Summary of Judgment

Jason Joseph Roberts v The Queen

[2020] VSCA 277

10 November 2020

The Court of Appeal (T Forrest and Osborn JJA and Taylor AJA) today allowed an appeal
against conviction in a second or subsequent appeal by the appellant, Jason Joseph Roberts,
in respect of convictions imposed in the Supreme Court in 2002.

This appeal is the first under new provisions inserted into the Criminal Procedure Act 2009
which provide for a second or subsequent appeal against conviction subject to strict
preconditions governing leave to appeal.

Background

On 31 December 2002, the appellant, together with Bandali Debs, was convicted by a jury,
after a four and a half month trial in the Supreme Court, on two charges of murder. The
appellant was sentenced to life imprisonment with a non-parole period of 35 years.

The convictions relate to the murders of two police officers – Sergeant Gary Silk and Senior
Constable Rodney Miller – who were shot in the early hours of Sunday, 16 August 1998
outside the Silky Emperor Restaurant in Cochranes Road, Moorabbin.

At trial, both Debs and the appellant disputed that they were the offenders and, as a
subsidiary proposition, each submitted to the jury that they could not be satisfied that there
were two offenders as distinct from one acting alone. An integral part of the Crown case on
the issue of whether there was more than one offender was evidence of what Senior Constable
Miller said to police officers whilst in a fatally wounded condition (‘dying declarations’), to
the effect that there was more than one offender.

An appeal to the Court of Appeal was dismissed on 6 April 2005, and an application for special
leave to appeal to the High Court was refused on 18 November 2005.

The application for leave to appeal

In 2019, the appellant sought leave to appeal on the basis of two aspects of fresh evidence
going to firstly, the fairness of his trial, and secondly, the credibility and reliability of the
evidence of police witnesses at the trial as to Senior Constable Miller’s dying declarations.

The evidence came to light as a result of evidence given by way of private and public
examinations to the Independent Broad-based Anti-corruption Commission (‘IBAC’). It
showed that an officer or officers of Victoria Police fabricated evidence relating to dying
declarations made by Senior Constable Miller. In particular, a written statement made by
Senior Constable Pullin which was in fact made 10 months after the murders, was expressed
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to be, and subsequently adopted at the committal as, a statement made only some four hours
after the events in issue. The trial proceeded on the basis that the statement recorded the
substantially contemporaneous recollection of the witness. The statement included material
matters which were not included in an initial statement which was in fact made four hours
after the relevant events. The second statement was put forward in the prosecution brief
without disclosure of its falsity as to the stated date of its making and without disclosure of
the existence or contents of the original statement.

The appellant also sought to rely on evidence obtained as a result of IBAC investigations to
demonstrate that there was a broad ranging, multifaceted manipulation of the evidence
bearing on the issue of Senior Constable Miller’s dying declarations crystallising in a further
10 allegations of police misconduct, which, he submitted, had they been known, could have
been of real forensic utility to the defence at trial. In particular, the appellant submitted there
was evidence that officers were dissuaded from including evidence as to Senior Constable
Miller’s dying declarations in statements made on the morning of the murders; original
statements were subsequently revised; records of that process were now unavailable and a
number destroyed; and none of these matters were substantially disclosed at trial. It was also
submitted that the senior officer who oversaw the gathering of the evidence relating to the
dying declarations had been discredited and his account of the process of gathering evidence
should be rejected as unsatisfactory.

The respondent conceded appropriate disclosure had not been made and that the appellant’s
trial counsel was not, but should have been, in an informed position to challenge the evidence
of the dying declarations given by the first responders. But, it was further submitted that the
evidence of the dying declarations was important in, but not critical to, the Crown case.

