DPP v Debs & Roberts
[2003] VSC 23
•17 February 2003
| 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. 19
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 23 | |
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Criminal law and procedure – murder – evidence – refusal by accused to enter identification parade – evidence inadmissible – 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 | Victoria Legal Aid |
| For the accused Roberts | Mr I.D. Hill QC | Lethbridges |
HIS HONOUR:
In Ruling No.19, in the exercise of discretion, I excluded evidence sought to be led by the prosecution that, following his arrest for the murders of Sergeant Silk and of Senior Constable Miller and consequent police interview on 25 July 2000 the first accused, Mr Debs, was asked by Detective Senior Sergeant (now Detective Inspector) Collins "about his willingness to participate in an identification parade", and that Mr Debs "refused to go in a parade". When I made that Ruling, cross-examination of Detective Inspector Collins was imminent, and I stated that I would give my reasons later that week. I now publish those reasons.
Reasons
The quoted expressions in the preface are taken from the statement of Detective Inspector Collins made on 29 November 2000 and tendered at the committal. The first accused, Mr Debs, had been arrested for the murders of the two police officers on 25 July 2000 at 7.11 am. He was taken to the Homicide Squad Office where he was interviewed by the Detective Inspector, who duly warned Mr Debs and provided proper facilities to him including telephone conferral with a solicitor. After answering some 268 questions Mr Debs exercised his right not to answer further questions. At 7.30 pm he was charged with the murders of Sergeant Silk and Senior Constable Miller. An hour later he was taken before a bail justice and was remanded to the Melbourne Magistrates’ Court the next day. At 9.20 pm, en route to the Melbourne Custody Centre, a conversation occurred which in relevant part I have quoted in paragraph 1.
On 7 August 2000 Detective Inspector Collins spoke to Mr Debs’ solicitor and informed him that he wished to interview Mr Debs in relation to ten armed robberies and asked whether Mr Debs would be prepared to participate in an identification parade in relation to the murders of Sergeant Silk and of Senior Constable Miller and in relation to the armed robberies. The solicitor obtained instructions and informed Detective Inspector Collins that Mr Debs declined further to be interviewed and to enter any identification parade. Those declinings were subsequently confirmed by letter from Mr Debs’ solicitor.
On 21 September 2000 – that is, some two months after the initial request and refusal – a witness, Ms T. Chadwick, at the Homicide Squad Office viewed a video of 12 persons (of whom Mr Debs was No.8) and identified Mr Debs as a robber in an armed robbery of 9 March 1998. That robbery was the first of ten armed robberies – the "Hamada" robberies – which the prosecution says were committed by the two accused and which led to their presence at the scene of the murders of Sergeant Silk and Senior Constable Miller. For the prosecution says that the Saturday night 15 August 1998 was to be the eleventh Hamada robbery, but was deflected by the presence of the two officers and whom the accused shortly thereafter killed on Cochranes Road, Moorabbin. The accused on this presentment (for the murders of the two officers) are not presented for the Hamada robberies. However, I have admitted evidence of those robberies in this trial as relevant to proof of the identity and motive of the killers, for reasons I stated in Ruling No.2. Thus the video identification by Ms Chadwick of Mr Debs as a robber in the armed robbery on 9 March 1998, although not identification by a witness of a killer at Cochranes Road, Moorabbin on 16 August 1998, is relevant and significant in proof of the identity (and motive) of that killer.
Evidence that an accused declined to participate in an identification parade is on its face admissible evidence where as a consequence of that refusal another form of identification procedure is utilised by investigating police: R v Clune[1] and R v Hancock.[2] In Clune McGarvie J stated (at 27):
[1](1982) V.R. 1 at 27 per McGarvie J.
[2]Unreported, N.S.W. Court of Criminal Appeal, 16 November 1990.
"I consider it would usually be admissible, and usually be a proper exercise of discretion to admit, evidence of a refusal to take part in an identification parade, not as indicating the guilt of the accused but as explaining why the Crown did not use for identification the more satisfactory method of an identification parade: cf. Marcoux and Solomon v R (1975) 60 D.L.R. (3d) 119."
