Director of Public Prosecutions v Bandali Michael Debs and Jason Joseph Roberts
[2002] VSC 287
•24 June 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. 3
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 24 June 2002 | |
CASE MAY BE CITED AS: | DPP v Bandali Michael Debs and Jason Joseph Roberts | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 287 | |
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Criminal law and procedure – murder – evidence – forensic phonetic evidence – application for adjournment – application refused.
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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 |
Ruling No. 3
HIS HONOUR:
Before me is an application for a separate trial by learned counsel Mr Hill on behalf of the second accused, Mr Roberts. Part of the material relied upon by Mr Hill in support of that application is a voluminous amount of electronic material, being listening device and telephone intercept material, which has been, by a laborious process, reduced to transcript. Of course, it is the sounds from the electronic tapes which are the evidence. The transcript itself is not evidence; it is at best an aid to the receipt of the evidence, which is the sounds electronically emitted.
In prudent preparation of the defence, on 7 March 2002 inquiry was made by the solicitors for both accused of a forensic phonetics expert as to the provenance and accuracy of the transcripts of the electronic material, in two respects in particular: (1) the identification of the speakers; and (2) the accuracy of the present transcript as reflecting the electronically emitted sounds, both as to that which has been reproduced in the transcript, and the articulation, if possible, of the numerous passages therein described by the word - in parentheses - "inaudible".
The expert retained by the defence, Professor Butcher, of the Department of Speech Pathology, the School of Medicine, Flinders University, Adelaide, has yesterday, Sunday 23 June 2002, informed the instructors for the first accused, of the volume of time needed to complete the briefed task. That letter and other relevant material is shared by the defence practitioners of both accused, as they have a common interest in the matter, and is now relied upon before me by Mr Hill, senior counsel for the second accused in seeking an adjournment of the separate trial application. Professor Butcher's letter of 23 June 2002 states in relevant part as follows:
"It seems that I have somewhat estimated the degree of difficulty in analysing the audio recordings and the police transcripts in your matter. Based on the sample so far completed, I must report that the difficulty with the analysis does not reside chiefly in the audibility of the speech, but in the 'accuracy' of the transcripts. I disagree with much of what has been transcribed in the recordings I have so far analysed. Furthermore, a fairly significant amount of speech is transcribed simply as 'inaudible', whereas it is often possible to give an opinion as to what was said - with varying degrees of confidence. An additional factor concerns the attribution of speech to a particular speaker. Whilst I have not yet had time to inform myself in detail of the enhancement procedure used, it seems possible that in achieving the desired goal of improving the intelligibility of the speech, the resulting spectral changes have rendered the voices themselves less distinctive. As a result there are some utterances which I think may have been attributable to the wrong speaker in the police transcript, and others which I am unable to come to a decision about. In summary, at this stage, the most appropriate way of expressing my opinion would be to say that the degree of disagreement between the police transcript and my own is quite high."
Mr Hill informed the Court that it had not been anticipated that this volume of difficulty was likely to exist and that the defence had been proceeding upon the basis that the transcripts would be approved by Professor Butcher without major comment.
Mr Hill, given the notice that the defence has now received as to the accuracy and provenance of the transcripts, now seeks an adjournment of the continuation of the separate trials application, because there is an interface between it, on the one hand, and the later, as yet unarticulated, application to exclude various discrete parts of evidence on the grounds of admissibility. Plainly if I were later to exclude some passage in the electronic material on the grounds of prejudice, irrelevance or other admissibility criteria, then a prior grant of a separate trial on the basis of that material would be rendered inappropriate. Accordingly, for sensible resolution of the separate trial application, that application was suspended while the question of the admissibility of the electronic material is considered and determined. I then shall rule on both the matter of separate trials and the matter of admissibility of the electronic material finally and at the one time.
Mr Hill has submitted this morning that, in his professional view, he cannot advance the separate trial application because he is not in a position to advance meaningful argument regarding it because of the uncertainty of the factual substratum, that is to say the accuracy and provenance of the transcripts. There are, in Mr Hill's separate trial application, five critical tapes in that respect.
Professor Butcher has in his letter of 23 June 2002 stated that he needs some 136 hours of examination of the recordings to make his "preliminary report." He further states that by reason of the slowness of the work and the precision which is required, and by reason of his other professional and personal commitments, he would be unable to complete that work until, at the earliest, the end of September.
This morning Mr Dane on behalf of the first accused, and Mr Hill on behalf of the second accused, have applied for an adjournment of the trial proper until the receipt of Professor Butcher's final report. Defence counsel conceded that that effectively meant an adjournment to next year. I shall return to that application. First I turn to the more limited application, by Mr Hill, of adjournment of the present separate trial application.
The question is whether the separate trial application ought to be put off until the beginning of October in order that Mr Hill can properly be briefed and present argument on behalf of his client.
