Director of Public Prosecutions v Roberts (Ruling No 3)

IN THE SUPREME COURT OF VICTORIA

Unrestricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0324

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
JASON JOSEPH ROBERTS	Accused

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 5 October 2021
DATE OF RULING:	11 October 2021
CASE MAY BE CITED AS:	DPP v Roberts (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2021] VSC 658

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CRIMINAL LAW – Retrial – Accused charged with two murder charges and ten armed robbery charges – Application for exclusion of audio recordings of listening devices and telephone intercepts pursuant to s 137 Evidence Act 2008 – Whether probative value outweighed by danger of unfair prejudice to accused – Evidence Act 2008 ss 66, 102, 137.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Ihle QC with Mr G Hayward	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Mr D Hallowes SC with Mr M McGrath	Stary Norton Halphen

HIS HONOUR:

The accused, Jason Roberts, is charged with the murder of Sergeant Gary Silk and Senior Constable Rodney Miller at Moorabbin on 16 August 1998. Pending the resolution of a number of pre-trial issues, it is anticipated that the trial of the proceeding will commence in February next year. One of the issues, that requires resolution, concerns the admissibility of a number of conversations involving the accused, and other persons, which were recorded on listening devices and telephone intercepts installed by police between October 1999 and July 2000.

Background

The accused was originally charged, with Bandali Debs (‘Debs’), with the murders of Silk and Miller in August 2000. They were also charged with ten charges of armed robbery. It was alleged that between 9 March 1998 and 18 July 1998, the accused and Debs had carried out a series of armed robberies on a number of businesses in the suburbs of Melbourne. On each occasion, the armed robberies were carried out by two men, each of whom carried a firearm, and each of whom wore masks and other disguises to conceal their identities.

In the early hours of the morning of 16 August 1998, Sergeant Silk and Senior Constable Miller were performing surveillance duties on the Silky Emperor Restaurant in Warrigal Road, Moorabbin as part of an operation that was conducted to intercept and arrest the perpetrators of the armed robberies. Shortly after midnight, Silk and Miller intercepted a blue Hyundai motor vehicle near the restaurant. The vehicle was driven by Debs, and belonged to his daughter, Nicole, who was the then girlfriend of the accused. The prosecution case was, and is, that the accused was a passenger in the vehicle. Within a short time of the interception of the vehicle, Silk and Miller were both fatally shot.

In August 2000, the accused and Debs were each charged with the murders of Silk and Miller, and they were also charged with the ten armed robberies. They were subsequently committed for trial on each of those charges. The trial of the two murder charges commenced on 14 August 2002. On 31 December 2002, the jury returned verdicts of guilty against both accused in relation to the two murder charges. The accused was sentenced to life imprisonment on each charge with a non-parole period of 35 years. Applications to the Court of Appeal for leave to appeal against conviction and sentence were subsequently dismissed.[1] An application for special leave to appeal to the High Court was refused.[2]
[1]R v Debs and Roberts [2005] VSCA 66.
[2]Debs v The Queen; Roberts v The Queen [2005] HCA Trans 971.

Subsequently, following the enactment of the Justice Legislation Amendment (Criminal Appeals) Act 2019, the accused filed a second application for leave to appeal against his convictions. On 10 November 2020, the Court of Appeal allowed the appeal, quashed the accused’s convictions and made an order for a new trial.[3]
[3]Roberts v The Queen [2020] VSCA 277.

The present indictment was filed on 19 March 2021. The first ten charges allege the commission by the accused of the armed robberies to which I have referred. Charges 11 and 12 charge the accused with the murders of Silk and Miller respectively. At a pre-trial hearing, on arraignment before me, the accused has pleaded guilty to the ten armed robbery charges, and pleaded not guilty to the two murder charges.

The recordings

Between October 1999 and June 2000, the Supreme Court issued warrants permitting police, attached to the taskforce that had been established to investigate the murders of Sergeant Silk and Senior Constable Miller (‘the Lorimer Taskforce’), to install listening devices in relation to their investigation. Pursuant to those warrants, covert listening devices were placed in Debs’ home at Springvale Drive, Narre Warren, in Debs’ garage and vehicles, in the accused’s new home at Merrijig Avenue, Cranbourne, and in his mother’s house at Hoysted Avenue, Narre Warren. The devices captured conversations occurring in the period from the end of 1999 until the arrest of the accused and Debs in late July and August 2000. In addition, telephone intercept warrants were granted in respect of a number of telephones, and physical surveillance was conducted of the families of Debs and the accused. The telephone intercept surveillance commenced on 7 October 1999.

During the investigation, Detective Inspector Paul Sheridan, head of the Lorimer Taskforce, strategically issued information to the press in order to stimulate conversation between Debs and the accused. On 7 February 2000, the police issued a media release about the murders stating that they were trying to locate the late model Hyundai vehicle that was involved in the murders. On 29 May 2000, the Lorimer Taskforce released information to the media relating to an ‘anonymous caller’ having given information to the police about the second offender involved in the murders of Silk and Miller. The release stated that the caller had indicated that he might be able to assist in the identification of the person responsible by providing a description of the smaller or younger of the two offenders. Subsequently on 16 July 2000, media services carried a story about the ‘subservient and younger offender’. Detective Inspector Sheridan appeared on the news and discussed the details of the investigation and a FACE image of the younger offender was shown. That image had in fact been ‘reverse engineered’ by investigators and was based upon the driver’s licence photograph of the accused, rather than on any information given by an eye witness.

The recorded conversations, captured by both the listening devices and the telephone intercepts, included conversations between the accused and Debs, between the accused and other persons, and between Debs and other persons. The prosecution case is that the conversations, in which the accused participated, constituted relevant admissions by him that are admissible under Part 3.4 of the Evidence Act 2008.[4] The prosecution also contends that the conversations, in which Debs was a party, but in which the accused was not a party, are admissible as ‘first hand’ hearsay under s 66 of the Evidence Act on the basis that Debs is available and will give evidence in the trial. For the purpose of determining the admissibility of that evidence, a voir dire was conducted, in which Debs gave evidence over a period of four days in August of this year.
[4]‘Evidence Act’ or ‘the Act’.

The prosecution has provided a list of listening device and telephone intercept recordings that are sought to be played to the jury in the course of the trial. Those recordings are referred to in various parts of the detailed summary of prosecution opening that has been filed in the case. Counsel for the accused has filed an outline of submissions identifying the recordings to which objection is taken, and the basis upon which the objection is raised.

Defence objection to admissibility of recorded conversations

In general terms, objection has been taken to the admissibility of some of the conversations in which the accused was a party on the basis either that the evidence is irrelevant, or that it should be excluded under s 137 of the Evidence Act because the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. On behalf of the accused, it is conceded that conversations, in which Debs participated, but in which the accused was not present, may be admissible pursuant to s 66 of the Evidence Act, where Debs made representations that are relevant to the issues in the case.

I note that by that concession it is accepted, on behalf of the accused, that at the time at which Debs made the representations, the facts that were contained in the representation were fresh in his memory for the purposes of s 66(2) of the Act. It is also accepted on behalf of the accused that the utterances of other persons in the course of those conversations may be necessary to give context to any representations made by Debs, or to give context to what is said by the accused, but that in considering the admissibility of those passages it needs to be borne in mind that the utterances of those third parties are not themselves admissible as ‘first hand’ hearsay under Part 3.2 Division 2 of the Evidence Act.

Prosecution response to defence objection to admissibility of recordings — general

In response to the defence outline, counsel for the prosecution has filed a detailed outline. It commenced by outlining the different bases upon which it is contended that the recorded conversations are admissible.

In particular, it is submitted that the recordings are relevant for one or more of the following purposes:

(1)they constitute direct evidence of express or implied admissions by the accused;
(2)they demonstrate the accused’s particular interest in the investigation of the Silk/Miller murders, which is relied on by the prosecution as incriminating conduct by the accused;
(3)they reveal the nature of the relationship between the accused and Debs;
(4)they reveal the falsity of the alibi upon which the accused, by notice dated 25 June 2021, has indicated that he intends to rely;
(5)they reveal the nature, quality and context of the lies that the accused told police, which are relied on as incriminating conduct, and which are otherwise relevant to the accused’s credit;
(6)revealing the depth of the accused’s animus towards the police;
(7)demonstrating the accused’s involvement in the murders.

It is convenient, at this point, to consider the third basis upon which the prosecution seek to adduce some of the recordings in question, namely, that they reveal the nature of the relationship between the accused and Debs. In that respect, it is submitted by the prosecution that the recordings reveal a number of relevant features of the relationship between the accused and Debs, namely: the absence of any power inequality between them; the significant periods of time that they spent together; the fact that they shared a number of confidences with each other; their persistent and continuing interest in the police investigation; their common antipathy towards the police; their shared interest in firearms; and their ‘mutual camaraderie and humour’.

In oral argument, senior counsel for the prosecution accepted that evidence, at the time of the recordings, of the relationship between Debs and the accused, would not be probative of the issue whether the accused was present at, and criminally involved in, the murder of the two police members. Rather, it was submitted, the evidence concerning the ongoing relationship between Debs and the accused would assist a jury to understand the relevance of lies told by the accused, in his interview with police on 25 July 2000, as to the nature of his relationship with Debs. In particular, the prosecution will rely on the accused’s statement to the police in the interview of that date that he did not associate much with the accused or Dorothy Debs, and that he never left Nicole at home and went out with Debs. The prosecution will also seek to rely on the relationship evidence as contradicting assertions made by the accused, in an affidavit that he swore on 1 June 2016 in support of a petition of mercy, in which he said that he was afraid of Debs, so much so that his fear of Debs was greater than that of his fear of the police.

