DPP v Debs & Roberts

[2003] VSC 4

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1527 of 2001

Director of Public Prosecutions

v

Bandali Michael Debs and Jason Joseph Roberts

Reasons for Ruling No. 15

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF REASONS FOR RULING:	17 February 2003
CASE MAY BE CITED AS:	DPP v Bandali Michael Debs and Jason Joseph Roberts
MEDIUM NEUTRAL CITATION:	[2003] VSC 4

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Criminal law and procedure – murder - publication – application by media to publish audio and video tapes in original form – application refused – reasons for Ruling.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr J.W. Rapke QC with Mr P.B. Kidd and Mr J.J. Serong	OPP
For the accused Debs	Mr P.C. Dane QC with Mr G. Georgiou	Victoria Legal Aid
For the accused Roberts	Mr I.D. Hill QC with Ms S.K. Dawes	Lethbridges
For the ABC, 3AW, and Channels 7, 9 and 10	Mr J. Quill	Corrs Chambers Westgarth

HIS HONOUR:

In Ruling No 15, I refused an application on behalf of the ABC, 3AW and the commercial corporations Channels 7, 9 and 10 for release to them, for broadcast, during the trial, of copies of the audio tapes of conversations of the respective accused, lawfully recorded by covert listening device, and also of the videotapes of the their Homicide office interviews.  I stated that I would publish my reasons for refusing that application the next week.  I now publish those reasons.

Reasons

1. The relevant audio tapes are, at the time of the application, in the process of being played before the jury and exhibited.  Likewise the video recordings.  Thus the material all is, or is in the process of, also being publicly heard and seen – that is, by the public present in Court.  It is in the process of being disseminated by the media to the general public, by print and electronic means, but only in its derivative form - that is, by printing or electronically publishing copies of the transcripts of the respective audio and video recordings.  The essence of the application on behalf of the named media entities is for the provision of copies of the raw material – that is, the sounds of the audio recordings and the sights and sounds of the video recordings – rather than the derivative transcript of that raw material.

1. The application has been presented and argued most thoughtfully by Mr Quill, solicitor for the applicants.  In essence he supports the submission on seven grounds.  First, the transcripts of the audios and videos are not themselves evidence but are at best an aid to accessing the evidence which is the tapes themselves.  Second, the tapes are admitted into evidence.  Third, the tapes are or are in the process of being publicly disseminated – that is, in a public court to which members of the public have free access and are present.  Fourth, the present case is one of legitimate and substantial public interest, and the media wish to and would report the proceedings accurately and fairly.  I agree with those four submissions of Mr Quill.   Fifth, the circumstance that a necessarily small number of public are present physically in court should not preclude members of the general public, not present, from having access to the actual evidence.  Sixth, the Court's practice and philosophy is rightly of an open court, and in contemporary times that effectively involves electronic dissemination of evidence by fair and balanced reporting to the general public.  Finally, the general public should be provided with the best evidence, not a derivative substitute which is but a pale shadow of the best evidence.

1. I need no persuasion of the truth and importance in a modern democratic state of court proceedings being both open and accessible to the general public.  I have often ruled consonantly with the open court principle in facilitating media access to court proceedings and media dissemination of evidence therein.  The question here is a more specific one:  should the raw material be published, in the fulfilment and reality of that underlying principle, during the trial?

1. Although I am most assisted by Mr Quill's submissions, I conclude that it is not a necessary or appropriate application of the open court principle to release copies of the tapes for direct electronic dissemination to the public by the applicant entities.  I so conclude because the respective material was obtained by coercive means (although amply justified and lawful), and its wide public dissemination by electronic media would involve an entirely different and greater intrusion upon citizens' rights to privacy than its presentation in Court.  The audio tapes, while lawful, were covert and of each accused's private conversations, mainly in the home, and often with other family members who are not before the Court.  The videotapes of the Homicide interviews of the two accused are of their voluntary answers to investigating police, at the Homicide Squad, but when each accused was under arrest and in custody.  I consider that citizens whose privacy was lawfully invaded (on the listening device audio tapes) and who were answering voluntarily but in a coercive context (in the Homicide interviews) should not have those conversations (in the former) and those answers (in the latter) disseminated in graphic form to the world at large.  I consider that their rights as citizens would be infringed by the vast dissemination and the glare of publicity involved in dissemination to the world at large of the nakedness of their every nuance, emotion, pause or emphasis.  It would be idle to suggest that publication of the raw data to the world at large involves no further considerations than publication of it to the public present at court.  Publication to the world at large by the power of electronic media is a quantum leap from publication to the public at court.  I consider that the proper balance between the accused's rights and those of the public is to permit, indeed facilitate, publication to the world at large, but of the derivative material (that is, the transcripts) only.

1. Different considerations might apply to media dissemination of the sought-for material in a retrospective and holistic context, such as a post-trial media analysis.  Such a later analysis would not involve concurrency with the trial, and might not involve the necessarily highly selective presentation of the material involved in concurrent news presentation.  It would, however, still involve an impact upon the accused's privacy.  Final consideration of the interface of those matters must await another day.

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For those reasons I ruled as I did in Ruling No 15.

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