Director of Public Prosecutions v Roberts (Ruling No 13)
[2022] VSC 321
•10 June 2022
| 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: | 9 June 2022 |
DATE OF RULING: | 10 June 2022 |
CASE MAY BE CITED AS: | DPP v Roberts (Ruling No 13) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 321 |
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CRIMINAL LAW – Murder – No case submission – Prosecution case primarily circumstantial – Complicity – Whether jury could be satisfied beyond reasonable doubt that accused participated in murder of Senior Constable Miller (charge 12) – Whether hypothesis consistent with innocence able to be reasonably excluded by jury – Accused has case to answer.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Ihle QC with Mr G Hayward | 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 man is charged with the murder of Sergeant Gary Silk (charge 11) and Senior Constable Rodney Miller (charge 12) at Moorabbin on 16 August 1998. The prosecution case is now closed. Mr D Hallowes SC, who appears with Mr M McGrath for the accused man, has submitted that there is no case to answer on charge 12.
The background circumstances of the case have been set out in earlier rulings that I have made in the proceeding. It is not necessary for me to repeat them in detail.
Between March and July 1998, the accused man, in company with Bandali Debs, committed a series of ten armed robberies on commercial premises in the eastern and south-eastern suburbs of Melbourne. Those offences are the subject of charges one to ten on the indictment, to which the accused has pleaded guilty. As a result of the armed robberies, on the evening of 15 August 1998, Sergeant Silk and Senior Constable Miller were directed to perform surveillance duties in an unmarked police vehicle in the vicinity of the Silky Emperor Chinese Restaurant that was located in Warrigal Road, Moorabbin, a short distance south of the intersection of Warrigal Road and Cochranes Road. The two police members were undertaking those duties as part of an operation conducted by the Armed Robbery Squad that was directed to detecting and apprehending the offenders who had perpetrated the armed robberies.
Shortly after midnight on 16 August 1998, Sergeant Silk and Senior Constable Miller intercepted a blue Hyundai vehicle in Cochranes Road, a short distance west of the intersection of that road and Warrigal Road. That vehicle had been observed driving into the car park of the restaurant, and, after a short interval, exiting the car park. Within a short time after the interception of the vehicle, Sergeant Silk was shot dead and Senior Constable Miller was fatally wounded by gun fire.
The evidence, that has been adduced in the trial, demonstrates that Sergeant Silk was shot in the left chest wall by a round discharged by a .38 Smith & Wesson revolver, that he was shot in the left flank by a .357 Magnum calibre round, and that he was shot in the head behind the left ear with a .357 Magnum calibre round. Senior Constable Miller sustained a bullet wound to the left mid-lateral chest wall that had been discharged by a .357 Magnum calibre firearm. Police who attended the scene shortly after the shooting found the deceased body of Sergeant Silk on the nature strip approximately twelve metres south-west of the unmarked police vehicle. The evidence demonstrates that after Senior Constable Miller sustained the fatal wound to his chest, he was able to make his way east along Cochranes Road, and south down Warrigal Road, where he collapsed in the driveway to the Silky Emperor Restaurant. He passed away later in the morning in hospital as a result of the bullet wound he sustained.
It is common ground, and Debs has given evidence, that at the time the Hyundai vehicle was intercepted, it was being driven by Debs. The prosecution case is that the accused man was present in the Hyundai vehicle at the time of the interception. It is alleged that Debs was armed with a .357 Magnum calibre revolver and the accused man was armed with a .38 Smith & Wesson revolver. The prosecution case is that after the interception the following events occurred (not necessarily in this sequence):
(a) Debs fired one or more shots at Senior Constable Miller using his .357 Magnum firearm, one of which struck Miller in the left chest and which resulted in Miller’s death.
(b) The accused fired two shots at Sergeant Silk with his .38 Smith & Wesson handgun, one of which struck Sergeant Silk in the left chest wall.
(c) Debs fired two further shots at Sergeant Silk using the .357 Magnum handgun, one of which struck Sergeant Silk in the left flank, and one of which struck Sergeant Silk in the head behind the left ear.
