Director of Public Prosecutions v Roberts (Ruling No 4)
[2021] VSC 778
•26 November 2021
| 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: | 23 November 2021 |
DATE OF RULING: | 26 November 2021 |
CASE MAY BE CITED AS: | DPP v Roberts (Ruling No 4) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 778 |
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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 – Whether passages objected to sufficiently audible – Whether admission of disputed passages would cause unfairness to accused – Whether due to lack of clarity probative value of recordings outweighed by danger of unfair prejudice to accused – Evidence Act 2008 s 137 – R v Robson [1972] 1 WLR 651, Butera v DPP (1987) 164 CLR 180, Smith, Ashford & Schevella v The Queen (1990) 50 A Crim R 434, DPP v Debs and Roberts (Ruling No. 5) [2002] VSC 386 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Ihle QC with Ms S Lenthall | 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. Subject to the resolution of pre-trial issues, the trial of the charges is due to commence on 14 February next.
On the trial, the prosecution proposes to adduce evidence 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.
The accused has objected to the admissibility of some of that evidence on two bases. First, it is submitted that the evidence of the conversations is either irrelevant, or alternatively that the evidence should be excluded pursuant to s 137 of the Evidence Act 2008, because the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. In a previous ruling in this matter,[1] I concluded that a number of the recordings should be excluded on that basis.
[1]DPP v Roberts (Ruling No 3) [2021] VSC 658.
The second basis, upon which the accused seeks to exclude evidence of other conversations, is that the recordings of those conversations are so inaudible or unintelligible that it would not be open to the jury to find that the words or sounds, contained in the recordings, are those claimed by the prosecution. Accordingly, it is submitted that the evidence is irrelevant. Alternatively, it is submitted that the evidence should be excluded under s 137 of the Evidence Act, on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused, or alternatively, under the residual common law discretion,[2] on the basis the admission of the evidence might mislead the jury or invite the jury to speculate as to the meaning of the parts of the recordings that are unintelligible.
[2]Haddara v The Queen (2014) 43 VR 53.
Legal principles
The principles that apply to the present application are well settled. In summary, they are as follows:
(1) Where an out of court conversation has been recorded by mechanical means, the recording is the best evidence of the contents of the conversation. If the recording is available, there is no reason to admit evidence of an out of court listener of the recording, or a transcript made by that listener, as evidence of the content of the conversation.[3]
[3]Butera v DPP (1987) 164 CLR 180, 186 (Mason CJ, Brennan and Deane JJ) (‘Butera’).
(2) Where there are aspects of such a recording which are indistinct so as not to yield the full content of the conversation, so that it may need to be played over repeatedly before the conversation can be accurately understood, the court may receive a transcript of the conversation, not as evidence of the conversation, but rather as a means of assisting in the understanding of it.[4]
[4]Ibid 187.
(3) In such a case, the jury must be directed that the purpose of the transcript is not to provide independent evidence of the conversation, but rather to assist the jury to follow and understand it.[5]
(4) If the quality of the recording is so poor that the jury could not make a fair and reliable assessment of the conversation, or if there is a real risk that the jury might misconstrue the words contained in the recording in a manner that would be unfairly prejudicial to the accused, the recording should not be admitted in evidence.[6]
(5) In such a case, it may be necessary to exclude the recording of a conversation where the inaudible parts of it might unfairly affect the meaning attributed to the parts of the recording that are audible.[7]
[5]Ibid 188.
[6]R v Robson [1972] 1 WLR 651, 656 (Shaw J) (‘Robson’); Smith, Ashford & Schevella v The Queen (1990) 50 A Crim R 434, 450–1 (Young CJ, Crockett and Southwell JJ) (‘Smith, Ashford & Schevella’); DPP v Debs and Roberts(Ruling No. 5) [2002] VSC 386, [15]–[19] (Cummins J); Christos v The Queen [2013] VSCA 202, [10] (Nettle AJA).
[7]DPP v Debs and Roberts (Ruling No. 5) [2002] VSC 386, [19] (Cummins J).
The leading authority on the admissibility of such evidence is the decision of the High Court in Butera. That case was primarily concerned with the admissibility of transcripts of recorded conversations which were in a foreign language. The transcripts were produced by interpreters who had translated the foreign language into English. The High Court held that the transcripts had been properly admitted in evidence.
In reaching that conclusion, the court considered the question of the admissibility and use of transcripts of recorded conversations.