In evaluating the probative value of the evidence of the relationship between Debs and the accused as revealed in the recordings that are sought to be relied on by the prosecution, it is necessary to take into account three particular considerations. First, the recordings contain conversations involving Debs and the accused some sixteen to eighteen months after the events that are in issue in the case. As such, they do not necessarily reflect, in exact terms, the nature of the relationship between Debs and the accused in August 1998. Secondly, apart from the recordings, there is a significant body of evidence that demonstrates the nature of the relationship between Debs and the accused in the period leading up to the events that are in issue in this case. In particular, the nature of the armed robberies in which the accused participated with Debs, and the manner in which he was a willing and fully committed participant in them, will provide the prosecution with strong evidence as to the nature and quality of the relationship in the critical period leading to the events with which this case is concerned. Thirdly, as I mentioned, the prosecution seeks to adduce the evidence in question primarily because (it is contended) it contradicts the statements made by the accused in his police interview, and in the affidavit, as to the nature of the relationship that he had with Debs. In the context of other evidence in the case, any such lies he told in the interview are but a minor aspect of the incriminating conduct relied on by the prosecution. Indeed, I would anticipate that the jury might, in any event, have difficulty excluding, as a reasonable hypothesis, that, at that time, the accused lied to police about his relationship with Debs in order that he not implicate himself in the ten armed robberies which he had committed in partnership with Debs. Any untruths by the accused in his affidavit could not, logically, constitute incriminating conduct by him, since the affidavit was sworn many years after his conviction of the murders.

In those circumstances, the probative value of the evidence of the relationship between the accused and Debs, contained in the disputed recordings, is particularly limited in respect of the central issue in the case, namely, whether the prosecution proves beyond reasonable doubt that the accused was present at, and criminally involved in, the murders of Sergeant Silk and Senior Constable Miller.

It is also convenient, at this point, to refer to another basis upon which the prosecution seek to admit some of the recordings in question, namely, that they are relevant to the credit of the accused, or that they are relevant to the credit of the potential alibi evidence to be given by Nicole Debs.

Evidence that is solely directed to the credibility of the accused, or to the credibility of any of the witnesses to be called by the accused, and in particular Nicole Debs, is inadmissible under s 102 of the Evidence Act. As I indicated during oral submissions, the present ruling will deal solely with the admissibility of evidence to be called by the prosecution as part of its case. The question whether any particular part of a recording might be admissible, in cross-examination of the accused or Nicole Debs, if either of them give evidence, may fall to be considered in the course of the trial.

Some of the recorded conversations in question involved persons other than Debs or the accused. As it is not alleged that any of those persons were present at or participated in the murder of Sergeant Silk and Senior Constable Miller, anything said by them could not be first hand hearsay and therefore could not qualify to be admissible under any of the exceptions provided in Part 3 Division 2 of the Evidence Act. The prosecution does not seek to rely on the content of anything said by those persons as evidence of the truth of the statements made by them. In general, the only potential relevance of anything that was said by such persons would be to give context to anything that was said by the accused or (possibly) by Debs.

Section 137 of Evidence Act 2008

As mentioned, a number of the objections, that have been taken to the recorded evidence, are based on the proposition that any probative value of the evidence is outweighed by the danger of unfair prejudice to the accused, and thus should be excluded under s 137 of the Evidence Act. As the High Court has explained in IMM v The Queen,[5] in determining the probative value of particular evidence, ordinarily the Court should not take into account issues of credibility or reliability.[6]
[5](2016) 257 CLR 300.
[6]Ibid 312 [39] (French CJ, Kiefel, Bell and Keane JJ).

In determining whether, in any particular instance, the probative value of the piece of evidence in question is outweighed by the danger of unfair prejudice to the accused, it is necessary to take into account that the circumstances of this case necessarily contain a significant overlay of prejudice affecting the accused which is unavoidable. That prejudice needs to be understood and evaluated in the context in which the murders of Sergeant Silk and Senior Constable Miller occurred. At the time of the murders, Silk and Miller were conscientiously performing their duties in protecting the public, and in endeavouring to detect and apprehend the person or persons who had been responsible for a number of recent serious armed robberies. The circumstances in which they were callously murdered shocked the Victorian community, and will inevitably arouse feelings of dismay and sympathy in the eyes of the jury.

In that context, there are three aspects of additional prejudice that will necessarily arise from the evidence in the case.

The first aspect consists of the admitted involvement by the accused in the ten armed robberies that preceded the murders of Sergeant Silk and Senior Constable Miller. The fact that the accused was willingly involved in each of them will, necessarily, reflect adversely on his character. Each of the armed robberies were committed in circumstances of particular gravity. The offences were planned, they were conducted by two men who acted in tandem, they each carried loaded firearms, the premises in which they were carried out were vulnerable, and the occupants were subjected to significant levels of fear and intimidation.

As a second aspect of prejudice, the accused’s then relationship with Debs (apart from his joint involvement with Debs in the armed robberies) is apt to tempt a jury to engage in ‘guilt by association’ reasoning. It is anticipated that Debs will give evidence in the trial. If he does so, it is most probable that the jury will become appraised of Debs’ extremely serious previous criminal history. The evidence that will be adduced in the trial will demonstrate that at the time of the murders the accused had, and indeed some two years later he continued to have, a friendly relationship with Debs. A number of the recordings, which will be admitted in evidence, will amply demonstrate their shared sense of camaraderie and humour. There will be a real potential for those matters to infect the jury’s impression of the accused’s character and moral standards.

The third aspect of potential prejudice in the trial is that a number of the recorded conversations, which will be adduced in evidence, reflect adversely on the accused and on his character. Those conversations contain evidence which is relevant and probative in the trial, but it must be acknowledged that the contents of the conversations, and the manner in which the accused expressed himself, tend to portray him in a poor light.

At the trial it will be necessary for the jury to be given strict directions that it must guard against, and not be influenced by, any of those prejudicial aspects of the case. Juries are expected to abide by directions given by the trial judge. It is the long-standing experience of the courts that, ordinarily, juries are able to set aside, and not be unfairly affected by, prejudicial aspects of evidence that is adduced before them. Nevertheless, in determining the potential prejudicial effect of the pieces of evidence to which objection is taken, it must be borne in mind that any prejudice contained in them would be additional to, and would compound, the aspects of prejudice to which I have just referred, and which will affect the right of the accused to a fair trial of the charges against him. It is in that context that it will be necessary to assess the particular prejudicial potential of the pieces of evidence in question, and to determine whether such prejudice (in the context to which I have referred) outweighs the probative value of the piece of evidence.

List of recordings

The prosecution list of listening device and telephone intercept recordings, sought to be played to the jury, refers to each recording by use of serial numbers. For the purpose of convenience, in determining the admissibility of the recordings to which objection has been taken, I shall refer to the particular recordings by the same serial numbers.

I shall generally deal with the admissibility of each of the recordings, that are objected to, in their chronological order.

In addition to the recordings that are the subject of the present ruling, objection has been taken on behalf of the accused to the admissibility of other recordings on the basis that the recordings, or sections of the recordings, in question are so inaudible or unintelligible that it would not be open to the jury to find that the words spoken in them are those alleged by the prosecution. That issue, and those objections, will be considered in a further ruling after the parties have had the opportunity to consider some of the recordings which, apparently, have been enhanced. As will become apparent, the objections that are made in the present application by the accused as to the admissibility of two recordings (one part of the recording B 3 and recording B 37) will, ultimately, need to be deferred and dealt with in the course of the ruling which I shall later make about the audibility of some of the recordings.

Recording B 2

This recording comprises a conversation between Debs and the accused at Debs’ home in Narre Warren on 19 December 1999.

In the course of the conversation, Debs boasted about previous offending by him and the accused is heard to laugh at his description of it. In the voir dire, Debs gave evidence that the conversation referred to the armed robbery that he and the accused had committed at the Green Papaya Restaurant. That armed robbery, which was committed on 18 July 1998, is the subject of charge 10 on the indictment. In his evidence, Debs said that there was a woman at the restaurant who was moving around and that the accused told her to ‘shut up’. In the recorded conversation, Debs is heard to ask the accused whether he remembered the woman ‘that played around on the chairs’, to which the accused is recorded as responding ‘… (inaudible) … smashed her face’. (1.D.21 line 436).

In the course of submissions, senior counsel for the prosecution correctly acknowledged that that part of the recording is inadmissible. It has no relevant probative value, and is clearly unfairly prejudicial to the accused.

Recording B 3

Recording B 3 is of a conversation between Debs, the accused, Nicole Debs and Joseph Debs at Debs’ Narre Warren address on 23 December 1999, in which Debs described a visit which he had made to a police station in order to drop off a key for ‘KFC’.

In the course of the conversation, Debs referred to a sign, containing two posters, that he had observed out of the corner of his eye at the police station. He said ‘reward and all that shit, just two posters …’. He said that he just looked from the corner of his eye. The accused then remarked that his workmates had been talking about ‘Tynan and Eyre’, who, I interpolate, were two police officers who were murdered in Walsh Street, South Yarra on 12 October 1988. After a few further brief interchanges, the accused is recorded as saying ‘Open the fuckin [boot] ahh’. (I interpolate that there is an issue whether the accused said the word ‘boot’ in that passage). Debs responded: ‘Shit, especially in mine’.

In his evidence in the voir dire, Debs recalled that at that time he had been doing work at a Kentucky Fried Chicken restaurant and that he had dropped the key to the premises off at a police station. He otherwise had no recollection of the recorded conversation. The prosecution will lead evidence of a police officer, Senior Constable David Coverley, who was on duty at Mooroolbark Police Station on 22 December 1999, when a male wearing overalls dropped off a key for such a restaurant. Senior Constable Coverley will give evidence that at that time there was a reward poster in relation to the murders of Silk and Miller in the foyer of the police station.

On behalf of the accused, objection is taken to two passages contained in the recording. The first passage, that is the subject of objection, is at 1.D.25 line 90 to 1.D.27 line 139. That passage contains a number of interjections by the accused which are inaudible. In the audible section of it Debs (following inaudible words by the accused) stated ‘Nah nah nah nah nah nah, our friends’ and then, after further inaudible words spoken by the accused, Debs said ‘nah nah nah up on the sign. Reward and all this shit, just, two posters, pretty colours and everything’. The accused responded ‘Ya jokin’’. Debs then said that he just looked out the corner of his eye. The accused said something about bad luck, and then said that some worker mates of his had been talking about ‘in America’ and about Tynan and Eyre.