The accused denies that he was present in the Hyundai when it was intercepted, and that he was criminally involved in the murder of the two police members. On this application, it is not in issue that there is sufficient evidence on which the jury could be satisfied that the accused was present at the time of the interception, and that he fired the two shots with the .38 Smith & Wesson handgun, one of which struck Sergeant Silk. The issue, raised by the no case submission, is whether there is evidence on which the jury could be satisfied beyond reasonable doubt that the accused participated, and was criminally implicated, in the murder by Debs of Senior Constable Miller (charge 12).
The prosecution puts its case on each charge on alternative bases. On charge 11, it is put that the accused fired the shot (with the .38 calibre Smith & Wesson firearm) that caused the death of Sergeant Silk. Alternatively, it is put that if that wound did not cause the death of Sergeant Silk, the accused was criminally complicit in the murder of Sergeant Silk, either by aiding and abetting Debs to murder Sergeant Silk, or alternatively on the basis that he was party to and participated in an agreement with Debs pursuant to which Debs shot and killed Sergeant Silk. The prosecution case, on those alternative bases, is that the accused aided and abetted Debs, or participated in the joint criminal enterprise, by himself shooting Sergeant Silk in the chest with the .38 calibre Smith & Wesson handgun.
On charge 12, the prosecution case is that the accused was criminally complicit in the murder of Senior Constable Miller by Debs. Specifically, it is put that by shooting Sergeant Silk with the .38 calibre handgun, the accused aided and abetted Debs in the murder of Senior Constable Miller, or alternatively he thus participated in a joint criminal enterprise with Debs pursuant to which Debs shot and killed Senior Constable Miller. On charge 11 and on charge 12, the prosecution alleges that the relevant joint criminal enterprise comprised an agreement, arrangement or understanding between Debs and the accused, that they would use their firearms to prevent their lawful apprehension or detention, including by killing or causing really serious injury to any person who tried to apprehend or detain them.
The prosecution has accepted (correctly) that in order that the accused be found guilty, on the basis that he aided and abetted Debs to commit the particular offence charged, the jury must be satisfied, on charge 11, that the accused shot Sergeant Silk before Debs shot and killed Sergeant Silk, and, on charge 12, that the accused shot Sergeant Silk before Debs fired the shot which resulted in the death of Senior Constable Miller.
In order that the accused man be guilty of the commission of the offence that is the subject of either charge, on the basis of his involvement in the joint criminal enterprise that is alleged, the prosecution must prove that the accused man himself participated in the criminal activity that was committed within the scope of the joint enterprise.[1] In that respect, I have ruled that, in order to establish the accused man’s guilt arising from his involvement in the joint criminal enterprise, the prosecution must prove that the accused man performed an act of participation in that enterprise before Debs performed the criminal act which constituted the charged offence. Accordingly, in order to convict the accused man on charge 11, on the basis of his involvement in the joint criminal enterprise, the jury must be satisfied beyond reasonable doubt that the accused man shot Sergeant Silk before Debs fired the shot or shots which caused the death of Sergeant Silk. On charge 12, the jury must be satisfied, beyond reasonable doubt, that the accused man shot Sergeant Silk before Debs fired the shot which resulted in the death of Senior Constable Miller.[2]
[1]See, eg, R v Clarke [1986] VR 643, 653 (Crockett, McGarvie and Southwell JJ); Huynh v The Queen (2013) 228 A Crim R 306, 308 [5], 312 [22] (French CJ, Crennan, Kiefel, Bell and Gageler JJ).
[2]DPP v Roberts (Ruling No 12) [2022] VSC 292, [63]–[65].
Submissions
In support of the application, Mr Hallowes submitted that the jury could not be satisfied beyond reasonable doubt that Sergeant Silk was shot by the accused before Debs fired the shot which resulted in the death of Senior Constable Miller. In particular, Mr Hallowes contended that the jury could not reasonably exclude the hypothesis that Debs fired the shot which struck, and resulted in the death of, Miller, before the accused fired the two shots at Sergeant Silk, one of which struck him in the chest.