In their joint judgment, Mason CJ, Brennan and Deane JJ commenced by stating the first proposition outlined above, namely, that the recording of a conversation is the best evidence of such a conversation, so that, where the recording is available, there is no reason to admit the evidence of an out of court listener to the conversation, or a transcript made by the listener.[8] Nevertheless, their Honours recognised the practical assistance that might be provided to the court by the provision to it of a transcript of the conversation as an aid to assist it listen to and understand the recording. In that respect, they stated:
Although evidence derived from a tape recording is not subject to some of the frailties of human testimony, it may exhibit deficiencies from which human testimony is usually free. A tape recording which is indistinct may not yield its full content to the listener on its first playing over. It may need to be played over repeatedly before the listener’s ear becomes attuned to the words or other sounds recorded. This situation has led courts to receive transcripts not as evidence of the conversation or other sounds recorded but as a means of assisting in the perception and understanding of the evidence tendered by the playing over of the tape. In Williams v The Queen, Neasey J. cited with approval a Canadian case Reg. v MacLean and MacLean [No. 1] in which the trial judge held:
that he would not permit the transcripts to be used as evidence of the contents of the recording, but did admit them for the use of ‘the trier of the facts, after being properly instructed in that regard, for the sale purpose of following the playing of the tape in court and to assist the trier of the facts in determining what is in fact recorded thereon’.
Where the quality of the recording is such that the provision of a transcript for the use of the jury would permit them clearly to follow an indistinct recording, a transcript may be seen as an aid to listening though it is not independent evidence of the recorded conversation.[9]
[8]Butera (1987) 164 CLR 180, 186 (Mason CJ, Brennan and Deane JJ).
[9]Ibid 187 (citations omitted).
In reaching that conclusion, the Court emphasised that the jury should be given instruction that the purpose of admitting the transcript is not to provide independent evidence of the conversation, but in order to aid the jury to understand the conversation that was recorded on the tape, and the jury should be instructed that it could not use the transcript as a substitute for the tape is the jury is not satisfied that the transcript correctly sets out what the jury heard on the tape.[10]
[10]Ibid 188.
The fourth principle, which I have outlined above, was discussed by the Court of Criminal Appeal in Smith, Ashford & Schevella. In that case, the Court expressed its acceptance of the test of admissibility applied by Shaw J in Robson, namely, whether the quality of the recording was adequate in its ‘continuity, clarity and coherence’ to ‘enable the jury to form a fair and reliable assessment of the conversations’.[11] The Court of Criminal Appeal restated that test in the following terms:
… whether the quality of the [recordings] was so poor that the jury could not ‘form a fair and reliable assessment of the conversations’ or that there was a real risk that the jury might misconstrue the conversations in a manner which would be unfairly prejudicial to any of the applicants.[12]
[11]Robson [1972] 1 WLR 651, 656.
[12]Smith, Ashford & Schevella (1990) 50 A Crim R 434, 451 (Young CJ, Crockett and Southwell JJ).
Applying that test in the first trial, Cummins J excluded a number of recordings that were sought to be adduced by the prosecution. His Honour applied the test in the following terms:
With a number of specific recordings, I have excluded material because the material is attended, in my view, by doubt or uncertainty or is otherwise unsafe to admit. Such items, which I shall come to in a moment, in my view properly are to be excluded because no material should be admitted which is unsafe so to be admitted. A strict and firm view of exclusion needs to be adopted in material of this type so that no material is admitted which is unsafe to be admitted. That is especially so when there are passages themselves which contain inaudibilities if the inaudibility, bearing in mind that the onus of proof at all times is upon the prosecution, might fairly affect that which is audible. Unsafety may also arise by reason of material which is itself audible but which is surrounded by a sea of inaudibility. A responsible judgment needs to be exercised so that material which is stand-alone, that is, is audible, can properly be regarded as safe to admit when it is in a sea of inaudibility.[13]
[13]DPP v Debs and Roberts (Ruling No. 5) [2002] VSC 386, [19].
In the present case, most of the objections raised on behalf of the accused concern individual words, or phrases, contained in the various recordings. Ordinarily, in determining whether a recording of a conversation is sufficiently audible to enable the jury to form a fair and reliable assessment of the conversation, it is permissible, and appropriate, to take into account the conversation as a whole, and the context in which the conversation occurred. The words spoken by the participants in the conversation which preceded, or followed, the contentious passage might assist in forming an appropriate view concerning the meaning of the words that are the subject of the objection. In the present case, some caution needs to be exercised in that respect, particularly in respect of the objections which concern the meaning of one single word, or a small number of words, which the prosecution contends were spoken in the conversation in question.
Senior counsel for the prosecution submitted that in determining whether the jury could form a fair and reliable assessment of the particular parts of the conversations that are the subject of the objections, it would be appropriate for me to rely on the transcripts of the conversations that have been produced by the prosecution.