It is apparent that, in that section of the conversation, Debs and the accused made reference to the murders of Silk and Miller. However, it is submitted on behalf of the accused that a number of parts of the section of the recording, that is objected to, are inaudible, so that the section itself is largely incomprehensible. In those circumstances, it is submitted that there is a material risk that the jury will speculate as to the content of the inaudible parts of the section of the recording, in order to attempt to determine the meaning of that part of the conversation between Debs and the accused.

In response, it is submitted on behalf of the prosecution that the relevant aspect of the passage in question is that Debs described the persons, who were depicted in the posters in the police station (Silk and Miller), as ‘our friends’. In particular, it is submitted that the use by Debs of the first person plural (‘our friends’) constituted a representation by Debs that he and the accused were the two offenders, which representation, it is submitted, is admissible under s 66 of the Evidence Act.

On that basis, any probative value of the evidence, sought to be relied on, is at best slight. The fact that Debs appeared to refer to Sergeant Silk and Senior Constable Miller as ‘our friends’ could be construed in a number of different ways. It would be a matter of speculation as to whether it could be fairly inferred, from the use by Debs of the first person plural, that he thereby implicitly stated that the accused was a co-offender in the murder of the two police members. On the other hand, the proposition relied on by the prosecution invites the jury to engage in impermissible speculation. Accordingly, the evidence is not admissible.

The second passage, to which the accused takes objection, is at 1.D.30 lines 319 to 321. That passage occurred in the context of the earlier discussion about the reward poster at the police station, followed by the discussion about the murders of police members Tynan and Eyre. The prosecution submits that the remark made by the accused ‘Open the fuckin [boot’] ahh’, in the recorded conversation, amounts to the accused recounting (and joking about) what occurred during the murders of Sergeant Silk and Senior Constable Miller. It is submitted that the evidence from the scene, including evidence as to the location of persons, bullet trajectories and the like, will establish that Senior Constable Miller was at or near the boot of the Hyundai when shots were first fired. It also appears that that scenario is supported by evidence that Debs will give at trial about how the events in Cochranes Road occurred.

On behalf of the accused, it is submitted that the jury could not properly find that the accused said the word ‘boot’. It is submitted, accordingly, that any probative value of that passage is outweighed by unfair prejudice to the accused, which would arise if the jury were to speculate as to the word uttered by the accused.

It is apparent from the foregoing that the question of the admissibility of the second passage will need to be deferred until I hear argument concerning the audibility of a number of sections of the recordings, which include the section in question.

Recording B 176

Recording B 176 is of a conversation that took place on 14 January 2000 between the accused and Debs in the garage at Debs’ home in Narre Warren. The passage in the conversation, to which the accused takes objection, is at 1.D.1790 line 175 to 1.D.1791 line 228. In that part of the conversation, the accused stated how he could have ‘smashed’ a security guard who was ‘perving’ on Nicole. Debs stated that he would have put a ‘fucking gun’ in and shot him in the head. The accused responded ‘unfortunately I didn’t have … (inaudible)’.

The prosecution correctly concedes that the passage in the recording, that is objected to, is unfairly prejudicial, and the prosecution will delete that part of the recording. I agree with that concession.

The passage is taken is plainly irrelevant to the issues in the case. It is quite prejudicial. Accordingly, the passage is inadmissible and must be excluded from the recording. The balance of the recording is relevant and admissible, and no objection is taken to it.

Recording B 5

Recording B 5 consists of a conversation between Debs and the accused at Debs’ home in Narre Warren on 17 January 2000. In the conversation, the accused sought to encourage Debs to commit another armed robbery. He suggested to Debs that it ‘could be that time again’ to ‘start going back out …’.

The prosecution submits that the evidence is relevant to demonstrate the willingness of the accused to commit offences with Debs, and to demonstrate that he was prepared to make suggestions as to what to do and when the next armed robbery should occur. It is submitted on behalf of the prosecution that the conversation is indicative of the criminal relationship and the dynamic between Debs and the accused. The prosecution further submits that any prejudice which may attach to the recording is not unfair, and in any event could be sufficiently offset by appropriate judicial direction.

On behalf of the accused it is submitted that the evidence has little or no relevance to the factual issues in the trial, and that, if admitted, it would occasion unfair prejudice to the accused.

The evidence has limited, if any, relevance to the issues in the trial. The fact that the accused was prepared, in January 2000, to commit further offences with Debs, says little if anything concerning the critical issues in the trial, namely, whether the accused was present with Debs in the vicinity of the Silky Emperor Restaurant on 16 August 1998, and, if so, whether he was criminally implicated in the murders of Sergeant Silk and Senior Constable Miller. The proposition relied on by the prosecution, that the conversation is in some way indicative of the criminal relationship between the accused and Debs and the dynamic between them, is of marginal, if any, relevance to the case. As mentioned, the accused has pleaded guilty to committing the ten armed robberies with Debs in the period of five months that preceded the murder of Sergeant Silk and Senior Constable Miller. The involvement of the accused in those armed robberies, and the method by which they were carried out, is sufficiently illustrative of the relationship between Debs and the accused for the purposes of contradicting the description that the accused gave of his relationship with Debs in his police interview on 25 July 2000.

In those circumstances, the evidence, contained in recording B 5, is not relevant to any issue in the case. The evidence is plainly prejudicial to the accused. Insofar as the evidence has any probative value (which I doubt), it is significantly outweighed by the danger of unfair prejudice to the accused, and therefore must be excluded under s 137 of the Evidence Act.

Recordings B 26, VA 10, B 27

Recordings B 26, VA 10 and B 27 contain conversations between Debs and the accused which took place on the evening of 15 February 2000, while they were driving in Debs’ Holden Commodore motor vehicle.

Recording B 26 commenced at 8:48 pm. It is the prosecution case that Debs and the accused were then in the Huntingdale and Oakleigh areas. Recording VA 10 commenced at 9.15 pm in the same evening. Recording B 27 commenced at 9:25 pm. It is the prosecution case that Debs and the accused were then in the same area, near the corner of North Road and Warrigal Road, Oakleigh.

On behalf of the accused, objection has been taken to all of recording B 26, except for one passage (1.D.248 lines 50 to 61), to one passage in recording VA 10 (page 4 line 150) and to three passages in recording B 27 (1.D.257 lines 95 to 121; 1.D.259 line 211 to 1.D.260 line 275; 1.D. 261 lines 285 to 320).

In essence, each objection is made on the basis that the particular passages in the recordings are irrelevant, and are unfairly prejudicial to the accused.

On behalf of the prosecution, it is contended that the whole of the recordings are relevant for two principal purposes. First, it is contended, they contain admissions on behalf of the accused as to his presence with Debs on the night of the murders. In particular, in recording B 27, Debs is recorded as saying ‘Remember this set of lights’, to which the accused answered in the affirmative. Debs then said ‘where they flew past wasn’t it’ to which the accused responded ‘this way they flew … (inaudible) …’. Debs then said ‘Cause we came around this way’, to which the accused responded ‘we were coming that way and they flew down this … way’. In the same passage, Debs said ‘we went right, the complete back way the best way’, to which the accused responded ‘block off this, block off this’.

It is that passage that the prosecution principally relies on as an admission by the accused that he was present with Debs in the vehicle when it fled from the scene of the murders. I note that no objection is made on behalf of the accused as to the admissibility of that section of the recording at B 27.

On behalf of the prosecution, it is submitted that the key purpose of leading the entirety of recordings B 26, VA 10, and most of B 27 (including the parts to which objection is taken) is to demonstrate that when Debs and the accused held that discussion, they were near the intersection of North Road and Warrigal Road. It is submitted that the location of Debs and the accused during that conversation is established by the landmarks referred to by them in the three recordings, and the length of time over which the recordings took place.

The second basis, upon which the prosecution seeks to adduce the evidence, is to demonstrate the relationship that the accused had with Debs. In particular, the features of the relationship, that were demonstrated by the recording, include: their camaraderie; their shared use and familiarity with code words for firearms and police; frank discussion by them of sexually explicit topics (demonstrating the closeness of their relationship); and the casualness with which they discussed how they might commit further offences together.

For the reasons I have already discussed, the second basis upon which the prosecution relies — the demonstration of the relationship between Debs and the accused — would be insufficient to justify admitting any part of the recordings which would be unfairly prejudicial to the accused. Those sections would include the following. In recording B 26 (1.D.248 line 72), the accused stated ‘I’d love to hit a joint like this’. They then discuss how the premises (referred to by the accused) might be robbed. The accused and Debs then discussed a female who they observed, and made crude and sexual remarks about her and about women who were in the area. Near the conclusion of the recording, the accused and Debs then discussed the prospect of breaking into expensive vehicles at one set of premises.

As I have already discussed, evidence that Debs and Roberts, in February 2000, had a close and friendly relationship, and that they contemplated committing further offences together, is of marginal relevance in the case.

The principal, and most cogent, evidence demonstrating that relationship is the admitted participation by Roberts with Debs in the commission of ten serious armed robberies in the period of six months leading up to the murders of Sergeant Silk and Senior Constable Miller. On the other hand, the crude manner in which Debs and the accused referred to females who they observed, and the accused’s willingness to continue to participate in the commission of criminal offences with Debs, is plainly prejudicial to him. I do not accept the proposition, advanced on behalf of the prosecution, that any such prejudice would be subsumed within the larger prejudice accruing to the accused by reason of his participation in the ten armed robberies. Rather, the additional prejudice is capable of compounding the prejudice, which already will inevitably attach to the accused by reason of his participation in those armed robberies and the other matters to which I earlier referred. The fact that the accused will be subject to such prejudice does not licence the admission of other prejudicial material, unless the probative value of it outweighs the prejudice. Any probative value, that the evidence, sought to be adduced on behalf of the prosecution, might have in demonstrating the ongoing relationship between Debs and the accused, would be outweighed by the prejudice attaching to the accused arising from those sections of the conversations.

The primary basis upon which the prosecution seeks to adduce the whole of the three recordings, is to demonstrate the location of the accused and Debs when, at the commencement of recording B 27, Debs said ‘remember this set of lights’ and he and the accused then discussed past events which had occurred at them.