I am unpersuaded that the application ought to be put off for that time or put off at all. I consider it is appropriate to proceed with the separate trial application on the basis of the present transcripts. Of course, if evidence from someone other than Professor Butcher is sought to be led on the present separate trial application that is entirely competent by the defence including the calling of Mr Roberts to give evidence in relation to the electronic material. But so far as the defence seeks to be briefed by Professor Butcher's report, I am not persuaded that that justifies the adjournment of the separate trial application until September of this year.
That is for the following reasons.
First, there is before the court sworn evidence in the form of the depositional material below from Detective Sergeant Thomas as to the recording process, the enhancement process and the transcription process which has resulted in these transcripts. That evidence, very properly, was the subject of detailed and extensive cross-examination at committal. The hand-up brief was provided to the defence on 30 December 2000 and the committal concluded in November 2001. I consider that thus I have before me positive evidentiary material which I am entitled to act upon, being the material I have just stated.
Next, the defence has a direct opportunity before me to lead evidence, that is to say, from Mr Roberts, if he chose to be called, in so far as he can identify himself or deny the attribution of words to himself or state whether what is in the transcript is accurate or not. I entirely agree with Mr Hill that that may be easier said than done in all instances, because Mr Roberts is the subject of five areas of material as to which he may entirely, genuinely, be unable to advance evidence by reason of lack of memory or numerous other very understandable considerations. But one would have thought that the first port of call as to what was said and by whom would be the client himself. That is, of course, not the end of the matter by any means.
Next, applying logic to the situation, if it be that Professor Butcher, in the fullness of time, provides material to the defence which is more incriminatory of the accused than the present material (if it is), then that is one thing. If, on the other hand, Professor Butcher provides material to the defence which is exculpatory of the accused or less inculpatory than the present material, that beneficial material to the accused would only weaken the application for a separate trial because it would remove part of the harmful and prejudicial material the defence is relying upon for the grant of a separate trial. So as a matter of logic I consider that the position is likely to be more beneficial to the defence on a separate trial application in the present circumstances than may occur hereafter, although, of course, I do not know whether that will occur or not.
Finally, I consider that it is most desirable if the defence seek to obtain other expert assistance than simply Professor Butcher. I have no doubt that he is not the only forensic phonetics expert in Australia. In saying that, I readily agree to that which was said by implication by Mr Hill, namely that this is not material which one can simply look at like a fingerprint; familiarity with the voice is a matter of significance in this expertise, and thus one cannot simply divide the material up amongst a multitude of experts. On the other hand, I am confident that there would be more than one expert in Australia who would be able to attend, in part, to this matter, thus obviating the three-month delay that is presently contemplated in Professor Butcher's letter.
Accordingly, I propose to proceed with the application for separate trials. If it turns out that, upon receipt of expert evidence to the defence, further material is sought to be elicited by it in the absence of the jury and before empanelment which might support the application for separate trials if it has been refused, then I will of course receive that material and, if necessary, revisit my ruling. If, on the other hand, I have made the separate trial order, then that use for that material would be obviated. Accordingly, we shall proceed with the separate trial application, on the basis of the present transcripts.
I turn to the question of the trial proper. This is premature, but I say it in the hope that it might assist all parties in the preparation of the case. It is highly undesirable, as I said to Mr Rapke, who agreed with me, that this trial turn into a paper chase. It is highly undesirable that the jury disappear under a mountain of competing transcripts. One would hope that the trial will not reach that unfortunate situation. It would therefore be most desirable that before the jury is empanelled, this matter of the transcripts is resolved, so far as it can be resolved, between the parties, with assistance from me if necessary. The amount of disputation as to the transcripts should be reduced to a minimum. That is in the interests of the prosecution, of the defence of each accused, and of the administration of justice. I am confident that with the responsible application that I know all counsel here would give to it, the amount of disputation for the jury's consideration will be reduced to a minimum. It is unlikely it will be reduced totally, or eliminated, but I trust it can be reduced to a minimum.
If the worst comes to the worst, and we have two competing lots of transcripts, there are numerous ways of coping with that without the matter getting out of hand, including the provision of alternative texts on each side of the page, or one text in italics, et cetera. That is for later consideration. However I would not wish the trial to be adjourned from its date of 5 August this year. It may be that the electronic material might have to be led a little later in the prosecution case to accommodate all parties, but in any event that may well be the way that the prosecution was going to lead the material. Accordingly I expect the defence, as I know it would wish, will actively pursue proper reports from forensic phonetics experts, to meet those time periods.
For those reasons, I propose to proceed with the application for separate trials now, subject to any change in the factual substratum if, later, forensic phonetics material is presented to the court before the empanelment of the jury, if the application for separate trials is not granted. If it is granted, the matter becomes academic at least for one of the two accused.
The matter of Mr Dane's application for adjournment of the trial effectively to next year (joined in by Mr Hill) can wait upon my ruling as to admissibility of the electronic material. Plainly if all or much of that material is excluded, the holistic application is affected. His application (and that of Mr Hill) for adjournment of the trial proper can be renewed after my rulings on separate trials and on electronic admissibility should the defence then so wish.
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