At the previous trial, Detective Sergeant Dean Thomas gave evidence as to the manner in which the transcripts had been prepared. In essence, enhanced compact discs of conversations, which were considered to be potentially relevant, were provided to outside people who were hired by Victoria Police for that purpose. After those persons had produced a transcript, Sergeant Thomas and members of his crew reviewed the transcript by listening to the recordings and made such alterations as they considered necessary. Ultimately, Sergeant Thomas checked each transcript and ‘signed off’ on the particular transcript as being accurate. Sergeant Thomas gave evidence that if he was uncertain concerning the meaning of any particular word that was uttered during the conversations, it would be described as ‘inaudible’ in the transcript.
In response to that evidence, counsel for the accused called Dr James Tompkinson on the voir dire. Dr Tompkinson is a forensic consultant specialising in speech and audio analysis. He participated in the preparation of a report by Professor Peter French concerning a number of matters including the transcripts prepared by Sergeant Thomas. In essence, that report was critical of the manner in which the transcripts had been produced. Dr Tompkinson (and Professor French) were of the view that transcripts should not be produced by anyone who might have an interest in the interpretation of the content of the recording. In particular, the participation of such police members necessarily involved the risk of cognitive bias due to their inside knowledge of facts about the investigation which might influence their interpretation of the sounds heard on the recordings. As a result, police officers, who have external knowledge about the investigation, might have difficulty in separating their knowledge from their perception of the sounds contained in the recordings.
In support of the submission that, in determining the admissibility of the disputed passages I take into account the transcripts of those passages prepared by police, senior counsel for the prosecution relied on the principle stated in the authorities that, where a person such as a police member has had the opportunity to listen to a recording on a number of occasions, that person may be regarded as being an ad hoc expert as to the meaning of the sounds contained in the recording.[14] Based on that principle, counsel submitted that I should attach some weight to the transcripts prepared by police under the supervision of Detective Sergeant Thomas in his capacity as an ad hoc expert.
[14]R v Menzies [1982] 1 NZLR 40, 48–9 (Cook, McMullin and Somers JJ and Sir Clifford Richmond); Butera (1987) 164 CLR 180, 187–8 (Mason CJ, Brennan and Deane JJ); R v O’Neill [2001] VSCA 227, [90] (O’Bryan AJA); Kheir v The Queen (2014) 43 VR 308, 320–2 [55]–[59] (Maxwell P, Redlich and Beach JJA); Tran v The Queen [2016] VSCA 79, [92]–[99] (Weinberg, Santamaria and McLeish JJA).
Contrary to that submission, I consider that, in determining the question as to the admissibility of the disputed parts of the recordings, the transcripts produced under the supervision of Detective Sergeant Thomas are of limited value for two reasons.
First, the meaning of particular words contained in those recordings will be an issue of fact for the jury to determine. In doing so, the jury will not be entitled to rely on the transcripts as a form of expert evidence. Rather, in accordance with the principles stated in Butera, the jury will be entitled to use the transcripts as an aid to assist it to follow the conversations. However, ultimately the question of the meaning of interpretation of words contained in the recordings will be a matter of fact for the jury to determine. As I have already mentioned, the question, which I must determine, is whether the jury could form a fair and reliable understanding of particular words contained in the recording. In other words, my role is to consider whether, based on the material before it, the jury could reasonably, and without conjecture, understand the disputed words to bear the meaning intended for on behalf of the prosecution. In determining that question, I doubt whether it would be appropriate to rely on the transcripts produced under the supervision of Detective Sergeant Thomas as a form of expert evidence, when the transcripts could not be relied on, in that way, by the jury.
Secondly, and in any event, for the reasons stated by Dr Tompkinson, some caution needs to be exercised in relying on the parts of the transcripts which prescribe particular meanings to words contained in the recordings that are in dispute. Indeed, as senior counsel for the accused pointed out, it is clear that the transcripts themselves are not infallible. A number of corrections have already been required to be made to them. That process is not a criticism of the persons who were responsible for production of the transcripts. Rather, it reflects the fact that transcripts are produced by way of human interpretation which necessarily may be fallible.
For those reasons, I have placed particularly limited weight on the transcripts produced under the supervision of Detective Sergeant Thomas in determining the issues that are before me on this application.
Passages of recordings objected to and response by prosecution
Counsel for the accused filed a schedule of objections which identified the recordings in dispute, and which specified the part or parts of those recordings which should be excluded on the basis that it would not be open to the jury to find that the words or sounds contained in the recordings are those contended for by the prosecution.
In response, counsel for the prosecution filed a document which contained the prosecution response to each of those objections. The content of and effect of that document was clarified in oral argument. In essence, the prosecution’s response addressed the admissibility of the recordings, that are the subject of objection, as follows:
(1) The prosecution has agreed not to lead the audio recording or transcript of the following recordings:
Recording B3;
Recording B131 — track 1, 1:13:30 (transcript 1.D.1095 line 760);
Recording B144 — track 1, 07:38 (transcript 1.D.1281 lines 216–17 — after the word ‘ridiculous’); and
Recording B166 — track 1, 33:59 (transcript 1.D.1714 line 859 — ie the recording and transcript will conclude after Nicole Debs says ‘what I mean like’).