It is on that basis that the prosecution seeks to adduce a substantial part of recording B 26 because, it is contended, it implies that Debs and the accused were then in the St Kilda area. That inference is based on the reference by Debs and the accused to sighting street workers, an adult shop and a police station, which, it is submitted, is consistent with their presence in St Kilda at that time.

On that basis, that evidence is of limited probative value. Insofar as the prosecution seeks to prove that, at the time of the conversation contained in recording B 26, the accused and Debs were then in St Kilda, senior counsel for the accused noted that the defence is prepared to concede that, in general terms, in the course of the conversation, Debs and the accused referred to street workers and the like. I should also observe that, if it were established that they were then in St Kilda, that would not demonstrate that Debs and the accused were subsequently near the intersection of North Road and Warrigal Road at the time at which Debs said to the accused ‘remember this set of lights’ at the commencement of recording B 27. Further, and in any event, a number of other sections of recording B 27, which are not the subject of objection, contain references to premises which might assist the prosecution to identify the location of Debs and the accused when the conversation, contained in recording B 27, commenced. In particular, in the conversation they referred to ‘Tempo Karate’ at about 9:29 pm, to ‘Purple Garden’ at 9:32 pm, and subsequently to a meditation centre. Those three landmarks are more relevant, because they are in the vicinity of the intersection of North Road and Warrigal Road.

For those reasons, I uphold the objections that are made to the admissibility of the whole of recording B 26 (apart from the passage not objected to — 1.D.248 lines 50 to 61). For the same reasons, I also uphold the objections to the three specified passages contained in recording B 27 (namely, 1.D.257 lines 95 to 121; 1.D.259 line 211 to 1.D.260 line 275; and 1.D.261 lines 285 to 320).

As noted, recording VA 10 commenced at 9:15 pm. At that time, the conversation appears to have occurred in circumstances in which the accused and Debs were driving around looking at sites which, presumably, might have been appropriate locations for burglaries or other criminal activity. Some parts of the recording are almost inaudible, and the quality of the recording overall is poor. The accused has only taken objection to one small part of the conversation (transcript page 4 line 150). That part of the conversation occurred when Debs and the accused appear to have observed some female footballers who were training in a park, and about whom Debs made a vulgar remark. The accused responded ‘I’d never let my missus do that mate, go and do that’. The prosecution correctly accepts that the objection to that passage is valid. It is irrelevant and prejudicial.

Recording B 30

Recording B 30 comprises a conversation between Debs, the accused and Nicole Debs at the accused’s home in Merrijig Avenue, Cranbourne on 17 February 2000.

In the conversation, the accused and Debs discussed the prospect of committing a theft or robbery of a sum of money. In the course of the conversation, Debs told the accused that he knew of a house where $40,000 was taped behind a cupboard.

The prosecution seek to adduce the conversation as an example of the accused remaining an enthusiastic proponent of committing crimes with Debs, including crimes that might involve the use of violence. In particular, it is submitted that the conversation demonstrates that Debs and the accused ‘shared equality of power in their friendship’, notwithstanding their age difference, and the fact that Debs was the father of the accused’s girlfriend Nicole. It is submitted that the recording belies any suggestion there was any reluctance or reticence by the accused to participate in armed robberies, or that his attitude to such a participation changed after the murders had occurred.

For the reasons that I have already discussed, the evidence is irrelevant. The fact that the accused might have been a willing participant in the commission of further crimes, some eighteen months after the events that are the subject of this case, has little if any relevance and probative value in respect of the issues which the jury will need to determine in the present case. On the other hand, the evidence reflects poorly on the accused, and is thus of significant prejudicial potential. If it is at all relevant, such probative value is substantially outweighed by its prejudicial potential.

Accordingly, recording B 30 is inadmissible.

Recording B 36

Recording B 36 contains another conversation between Debs and the accused on 19 February 2000 at about 2:00 pm at the accused’s premises at Merrijig Avenue. In the course of the conversation the accused, without prompting, instigated a discussion proposing a criminal enterprise with Debs. The accused said ‘I need three grand, I’m gonna have to move it, baby’. He then discussed doing a ‘carjacking’, bringing the vehicle back to his house while his mother was at the races, removing the engine from the vehicle and selling it. In the course of the conversation, Debs observed that ‘we could bash’ a few [people], to which the accused is recorded as responding ‘If I have to, I’ll do a carjack and bring the car back to my house’.

The prosecution seeks to rely on that conversation as further evidence demonstrating the relationship between the accused and Debs. In particular, it is submitted, it reveals that the accused was prepared to propose further offending to Debs in jocular terms, that he was prepared to explain his financial motive for doing so to Debs, and that he felt free to share with Debs his ‘mood’ to offend.

For the reasons which I have already explained, the fact that in February 2000 the accused was an enthusiastic proponent of committing further criminal offences with Debs has little, if any, relevance to the issues in the trial, but would be unfairly prejudicial if it were admitted in evidence. Accordingly, the evidence must be excluded under s 137 of the Evidence Act.

Recording B 37

Following the conversation that is contained in recording B 36, Debs and the accused continued to talk to each other. At about 2:45 pm, Debs said ‘Well, if there’s any stuff in St Kilda after 12 o’clock we can get it. We’ve got to watch Ds’. The prosecution contend that the accused then responded ‘I kill Ds’. Debs then stated: ‘Yeah, I know. I’ll do more than that’.

Objection is taken to that passage in the recording on the ground that it is not properly audible. It is common ground that the admissibility of the passage will depend upon the ruling that I make in respect of its audibility.

Recording B 54

Recording B 54 consists of a conversation between Debs and his stepfather Malik on 30 March 2000 at Debs’ home in Narre Warren. In the course of the conversation, Debs and Malik appear to discuss the police investigation of the murders. Debs said that the police had little if any evidence of his involvement, and, at one point in the conversation, he said ‘I’ve been thinkin’ I have to get rid of another two [police]’. He said ‘it has to be done’. At that point, Malik said to Debs ‘You don’t know … without Jason. Don’t trust him. Keep away from him’.

On behalf of the accused, objection is taken to the admissibility of the passage in the conversation (1.D.428 line 394 to 1.D.429 line 415) in which Malik seems to warn Ben not to trust ‘him’ (presumably the accused) and a second passage (1.D.429 lines 441 to 448) in which Malik expressly warned Debs not to trust the accused.

It is accepted by the prosecution that the first passage is inadmissible. In its written outline, the prosecution submitted that the second passage is relevant because it reveals that Debs, by the time of the recordings, had spoken to Malik about the Silk/Miller murders and the accused’s involvement in them. It is submitted that Malik’s warning to Debs, not to trust the accused, proves that a previous representation had been made by Debs to Malik that the accused had participated in the Silk/Miller murders.

On that basis the objection taken to those passages in the recording is sound. Malik’s recollection of whatever Debs might have told him, and the question of whether Malik did or did not trust the accused, has no relevance to the issue whether the accused was criminally involved in the murders of Sergeant Silk and Senior Constable Miller. As I have already discussed, anything said by Malik in those conversations about what Debs had said to him is second hand hearsay, and therefore could not be admitted under any exception contained in Part 3 Division 2 of the Evidence Act. If the evidence were admitted, it would do no more than invite impermissible speculation by the jury and would be prejudicial.

In oral submissions, the position taken by the prosecution was refined. It was submitted that the passage in question is relevant in order to identify the accused as the person about whom they were speaking in an earlier passage in the recording. In that passage, Debs is recorded as saying that the person in question (that is the accused) ‘doesn’t know what to do about anything, he just wants to get some money from the building sites cause he’s used to money’.

I reject that submission. First, the passage on which the prosecution seems to rely — that the accused just wanted money from building sites — is irrelevant to the issues in the trial. Further, the fact that, in a passage shortly after it, Malik referred to the accused does not necessarily mean, in any event, that Debs was then referring to the accused as a person who wanted money from building sites. Thirdly, any slight probative value of the evidence is significantly outweighed by its obvious prejudicial potential.

For those reasons, the two passages contained in recording B 54, to which objection is taken, are inadmissible.

Recording B 64

Recording B 64 is of a conversation between Debs, the accused and Nicole Debs at the accused’s home in Merrijig Avenue, Cranbourne on 2 May 2000.

On the previous day, 1 May 2000, police investigators attached to the Lorimer Taskforce, wearing police uniforms and driving a marked police car, had intercepted the accused and Nicole Debs while they were driving the Hyundai vehicle on the Narre Warren/Cranbourne Road in Cranbourne. The police told the accused and Nicole Debs that it was a routine intercept, as the police were looking for a 1997 model Hyundai vehicle in relation to the murders of two police members. After the intercept, the accused and Nicole Debs were permitted to proceed on their way.

In the recorded conversation on 2 May 2000, the accused, Nicole Debs and Debs discussed the police intercept that had occurred the previous day.

Apart from one short passage, counsel for the accused does not object to the admissibility of the conversation. The passage, that is objected to, is at 1.D.541 lines 364–5 in which the accused, referring to one of the policemen, said: ‘He reminded me of a cunt of the … (inaudible) … you know that copper that fuck head?’

That passage is objected to on the grounds that it has no probative value as it is uncertain to whom or what the accused was referring.

In response, the prosecution has clarified, that, in the passage to which objection is taken, the accused said ‘he reminded me of that cunt off the Simpsons, you know the copper that fuck head’. Based on that clarification, the prosecution has correctly conceded that the objection is valid, and the prosecution will redact that passage from any material that goes before the jury.

Recording B 65

Recording B 65 is of a conversation between Debs and the accused later on the same day, 2 May 2000, while they were driving together in Debs’ Commodore.

In the course of the conversation, the accused and Debs talked about an unrelated incident, in which a person had fired a shot or shots at police who were from the Cranbourne Station. The accused spoke disparagingly of the police officers, describing them as ‘two fat wankers’ and saying ‘they’re all girls’. Later in the same conversation, the accused, referring to the police who had intercepted him on the previous day, said ‘I want to get that cunt, I’m fuckin’ stressed about it. Ya know what he was doin’ the cunt, askin’ me can I check in the car right’.

