Director of Public Prosecutions v Bandali Michael Debs and Jason Joseph Roberts
[2002] VSC 79
•25 March 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. 1
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 1, 15 March 2002 | |
DATE OF RULING: | 25 March 2002 | |
CASE MAY BE CITED AS: | DPP v Bandali Michael Debs and Jason Joseph Roberts | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 79 | |
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Criminal law and procedure – murder – pre-empanelment proceedings – notice of alibi – s.399A Crimes Act 1958 – requirement of notice of alibi in relation to evidence of accused only – subpoena for production of documents by Chief Commissioner of Police – relevance and width –legitimate forensic purpose - criminal test whether it is reasonably possible that production will materially assist the defence.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr J.W. Rapke QC with Mr P.B. Kidd and Mr J.J. Serong | OPP |
| For the accused Debs | Mr C.L. Lovitt QC | Victoria Legal Aid |
| For the accused Roberts | Mr I.D. Hill QC | Lethbridges |
| For the Chief Commissioner of Police | Mr A.J. Howard QC with Mr B.M. Dennis | Victorian Government Solicitor |
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 and Senior Constable Rodney Miller. Both officers were shot whilst on duty in Cochranes Road, Moorabbin in the early hours of 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 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.
From 24 September 2001 in the Melbourne Magistrates' Court committal proceedings of the two accused were held and each was committed for trial in this court on the two counts of murder. Mr Debs was so committed on 13 November 2001 and Mr Roberts on 15 November 2001. On 22 November 2001, presentment was filed in this court. Each accused was charged with the murder of Sergeant Silk, Count One, and Senior Constable Miller, Count Two, at the place and date I have specified. Each accused was arraigned in this court on 4 December 2001 and pleaded not guilty to the one count of murder, being Count One, formally there put. The trial of the two accused is presently scheduled to commence in this court on 15 July 2002.
On 19 February 2002, a subpoena was issued in this court on behalf of Mr Debs to the Chief Commissioner of Police, Victoria, for the production of an extensive range of documentary material to which I shall return.
As well as the question of the fulfilment of that subpoena of 19 February 2002, a question for determination presently before me is compliance with s.399A Crimes Act 1958 as to notice of alibi by each accused. As plainly the question of presence at the scene of the crime is relevant to the question of subpoena and is logically antecedent to it, I first turn to the question of notice of alibi.
Each accused was advised by the Magistrate at the conclusion of the committal, Mr Debs on the 13th and Mr Roberts on 15 November 2001, of the requirement under s.399A Crimes Act 1958 as to the provision of notice, as there specified within ten days, of particulars of alibi.
The matter of notice of particulars of alibi (hereafter notice of alibi) was raised by Mr Rapke on the first mention before me on 29 January 2002 in which he stated that no notice had been received from either accused. I stood the matter over because counsel, including in particular senior counsel, had recently come into the matter and I considered that counsel should have the full opportunity to look at all the material and receive instructions from the client before time might again be said to run in relation to s.399A.
When the matter was before me on 15 March, the matter was again addressed. It then appeared that it was the view taken by the respective defence counsel that if no witnesses other than the respective accused were proposed to be called in relation to alibi, the provisions of s.399A did not apply.
I consider that view is misconceived.
Alibi, the etymology of which is the locative of alius, meaning another, is not in s.399A confined to evidence by persons other than an accused. Indeed, alibi is not confined to any source at all. The provisions of s.399A(1) and (7) are generic in character and scope. So too is generic in character and scope the purpose of the alibi provisions. The purpose of s.399A is to obviate adjournments to trials when a late alibi is raised by the defence and to enable permissible inquiries by police to be made prior to trial. I say permissible inquiries because very sensibly s.399B strictly delimits the ambit and source of the inquiries which police properly may make consequent upon provision of notice of alibi. Those generic considerations apply equally to evidence at trial by an accused person alone in support of alibi as from another witness called on behalf of the defence.
There appears to me to be no authority directly in point. Nearly all the authorities relate to alibis in which witnesses other than the accused are, or have been, or have been sought to be, called. Thus R v. Sorby,[1] particularly as to ground nine at 770 to 772 per curiam in Victoria and Johnson[2] in England, and the authorities there referred to.
[1](1986) V.R. 753.
[2](1995) 2 Crim.App. R.1.
It is noteworthy in Johnson in the judgment of the Court, given by Glidewell LJ, His Lordship stated at p.9:
"In our judgment evidence, whether from a defendant himself or from any other person, which goes no further than that the defendant was not present at the place where an offence was committed is not evidence in support of an alibi within s.11(8) [of the Criminal Justice Act 1967]."
