DPP v Debs & Roberts [2002] VSC 311

2 As a matter of prudent investigatory and police conduct, the arresting officers at the arrest of the first accused at 7.11 a.m. on the morning of Tuesday, 25 July 2000, had the facility upon their persons of continuous electronic recording of that which was said between them and Mr Debs. That material is provided by way of transcript in Appendix A5 of the depositional material. At that time and place Detective Senior Sergeant Collins, having stated to the first accused his legal rights in the normal and correct way, asked: "Do you wish to exercise any of these rights before I speak to you further?" to which Mr Debs replied: "Yeah, I'll call a lawyer." That appears at p.4 of Appendix A5, being p.6013 of the depositional material.

3 That facility was not immediately granted to Mr Debs. Again, I consider that was for prudent operational reason as appears, indeed, in that transcript, for at the same page Detective Senior Sergeant Collins stated: "What I intend to do is take you back to my office at St Kilda where I will allow you to call a lawyer at some stage this morning; do you understand that?" and Mr Debs replied: "Yeah." A little later, at p.12 of A5, being p.6021, Mr Collins said to Mr Debs: "Just so you are aware, when we get back to our office I will allow you, obviously, we will have to make some phone calls in relation to lawyers, that sort of thing. Is that all you want to call, do you want to call anyone else, a friend or a relative?" to which Mr Debs replied: "I'll ring home and just tell them where the car is and organise me a lawyer." Mr Collins went on: "Just so you are aware, until I am advised that the person who I believe to be your accomplice in this matter, Jason Roberts, is arrested, then you won't be making any phone call until that happens, all right; do you understand?" to which Mr Debs replied: "Yeah, I don't know what you are talking about, mate." Mr Collins proceeded: "Until Jason Roberts is arrested then you won't be able to make a phone call as such, all right, because I don't want that phone - that phone call to result in the escape of an accomplice or the fabrication or destruction of evidence, do you understand that, that is my reason for it?" to which Mr Debs replied: "Don't know anything, mate."

4 A little later the police and Mr Debs arrived at the Homicide Squad office. Then, as appears at p.74 of Exhibit A5, being 6083 of the depositions, Detective Senior Sergeant Collins said, "Ben, this is where you're going to be remaining for until we speak to you further, OK; do you understand?" Mr Debs replied: "Yeah. Now when can I ring a solicitor?" Detective Senior Sergeant Collins said: "As soon as I know that, as I said to you in the car, that Jason Roberts has been arrested and spoken to." Mr Debs replied, "I want to see a solicitor now."

5 The facility to contact a solicitor was granted to Mr Debs once the operation of arresting Mr Roberts was effected. I consider that was appropriate conduct by the investigating officers.

6 Then commencing at 9.09 a.m. on that Tuesday 25 July 2000, as appears at p.79 of Exhibit A5, being 6088 of the depositions, the formal interview commenced of the first accused by Detective Senior Sergeant Collins in the presence of other officers. As appears at Question 6, Detective Senior Sergeant Collins having stated the rights of the accused, the following was stated: "You may communicate with or attempt to communicate with a legal practitioner, right, if you are not -" and Mr Debs replied: "I've done that." And that was the fact. Question 13: "Do you wish to exercise any of these rights before the interview proceeds?" Answer: "I've already talked to the lawyer or whatever he is, yeah."

7 As the first accused had stated in the police car that he wished to consult a solicitor before questioning proceeded, I consider that as a matter of law his answers thereafter and until he had had the opportunity of legal consultation are not admissible: s.464C(1) and (2) Crimes Act 1958. Indeed, relevant questioning (as distinct from inconsequential conversation) ought then have been deferred: s.464C(1) and Pollard v R[1]. However in all the circumstances of this case, no prejudice occurred: Mr Debs was afforded access to legal advice when he arrived at the Homicide Squad offices, he obtained that advice, he thereafter acted in a legally informed way, no advantage was gained by the prosecution, and now the prosecution does not seek to lead the police car conversation.

8 I consider that the requirements of Part 3, Division 30A Crimes Act 1958 were complied with in relation to the interview of the first accused at the Homicide Squad office.

9 I do not consider that the answers of Mr Debs to the questions which explicitly or implicitly referred to his answers in the police car ought be excluded. On their face they were made voluntarily by Mr Debs, after receipt by him of legal advice as to his right to answer, which right he soon later exercised. No evidence has been called on the voir dire that he was oppressed, overborne or even influenced in his Homicide Office answers by the fact of having spoken in the police car, or that he considered his then right of silence (in the Homicide Office) was rendered impotent nugatory or irrelevant by the fact of his previously having spoken in the police car. In the circumstances I consider his Homicide Office answers on those matters were voluntary and informed and they are admissible.

10 No submission has been made by the defence that the fact that the conversation in the police car occurred contrary to s.464C sets in train inadmissibility generally of the interview of the first accused at the Homicide Squad office commencing at Question 1 at 9.09 a.m. and which appears at p.79 of Exhibit A5, being p.6088 of the depositions. I consider that that is a correct view of the law. The fact that there was a conversation in the police car in the circumstances I have stated does not as a matter of law vitiate the admissibility generally of the interview at the Homicide Squad office. That is because the questioning - with Mr Debs now legally informed - started afresh and was not dependant, in my view, factually operationally or psychologically upon the police car conversation. There was some, limited, interface between the Homicide Office interview and the police car questioning, as I shall come to, but in my view it was not such as to affect in any significant way, let alone poison or vitiate, the Homicide Office interview. It was, at most, background and introductory.

11 That part of the conversation between Detective Senior Sergeant Collins and Mr Debs which occurred between questions 108 and 109 and which appears at pages 92-100 of A5 (pages 6101-6109 of the depositions) is not proposed to be led. It is inconsequential and the defence does not seek to make any use of it.