Objection is taken to that passage on the basis that it has little or no probative value, and any probative value of the evidence is outweighed by its prejudicial effect.

In response, it is contended on behalf of the prosecution that the recording is an example of Debs and the accused discussing their shared interest in firearms, and it involved the accused freely discussing with Debs using a firearm against police, which (it is submitted) is indicative of his deep loathing of them. It is conceded that the recording, standing alone, may have little probative value. However, it is contended, when taken in conjunction with repeated utterances of hostility towards the police, recording B 65 is evidence of the accused’s hatred of police, and that he freely discussed it with Debs.

At its highest, the evidence demonstrates that the accused, more than twenty months after the event that is the subject of this case, was contemptuous of police, so much so that he had no sympathy for two police members who had been fired at in the unrelated incident. That evidence has little, if any, probative value. The prosecution case, against the accused, is that he and Debs murdered Sergeant Silk and Senior Constable Miller, in order to avoid being detected while preparing to commit an armed robbery on the Silky Emperor Restaurant, and thus to avoid being implicated in the ten armed robberies in which the accused and Debs had participated together. In that context, the evidence that the accused, some twenty months after the event, harboured hostility and contempt for police, is of little, if any, probative value to the central issue in the case, namely, whether the prosecution can prove beyond reasonable doubt that the accused was present with Debs at the police interception on 16 August 1998, and that he was criminally involved in the murders of Sergeant Silk and Senior Constable Miller after that interception.

It is also submitted on behalf of the prosecution that the passage in question is relevant to the jury understanding what the accused meant, at the end of the passage, when he said ‘I want to get that cunt, I’m fuckin’ stressed about it. ‘Ya know what he was doin’ the cunt, askin’ me if I can check in the car right’. It is submitted that, in the context of the conversation, the accused was stressed about being linked to the Hyundai vehicle when the police had intercepted him, and thereby it linked with the murders of Sergeant Silk and Senior Constable Miller.

I do not accept that submission. That line of reasoning would necessarily involve the jury engaging in a significant degree of speculation to infer, from the accused’s brief remark, that he thereby impliedly admitted his guilt to the murders, because for some reason he was stressed about the police checking his vehicle. Accordingly, the evidence lacks probative value on the basis contended for on behalf of the prosecution.

On the other hand, the evidence is plainly prejudicial to the accused. Any probative value of the evidence is limited, and would be significantly outweighed by its prejudicial potential. It is therefore inadmissible.

Recording B 67

Recording B 67 is of a conversation between the accused and Debs at the accused’s Cranbourne home on 4 May 2000. In the course of the conversation, the accused said to Debs, ‘It’s time for a job Ben’. Debs responded ‘What job? Bang bang’, to which the accused responded ‘Yeah’. Debs declined the suggestion, stating that ‘it’s so hot you wouldn’t believe’, to which the accused responded ‘I know, I know’.

The prosecution seek to rely on that conversation as demonstrating that, despite the media attention at the time, the ongoing investigation and the interception by police only three days earlier, the accused again had the impetus to encourage Debs to engage in further violent offending with him. It is submitted that the evidence demonstrates the true nature of the relationship between the accused and Debs, with the accused proposing a further crime to Debs, and Debs implicitly understanding that would involve the use of firearms.

On behalf of the accused, objection is taken to the recording on the basis that it has little or no probative value, which is outweighed by its prejudicial effect.

For the reasons that I have already discussed, the fact that the accused, twenty months after the murders of Silk and Miller, was disposed to encourage Debs to engage in further violent offending with him, is of little if any probative value in the case. That fact does not rationally add to the probabilities that the accused was present at, and criminally implicated in, the murders of the two police members some twenty months earlier. The involvement by the accused in the ten armed robberies, that had preceded the murders, is sufficient evidence of the accused’s willingness to engage in violent criminal offending with Debs at and close to the time of the two murders. The evidence of his later willingness to continue to participate in that offending adds little, if anything, to the probative value of his involvement in the ten previous armed robberies. On the other hand, it does add to the prejudice that inevitably will flow to the accused as a result of the jury’s knowledge of his involvement in those ten armed robberies, and also by reason of the other matters to which I earlier referred.

In those circumstances, the evidence that comprises recording B 67 is irrelevant, and any limited probative value which it might possibly have is significantly outweighed by its prejudicial effect. Accordingly, it is inadmissible.

Recording B 83

Recording B 83 is of a conversation between the accused, Nicole Debs and Debs on 14 May 2000.

In the conversation, Debs referred to the possibility that he might ‘put the car through the door’ of some premises. The accused said that he was ‘half looking forward’ to that, and he explained to Nicole that it was a ‘ram-raid’, in which they would ‘drive straight through a shop front window’ in order to remove tools from the premises.

Objection is taken to the admissibility of that evidence on the grounds that the discussion of potential future criminal offending between Debs and the accused is irrelevant and prejudicial.

On behalf of the prosecution, it is submitted that the recording is probative of the accused’s relationship with Debs, in which the accused discussed and asked about proposed offending, and accosted Debs for being late. It is submitted that the recording is a brief example of the ‘egalitarian nature’ of their relationship, and that it bears on Nicole Debs’ understanding of her father’s and partner’s criminal conduct. Thus, it is submitted, the evidence is also relevant to an assessment of her credibility.

For the reasons that I have discussed, the objection to the evidence is valid. Evidence that the accused, some twenty-one months after the murders of the two police members, was an enthusiastic participant in conversations with Debs, in which they discussed potential future criminal offending together, has little or no probative value in respect of the issues in the trial. Any such probative value is significantly outweighed by the prejudicial effect of that evidence. As I have already explained, contrary to the submission by the prosecution, that prejudice might not be subsumed in the broader prejudice that is necessarily inherent in the proof of the ten armed robberies in which the accused had participated. Rather, it is capable of compounding the prejudice that would accrue to the accused, and that would undermine his right to a fair trial.

As I have noted, it is also submitted on behalf of the prosecution that the recording is relevant because it evidences Nicole Debs’ knowledge of the criminal conduct of her father and her partner (the accused). Accordingly, it was submitted, the evidence contained in recording B 83 will enable the jury to understand and evaluate the involvement that Nicole Debs subsequently had in family discussions concerning the whereabouts of the accused at the time of the murders.

The proposition thus relied on by the prosecution does not, of course, support the admissibility of the evidence as part of the prosecution case. In essence, the prosecution submission, in that respect, rises no higher than a contention that recording B 83 reflects on the credibility of Nicole Debs’ evidence as a potential alibi witness. On that basis, the evidence is inadmissible pursuant to s 102 of the Evidence Act.

Accordingly, the evidence contained in recording B 83 is inadmissible.

Recording B 84

Later on the same evening, Debs and the accused were driving in the Commodore vehicle reconnoitring burglary sites. In the course of the conversation, the accused, apparently referring to a firearm, said ‘It looks funny on the Harry, but, a snub nose’. A little later in the conversation, Debs said ‘… I love going past the police station’ to which the accused responded ‘… (inaudible) … streets, right, I hate the cunts. I want to … (inaudible) … this joint up’.

Later, as they continued to drive, Debs said, ‘… fuckin’ good cops? Cops?’ to which the accused said, ‘Love to have a three O mate. Straight through the back window’. Debs then said, ‘I’d like to put a three O into the helicopter. Oh, don’t, don’t, you’d never hear the end of it’. The accused then responded, ‘Would they find out, you reckon? What did it?’

Objection is taken to the admissibility of the evidence on the ground that it has no probative value, and any possible probative value is outweighed by its prejudicial effect.

On behalf of the prosecution, it is submitted that the recording is probative of the relationship between the accused and Debs, and of the accused’s animosity towards police. In particular, it is submitted that the conversation ‘evidences the egalitarian and cooperative nature’ of the relationship that the accused had with Debs, with the accused willingly pointing out potential targets. Further, the reference by the accused to a three ‘O’ is a reference to a .303 rifle, which, it is submitted, is relevant in that the accused stated that he would ‘love’ to have one to fire at police. Thus, it is submitted, the recording further demonstrates the accused’s animosity to police which he expressed in violent terms.

On that basis, the evidence does no more than demonstrate, first, shared antipathy by Debs and the accused to the police, and, secondly, their preparedness to continue to engage in criminal activity together. For the reasons that I have discussed, neither of those facts have probative value in respect of the issues that the jury must determine in the trial. The fact that Debs and the accused were particularly hostile to police, some twenty-one months after the events that are in issue in this case, has limited, if any, probative value, particularly in view of the fact that the prosecution alleges an entirely different motive for the murder of the two police members. Further, evidence as to the relationship between Debs and the accused, in May 2000, adds little, if anything, to the proof of the nature of that relationship at the time that the two police members were murdered in August 1998. On the other hand, the evidence is significantly prejudicial. Any possible probative value of the evidence is significantly outweighed by its prejudicial potential. Accordingly, the evidence is inadmissible.

Recording B 105

Recording B 105 contains a conversation between Debs and his wife Dorothy on 5 June 2000 at their Narre Warren home.

In the conversation, Debs told his wife that, while he was doing some tiling work in a job in which he was engaged, some ‘CPs’ (police) came. Dorothy Debs remarked that Debs would be ‘on the top of their list’. Debs agreed, but then said that he had never done anything wrong. After he and Dorothy were in heated agreement about that point, Dorothy then said:

I hope Ben, no ah yeah with the water, but the only details of, of who killed, of who killed them all. Who did it and mixed all the drugs. Ben. Cause tomorrow they’ll all be killed.

There then followed some inaudible conversation, at the conclusion of which Debs said ‘Anybody who comes in here doesn’t know Jason’. (There is an issue with as to whether the word expressed by Debs was ‘Jason’.) Dorothy then responded ‘I know that …’.

Objection is taken to that passage on the basis that it does not include any previous representation by Debs that is relevant to the proceeding.