(2) The prosecution has also agreed to exclude from the evidence four other parts of the recordings where it has concluded that the particular word contained in the transcript cannot be heard at all, namely:
Recording B24 (1.D.237 line 345 — the word ‘us’);
Recording B48 (1.D.381 line 256 — the word ‘us’);
Recording B54 (1.D.423 line 170 — the word ‘us’); and
Recording B131 (1.D.1095 line 741 — the words ‘is me’).
(3) The prosecution has also identified a number of parts of the recordings where particular sounds contained in the recordings can be heard, but cannot be deciphered. The transcript of those parts of the recordings will note that the words are ‘indistinct’. In its written response, the prosecution accepted that those parts should be deleted from the transcript and replaced with the word ‘[indistinct]’. In oral argument, counsel confirmed that the prosecution will not submit to the jury that the words, which are so marked ‘indistinct’, are capable of bearing any meaning. The prosecution and the defence will liaise in order to identify which part or parts of those indistinct passages can be removed from the audio recording.
(4) The defence has objected to three words contained in recording B37 (transcript 1.D.314 line 52 — track 1, 01:03). At present, the police transcript records the accused as saying ‘I kill Ds’. Dr Tompkinson gave evidence on the voir dire that those words in fact are ‘I’ll kill D [or Ds]’. Counsel for the prosecution contends that those words should be left in the recording to be played to the jury and tendered in evidence, and that the transcript should record, as alternatives, the meaning determined by Detective Sergeant Thomas and the meaning determined by Dr Tompkinson.
(5) The final category identified by the prosecution comprises the parts of the recordings to which objection has been taken by the defence, but which the prosecution maintains are admissible.
Counsel for each side considered that the most appropriate way for me to resolve the issues, raised in the fourth and fifth points above, was for me to listen to the disputed passages in my chambers with the assistance of a set of headphones. It was considered that that method would most closely resemble the circumstances in which the jury will listen to and assess the recordings in the jury room.
In undertaking that task, I assessed and determined the admissibility of the disputed passages applying the test that I have earlier discussed, namely, whether the jury could, without resorting to conjecture, make a fair and reliable assessment of the disputed passages of the recordings.
Recording B37
Recording B37 is a recording of a conversation between Bandali Debs (‘Debs’) and the accused in the afternoon of 19 February 2000 at the accused’s home in Merrijig Avenue, Cranbourne.
After some inconsequential banter between them, Debs then said:
Well, if there’s any stuff in St Kilda after 12:00 o’clock we can get it. We’ve got to watch Ds.
(I interpolate that the expression ‘Ds’ was used by both Debs and the accused to refer to police members).
It is the response which the accused made to that comment that is in issue. The prosecution case is that the accused responded saying ‘I kill Ds’, which, the prosecution contend, was an admission by the accused of his guilt of the murders of Sergeant Silk and Senior Constable Miller. On the other hand it is contended on behalf of the accused that the first word in that sentence was expressed in the future tense, so that the accused said: ‘I’ll kill Ds’.
Counsel for the accused has objected to the admissibility of that passage on the basis that the jury could not prefer the construction contended for by the prosecution without resorting to conjecture or speculation.
In support of that submission, counsel relied on evidence given by Dr Tompkinson on the voir dire. Dr Tompkinson gave evidence that with the aid of listening equipment, he gave consideration to the question whether there was, in the contested passage, the presence of a lateral sound at the end of the first word spoken by the accused, which is the only phonetic difference between the word ‘I’ and the word ‘I’ll’. Dr Tompkinson stated that on examination he could hear, at the end of that word, a vocalised ‘l’ sound, which was relevantly the same as the sound at the end of the next word (‘kill’) spoken by the accused. Accordingly, Dr Tompkinson considered that ‘I’ll’ was a much more likely interpretation of the word uttered by the accused than ‘I’.
Counsel submitted that based on that evidence, and also based on an examination of both the mono and stereo versions of the recording of the passage in question, I should come to the view that a jury could not be properly satisfied that the word spoken by the accused was expressed in the present tense (‘I’) rather than in the future tense (‘I’ll’). Accordingly, he submitted, the jury could not, without engaging in conjecture, conclude that the word spoken by the accused at that point was expressed in the present tense (‘I’).