Mr Hallowes noted that the only direct evidence on the sequence of events was that given by Debs, and that the jury was not bound to accept his evidence. Otherwise the case made on behalf of the prosecution was fundamentally a circumstantial case. Based on the evidence, the jury could readily conclude that the first volley of shots was fired in close succession. However, the evidence does not enable the jury to be satisfied beyond reasonable doubt that the accused fired the shots at Sergeant Silk before Debs fired the shot which fatally wounded Miller and resulted in his death.
In response, Mr B Ihle QC, who appears with Mr G Hayward for the prosecution, submitted that there are five items of evidence, on the basis of which the jury could reasonably conclude beyond reasonable doubt that the accused man shot Sergeant Silk before Debs fired the shot which wounded Senior Constable Miller and caused his death. Mr Ihle submitted that, based on the combined effect of those five pieces of evidence, such a conclusion was open to the jury, and, further, the jury could reasonably exclude the contrary hypothesis, namely, that Debs fired the shot which fatally wounded Senior Constable Miller before the accused discharged his firearm at Sergeant Silk. Those pieces of evidence are as follows.
First, Mr Ihle submitted that the jury could properly conclude that Sergeant Silk’s body was located in the same position in which he was standing when he was shot. The medical evidence is that he was shot front on to the chest. His weapon was not removed from its holster. There was no evidence that Sergeant Silk was able to react at all to the other sound of gunfire before he was shot and wounded in the chest.
Secondly, Mr Ihle pointed to the evidence that, in the first volley of shots, that were heard by persons who were nearby, Senior Constable Miller had discharged at least two shots in the direction where Sergeant Silk and the accused man had been standing shortly before the incident commenced. Mr Ihle submitted that that evidence is relevant because it indicates, first, that Senior Constable Miller’s initial reaction was to fire in the direction in which he first heard gunfire, and, secondly, that Sergeant Silk must by that time have been felled, otherwise Miller would not have discharged his handgun in that direction.
Thirdly, Mr Ihle pointed to the evidence of Mr Peter Ross, the chemical trace expert, that the first shot or shots fired by Debs were from within the Hyundai vehicle, that that shot or those shots fired by Debs did not wound Senior Constable Miller, and that, at the time at which Debs subsequently fired the shot which struck Senior Constable Miller, the latter had changed his position and had moved further away from the Hyundai vehicle.
Fourthly, Mr Ihle referred to the evidence of Senior Constable Sherren that he heard a volley of four shots, each of which appeared to have been discharged by a weapon of the same calibre; then, after a short pause, he heard a second volley of shots which appeared to have been discharged from a weapon of a different calibre. Mr Ihle submitted that that evidence supports the conclusion that the first volley comprised shots fired by the accused from the .38 Smith & Wesson (Webley Enfield) revolver, and shots discharged in response by Senior Constable Miller from his .38 Special Smith & Wesson revolver. He submitted that the evidence of Senior Constable Sherren further supported the conclusion that the second volley of shots, which sounded different, were those discharged by Debs from the .357 Magnum calibre firearm.
The fifth point relied on by Mr Ihle was the evidence of the location on the roadway of blood spots from Senior Constable Miller’s wound. In particular, the first blood spot was found close to the front of the police vehicle. The evidence of Dr Robertson is that Senior Constable Miller was shot in the left chest, and that the bullet exited his right flank. The evidence of witnesses who attended Senior Constable Miller outside the Silky Emperor Restaurant in Warrigal Road was that it was the wound to the right flank which was then bleeding profusely.
Based on that evidence, Mr Ihle submitted that it was open to the jury to be satisfied beyond reasonable doubt that the first shots, which were fired in the incident, were those discharged by the accused man at Sergeant Silk. He submitted that accordingly the jury could reasonably exclude the alternative hypothesis, namely, that the accused did not shoot Sergeant Silk until after Debs had fired the shot which struck and fatally wounded Senior Constable Miller.