The provisions of the Criminal Justice Act 1967 (U.K.) section 11 are not identical with those of s.399A of the Victorian Crimes Act 1958, but the basal principles remain the same, and the most relevant provision, the English s.11(8), is identical with the Victorian s.399A(7). In Johnson His Lordship was, with respect, making the point well known in the authorities that merely saying "I was not there" is not an alibi, which word means “at another place” - that is a specified place - and indeed that particularity is set out in sub-s.7 of s.399A. There appears to be no relevant writing on the point either: T.S.M. Tosswell in 1978 Criminal Law Review 276 "The definition of an alibi defence" does not touch upon this particular point. The Crimes (Alibi Evidence) Regulations 1992 (S.R. 178 of 1992) of Victoria do not shed any further light upon the matter. Forms 1 and 2 thereto speak of other witnesses, but that is not conclusive and of course is subject to the well-known statutory principle that one does not construe legislation in accordance with regulation, but rather one construes regulation in accordance with legislation.
The matter thus falls to be determined in accordance with legislation and in accordance with principle.
Legislation and principle point in the one direction, namely prevention of the inconvenience, if not mischief, of evidence first given at trial constituting alibi. That prophylactic purpose applies to accused persons giving evidence of being at a particular other place equally as to any other witness for the defence.
Of course, if an accused is required under s.399A to file a notice of alibi, two things do not follow from that. First, plainly an accused person cannot be required to give evidence at trial if a notice of alibi is filed. If an accused person exercises his or her right not to give evidence, which is a plenary right that every accused person has, then that is the end of the matter at trial. The accused person cannot be required to, as it were, swear or affirm up to the notice. Second, the prosecution at trial cannot ordinarily lead evidence of a notice of alibi.
Thus the purpose of requiring an accused to file a notice of alibi pursuant to 399A is not to controvert or override an accused’s plenary right of silence in court, nor does it reverse the onus of proof, which is fundamental to all of these proceedings, but it simply enables inquiries to be made so that if an accused person gives or calls evidence, the prosecution is not caught by surprise as to the particularity of the other place.
Accordingly, each accused herein had to file a notice of alibi in the normal way.
Given that the notices are now four months overdue and the matter has been discussed on a number of occasions in this court before me this year, there is no element of oppression upon the accused in requiring now prompt compliance with s.399A. Nor is the requirement otiose. It was put on behalf of the accused Mr Debs that as he had said in his police interview that he was home at the relevant time (and for parity of reasoning, so also Mr Roberts) no surprise enures to the prosecution. That is an inadequate argument. Differential considerations apply in relation to a statement by an accused person to a police officer in an interview at a police station, on the one hand, and a formal filing of a notice by the accused's legal practitioners in curial proceedings on the other. The two are not co-extensive or identical.
For those reasons, I order that if either accused person proposes to adduce evidence in support of an alibi, including from himself only, that accused is required to file notice of particulars of alibi within 48 hours, that is by 5 p.m. this Wednesday night, 27 March 2002.
I turn to the question of the subpoena. A subpoena has been filed on behalf of Mr Debs in this court, as I have said, issued on 19 February 2002. No subpoena has been filed by Mr Roberts. Below, the reverse situation applied. Mr Roberts filed the subpoena; Mr Debs did not. The prosecution, in my view entirely properly, has proceeded upon the basis that what is provided to the one ought to be provided to the other, and although formally the subpoena is only issued by Mr Debs any provision ought to be and indeed below was made to both accused by the prosecution, and rightly so.
The schedule to the subpoena specifies
“To produce the following (insofar as you have not thus far provided in unedited form):-
all diary entries, day book, running sheet entries, notes, diagrams, charts, memoranda produced by police members in the course of Operation Hamada or the investigations into the shootings of the deceased, Silk and Miller; all the information reports produced by police members in the course of Operation Hamada or the investigations into the shooting of the deceased, Silk and Miller; any recordings of police radio traffic produced by police members in the course of Operation Hamada or the investigations into the shooting of the deceased, Silk and Miller; any transcripts of recordings of police radio traffic produced by police members in the course of Operation Hamada or in the investigations into the shootings of the deceased, Silk and Miller; any recordings, notes or memoranda of forensic tests, police re-enactments or reconstructions, including the test firing of weapons through glass and the reckoning of bullet trajectories produced by police members in the course of Operation Hamada or the investigations into the shooting of the deceased, Silk and Miller; any video or audio recordings, whether covert or otherwise, made by or at the behest of police members in conversations or activities of the accused Debs, members of Debs' family or household, the accused Roberts, members of Roberts' family or household, the suspect Ghiller, any members of Ghiller's family or household; any persons who are serious suspects, including Ms Gibbs and Rudev in the course of Operation Hamada or the investigations into the shootings of the deceased, Silk and Miller; all logs emanating from listening posts or monitoring stations in respect of such recordings; all transcripts of such recordings; all draft transcripts of such recordings; all affidavits in support of all warrants obtained in relation to the investigation into the murders of Gary Silk and Rodney Miller, including affidavits for all telephone intercepts relating to hard line or mobile services owned by or linked to either accused; all telephone intercepts relating to hard line or mobile services owned by or linked to Jason Ghiller; all listening devices relating to vehicle premises or locations linked to either of the accused; all listening devices linked to Jason Ghiller.”