The Court of Appeal found that there was no dispute that the IBAC evidence with respect to
Senior Constable Pullin’s statement was fresh and, in the Court’s view, it was compelling. The
Court found that the evidence was highly probative in the context of the issues at the trial in
that it raised a serious question as to the fairness of the trial; and it raised a serious issue as to
the reliability of evidence of what Senior Constable Miller actually said by way of dying
declarations. Some aspects of the evidence relied on in respect of the further allegations of
misconduct reinforced that conclusion. In turn, the Court was satisfied that it was in the
interests of justice that the applicant be granted leave to appeal (see Roberts v The Queen
[2020] VSCA 58).

The appeal

Due to COVID-19 restrictions, the hearing of the appeal proceeded by way of semi-remote
hearing in June of this year, with the appellant, counsel and one of the judges physically
present in the courtroom and the remaining two judges sitting remotely.

The question for the Court on the appeal hearing was whether there had been a substantial
miscarriage of justice as a result of that non-disclosure. If satisfied such miscarriage occurred,
the Court was required to allow the appeal.

The Court held that the circumstances in which a substantial miscarriage of justice may be
demonstrated include both those where fresh evidence establishes that an accused did not
receive a fair trial due to a material error or irregularity in the trial process, and those where
fresh evidence establishes that there is a significant possibility that the jury, acting reasonably,
would have acquitted the appellant had the fresh evidence been before it at trial.

In the present case, the appellant contended that the non-disclosure of relevant evidence
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deprived him of a fair trial and that the matters which were not disclosed cast substantial
doubt upon the reliability of evidence which was critical to the Crown case, namely the dying
declarations. The appellant contended that the irregularity constituted by the non-disclosure
was so serious that without more it justified the conclusion that a substantial miscarriage of
justice had occurred, or alternatively, that the Court could not be satisfied that the irregularity
did not make a difference to the appellant’s trial. The appellant submitted that his convictions
should be quashed and he should be acquitted rather than face a retrial in circumstances
where the substantial miscarriage of justice resulted from significant police misconduct and
his conviction had caused him substantial hardship.

The respondent contended that the non-disclosure had no substantial impact on the issues at
trial and, in particular, upon the weight of the evidence at trial on the question of the number
of offenders and as such did not give rise to a substantial miscarriage of justice. The
respondent contended that the Crown case was overwhelming and that conviction was
inevitable irrespective of the dying declaration evidence. Accordingly, the respondent
submitted the non-disclosure did not justify setting aside the appellant’s convictions.

The Court found that Senior Constable Pullin’s undisclosed dishonest conduct influenced the
trial in the prosecution’s favour and to the detriment of the appellant on a critical issue,
namely whether there was more than one offender. This conclusion was fortified by other
aspects of police misconduct in the brief preparation process.

The Court found that the non-disclosure constituted by the police misconduct rendered the
case one in which impropriety and unfairness permeated and affected the trial to an extent
that it ceased to be a fair trial according to law. The defence were precluded from properly
exploring a central plank of the prosecution case in respect of dying declaration evidence and
it was not possible to trace the evolution of relevant police statements, expose those matters
which were not included in initial contemporaneous statements, and identify other material
changes in the evidence. Accordingly, the Court was satisfied that there had been a serious
departure from the prescribed processes for trial and that there had been a substantial
miscarriage of justice.

Further, whilst the Court concluded that it was not strictly necessary to consider whether the
non-disclosure made a difference to the outcome of the trial, the Court found that it could not
be satisfied that the non-disclosure of material evidence did not make any difference to the
outcome of the trial, ie conviction was not inevitable. In consequence, the Court ultimately
found that the appellant had established a substantial miscarriage of justice by reason of
procedural irregularity on either of two bases.

The Court ordered that the appellant’s convictions be quashed and an order made for a new
trial. It rejected the submission that the appellant should be acquitted, holding that the public
interest in prosecution of very serious criminal offences and in the determination of the
appellant’s guilt by jury, required a retrial.

NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s
reasons or to be used in any later consideration of the Court’s reasons. The only authoritative
pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for
judgment.