In response, Mr Hallowes submitted that while the hypothesis, contended for the by the prosecution is reasonably open, nevertheless the five points relied on by Mr Ihle, in combination, could not rationally exclude the alternative hypothesis, namely, that the accused did not shoot Sergeant Silk until after Debs had fired the shot which fatally wounded Senior Constable Miller.
Legal principles
The principles that apply to the application made on behalf of the accused are well established. The test which I must apply is not whether the accused man should be convicted on the charge in question. Rather, the test is whether, on the evidence, the jury could lawfully convict the accused of the offence the subject of the charge.[3] In particular, the test is not whether a verdict of guilty would be unreasonable, and thus liable to be set aside on appeal under section 276(1) of the Criminal Procedure Act 2009. Even if the prosecution case is weak it must be left to the jury, unless on the evidence the accused man could not be lawfully convicted.
[3]May v O’Sullivan (1995) 92 CLR 654, 658 (Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ).
In Attorney-General’s Reference (No 1 of 1983)[4] the Full Court stated the test in the following terms:
The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury’s, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and as Menzies J explained in Plomp’s Case, in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt.[5]
[4][1983] 2 VR 410.
[5]Ibid 415–16 (Young CJ, Anderson and Gobbo JJ) (emphasis in original).
In similar terms, in Doney v The Queen,[6] the High Court stated the principles as follows:
[I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.[7]
[6](1990) 171 CLR 207.
[7]Ibid 214–15 (Deane, Dawson, Toohey, Gaudron and McHugh JJ).
Apart from the evidence given by Debs, the prosecution case against the accused man, on both charges, is essentially circumstantial. In such a case, the judge should not take the case from the jury on the basis of a conclusion that, at the close of the prosecution case, the prosecution has failed to exclude an hypothesis consistent with innocence. The judge may only take such a case away from the jury if on the evidence there remains open an inference consistent with innocence which could not be rationally excluded by the jury.[8]
[8]Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410, 415; R v Cengiz [1998] 3 VR 720, 735 (Harper AJA); Case stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323, 327 (King CJ); R v CLD [2015] NSWCCA 114, [46]–[48] (Meagher JA, Simpson and Schmidt JJ).
In R v A2,[9] Kiefel CJ and Keane J stated the test as follows:
Application of the Doney test requires assessment of the sufficiency of the evidence taking the prosecution evidence (including the answers of prosecution witnesses to cross-examination) at its highest and drawing all inferences favourable to the prosecution case that are reasonably open. If the case is circumstantial, it is not to the point that the court may consider an hypothesis consistent with innocence to be reasonably open on the evidence. The question is whether a jury, taking the evidence at its highest and drawing all reasonably open inferences that are most favourable to the Crown, could rationally exclude that hypothesis. Subject to contrary statutory provision, the court does not need to consider evidence that contradicts, qualifies or explains the prosecution’s case or that supports the accused’s case. That requires consideration of the evidence.[10]
[9](2019) 269 CLR 507.
[10]Ibid 536 [91] (emphasis in original) (citations omitted).
Analysis and conclusion
It is not in issue on this application that, based on the evidence that has been adduced on behalf of the prosecution, the jury could be satisfied beyond reasonable doubt that the accused man was a party to an agreement, arrangement or understanding with Debs that they would use their firearms to resist or prevent their lawful apprehension or detention by killing or causing really serious injury to any person who tried to apprehend or detain them.
The authorities make it clear that the relevant agreement, arrangement or understanding need not be the subject of any express discussion or conversation between the participants to the joint criminal enterprise. The agreement, arrangement or understanding may be the subject of an implicit or tacit understanding reached between them in circumstances where their actions and conduct conveyed the message between them. Further, the agreement or arrangement need not be long-standing, and indeed can be reached between the parties only moments before the commission of the offence in question.
In R v Jensen,[11] the Full Court stated the relevant principles as follows:
For people to be acting in concert in the commission of crime, their assent to the understanding or arrangement between them need not be expressed by them in words; their actions may be sufficient to convey the message between them that their minds are at one as to what they shall do. The understanding or arrangement need not be of long standing; it may be reached only just before the doing of the act or acts constituting the crime. In deciding whether any understanding or arrangement existed, a jury may draw inferences from all the surrounding circumstances established by the evidence, including the conduct of the persons in question before and after the crime.[12]
[11][1980] VR 194.