12 I have been most assisted by the submissions of Mr Georgiou in relation to the Homicide Squad office interview and have paid careful attention to the matters he has raised. However, I am unpersuaded that any material in the interview proper, that is, the interview at the Homicide Squad office, ought be excluded as a matter of law or as a matter of discretion. I am unpersuaded that any of the questions were unfair or inappropriate. I consider they were fair and appropriate. I am unpersuaded that any of the matter is irrelevant or unprobative. I am satisfied it is relevant and probative. I do not consider any cross-examination or other inappropriate mode was adopted by Detective Senior Sergeant Collins in that questioning.

13 The questioning should conclude at Question 268, at p.123 of Appendix A5, being 6132 of the depositions, where the first accused stated, "Look, I'm not going to make any more comments, because I'm not interested in any of this." What had occurred was that after other questions were asked, the topic asked of the first accused by Detective Senior Sergeant Collins at question 268 moved to Jason Roberts being the first accused's daughter's boyfriend, and it was at that point that Mr Debs stated what I have just cited. Accordingly, as he then exercised his right not to answer questions, the balance of the interview should not be led.

14 That, however, does not involve the non-leading of the earlier parts, because, as to those earlier parts, first, Mr Debs was properly advised of his rights by Detective Senior Sergeant Collins; second, Mr Debs understood those rights; third, he received legal advice in relation to those rights; and fourth, he exercised an apparently voluntary choice to answer questions. Accordingly, the fact that at Question 268 when he was asked about his daughter's boyfriend he then exercised the right, does not work back upstream, to render inadmissible his prior voluntary and informed answers. By "informed", I mean informed as to his legal right of silence.

15 As to Question 268, an appropriate and usual formula ought to be stated by the prosecution, that the accused exercised his right of silence. I will give the jury the usual direction of law that that is a right that an accused has, and that no adverse inference can be drawn against the accused for that exercise of right. It is my practice - and I will follow it in this case - to state also to the jury that it would indeed be a hollow right if you are correctly informed of it, and you exercise it, and then you are later blamed for the exercise of your lawful right. My experience is juries well understand the fairness of that analysis and act according to that legal direction.

16 The only remaining question in relation to A5 is the occasional references overtly contained in it as to the police car conversation. I consider that those overt references ought to be edited out of the transcript of Questions 1-268. Not to be led by agreement are questions 116-131 (to the word "later"), 133 and 153-158. They all relate to the police car conversation and should not be led. For like reason I consider questions 32-33 should not be led. On their face they are inconsequential and only have relevance in establishing that a conversation occurred in the police car. They are, Question 33 (from Detective Senior Sergeant Collins): "Do you agree that we - on the way back to the office, we had a conversation in the car?" Answer: "You talked to me. I - just in conversation." Question: "And you, you spoke to us back?" Answer: "Yeah." I consider those answers ought to be edited out because they are unnecessary, and it would be undesirable for the jury to be left in a state of wondering what the conversation in the car was. I do not think any harm will occur, because the jury would assume there was some passing inconsequential conversation in the car, but it is better, I think, to not refer to it as such. Further, as to questions 168 and 223 as acknowledged by Mr Rapke in his submissions in reply to Mr Georgiou, where there appear words as "You told me this morning", that part of those questions ought to be edited out. That minor editing would cause no difficulty to the elicitation of the interview and of its transcript. Unless the defence, for its own purposes, wants in Questions 32 to 33 or the other questions or wants in the preface to questions 168 and 223, those matters should be edited out. That can be a matter for communication between counsel professionally. Other than those matters the interview of the first accused at the Homicide Squad office by Detective Senior Sergeant Collins is admissible.

17 I turn next to the question of the telephone intercepts.

18 It was submitted on behalf of the defence that the telephone intercepts were not of probative value and were prejudicial and ought be excluded. I am unsatisfied that that is so. On the contrary, I am satisfied that the telephone intercept evidence is relevant and admissible.

19 The distinguishing features of the telephone intercepts are the following. First, like the listening devices, they are lawful: that is to say they were authorised pursuant to statute. Second, unlike the listening device material, there is no problem of audibility with the telephone intercepts. That is of significance of

itself. Third, unlike the listening device material, most of the telephone intercept material is not overtly incriminatory. Indeed on that account the defence submitted it is not probative. However, I consider that the probative value and relevance of the telephone intercept material is not derived from an overtly incriminatory character which, on its face, it lacks. Rather, the relevance and admissibility of the telephone intercept material is contextual. That is to say it provides a context in which other actions, notably conversations between the accused or between one accused and other persons occurred and which were recorded by the listening devices. Mr Serong in his helpful submissions for the prosecution utilised the expression that they constitute "a loop of communication". The analysis he provided in those submissions in relation to the telephone intercepts articulated a context or setting in which the listening device material can be elicited by the prosecution. That operates in three ways. First, by the existence of the finite telephone conversations at specific times and places; places meaning origins and points of hearing. Second, by the content of the conversations which is, on its face, guarded and circumspect, but which the prosecution says provides a context for the unguarded and uncircumspect statements of the accused when they were not on the phone but when unknown to them they were the subject of listening device technology. Thirdly, on occasion, particularly as to the Sydney episodes, the number and immediacy of the repeat phone calls, that is to say the number of times a telephone number was rung. That in turn is capable properly of utilisation by the prosecution of actions by, in that case, the first accused, which are relevant and admissible. The final matter is that the telephone conversations are purposeful behaviour, that is to say deliberate actions initiated by a person.

20 Accordingly, I am satisfied for those reasons that the telephone intercept evidence is admissible.

[1] [1992] HCA 69; (1992) 176 C.L.R. 177.