Counsel further submitted that the evidence of that statement by the accused should be excluded in any event on the basis that, if the jury is unsure as to the meaning of it, the word spoken by the accused would in any event be highly prejudicial to him. In other words, if the jury were to consider that the words are capable of bearing the meaning contended for on behalf of the accused, the words would constitute a particularly damning comment made by him as to his present or future state of mind, which would have the tendency to unfairly prejudice the jury against him.
In response, senior counsel for the prosecution submitted that recording of the word spoken by the accused, which is the subject of the objection, is sufficiently clear to enable the jury to form its own conclusion as to its meaning. He submitted that the question whether the words bear the meaning contended for by the prosecution is a classic jury question. He further submitted that the competing contentions could be appropriately put to the jury by noting each of them in the transcript provided to the jury, or alternatively by noting at that particular point in the transcript that the meaning of the words spoken by the accused were a matter of dispute between the parties. Counsel further submitted that any prejudice which might arise from the admission of the evidence could be sufficiently ameliorated by an appropriate direction by me to the jury.
As discussed with counsel, I listened to the relevant parts of the recording on a number of occasions in my chambers, which I was told, would sufficiently replicate the circumstances in which the jury would be able to listen to the recordings in the jury room. Having replayed the newly enhanced recording, both in mono and stereo, it became apparent to me that the words that are in issue are capable of being given either of the alternative meanings contended for by the prosecution and the defence. However, I did consider that the first word spoken by the accused was probably that contended for by the defence, namely ‘I’ll’. I was able to detect a definite sound after the pronoun. That sound was almost the same as the end of the next word spoken by the accused, namely, ‘kill’. By comparison, shortly before the passage in question, and shortly after it, the accused used the first person pronoun ‘I’. When he did so, it sounded different to the particular word in question in the disputed passage.
In determining whether the jury could fairly and reasonably prefer the interpretation of the word contended for by the prosecution, I consider the context, in which the accused uttered the disputed sentence, to be neutral. Certainly it does not support the interpretation contended for by the prosecution. If anything, it supports the interpretation contended for by the defence. The disputed words were uttered by the accused immediately after Debs spoke about an event which they might participate in on the coming evening. That is, he was speaking in the future tense.
As I have already discussed, I consider that the evidence of the transcripts prepared by Detective Sergeant Thomas, and the evidence of Dr Tompkinson, to be of relatively marginal assistance in resolving the issue which is before me. However, Dr Tompkinson does have specialist expertise in discerning the meaning of sounds in audio recordings, having qualifications in forensic speech and audio analysis, linguistics and phonetics. While I have not relied on Dr Tompkinson’s evidence concerning the meaning of the disputed passage, the effect of that evidence is to confirm the view which I have reached concerning that matter.
In those circumstances, I do not consider that the jury could fairly and reasonably interpret the disputed words spoken by the accused in the manner contended for by the prosecution, namely ‘I kill Ds’. I consider that if the jury were to prefer the prosecution’s interpretation of those words, such a conclusion by the jury would be the product of conjecture rather than appropriate perception and analysis by it.
The prosecution did not contend that if the jury were to adopt the interpretation of the words contended for by the defence, that part of the conversation between the accused and Debs would have any probative value in the trial. Accordingly, in view of the conclusion I have reached concerning those words, it follows that that part of the evidence is irrelevant and therefore inadmissible.
I should also add that if the disputed words were left to the jury, and if the jury concluded that it could not determine which meaning should be attributed to the words, the admission of that evidence would result in serious prejudice to the accused of the kind raised by senior counsel for the accused. That is, if the jury considered that the words meant, or might have meant, that the accused intended to kill the police members, or that he was boasting that he would do so, that evidence would not be relevant in the trial, but would be highly prejudicial and would undermine his right to a fair trial.
That consideration is of some weight in the present case. There will necessarily be an overlay of substantial prejudice arising from a number of matters including the evidence relating to the accused’s participation in Hamada armed robberies and also from the crude and vulgar manner in which the accused and Debs expressed themselves in a number of listening device recordings which will be admitted in the trial.
Accordingly, I reach the conclusion that the jury could not, without conjecture, prefer the construction of the disputed words contended for by the prosecution. That part of the evidence contained in recording B37 is irrelevant and inadmissible. Further, the admission of that evidence would have the potential to occasion substantial prejudice to the right of the accused to a fair trial and for that reason also I have reached the conclusion that it should be excluded from the evidence.
Disputed recordings
I now turn to consider the admissibility of the other recordings which remain in dispute.
Recording B6
The defence objects to the words in Recording B6, spoken by the accused that are contained at track 1 at 29:35 (transcript 1.D.58, line 674). The prosecution contend that in that passage the accused said:
The amount of units I saw … (inaudible) … .
The passage in question occurs in the course of a conversation between Debs and the accused on 18 January 2000. In the passage that precedes the words that are in issue, the prosecution contend that the accused and Debs were discussing the capacity of the police to match glass which had been found at the scene. I interpolate that there are a number of inaudible parts of the conversation that precedes the words in question.