On behalf of the prosecution, it is pointed out that the conversation occurred in the context of a media release, which had been made one week earlier (on 29 May), and which stated that an anonymous caller had contacted police and referred to a ‘smaller’ offender. At that time, there was also media reporting of a raid on St Kilda Police Station. Following the media release, the accused and Debs had engaged in discussions about that ‘anonymous witness’ and about other matters reported in the media about the investigation. It is submitted by the prosecution that, in that context, the jury could conclude that Debs’ words, in the recording, conveyed that if the police, investigating the murders, were to attend their home, no-one was to say that they knew of the accused. It is contended that that remark by Debs is probative of Debs’ state of mind; namely, that it was important to prevent the accused coming to the attention of the police.

I do not accept that submission. Evidence as to the state of mind of Debs is not relevant to any issue in the case. It would seem that, in reality, the prosecution seeks to rely on the contested remark made by Debs to Dorothy — ‘anybody who comes in here doesn’t know Jason’ — as containing some implied representation by Debs about the involvement of the accused in the murder of the two police members. That reasoning by the prosecution is tenuous. There could be a number of reasons why Debs, who was then under suspicion, might have wished to disassociate himself from the accused. The question why he was of that state of mind would do no more than invite impermissible speculation by the jury.

For those reasons, the evidence is inadmissible.

Recording B 113

Recording B 113 is of a conversation between Debs, the accused and Nicole Debs at 12:40 am on 11 June 2000 at Debs’ home in Narre Warren. In the course of the conversation, the accused said ‘We’ll drive past that factory and see what happens’. Debs said ‘We’ll just see if CPs were there’. After a further exchange, the accused said ‘We’ll kick the fuck out of them, push the baton in her arse and make her whoo’.

On behalf of the accused, it is submitted that any probative value of evidence of animosity by the accused towards the police is slight, as the conversation occurred some two years after the shootings, and also in view of the motive suggested by the prosecution for the shootings. It is submitted that any probative value of the evidence is outweighed by its prejudicial effect.

In oral submissions, the prosecution accepted that the evidence contained in recording B 113, is inadmissible. That concession is correct. The probative value of the evidence, constituted by recording B 113, is, at most, slight, and any probative value of that evidence would be substantially outweighed by its prejudicial effect.

The evidence is therefore inadmissible and must be excluded.

Recording B 116

Recording B 116 is of a conversation between Debs, the accused and Nicole Debs on 14 June 2000 at the accused’s home in Cranbourne. Earlier on that date, Debs had happened to meet Detective Sergeant Dean Thomas in a shop in Berwick. They had a conversation, prompted by Debs, in which he raised the murders of Silk and Miller. Later, Debs reported to the accused and Nicole Debs the content of that discussion. That part of the recording is not objected to, and is relevant and admissible.

After that part of the discussion, Debs and the accused spoke about the possibility of ambushing Thomas. Debs said it would be interesting to know where Thomas lived, and whether he was living very close to the shopping centre. The accused said, ‘I’d love to know’, to which Debs responded ‘Oh yeah and get him’. The accused then said ‘If you saw what car he got into or if you got into a car or something’. That passage is at 1.D.985 lines 140 to 166. It is objected to on the basis that it is irrelevant

The prosecution seek to rely on that part of the recording as further evidence demonstrating the joint antipathy of Debs and the accused to the police, and the lengths they were contemplating to frustrate the investigation.

As I have already explained, the evidence of the joint antipathy by Debs and the accused to the police is, at most, of little probative value. The short discussion between them about causing harm to Thomas is some evidence of the concern of one or both of them about the investigation. However, the probative value of that evidence, in establishing that the accused was criminally involved in the murders of Sergeant Silk and Senior Constable Miller, is, at most, limited. On the other hand, the prejudicial potential of the evidence is quite significant, particularly in view of the issues in the case.

For those reasons, any limited probative value that the evidence might have is substantially outweighed by its prejudicial potential. Thus, the part of recording B 116, at 1.D.985 lines 140 to 166, is inadmissible.

Recording B 120

Recording B 120 is of a discussion between Debs and his daughter Joanne on 15 June 2000 in their Narre Warren home, in which Debs referred to his chance meeting with Detective Sergeant Thomas of the Lorimer Taskforce on the previous day. He recounted to Joanne the conversation that he had with Thomas, in which he had asked Thomas if they had caught the people who had killed the police, and in which he had also asked Thomas about the Hyundai. At the conclusion of the discussion (with Joanne), Debs inferred that Thomas then lived in Berwick, and said ‘That will be easy’. He then went on to say ‘I’ll have to get rid of him’. After some interjections from Joanne, he said ‘No I, I think I’ll have to … find out where he lives and kill him’.

On behalf of the accused, objection is taken to the passage relied on by the prosecution on the basis that it contains no clear previous representation by Debs of a material fact in the case. Further, it is submitted that insofar as the prosecution might seek to rely on the fact that Debs referred to the offenders in the plural, that was explicable by the fact that, on 29 May 2000, the police had issued a media release which specifically referred to there having been two offenders involved in the murders of Sergeant Silk and Senior Constable Miller.

In response, it is submitted on behalf of the prosecution that the fact that, on a number of occasions in the course of the conversation, Debs used the plural in referring to offenders when he spoke to Joanne, constitutes a representation by him that there was more than one offender involved in the murders of Sergeant Silk and Senior Constable Miller.

In determining the potential relevance and probative value of the recording, it is important to bear in mind that, in the passages on which the prosecution seek to rely, Debs was describing to his daughter Joanne what he had said to Detective Sergeant Thomas. It was in that context that Debs referred to the offenders in the plural. For example, he told Joanne that he had said to Thomas ‘Have you caught those pricks who um killed the cops’. As counsel for the accused have noted, the conversation between Debs and Joanne took place a little over two weeks after the publication by police of the media release which specifically stated that two offenders had been involved in the murders of the police members. In that context, I am not persuaded that the conversation, contained in recording B 120, has any probative value. In particular, it did not contain any relevant representation by Debs that might be admissible under s 66 of the Evidence Act.

Accordingly the evidence contained in recording B 120 is inadmissible.

Recording B 126

Recording B 126 is of a conversation between the accused and Debs at approximately 8:45 pm on 7 July 2000 while they were driving together in Debs’ Holden Commodore.

It appears that Debs and the accused observed the aftermath of an accident which police were attending. Debs and the accused began to speak about police in a disdainful manner. The prosecution alleges that in doing so they engaged in a crude and callous re-enactment of the intercept that had occurred on Cochranes Road in the early morning of 16 August 1998, in which Sergeant Silk and Senior Constable Miller were murdered. The prosecution contends that the conversation amounts to an admission by the accused that he was present at, and involved in, the murders.

The conversation included the following:

Debs:Oh, an accident. Look, ya know ya just stop with boom, boom.
The accused:   Yeah say, excuse me, yeah mate I. Bang! Bang! Suck on that cunts (laughs).
Debs:I tell ya what it’d be on for young and old wouldn’t it? They’ll be going ballistic if it happens again. They’ll go fucking ba — I wonder if they go through checkin all the people who, from last time? … Fuck it they’re still there. What, Subarus are up and down here?.
The accused:   Yeah WRXs I seen one. Little cunt.
Debs:A grey one?
The accused:   Yeah, I’ll shoot the fuck out of him.

Objection is taken to the admissibility of that evidence on the ground that it has little or no probative value and that any probative value is outweighed by the prejudicial effect of the conversation. Counsel submitted that it is a matter of speculation whether, in that conversation, Debs and the accused were referring to the murders of the two police members. In particular, it was submitted, such a conclusion would involve reverse logic, with the jury working backwards from a presumption of guilt to infer that in the conversation the accused did refer to the murders.

The question, which I must determine, is whether it would be reasonably open to the jury to find that, in that conversation, the accused, in some way, admitted that he had been present at and involved in the murders of Sergeant Silk and Senior Constable Miller.

While the matter is not entirely straightforward, I do not consider that a jury could properly infer, from the passage of the conversation in question, that the accused was in some way not only referring to the murders of Silk and Miller, but impliedly admitting that he was present at and involved in those murders. Each interjection by the accused in the conversation was expressed in the present tense. The only reference to the past was by Debs, when he said ‘They’ll be going ballistic if it happens again’. The two interjections by the accused, that followed that remark by Debs, were each again expressed in the present tense. There is, in my view, force in the submission made by senior counsel for the accused that any conclusion to that effect by the jury may well involve a form of reverse logic, with the jury proceeding from a presumption of guilt in order to infer that, in the course of the conversation, the accused was, in some way, referring to and admitting his involvement in the murders.

For those reasons, the evidence is not capable of having any probative value in the case. On the other hand, if it were admitted in evidence, it would be unfairly prejudicial to the accused. His reference (in the present tense) to shooting the police, and the terms in which he expressed that sentiment, have the potential to induce the jury to engage in impermissible propensity reasoning. Thus, any probative value of the evidence is well outweighed by its prejudicial potential.

Accordingly the evidence contained in recording B 126 is not admissible.

Recording B 135

Recording B 135 contains a conversation between the accused, Nicole Debs, and the accused’s mother Marina Roberts, at about 5:30 pm on 17 July 2000 at the accused’s house in Cranbourne.

It will be recalled that, on the previous day, the police had released a FACE image of the young offender who, it was alleged, was involved in the murders. In fact it depicted the accused. Detective Inspector Sheridan had told the media that the photograph image of one of the suspected killers was ‘the best clue we have in the case’.

That publication stimulated a conversation between the accused’s mother and the accused, and subsequently between the accused, Debs and Nicole Debs, on the evening of 16 July, which is contained in recording B 131. The admissibility of that conversation is not in dispute.

In the recording B 135, the conversation between the parties concerned how the accused should respond to the police if they should come to speak to him. The accused’s mother, and the accused, both discussed that the accused should go to the police station and deny that the photograph depicted him. In the course of the conversation, Marina Roberts stated that she believed that the police knew about how and where the shots had been fired. Nicole Debs said there were no bullet holes in the vehicle. The accused said that if he had done ‘it’, he would be halfway across the Pacific Ocean living in a backpackers’ residence.

Objection is taken to the admissibility of three parts of the recording. The prosecution has conceded that the parts should be deleted from the recording. For the reasons that follow, I agree with that concession by the prosecution.