Thus, on its face, the subpoena is ample and wide. Its ambit has been refined by a helpful letter of 14 March 2002 from Mr N. La Rosa, Managing Solicitor, Criminal Law Division, Victoria Legal Aid to the Victorian Government Solicitor. The question before me is not that of public interest immunity – which has been claimed in respect of some material and which has not been disputed by the defence – but the antecedent question of justification: has the defence demonstrated a legitimate forensic purpose for the production of the material sought?
The history of the matter is set out in two statements of Detective Senior Sergeant Collins, currently in charge of the Lorimer Task Force, of 1 and 15 March 2002.
In the first of those statements, Detective Senior Sergeant Collins states that between May and October 2001 there was a substantial amount of correspondence between the Victorian Government Solicitor on behalf of the Chief Commissioner of Police, and the Police, the DPP and Lethbridges, solicitors for the defendant Roberts - because it was, as I have said, Mr Roberts who issued the subpoena in the court below. That is set forth in Exhibit GC3 to the statement of 1 March 2002 of Detective Senior Sergeant Collins and I shall not repeat it.
As a consequence, numerous conferences were held at that stage and at that level, between legal representatives including counsel for the parties, with a view to providing a substantial amount of material, but not material which was not legally obliged to be produced. Detective Senior Sergeant Collins states that that was a very fruitful process, as indeed it does appear to have been in view of what was provided and to which I shall shortly come, and a substantial amount of material was provided, as I have said, to the legal representatives of both accused.
In substance, it is estimated that in addition to the hand-up brief which comprises some 18 folders of material and 23 volumes of depositions, the Chief Commissioner of Police has supplied approximately 14,000 pages of additional material in hardcopy to each accused and 7,000 pages of material on computer disk. In paragraphs 10-13 of the statement of Detective Senior Sergeant Collins of 1 March 2002 is set forth in respect of each discrete item in the subpoena, the vast amount of which has already been provided to the two accused. In paragraph 7 of the statement of Detective Senior Sergeant Collins of 15 March 2002, particulars are set out of what categories of sought-for material do not exist. I will not rehearse that material. It is a matter of record.
The matter before me is not a question of public interest immunity, but rather is a question of relevance which is why I dealt with the alibi question before I dealt in this ruling with the subpoena question. Essentially the proposition put by Mr Lovitt, counsel for the first accused, is that if after an extensive police investigation in which there were three thousand persons of interest, the police narrowed it down to nine significant targets (other than the two accused), that circumstance of itself sets up a logical corollary that it is reasonably possible that there is material in those nine holdings which would be relevant to the articulation of the defence. That defence is that the accused were not present at the scene. Plainly as one or more assailants were present and committed the offences, it is submitted that any material bearing upon the possible presence of any of the nine significant targets is material which is reasonably possible to predict will bear upon the presence of other persons at the scene, being the assailants. I say that, bearing in mind, of course, as Mr Lovitt did throughout, there is no onus of proof on the accused at trial. The question here is whether this material is reasonably possible to contain that which is sought.
The authorities do not support that analysis in those mere terms. Frequently in investigations, there are various persons who are real suspects, but the law does not go so far as to say that any material on those real suspects is producible. Ordinary discovery is not an element of the criminal law, as all the authorities constantly state. It is the nature of investigations, particularly large investigations, that frequently they are not longitudinal and directional but are diffuse. The focus of the inquiry progressively varies. That was so here. Mr. Lovitt, despite his comprehensive and helpful submission, did not identify any discrete factual matter that the defence points to as likely to be productive. Mt. Lovitt was compelled to rely upon the matter of characterisation only – namely that there were nine other substantial targets or real suspects at one point or other in the two-year investigation of the killings.
I consider that the logical argument by Mr Lovitt, without any further articulated factual connection or extrapolated analysis, is insufficient to establish a legitimate forensic purpose which must be demonstrated by the defence to justify an order for production.