[12]Ibid 201 (Young CJ, McInerney and Newton JJ). See also R v Lowery (No 2) [1972] VR 560, 561 (Smith J); McAuliffe v The Queen (1995) 183 CLR 108, 114 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ); Tangye v The Queen (1997) 92 A Crim R 545, 556–7 (Hunt CJ at CL); Osland v The Queen (1998) 197 CLR 316, 343 [73] (McHugh J); Sever v The Queen [2010] NSWCCA 135, [144] (Latham J).
The circumstance, that the agreement or understanding may be implicit, and may be impromptu in nature, formed between the parties just before the commission of the act or acts constituting the crime, was discussed by the Court of Appeal in Guthridge v The Queen.[13] In that case, the accused had been involved in an impromptu high speed race against another driver in an industrial and residential zone, when the other driver struck another car killing the driver of that car. The accused was convicted on a charge of dangerous driving causing death. The Court, while refraining from expressing a view as to whether concert was open in that case, stated the principles in the following terms:
If one person attempts to race another along a busy highway, without observing road rules, there may be circumstances in which it could be found that the participants in the race have implicitly agreed to drive dangerously. If a death occurs as the result of a collision between one of the drivers and another highway user while the understanding or agreement to race is still in force, each of the participants in the race may be held equally liable for culpable driving, dangerous driving causing death, or other relevant offence. In such circumstances, the Crown would not need to prove that those engaged in the race had agreed to cause death, but only that they had agreed to drive dangerously. The fact that the race was ‘impromptu’ and had no clear finishing point would not preclude a verdict of guilty of dangerous driving causing death, based on their participation in a joint criminal enterprise. Had there been an agreement to commit the offence, the co-offender would be criminally liable, both for the consequences of the crime which the parties have agreed to commit, and for consequences which were not agreed to, but which he or she could have foreseen.[14]
[13](2010) 27 VR 452.
[14]Ibid 461 [101] (Neave and Redlich JJA and Coghlan AJA).
As I have mentioned, it is not in issue that there is evidence on which the jury could conclude, beyond reasonable doubt, that the accused was a party to an implied agreement, arrangement or understanding with Debs, namely, that they would use their firearms to resist or prevent their lawful apprehension or detention, by killing or causing really serious injury to any person who tried to apprehend or detain them.
The relationship between the accused and Debs at that time is relevant context to the nature of the tacit agreement or arrangement between them. At the time at which the offences took place, the accused had, in the preceding four months, been involved in ten serious armed robberies in company with Debs. The evidence of those armed robberies demonstrates that Debs and the accused worked closely together as an organised team, with each of them having their own individual roles and purposes. The evidence is sufficient for the jury to be satisfied that, on the occasion of each of those armed robberies, the accused and Debs were each armed with loaded firearms.
It is not in issue, on this no case application, that it would be open to the jury to conclude that when the Hyundai was intercepted in Cochranes Road, the accused was present in it as a passenger, and that he and Debs were each armed with loaded firearms. Debs gave evidence that shortly before they were intercepted by Sergeant Silk and Senior Constable Miller, he had noticed that the Hyundai was being followed by an unmarked police vehicle, and he made a remark to that effect to the accused. It is clear that Debs and the accused jointly had a powerful motive at that point to avoid being detected and apprehended by the two police members. Debs’ evidence was that, at that stage, the accused man lowered his position in the seat so as to avoid being observed.
After the Hyundai was intercepted, and shortly after Senior Constable Miller had directed Debs to open the rear hatch of the vehicle, Debs shot at Miller. The evidence of bystanders, who heard the shots, was to the effect that they first heard the sounds of a number of shots in quick succession. Notwithstanding the submissions advanced by Mr Ihle, for the purposes of this application, I do not consider that the jury could be satisfied that the accused fired the first shot. The evidence of Debs was to the contrary effect. The nature of the relationship between the accused and Debs, as evidenced by their respective roles and conduct in the armed robberies, weighs heavily against such a conclusion.
