashed her face" passage) I rule inadmissible in its present form. That passage would properly be capable of use as an admission if (1) the contents were clearly established or (2) the word, or words, of Mr Roberts preceding "smashed her face" were clearly established, and the one or the other demonstrated that the material is capable of being inculpatory. In the present state of the transcript, neither (1) nor (2) is established. Therefore in its present state it is unsafe to admit that passage, "smashed her face", because as to context, it is surrounded by inaudibles, and as to Mr Roberts' words, they are preceded by an inaudible. Perhaps Professor Butcher, if he is called, may be able to shed some light on this hiatus.
Recording B3, line 124: the words "our friends" are inadmissible. I consider they are insufficiently probative to be admitted, and are marginal.
Recording B5: the statements of Mr Roberts at line 166, "could be that time again", and Mr Debs at line 176, "got to be a different car altogether", are inadmissible because, so far as they are clear, they reveal post criminality and ought to be excluded on that ground, and so far as they are not clear, should not be admitted, because it is too unsafe to do so. So those passages are inadmissible.
Recording B6, p.10, ("the real, real, real, real, real good" passage) has been conceded by the prosecution not to be led, and is inadmissible. I have already said that p.14, line 626, to p.17, line 774, is admissible, because it relates to the glass examination and the police investigation. However, after line 774, the balance is inadmissible because there are too many inaudibles for it to be safe to admit, and it is excluded.
Recording B29 is conceded not to be led by the prosecution, and is inadmissible.
Recording B30: p.3, line 129, Mr Roberts saying to Mr Debs, "You're talking masks", is inadmissible. That is because it involves post criminality and is surrounded by inaudibles, so much so that it is too uncertain to admit as Hamada modus. Because it is too uncertain, and because, so far as it reveals anything, it reveals post criminality rather than a Hamada modus, it is excluded.
Recording B32 is inadmissible. Whilst, on the one hand, it is concerning the police investigation, I consider it is too general and too non-specific to be probative, and should be excluded for those reasons.
Recording B41 is inadmissible. I consider it is insufficiently substantial and probative to be admitted, and also, in part, is otiose.
Likewise, Recording B46 is inadmissible as it is insufficiently substantial and probative, and also is otiose.
Recording B48 is inadmissible because it is irrelevant, and is prejudicial, in that Mr Debs refers to the storing of guns in Sydney, at p.5, and accordingly is excluded because it is irrelevant and prejudicial. Where Mr Debs, at p.6, line 256, says, "Nobody ever saw us", I consider, looking at the context, it is too uncertain that that is a reference to Cochranes Road, and it is too unsafe to admit, and accordingly is excluded.
Recording B49, Mr Debs, p.4, line 137-153: there are too many inaudibles in that passage for it to be safe to admit, and it is excluded. Page 5, line 184-193, although apparently a reference to the two deceased, is in too uncertain and unclear a context both as to content and as to the numerous inaudibles, for it to be sufficiently clear as to what Mr Debs was saying or referring to, and accordingly is excluded because it is too unsafe to admit. Page 7, line 279, and p.11, lines 462 and 468, are insufficiently substantial, and are otiose, and are excluded.
Recording B55, Mr Debs again, is inadmissible in whole because it is irrelevant.
Recording B56, Mr Debs, is inadmissible in whole. What Mr Debs says at p.3, line 120 is a snippet only and is surrounded by inaudibles and is otiose and is excluded; as is what Mr Debs said at p.7, line 310 to line 315 which is too vague to be admitted. Accordingly, B56 is excluded in whole.
Recording B57, as to both accused, is inadmissible. The passage at p.4, line 144 to 162, "It's time for a job; bang, bang" is inadmissible. It reveals post criminality and is prejudicial and there is an insufficiently clear connection to either Cochranes Road or to the Hamada matters for it to be admissible. The lack of insufficiently clear connection to the crimes charged or even to Hamada, combined with it being post criminality and combined with it being prejudicial lead to the conclusion that B67, "It's time for a job, bang, bang", is inadmissible.
Recording B71 is conceded by the prosecution and is inadmissible.
Recording B84, as to both accused - the helicopter conversation (p.33) - is irrelevant in whole and is inadmissible.
Recording B95, as to both accused, at p.9 reveals post criminality only and is inadmissible.
Recording B100, as to Mr Debs, is inadmissible. There are too many inaudibles and is too uncertain and problematic to be safely admitted. So far as parts of it are capable of coherent attribution, they are otiose and are excluded.
Recordings B104, B106 and B109 are conceded by the prosecution and are inadmissible.
Recording B111, as to both accused, is inadmissible in whole, as it reveals post criminality.
Recording B114, admissible as to Mr Debs only, is excluded at p.15, line 964, because that is a momentary expression of anger and no more and could not properly be acted upon by a jury as an expression of intention to act. Much of B114 is also irrelevant. The statement of anger by Mr Debs at p.15, line 674, which I have excluded for the reason I have stated, is to be contrasted with the repeated and developed expressions of contemplation by Mr Debs of killing other police. Between 11 February 2000 and 22 July 2000 Mr Debs came back to that repeated and developed matter on nine occasions. The momentary expression of anger in B114, p.15, line 674 also is to be contrasted to the repeated and developed expressions by Mr Debs of contemplation of killing Detective Sergeant Thomas, which Mr Debs repeated and developed between 14 June 2000 and 24 July 2000 on five occasions. Accordingly, as I have previously ruled, those repeated and developed expressions by Mr Debs are admissible, but this stand-alone expression of anger in B114, p.15, line 674 is inadmissible.
Recording B124, as to Mr Debs only, is conceded by the prosecution and is inadmissible.
Recording B145, as to both accused, is wholly inadmissible. The material at p.4 to line 170 is too uncertain to be admitted. The passage at p.4 line 172 to p.6 line 235, although a commentary on media release matters, has a number of inaudibles in it and is not sufficiently probative to be admitted. The passage at p.7 line 296, as I already said, reveals legal advice and is excluded.
I momentarily refer to the matter of the telephone intercepts to say this. The prosecution through Mr Serong, rightly in my view, conceded that Telephone Intercept C61 not be led as, although brief, it revealed confidential legal advice. That
is the telephone intercept between Mr Debs and Mr Roberts on 18 July 2000. That was a correct concession in my view and p.7, line 296 of Recording B145, has applicable to it similar logic, the non revelation of legal advice and that passage in B145, p.7 line 296 is excluded.
Also inadmissible in B145 is p.8, line 352 to p.9, line 375. That is said by the prosecution to be a rehearsal by the two accused. However, I consider it as too uncertain to be admitted because it is insufficiently probative and is excluded. Page 13, line 502 to line 592, which the prosecution seeks to be admitted, I exclude as otiose.
Recordings B152 and B154, as to Mr Debs, are conceded by the prosecution and are inadmissible.
They are my reasons for Ruling No.5, made on 19 July 2002 as to the covert recordings by listening device as to one or other or both of the accused.
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