In the first part (1.D.1117), the accused said words to the effect: ‘They’ll put me in the fucking pen. Cause that’s bullshit if some smart, if I find out if some cunt has been talking to em … (inaudible) … I’m going to fucking smash them’. He went on to state ‘the fucking thieving shit mate … (inaudible) If they knew a thing … (inaudible) That’s fucking bullshit … (inaudible) …’.

Objection is taken to that part of the recording on the basis that it is not relevant and is prejudicial. While it is difficult to understand what the accused was saying at that point, the threat made by the accused to ‘smash’ some person who might have been ‘talking to em’ is of no relevance, and is prejudicial.

The second part of recording B 135, to which objection is taken, is the first line on 1.D.1122. In the course of some further conversation which is quite difficult to follow, the accused said, ‘Fuck it. I feel like smashing some cunt, mate’. Plainly, that evidence is irrelevant, and is prejudicial.

The third part of recording B 135, to which objection is taken, is a passage at 1.D.1127. In the conversation that preceded that passage, the accused’s mother encouraged the accused to contact the police and speak to them. A person called Robert then interjected ‘Don’t go in with guns blazing, otherwise you’ll … (inaudible) … straight against the wall’. Clearly, that interjection is not admissible against the accused. It is irrelevant. It is also quite prejudicial.

Recording B 138

Later on the same day (17 July 2000), the accused, Debs, Nicole Debs, Malik Debs (Debs’ stepfather), Dorothy Debs and Michael Debs discussed what the accused should do about the FACE image, and what he should say to the police. Objection is taken to four passages contained in that recording. The prosecution has correctly accepted that those passages are inadmissible. For the reasons that briefly follow, I agree with that concession on behalf of the prosecution.

The first passage, to which objection is taken (1.D.1193 lines 127 to 128), occurs in an exchange between the accused and Malik. In the course of that exchange, the accused said: ‘I used to get called Agro. You know Agro on cartoons. I used to get called Agro because of that. I can get picked out and that’s it’. That passage is not relevant to any of the issues in the case. It is, to some extent, unfairly prejudicial for the accused. It is not admissible.

The second passage, in recording B 138, to which objection is taken, is at 1.D.1195 line 193 to the end of the first sentence on line 198. In that passage, the accused referred to being stressed, and stated ‘I’ll go through the cunt’. He also referred to the fact that his mother was ringing ‘Bernie’, her solicitor, about the photograph being in the newspaper. That passage is of no probative value. The threat by the accused to ‘go through’ someone is prejudicial. The passage objected to is inadmissible.

The third passage, in recording B 138, to which objection is taken, is at 1.D.1209 lines 837 to 865. In the course of that passage, the accused, after uttering an obscenity, said that if he was placed under arrest, he would ‘go smack and punch them out’. That passage has no probative value in the case. It is prejudicial. It is inadmissible.

The fourth passage, in recording B 138, to which objection is taken, is at 1.D.1210 line 877. Immediately before that passage, the accused stated that he said that if he were arrested he would try to contact Bernie (the solicitor). Malik interposed ‘you can … (inaudible) … cause they’re not gonna find out’. It is not alleged that Malik was present at the scene of the crime. Anything said by him is, at best, second-hand hearsay, and more probably a matter of speculation and inference by Malik. That part of the recording is inadmissible.

Accordingly, the conversation contained in recording B 152 is inadmissible.

Recordings B 156, B 157

Recording B 156 is of a further conversation that took place between Debs, his wife Dorothy, and four of his children, Joanne, Kylie, Michael and Joseph, on the following day, 20 July 2000 at 5:25 pm at Debs’ Narre Warren home. On that day, when Debs was not at home, the police had attended to ask questions of other members of the Debs family. The questions concerned the accused, and in particular whether he had an alibi. When Debs returned home, Dorothy, in the presence of the members of her family to whom I have referred, recounted to Debs what she had told the police. That conversation is contained in recording B 156.

The conversation contained in recording B 157 commenced about one hour later at 6:24 pm on the same evening. The parties to the conversation were Debs, his wife Dorothy, and his children Joanne, Kylie and Joseph. In that conversation the parties continued to discuss the accused’s alibi. In both conversations, Debs expressed particular concern about what he understood the accused had said to the police. The second conversation concluded with Debs saying that he needed to speak to the accused as a matter of urgency.

On behalf of the accused, objection is taken to the admissibility of each of the two conversations on the ground that they do not include any previous representation made by Debs which might be admissible under s 66 of the Evidence Act.

In response, it is submitted on behalf of the prosecution that the recordings are relevant because they demonstrate that, following the visit by police members to the Debs house earlier that day, Dorothy and Joanne Debs told Debs what they had each said to the police in respect of whether the accused had an alibi, and Debs was concerned — to the point of panic — and arranged to speak urgently with the accused. It is submitted that, in that way, the two recordings demonstrate a pressing concern by Debs that police would discover that the accused did not have an alibi, and that anything that the police were told about the accused’s alibi might implicate himself in the offence.

It is contended that in that way the conversations are circumstantial evidence of the accused’s participation in the murders, and the concern of his co-offender, Debs, that police would become aware of it.

The objections taken to the admissibility of both recordings must be upheld. The statements made by Dorothy Debs, and other members of the family, as to what they told the police are of course inadmissible. The prosecution does not seek to rely on them for any hearsay purpose in any event. The concern demonstrated by Debs, as to what the accused may or may not have told the police, does demonstrate his then state of mind. However, Debs’ manifestation of his state of mind did not contain any material representation by him. It is a matter of speculation, and no more, as to why Debs was apparently concerned about what the accused did or did not say to the police about his alibi. The prosecution’s argument reveals the degree of speculation involved in any attempt to infer the reason why Debs was concerned. On the one hand, it is contended that Debs’ urgency and concern was that the police would discover that the accused did not have an alibi. On the other hand, it is contended that he was concerned that anything said about the accused’s alibi might implicate himself; in other words, while the accused had an alibi, Debs himself did not.

In summary, the conversations in the two recordings do not contain any admissible representation by Debs. The fact, that Debs expressed some concern about what the accused did or did not say to the police about his alibi, does not constitute evidence that is admissible against the accused.

Accordingly the conversations contained in recordings B 156 and B 157 are inadmissible.

Recording B 158

Recording B 158 is of a conversation between Debs, the accused, Dorothy Debs, Malik Debs, and Nicole, Joanne, Kylie, Joseph and Michael Debs at Debs’ house in Narre Warren.

The conversation commenced at approximately 7:45 pm on 20 July 2000. In the course of the conversation, the accused discussed what had been reported to him as occurring that day at his mother’s house, including that his mother had given the police photographs of him which had been taken during his eighteenth birthday party. In the course of the conversation, the accused said that his mother had told police that, on the night that the two police members had got shot, the accused was at Debs’ house. Nicole Debs interposed stating that in fact the accused’s mother did not say that, and that his mother had said that it was that long ago she could not remember. The conversation also contained some discussion in which those present tried to reconcile what Dorothy Debs had told the police and what the accused’s mother Marina told the police, in relation to the accused’s whereabouts on 15 to 16 August 1998.

On behalf of the accused, objection is taken to two passages contained in recording B 158. On behalf of the prosecution, it is accepted that those two passages should not be admitted in the evidence in the trial. That concession is correct.

The first passage is at 1.D.1551 lines 529 to 540. In that part of the conversation, Debs told the accused that he should get rid of the tiles that were at his house in the garage. That passage is irrelevant. Accordingly, it is inadmissible.

The second passage, contained in recording B 158, to which objection is taken, is at 1.D.1561 line 970 to 1.D.1562 line 1046. That part of the conversation principally involved a discussion between the accused and Debs that the accused should throw out boxes of tiles that were in his garage. The accused said that he would ‘pull em out’ but that he could not do it at night. That part of the conversation is irrelevant to the issues in the case. Accordingly, it is inadmissible.

Recording B 160

Recording B 160 is of a conversation on the same evening, 20 July 2000, commencing at 8:50 pm, at Debs’ home. Those who were present in the conversation were Debs, his wife Dorothy, his stepfather Malik, and his children, Nicole, Joanne, Kylie, Michael and Joseph.

In the conversation, Dorothy Debs recounted what she had said to the police, namely, that everyone including the accused, Nicole Debs and Debs himself were at home on the weekend of 15 to 16 August 1998. The prosecution contend that, in the course of that conversation, Nicole Debs and Dorothy Debs effectively rehearsed a false alibi for the accused, by suggesting that they should say that they never stayed up late and were ‘early bed people’.

On behalf of the accused, objection is taken to the admissibility of a passage at 1.D.1628 line 89 to 1.D.1630 line 139 on the grounds that the passage is not relevant.

On behalf of the prosecution, it is submitted that the passage in question is relevant to an assessment of the cogency of the alibi evidence, and to Nicole Debs’ credit. The passage in question follows a discussion in which Dorothy Debs explained to the family what she had told the police about the accused and Debs being home on the night of the murders. In response, Nicole Debs said ‘Cause dad and Jason weren’t there, they were probably, you know, organising like the money for the limos cause we were all puttin in’. It is submitted that that statement by Nicole Debs is inconsistent with the contents of the anticipated alibi evidence that has been foreshadowed by the alibi notice.

On that basis, it is clear that, as the prosecution only seeks to rely on the passage in question as being relevant to an assessment of the credit of Nicole Debs as an alibi witness. Accordingly, the evidence is not admissible as part of the prosecution case pursuant to s 102 of the Evidence Act. As discussed in the course of submissions, if Nicole Debs does give evidence at the trial, it is possible that the prosecution might be able to use parts of the recording, containing statements made by Nicole Debs, in cross examination of her. Obviously, that question may need to be revisited if the occasion should arise.

I also observe that, throughout the whole of the conversation that is contained in Appendix B 160, it does not appear that Debs made any relevant previous representation which would be admissible under s 66 of the Evidence Act. For the reasons just discussed, the comments made by other members of his family do not fall within any exception to the hearsay rule. In any event, they are not relevant. If, as contended by the prosecution, the conversation was a discussion in which members of the Debs family rehearsed a false alibi for the accused, that discussion was plainly inadmissible. The fact — if it be the case — that members of the Debs family rehearsed such a false alibi for the accused could not constitute any implied admission, or incriminating conduct, by the accused.