Although in Clune Crockett J at 11 expressed a more circumscribed view than that of McGarvie J cited ("Of course, if no consent is given to participation in a line-up, that fact may be proved by the Crown in order to meet any adverse comment based on the failure to conduct a parade: Marcoux and Solomon v R (1975) 60 D.L.R. (3d) 119") the better view appears to be that later expressed by the N.S.W. Court of Appeal in R v Hancock where Gleeson CJ (as there he was, and in whose reasons Grove and Loveday JJ agreed) at 16-17 stated:
"… in my view, it is well established that evidence of that kind is admissible. The reason why it is admissible is that it enables the Crown to explain to the jury why there is no evidence of an identification parade. In a case where there is a dispute about whether or not the accused was the person who committed a particular crime, the jury might very reasonably ask themselves why the accused has not been subject to an identification parade. If the Crown could not lead evidence of the fact that the accused had been offered the opportunity of participating in an identification parade then the jury might easily infer, if left to their own devices, that in some way he had been unfairly dealt with. In my view, provided the learned trial judge, having admitted the evidence, makes it plain to the jury they cannot draw any inference adverse to the accused from the evidence then no injustice has been done."
His Honour then cited with approval the statement above cited of McGarvie J in Clune at 17. See also McCarthy and Ryan[3] and the authorities there cited. As Hunt CJ at C.L. there rightly emphasised, and the other judges also, where evidence of an accused declining to enter an identification parade is led, the trial judge should give the jury an appropriate and clear direction as to the permissible use of such evidence and that such evidence cannot be used by the jury as evidence of guilt of the crime charged.
[3](1993) 71 A.Crim.R. 395 at 404 per Hunt CJ at C.L. (in whose reasons Wood J as then he was and Smart J agreed).
The principles established by the authorities cited in the previous paragraph are unaffected by those enunciated in Petty v The Queen[4] and in R v Hartwick[5], which authorities relate to an accused declining to answer police questions. Different considerations apply to identification, as is well established: R v Haidley and Alford,[6] R v Hoxha[7] ("A very different approach has been adopted to the conduct of identification paroles …") and at 11 per Callaway JA ("Vincent AJA has referred to some of the factors that distinguish confessional material from identification paroles …") and Clune at 11 per Crockett J ("In circumstances that do not involve a misuse of the detention then it is true that the applicant has no right not to be identified"). In citing the lastmentioned passages from Hoxha and Clune I do not suggest that an accused has no rights, or has but attenuated rights, as to identification process; however, it is clear that the considerations applicable to identification are by no means coextensive with those applicable to the right to silence. For that reason the principles, and the rationale, of Petty and Hartwick do not deflect the law as stated in Clune and Hancock cited in the preceding paragraph.
[4](1991) 173 C.L.R. 95 at 99 per Mason CJ and Deane, Toohey and McHugh JJ.
[5]Unreported, Victorian Court of Appeal, 20 December 1995 at 5-6.
[6](1984) V.R. 229.
[7]Unreported, Victorian Court of Appeal, 1 November 1995 at 8 per Vincent AJA.
Accordingly evidence of the declining by Mr Debs of the request by Detective Inspector Collins to take part in an identification parade (on the murders of 16 August 1998 or the armed robbery of 9 March 1998) is on its face admissible evidence – not to prove the guilt of the crimes charged, of course, but a priori on the matter of appropriate police procedure.
In the present case, there is a further, consequent, circumstance which would found the reception of that evidence. That is that the defence of Mr Debs has asserted a criminal conspiracy by investigating police (Detective Inspector Collins being the second-in-charge of the investigating Task Force) to pervert the course of justice by framing the first accused, Mr Debs. Accordingly, the proffering by Detective Inspector Collins to Mr Debs of a proper and regular procedure (an identification parade) is relevant to meet that defence allegation.
However, in all the circumstances of this case, I conclude that in the interests of fairness I should exclude the evidence although in law it was relevant. Those circumstances are that Mr Dane, senior counsel for the first accused, has earnestly sought its exclusion, and that he has informed me that there is no challenge by the defence to the choice of medium (identification by video as distinct from personal identification parade) either as a link in a chain of reasoning as to identification or as an element in the asserted police conspiracy. In those circumstances I conclude that I should exercise a beneficient discretion to the first accused. There is a challenge, and a strong challenge, by the defence to the accuracy and reliability of the identification in fact, but that is a separate matter.
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For those reasons I ruled as I did in Ruling No.19.
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