Mr Lovitt I think rightly has submitted that the difficulty with the law in this area is that the decision of the Crown is inscrutable - that is to say not capable of other knowledge, because it is a matter in the bosom of the prosecution. To that, it has been said that the significant procedural and ethical requirements on the prosecution deriving from R v. Apostilides[3] and applied in R v. Higgins[4] are the answer. In the judgment of the Court in Higgins at pp.71 to 77, the prosecution’s duty of disclosure is articulated. That is the foundation for production by the prosecution of relevant material. Although it is inscrutable, there is thus a significant legal and ethical requirement upon the prosecution to produce material which reasonably can bear upon the issues. But the law does not go so far as to say that because of a general logical proposition and no more - that there were nine significant targets and ex hypothesi material in relation to them is reasonably possible to materially assist the defence - material ought to be produced beyond that which has here been produced.
[3](1983 - 1984) 154 C.L.R. 563.
[4]Unreported, Victorian Court of Criminal Appeal, 2 March 1994.
It is evident from the helpful submissions of Mr Howard for the Chief Commissioner before me, that not only was the investigation into the killing of Sergeant Silk and Senior Constable Miller an extensive investigation over two years but that an extensive number of persons were the subject of police interest - three thousand in fact, having come from, as Mr Howard put it, "all sorts of avenues and channels", including the nomination as the offenders of persons who were dead or who were in gaol at the time of the killings. The investigation proceeded through an early anabranch, the investigators having been informed forensically that the vehicle owned by Mr Debs’ daughter, a Hyundai Excel sedan reg. no. OJI 862, was excluded. A year went by while other persons were being looked at. Then further scientific investigation was received which brought the car back into focus and the anabranch was completed and the main river of inquiry was resumed.
There were, as appears from evidence at the committal from Superintendent Sheridan on 29 October 2001 at pp.2663 to 2669 and exhibited as GC3 to the second statement of Detective Senior Sergeant Collins, nine persons (other than the two accused) who at various times were persons classified as “significant targets”. A schedule of the names of those persons is set out as Exhibit GC2 to the statement of Detective Senior Sergeant Collins of 15 March 2002 and was produced as exhibit “HH” at the committal. In cross-examination below, defence counsel referred to the significant targets as significant suspects (D. 2663-2669). The reasons why those significant targets came into focus, were examined, and ceased to be significant targets was stated in the evidence below of Superintendent Sheridan. That evidence is exhibited to the second statement of Detective Senior Sergeant Collins as exhibit GC3. I have examined that evidence.
It is put, and rightly put by the prosecution, that a legitimate forensic purpose needs to be demonstrated by the defence to justify the ordering of material pursuant to a subpoena such as this. There is some law on what level is required. The unhelpful metaphor of 'on the cards' has been used in the authorities – thus Alister and ors v The Queen[5] per Gibbs ACJ (as then he was) at 414 (“Although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence”), and Saleam[6] per Hunt J (in whose judgment Carruthers and Grove JJ. agreed) at 409 (“[the judge] must be satisfied that it is ‘on the cards’ that the documents would materially assist the accused in his defence”). In Fitzgerald v Magistrates’ Court Victoria and ors[7] Her Honour noted that “in the second edition of the Oxford English Dictionary ‘on the cards’ is defined as meaning ‘within the range of probability’”. Metaphors are useful for illumination but not for definition. The genesis of judicial use of the expression “on the cards” in this context appears to be a dictum of Lord Edmund-Davies in Burmah Oil Co Ltd v Bank of England[8] in which His Lordship stated:
“What are the probabilities of such documentary support being in existence? Is it merely pure conjecture? If so, applying the plaintiffs’ own test, production should be refused. But in my judgment, there is more to it than that. It is, at the very least, ‘on the cards’ that, in the light of the bank’s known support and advocacy of profit-sharing, they express their unequivocal dislike when the government expressed determination to impose its final terms upon Burmah. It was, I think, an over simplification for the Attorney-General to submit that the only issue is whether the January agreement was in fact inequitable, and not whether the bank regarded it as inequitable. For if, faced by government obduracy despite its strong representations, the bank insisted upon the proposed contractual terms, an arguable foundation for the appellants’ allegations of unconscionability against the bank itself could be laid. Then is all this merely ‘on the cards’, simply a ‘fishing expedition’? If that is all there is to it, discovery should be refused. But in my judgment the existence of such documentary material is likely. And that, in my judgment, is sufficient.”
[5](1983-1984) 154 C.L.R. 404.
[6](1989) 39 A.Crim.R. 406.
[7]Balmford J, unreported, 19 September 2002, para. 20.
[8](1980) A.C. 1090 at 1126.