However, the jury could properly conclude that it was in the course of that first burst of gunfire that Sergeant Silk was shot in the chest. Debs gave evidence that almost immediately after he had discharged the first shot at Senior Constable Miller, he heard the sounds of gunfire from where Sergeant Silk and the accused were standing outside a nearby factory. The evidence demonstrates that Sergeant Silk did not get the opportunity to take any steps to remove his own firearm from its holster. Thus, the jury could properly conclude that very shortly after Debs fired the first shot at Senior Constable Miller, the accused man shot Sergeant Silk. His actions in doing so, in almost instant succession after Debs had shot at Miller, could be properly regarded by the jury as bespeaking a meeting of the minds between himself and Debs.
In that context, the question, raised by the application made on behalf of the accused man, is whether, based on the evidence, the jury could be satisfied beyond reasonable doubt that the accused shot Sergeant Silk with the .38 calibre Smith & Wesson firearm before Debs fired the shot which wounded Senior Constable Miller and resulted in his death.
In his evidence, Debs stated that he fired the first two shots at Senior Constable Miller at close range. It was at least implicit in his evidence that either the first or second of such shots struck Miller. Plainly, on the question in issue, that evidence supports the position taken on behalf of the accused man.
However, the jury is not obliged to accept the evidence of Debs on that point, or indeed at all. Peter Ross, the chemical trace expert who gave evidence on behalf of the prosecution, concluded that the first shot which had been fired at Senior Constable Miller had been discharged from within the Hyundai. Mr Ross further concluded that that first shot did not strike Senior Constable Miller, but was responsible for a deposit of glass and partly burnt propellant grains on the right hand side of his clothing. Based on a test that he had conducted with a rear windscreen of another Hyundai, Mr Ross considered that Senior Constable Miller would have been within two metres of the rear of the vehicle when that shot was fired.
Mr Ross therefore concluded that when Senior Constable Miller was struck in the left side of his chest by the .357 calibre round which resulted in his death, he had by then turned 180 degrees. Mr Ross noted that there was no glass or propellant detected on the left side of Senior Constable Miller’s clothing, and accordingly the entry wound had been caused by a different shot to that which caused the spray of glass and propellant to the right hand side of his clothing. It would be open to the jury to infer that Senior Constable Miller would have been further distant from the rear of the Hyundai vehicle when that shot was fired. That inference is also supported by the evidence that the first blood spots, that were located on the surface of Cochranes Road, were in the vicinity of the front of the police vehicle, which was some distance to the rear of the Hyundai vehicle.
A number of witnesses, who heard the sounds of gunfire, gave evidence in the case. Unsurprisingly, their evidence as to the number of shots that they heard fired, and the nature of the sounds, differed. However, there was evidence of a number of those witnesses to the effect that the first shot did not occur in isolation, but that it was part of a flurry or volley of gunfire discharged in close succession.
Shortly before the shooting, Senior Constable Sherren and Senior Constable Bendeich had driven past the Hyundai after it had been intercepted by Sergeant Silk and Senior Constable Miller. Bendeich and Sherren then drove a further 150 to 200 metres east on Cochranes Road, and took up a position in Capella Crescent in order to observe the interception. Senior Constable Bendeich gave evidence that after they had taken up that position, he heard some six to ten shots, a short break, and then two further shots. Senior Constable Sherren heard four shots in close succession, then, after a pause, a further three or four shots. He considered that the first burst of shots sounded the same, but the second burst of shots seemed to be from a firearm of a different calibre.
A number of other persons who were in the neighbourhood also heard the sounds of gunfire. Witness statements that they made to the police were tendered as their evidence. A common feature of their evidence was that the first group of shots occurred in quite close succession.