Recording C 75

Recording C 75 is of a telephone conversation between the accused and his mother, Marina Roberts, at 9:46 pm on 20 July 2000. It will be recalled that earlier on that date, when Debs was not at home, police had attended at Debs’ home to ask questions of other members of the Debs family.

In the conversation in recording C 75, the accused told his mother what members of the Debs family had said to police regarding his (the accused’s) movements over the weekend of 15 and 16 August 1998.

The accused told his mother that Dorothy Debs had said that he had slept at the Debs’ house. Marina Roberts said that she could not remember whether he slept at her house or the Debs’ house, but that she had said to the police it was one or the other. The accused responded that that was what Dorothy had said, because it was ‘always one or the other’.

Objection is taken to the content of the conversation on the ground that it is not relevant. It is submitted that the prosecution do not rely on any aspect of the conversation as an admission made by the accused. In the course of the conversation, the accused was not making any attempt to rehearse an account that his mother should give to the police. The accused’s mother will not be called as an alibi witness in the case. In those circumstances, it is submitted that the evidence is irrelevant. On the other hand, it is potentially prejudicial, because it may induce the jury to speculate about the reason why the accused was, at that point, speaking with his mother about his whereabouts on the night of the murders of the two police members.

On behalf of the prosecution, it is noted that the conversation in recording C 75 occurred after the conversation that is contained in recording B 158 at approximately 9:46 pm on 20 July 2000. It is submitted that the recording is relevant because it shows that after the meeting that is contained in recording B 158, the accused, members of the Debs family and Marina Roberts were all made aware of what Marina Roberts had said to the police, and what Dorothy Debs had said to the police. It is submitted that the fact that steps were taken by the accused to ensure that Dorothy Debs knew what Marina Roberts had said, and vice versa, is relevant to an assessment of the credibility and reliability of the accused’s alibi. It is submitted that it is also relevant in that the accused himself expressed uncertainty about the strength of evidence relating to his alibi.

In that way, it is apparent that the prosecution basically seek to rely on the contents of recording C 75 in order to impugn the credibility of any evidence that the accused might give in support of his alibi. On that basis, the evidence is inadmissible pursuant to s 102 of the Evidence Act. Further, insofar as the recording contains statements made by the accused’s mother Marina Roberts as to her recollection of the whereabouts of the accused on the night of the murders, those statements are inadmissible hearsay. The prosecution does not intend to call Marina Roberts to give evidence in the trial. Accordingly they do not fall within the exception provided by s 66 of the Evidence Act.

For those reasons, the conversation contained in recording C 75 is inadmissible.

Recording HA 014

Recording HA 014 is of a conversation between the accused, his mother Marina Roberts and Nicole Debs on 20 July 2000, after police had visited Marina Roberts’ home. Later on that day, Marina Roberts reported the substance of the visit to the accused and Nicole Debs. In the course of the conversation, the accused said he could not remember if he stayed at Debs’ house on the night in question. Nicole Debs said ‘I wouldn’t have … a clue either’. The accused said ‘But I think I did’.

The conversation itself is quite lengthy. On behalf of the accused, objection is taken to nine passages in it on the basis that they are not relevant.

The prosecution contends that the second and sixth passages are each admissible, but otherwise concedes that the remaining seven passages are not admissible, and will be redacted from the recording that is to be tendered in evidence.

The first passage is at 9.D.17 to 9.D.18. That part of the conversation was principally between Nicole Debs and Marina Roberts. In it Marina Roberts recounted the conversation which she had with the police. She said that she had told the police that the accused had never discussed with her the shooting, and had told her that Nicole’s vehicle had been inspected. Self-evidently, that part of the conversation is irrelevant and inadmissible.

The second passage is at 9.D.19 to 9.D.31. In that section, Marina Roberts told the accused and Nicole Debs that she was unable to tell the police with certainty if the accused was at her home during the night of the murders, and she described, at some length, the discussion that she had with police. I shall return to this passage when considering the competing arguments relating to its admissibility.

The third passage is at 9.D.38. In that part of the conversation, Marina Roberts basically recounted some of the matters that she had said to the police. That evidence is hearsay. Marina Roberts is available, but the prosecution do not intend to call her to give evidence in the trial. Accordingly, the evidence is not admissible under s 66 of the Evidence Act.

The fourth passage, to which exception is taken, is at 9.D.39 to 9.D.40. In that passage, Marina Roberts further recounted what the police had asked her, and, in particular, whether the accused ever went out late at night. Discussion then ensued about how the accused would have been able to go out at night given that he was then too young to have a driver’s licence. The accused did not participate in that part of the discussion. The evidence, contained in that passage, is inadmissible hearsay.

The fifth passage, in the recording, to which objection is taken is from 9.D.47 to 9.D.49. In this passage, Marina Roberts said that she had not seen guns in the possession of her son (the accused). The comments made by Marina Roberts, in the conversation, are inadmissible hearsay. In any event they are not relevant.

The sixth passage, to which objection is taken, is from 9.D.50 to 9.D.53. In that passage, Marina Roberts discussed with the accused and the others present the length of the statement that she made to the police. She also said that she told the police that the accused was either at her place or ‘there’. Marina Roberts said that she had told the police how they (presumably the accused and Nicole Debs) were usually at her place for a roast. The accused (it appears sarcastically) asked rhetorically whether he would have come and sat down with his mother for a roast dinner if he had just ‘knocked off’ two policemen.

The seventh passage, to which objection is taken, is from 9.D.63 to 9.D.65. That passage commenced with Nicole Debs stating that she just wanted ‘his name to be cleared’. Marina Roberts responded that there was nothing that Nicole could do about it. Marina Roberts then recounted part of the conversation that she had with the police. The passage consists entirely of the conversation between Marina Roberts and Nicole Debs. It is inadmissible hearsay and irrelevant.

The eighth passage, to which exception is taken, is from 9.D.67 to 9.D.68. That passage again consists of an interchange between Nicole Debs and Marina Roberts in which Marina Roberts stated that she was asked whether she had noticed anything different about the accused’s behaviour over the last couple of years. The passage is inadmissible hearsay and irrelevant.

The ninth passage, in the recording, to which objection is taken, is from 9.D.76 to 9.D.78. That part of the conversation involved an interchange between Nicole Debs and R Wright, with some minor participation by Marina Roberts. The discussion concerned a newspaper publication that said that the vehicle involved in the murders had got shot. There was then discussion about the requirement that the police provide to Marina Roberts a copy of the statement that she had made to police. As with the previous eight passages which I have discussed, the conversation is inadmissible hearsay. In addition, it is irrelevant. Therefore it is inadmissible.

I return, then, to the two passages that are in contention, namely, the second passage and the sixth passage. In essence, it is submitted on behalf of the prosecution that those passages are relevant because, subsequent to the conversation, the accused proceeded to tell Debs about what his mother had told the police. In addition, in subsequent conversations, the accused received information about what Dorothy Debs had told the police (that the accused was at her home on the night of the murders). The prosecution submits that the fact, that that information was disseminated and discussed in such detail, assists in understanding the genesis and thus the credibility of the alibi evidence.

In essence, the prosecution seeks to rely on the second and sixth passages in order to impugn the credibility of any evidence that the accused might give in support of the alibi that, at the time of the murders, he was at the Debs home in the company of Nicole Debs. In that way, the prosecution seeks to rely on the evidence as credibility evidence which, plainly, is not admissible as part of the prosecution case pursuant to s 102 of the Evidence Act. Again, as I have earlier noted, if the accused does give evidence at the trial, it is possible that the prosecution might be able to use the two passages in question in cross-examination. That question may need to be revisited if the occasion should arise.

Summary of conclusions

For the foregoing reasons I have reached the following conclusions which may be summarised as follows.

(1)The following recordings, or passages in the recordings, are inadmissible:
·The following passage in B 2: 1.D.21 line 436.
·The following passage in B 3: 1.D.25 line 90 to 1.D. 27 line 139.
·B 5.
·B 26 (apart from the passage at 1.D.248 lines 50 to 61).
·The following passages in B 27: 1.D.257 lines 95 to 121; 1.D.259 line 211 to 1.D.260 line 275; 1.D 261 lines 285 to 320.
·B 30.
·B 36.
·The following passages in B 54: 1.D.428 line 394 to 1.D.429 line 415; 1.D.429 lines 441 to 448.
·The following passage in B 64: 1.D.541 lines 364 to 365.
·B 65.
·B 67.
·B 83.
·B 84.
·B 105.
·B 113.
·The following passage in B 116: 1.D.985 lines 140 to 166.
·B 120.
·B 126.
·The following passages in B 135: 1.D.1117; 1.D.1122; 1.D.1127.
·The following passages in B 138: 1.D.1193 line 127 to 128; 1.D.1195 line 193 to line 198; 1.D.1209 lines 837 to 865; 1.D.1210 line 877.

·The following passages in B 144: 1.D.1290 lines 610 to 629; 1.D.1305 line 1323 to 1.D.1306 line 1356.
·The following passage in B 151: 1.D.1429 line 1025 to 1.D.1430 line 1084.
·B 152.
·B 156.
·B 157.
·The following passages in B 158: 1.D.1551 lines 529 to 540; 1.D.1561 line 970 to 1.D.1562 line 1046.
·The following passage in B 160: 1.D.1628 line 89 to 1.D.1630 line 139.
·The following passage in B 176: 1.D.1790 line 175 to 1.D.1791 line 228.
·The following passage in VA 10: the passage at page 4 line 150.
·C 75.
·HA 014. (The nine passages to which objection have been taken).

(2)Of the recordings to which objection has been taken, the following are admissible:
·In B 150, the passage at 1.D.1399 lines 565 to 588.
·In B 151, the passage at 1.D.1409 line 110 to 1.D.1410 line 166.

(3)The question of the admissibility of the following recordings will be deferred pending consideration of the issue of the audibility of recordings:
·B 3 — the passage at 1.D.30 lines 319 to 321.
·B 37.

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11 October 2021