The audibility of the recording itself, including the passages that precede the words in question, is particularly poor. There is a lot of background noise. The transcripts prepared by Detective Sergeant Thomas correctly record a number of passages which are indistinct and inaudible. It is possible to discern some of the words recorded in those passages and which are in the transcript. However, having played and replayed the newly enhanced digital on a number of occasions using headphones, I could not hear or discern any of the words recorded in the transcript in the passage in question. The last sound in those words vaguely resembles ‘shore’, but even that conclusion is quite uncertain.
Making allowance for the possibility that the jury may have more acute hearing than myself, nevertheless I consider that the jury could not fairly and reasonably find that the words bear the meaning contented for by the prosecution.
Accordingly, the passage in the recording, that is in dispute, is inadmissible.
Recording B20
Recording B20 records a conversation between Debs and the accused on 14 February 2000 in which they discussed a visit made by members of the police to Debs’ brother, Robert Rutherford. The defence objects to the admissibility of words contained in the recording at track 1 at 08:34 (transcript 1.D.187, lines 261 to 269). The prosecution has conceded a small part of the passage that is the subject of objection, namely, the words ‘for anything else’, but contends that the balance of the passage is admissible.
The passage in dispute is quite difficult to decipher. In particular, the words attributed to the accused in lines 266 to 269 of the transcript were spoken in a quiet voice. Nevertheless, having listened to that part of the recording on a number of occasions using headphones, I consider that the jury could fairly and reasonably attribute to the words spoken by the accused in that passage the meaning contained in the transcript.
Accordingly, apart from the words conceded by the prosecution, the passage in question is admissible.
Recording B22
Recording B22 is a recording of a further discussion between the accused and Debs on the evening of 14 February 2000. The defence has objected to three short parts of the recording.
The prosecution has accepted that the first part (track 1, 05:35; transcript 1.D.2051, line 106) should be deleted and marked ‘indistinct’ in the transcript.
The second part of the recording, to which the defence has objected, is at track 1, 36:48 (transcript 1.D.215, line 588). That passage concerns words spoken by Debs. The defence take issue with one word contained in it, namely, the word ‘you’.
Having listened to the enhanced version of the recording, I am satisfied that the word in question (‘you’) is sufficiently clear and decipherable. I do not consider that the jury would be engaging in conjecture if it were to accept the prosecution’s interpretation of that word. Accordingly, that passage in the recording is admissible.
The third passage, to which objection has been taken, is shortly after the second passage and is at track 1, 37:11 (transcript 1.D.215, line 596). That passage contains words spoken by the accused. The prosecution contends that those words are: ‘They shouldn’t be hassling us you know.’
Having listened to that part of the recording a number of times, I do not consider that it is sufficiently audible in order to be decipherable by the jury. The accused spoke the words contained in the passage in a soft voice. I do not consider that the jury could fairly and reasonably conclude that the words spoken by the accused are those contended for by the prosecution (‘they shouldn’t be hassling us you know’).
Accordingly, that part of the recording is not admissible.
Recording B24
Recording B24 contains a conversation between Debs and his step-father Malik Debs on 15 February 2000, in which Debs described the scene of the murders to Malik.
The defence has objected to six passages in the recording. The prosecution has correctly accepted that the second, third, fourth, fifth and sixth passages are not sufficiently decipherable to be assessed to contain the words attributed to them in the transcript. Accordingly, they are inadmissible.
The first passage remains in contention. That passage is at track 1, at approximately 15:18 (transcript 1.D.234, line 217). At that point, Debs was explaining to Malik what occurred in the shooting. The words objected to — which the prosecution contend ‘we done it’ — occur in the middle of a sentence spoken by Debs.
Throughout the part of the conversation in question, there is a lot of background noise. In general, the words spoken by Debs in the course of the conversation with Malik are decipherable, but difficult to hear. Some parts are plainly inaudible. I have listened to the original enhanced version and the newly enhanced version of the recording a number of times. I do not consider that the jury could fairly and reasonably attribute to the passage in question the meaning contended for by the prosecution, namely, ‘we done it’. The words spoken at that point by Debs are inaudible and I do not consider that they can be fairly and reasonably deciphered by the jury to bear that meaning.
Accordingly, the words in issue in that part of the recording (‘we done it’) are not admissible.
Recording B48
Recording B48 is of a conversation between Debs and Malik on 5 March 2000 in which they discussed the investigation of the murders of the two police members.
The defence has objected to the admissibility of one passage at the commencement of track 10, which is set out in the prosecution transcript 1.D.381, line 256. According to the transcript, in that passage Debs said ‘Nobody never saw us.’