It appears from that passage that his Lordship employed the metaphor to mean a mere possibility – not, as the Shorter Oxford English Dictionary would have it, a probability. In Burmah, Lord Edmund-Davies stated the test as “’likely’ to contain material substantially useful to the party making discovery” (1129). Lord Keith of Kirkel stated it as “a reasonable probability… of finding the documents in question… as to lend substantial support to the contention (of the appellant)” (1135-1136). In Air Canada and Ors v Secretary of State for Trade[9] Lord Wilberforce, having reviewed the speeches in Burmah of Lord Edmund-Davies and Lord Keith of Kirkel above cited, stated at 439:
“Both expressions must mean something beyond speculation, some concrete ground for belief which takes the case beyond a mere ‘fishing’ expedition. One cannot attain greater precision in stating what must be a matter of estimation. I would accept either formula.”
[9](1983) 2 A.C. 394.
In Alisterand ors v The Queen (above) Gibbs A.C.J., having reviewed Burmah and Air Canada, stated at 414:
“Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v Whitlam (1978) 142 CLR at 42 and 62) , so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the Court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence.“
Presumably Gibbs A.C.J. used the expression ‘on the cards’ as had Lord Edmund–Davies at 1126 in Burmah, for Gibbs A.C.J had, immediately before using that expression, referred to Burmah. So too Hunt J. in Saleam at 409, for he had just referred to the judgement of Gibbs A.C.J. in Alister at 414.
Both Burmah and Air Canada were civil cases. On the criminal side, considerations germane to that jurisdiction operate. Thus Gibbs A.C.J. in Alister at 414, cited in the preceding paragraph. So also Brennan J. (as then he was) in Alister at 456 (“In a criminal case it is appropriate to adopt a more liberal approach to the inspection of documents by a court…”), Murphy J. at 431 agreeing, Wilson and Dawson JJ. at 439 contra.
Accordingly, in criminal process, I do not consider the criterion for production pursuant to subpoena is as high as probable or as low as merely possible, let alone speculative or fanciful. I consider the true test is whether it is reasonably possible that the sought–for material will materially assist the defence. For production pursuant to subpoena to be required, a legitimate forensic purpose must be demonstrated, and that is that it is reasonably possible that production will materially assist the defence.
As I have stated, I consider that the arguments most helpfully articulated by Mr Lovitt on behalf of the accused Mr Debs - by parity which might also assist Mr Roberts - do not satisfy the criterion laid down in the authorities for provision of more than that which has been thus far produced by the prosecution. Demonstrably, if material exists which hereafter should be produced, I would expect the prosecution to produce it consonant with the criteria in Higgins and Apostilides that I have referred to.
As to width, there is a substantial amount of authority, notably Commissioner for Railways v Small[10] and I shall not repeat it. The deficiency in the present subpoena is not its width but the antecedent matter of lack of justification as above stated.
[10](1938) 38 S.R. (N.S.W.) 564.
As to the affidavits in support of the warrants, again unfortunately for the submission on behalf of the accused, the law is against the production of such material. Pursuant to s.4A(1) Listening Devices Act 1969 this court may issue warrants for listening devices. Other statutory provisions relate to other entities. The law clearly states that the issue of a warrant is an administrative and not a judicial act - Love v. The Attorney General for N.S.W.,[11] and the leading authority, Ouseley v. R.[12] McHugh J in Ouseley at 100 stated that a challenge in a criminal proceeding to a warrant is a collateral challenge to its validity. Ouseley and earlier authorities clearly establish that the only collateral challenge which can competently be made in this court is on the face of the warrant. That is not the challenge here. The challenge here
is for material which might go to the validity of the warrants, that is to say the affidavits being their substratum, and the law is against that provision by way of collateral challenge.
[11](1990) 169 C.L.R. 307.
[12](1997) 192 C.L.R. 69.
Accordingly, that material is not required by law to be provided.
So the bottom line is that as a matter of law the further material sought by the defence which has not been provided is not required to be produced by the police or by the prosecution.
I might add that there was substantial material from Detective Senior Sergeant Collins as to the oppression which would be suffered if this material were sought to be provided. The second statement of Detective Senior Sergeant Collins says that in relation to the 11 persons (9 plus the 2 accused) who were significant targets, there were 530 information reports comprising 3,500 pages, 700 pages of listening device logs and 35,000 calls recorded, constituting of the order of 10,000 pages. Oppression, as the authorities show, is a relevant consideration. However, I would not be persuaded, despite the burden of oppression, to refuse the order for production if I considered as a matter of law that the order otherwise were justified. But it is not justified in law and for that reason I refuse it.
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