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

[2002] VSC 514

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. 27

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	20 November 2002
CASE MAY BE CITED AS:	DPP v Bandali Michael Debs and Jason Joseph Roberts
MEDIUM NEUTRAL CITATION:	[2002] VSC 514

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Criminal law and procedure – murder – evidence – application that evidence of other offences founding identity and motive be subject of jury direction to put aside – application refused.

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

HIS HONOUR:

1. Learned senior counsel Mr Dane, for the first accused, has submitted at the conclusion of the evidence and before the jury's deliberation that I should direct the jury to put aside the evidence of the ten armed robberies, called the Hamada robberies, which the prosecution relies upon for the reasons stated in Ruling no. 2 given on 3 June 2002 at p.211.  This is a responsible application made by Mr Dane on the basis that the material all now is in and it is said by Mr Dane that it is appropriate to look at the material that is now before the jury as distinct from that which was then anticipated on the basis of the depositional and committal material.  The application is joined in by learned senior counsel Mr Hill, for the second accused.

1. Much of the material was known as at 3 June 2002 in depositional and committal form.  There has, of course, been further material, such as on the one hand evidence given as to the angle and position of the various shots which the prosecution says tend to show that there were two shooters at the police, not one; and on the other hand the video of Mr Roberts' 18th birthday, Exhibit 68, showing the physical shape of and the haircut of Mr Debs.  As one would expect, there has been quite an amount of detail also since ruling no. 2.  However, none of that additional material, it seems to me, makes any substantial difference to the substratum of data which I relied upon for Ruling no. 2.  The real difference is that I have now seen the witnesses and I previously had not seen them.  As I said in paragraph 40 of Ruling no. 2: 

“Given the warnings which one gives to a jury and one gives to oneself at this stage, whether the evidence establishes it remains to be seen because, of course, the witnesses have not yet given evidence or been cross-examined before the jury.”

1. I have now seen the witnesses.

1. As the parties are about to address the jury, and of course there is no verdict by the jury in either case, it is inappropriate for me to express more than is necessary for the purposes of this Ruling as to the impact upon the factual substratum of Ruling no. 2,

of my seeing the witnesses give evidence including of course being cross-examined.  Suffice it to say that seeing Ms Chadwick in relation to Mr Debs and Ms Coffman in relation to Mr Roberts has unequivocally affirmed the view that I took in Ruling no. 2, that the material relied upon by the Crown is properly capable in law of constituting evidence against the two accused respectively for the two crimes of murder with which they are charged.

1. As to Mr Dane's general argument that there is such inconsistency between the various descriptions of the various robbers and the various Hamada robberies that no corpus can be said to properly be established, I commence, as I said to Mr Dane in discussion, on the premise that the two accused are presumed innocent of each Hamada robbery the subject of this evidence, and that the prosecution has to prove, and prove beyond reasonable doubt, the identity of each accused in each individual robbery that the jury might consider.  Starting from that appropriate premise of law, I am not persuaded that the differences in description warrant the removal from the jury of this body of evidence.  As well as the identification evidence I have referred to respectively as to the Bevic and Sportsmart robberies, there is a powerful body of system which the prosecution seeks to rely upon, in particular the interrelationship of the two robbers in the various robberies.  On the other hand, the defence is fully entitled to rely upon the evidential differences, some substantial, in description of the robbers and of the modes of robbery.  These are properly matters for the jury to decide, governed by the instructions of law I shall give them as to identification evidence.  They fall far short of being such as to warrant the material not being left with the jury.

1. Accordingly, I am unpersuaded I should give the jury the direction sought that they should put aside the Hamada evidence.

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