The defence originally objected to the last three words of that sentence — ‘never saw us’. In argument, senior counsel accepted that the words ‘nobody never’ are sufficiently clear to be admissible. The prosecution has accepted that the final word — ‘us’ — is unclear and will be deleted, but contends that the balance of the passage — ‘nobody never saw’ — should be retained.
Thus, the ambit of the disputed passage is particularly narrow — the word interpreted in the transcript as ‘saw’.
Having listened to the recording on a number of occasions, I could not discern the words ‘saw us’ that were originally contained in the transcript. Those words to my perception are inaudible. A jury could not fairly and reasonably conclude that at that point Debs spoke those two words.
Accordingly, the recording is not admissible to prove that Debs spoke the words ‘saw us.’
Recording B103
Recording B103 is of a conversation between Debs, the accused, Nicole Debs and Joanne Debs on 31 May 2000. In that conversation, they discussed the recent media release by Victoria Police which stated that an eyewitness had provided to police a description of the second offender who was alleged to have been involved in the murder of the two police members. The defence has taken objection to two short passages contained in the recording.
The first passage is contained on track 3, at 59 seconds (transcript 1.D.856, line 147). The police transcript of that passage records that Debs said ‘No one was there but us.’
In response to the defence objection, the prosecution has accepted that the last two words of that sentence spoken by Debs (‘but us’), are indistinct and should be replaced in the transcript with ‘indistinct’. The part of the recording that is thus in dispute is that which the prosecution contend contains Debs saying the words ‘was there’.
The recording of the conversation contained in recording B103 has been enhanced, but not further enhanced. It is difficult to follow the enhanced version because the passage in question is at the very conclusion of one of the tracks. At the suggestion of senior counsel for the prosecution, I listened to the copy of the integrated recording that was played to Debs on a recent voir dire. Having listened to that recording, it is sufficiently clear that Debs did say the words ‘No one was there’. I am satisfied that the jury could fairly and reasonably understand the words spoken by Debs at that point to bear that meaning.
Accordingly, I would admit in evidence the words spoken by Debs at that point ‘No one was there’ but exclude (as agreed by the prosecution) the words that follow, which are indecipherable, but which, on the current version of the transcript, are said to be ‘but us’.
The second passage in recording B103, that is the subject of dispute, is contained in track 6 at 28 seconds, which the prosecution contend bears the meaning set out in the police transcript 1.D.859, lines 277–281 as follows:
Accused: … (inaudible) … and no one was there though.
Debs: Huh.
Accused: No one was there.
It is contended on behalf of the prosecution that the jury could fairly and reliably conclude that the words, spoken by the accused and Debs respectively, are those contained in the transcript.
Having listened to that part of the recording on a number of occasions, I consider the jury could fairly and reasonably conclude that the words spoken by the accused are those recorded on the transcript. The conversation that preceded those words, and which immediately followed it, and which basically occurred between Debs and his daughter Nicole, was quite audible. In the passage in question, the words attributed to the accused were spoken in a soft voice. Nevertheless, they are sufficiently decipherable to entitle a jury to reasonably conclude that they are the words set out in the transcript of the conversation.
Accordingly, that part of recording B103 is admissible.
Recording B131
Recording B131 is of a conversation between Debs, Nicole Debs and the accused at the accused’s house in Merrijig Avenue, Cranbourne on the evening of 16 July 2000.
On that day media services had published a story about the ‘subservient and younger offender’. Detective Inspector Paul Sheridan had appeared on the news and discussed the investigation. A FACE image of the younger offender was shown on the program. Sheridan told the media that the photo image of one of the suspected killers was the best clue that the police had in the case. The image was in fact reverse engineered by investigators, based on the driver’s licence photograph of the accused. It was published in an attempt to prompt discussion between the accused and Debs.
The defence has objected to four parts of the recording in question. The prosecution has accepted the second, third and fourth objections and has agreed to delete the words, to which objection has been taken.
The first passage is in dispute. It commences on track 1 at approximately 54:37. The relevant part of the police transcript is 1.D.1084, line 252 to 1.D.1088, line 451.
That section of the recording is objected to because a number of parts of it are inaudible or difficult to hear. The defence accepts that the passage in question has some probative value. However, it is submitted, because substantial parts of it are inaudible, there is a risk that the jury could misconstrue the meaning sought to be conveyed by the various speakers and accordingly attach unfair and undue weight to the passage in question. It is therefore submitted that the passage in question should be excluded from the evidence on the basis that the admission of it would be unfair to the accused in the trial of the charges.
In response, it is submitted on behalf of the prosecution that although portions of the conversation are inaudible, the portions that can be heard are accurately captured on the transcript, and it is clear from those portions what Debs, Nicole Debs and the accused were talking about, namely: the FACE fit image, their knowledge of it, the accused’s discussion with his mother about the likeness of the image to him, the length of his hair, police investigation of Hyundai vehicles, and the fact that there was an older and younger offender.
The objection to the admissibility of this part of the conversation is not made on the basis that some part or parts of the transcript relating to the passage do not accurately record the words spoken by the various participants in the conversation. The objection, rather, is directed to the fact that a significant number of parts of the passage in question are inaudible.
The passage in dispute is difficult to listen to and follow because of the nature and volume of background noise that was occurring at the same time. Nevertheless, the passage in question is sufficiently audible to reflect that the participants to the conversation discussed the topics referred to by the prosecution in its submissions, namely: the FACE fit image, the fact that it was very similar to the appearance of the accused, the accused’s discussion with his mother about it, the length of his hair, the police investigation of vehicles, and the fact that there was an older and younger offender. I do not consider that the fact, that there are a number of parts of the passage which are inaudible, unfairly alters or qualifies the point contended for by the prosecution, namely, that the parties were interested in and discussed those topics. I do not consider that the admission of that passage of the recording into evidence would occasion the accused unfair prejudice, or be unfair to him in his defence of the charges.
Accordingly, the passage in question is admissible.
Recording B135
Recording B135 is of a conversation between the accused, Nicole Debs, the accused’s mother Marina Roberts and two other persons on 17 July 2000. The conversation again discussed the FACE image and its likeness to the accused.
On behalf of the accused, objection has been taken to two words which the prosecution contends were spoken by Marina Roberts. They are at track 1 at 30:30 (police transcript 1.D.1125). At that point of the conversation, the participants were discussing how the image came to resemble the accused. The prosecution contends that Marina Roberts then said:
Someone’s given a description and not saying how they got it and that’s the best lead they’ve had, and by the way they talk somebody rang in and set you up and dobbed in … (inaudible) … with the information and who the person was, the younger skinny guy, and that is what that description, the person who wrote about it. Stuffed if I know.
On behalf of the accused, objection has been taken to the words ‘dobbed in’ attributed by the transcript to Marina Roberts. It is submitted that those words are insufficiently clear for the jury to reasonably decipher.
Having listened to the recording, I am satisfied that the two words in question — ‘dobbed in’ — are sufficiently clear to enable the jury to fairly and reasonably decipher them and understand what those words meant.
Accordingly, that part of the recording (the words ‘dobbed in’) is admissible.
Recording B138
Recording B138 is of a further conversation on 17 July 2000 in which the accused, Debs, Nicole Debs, Malik and two others discussed what the accused should do about the FACE image that was published about him, and what he should say to the police.
The passage in the conversation, to which objection is taken, is in track 1 of the recording, at 01:46. The transcript prepared by police (1.D.1193, line 108) attributes to the accused the following words:
Malik, either way, I’m fucked see.
Senior counsel for the accused contended that in the recording the words attributed by the transcript as ‘either’ and ‘I’m’ are unclear and cannot be properly deciphered. It is submitted that as a result it is not clear what the accused is actually saying at that point. Accordingly, it is submitted, any probative value of the evidence is outweighed by unfair prejudice to the accused if it were admitted into evidence.
Having listened to the particular part of the passage in question on a number of occasions, I am satisfied that the words spoken by the accused, and which are the subject of the objection, are sufficiently clear and decipherable to enable a jury to fairly and reasonably conclude what the accused actually said at that point.
Accordingly, the passage in the recording, which is in contention, is admissible.
Recording B146
Recording B146 is of a conversation on 18 July 2000 between the accused and Debs while they were driving in Debs’ vehicle. Earlier on that day, the accused had been contacted by Sergeant George Buchhorn of the Lorimer Task Force requesting him to arrange a time to talk formally to investigating police. In the course of the conversation in question, Debs and the accused discussed the conversation that the accused had had with police on that day.
The passage in the conversation, to which objection is taken, is track 1 of the recording at 02:43 (police transcript 1.D.1342, line 108) in which, according to the police transcript, the accused spoke the words:
No they won’t catch up with me mate, they’re fuckin’ with the cunts. The same um …
The objection is taken on behalf of the accused to the first part of that passage — ‘they won’t catch up with me mate’ — on the ground that it is too unclear to be fairly and reasonably deciphered by the jury.
I have listened to that part of the recording several times on both the newly enhanced recording and (as suggested by the prosecution) on the previous enhanced recording. Having done so, I could not decipher at all the words in question. Making due allowance for different capabilities in hearing, I nevertheless consider that the jury could not fairly and reasonably determine that the words in dispute bear the meaning attributed to them in the transcript by the prosecution.
Accordingly, that passage of recording B146 is not admissible.
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