Christopher Casey, who was then in Karkarook Park nearby, heard three or four shots, a short interval, and then another two or three shots. He said each of the shots were about one second apart. Betty Pozingis, who lived nearby with her husband Alfred, said that she heard a loud crack, a second volley of some three cracks, and then a final crack. Alfred Pozingis heard one shot, a momentary pause, another shot, a momentary pause then three shots in quick succession. Michael Edmunds was located at the Coca Cola premises nearby. He heard three quick shots in succession, a lengthy break, then a second burst of three or four shots. Vernon Hart who was nearby at a golf course, heard a bang, a second bang, a pause of ten seconds, and then two more bangs.
Thus, in one form or another, there was evidence on which the jury might conclude that the first burst of gunfire comprised a number of shots fired in close succession.
In that context, the following points are relevant.
First, the evidence supports the conclusion that Sergeant Silk was shot either at, or very close to, the position in which he was later found which was between the Hyundai vehicle and nearby factory premises at 152 Cochranes Road. Shortly before the gunfire commenced, he had been observed to walk across the front of the Hyundai towards the passenger side door. Sergeant Silk did not draw or even unclip his firearm from its holster. It would be open to the jury to conclude that if he were not then disabled from doing so, he would have drawn his weapon instantaneously after hearing the first shot. That conclusion would be supported by the evidence that Sergeant Silk and Senior Constable Miller had been given a briefing as to the potential dangers involved in the reconnaissance operation that they were undertaking on the evening.
Secondly, if the jury were to conclude that there was in existence the joint criminal enterprise alleged by the prosecution, in which Debs and the accused each had an understanding that they would use their loaded firearms to shoot at any person who attempted to lawfully apprehend or detain them, the jury might reason that the first shot that Debs fired at Senior Constable Miller would have impelled an immediate response by the accused to himself shoot Sergeant Silk, particularly in circumstances in which Silk had already observed Debs and the accused, and written down relevant details concerning their names and the registration number of the vehicle they were driving.
Thirdly, it appears from the evidence that Senior Constable Miller fired two shots from his police issued .38 Special Smith & Wesson revolver. One of those shots struck and penetrated the roller door of the nearby factory premises at 152 Cochranes Road, and the second shot struck, and ricocheted from, that door. The jury could therefore infer that Senior Constable Miller fired those two shots in response to the gunfire that he had heard from that direction, which is where the accused and Sergeant Silk were located. At that point, Senior Constable Miller would have been turned to his left, with his right hand side exposed to the rear of the Hyundai vehicle. Significantly, it is on that right hand side of Senior Constable Miller’s clothing that Mr Ross detected fragments of the windscreen glass and of gunshot residue. Thus, the jury could properly conclude that Senior Constable Miller fired the shots in the direction of the accused, in response to gunshots which he had heard from that direction, before he himself had sustained the wound to his left hand side which resulted in his death.
In summary, the evidence to which I have referred is a sufficient basis for the jury to reach the following conclusions:
(1) The first shot or shots fired by Debs, from within the Hyundai, did not strike and wound Senior Constable Miller.
(2) At that time, Senior Constable Miller was turned with his right side exposed to the rear of the Hyundai. He was in that position when Debs fired the first shot or shots which did not strike him, but which resulted in the deposit of glass and gunshot residue on the right side of his clothing.
(3) The accused shot and wounded Sergeant Silk almost instantly after he had heard the first shot or shots fired by Debs.
(4) In that first volley of shots, Senior Constable Miller discharged his weapon in the direction where the accused man was standing, and he did so in response to the sound of gunfire from that direction.
(5) When Senior Constable Miller was shot and wounded by Debs, he had moved further away from the Hyundai vehicle, and he had changed the direction in which he was facing by turning 180 degrees.
Taking those facts in combination, I consider that it is open to the jury, acting rationally, to be satisfied beyond reasonable doubt that the accused discharged his firearm at Sergeant Silk before Debs fired the shot which wounded Senior Constable Miller and resulted in his death. Further, based on that evidence, I am satisfied that there is a sufficient basis upon which the jury, acting reasonably, could exclude the contrary hypothesis, namely, that Debs fired the shot which struck, and resulted in the death of, Senior Constable Miller, before the accused fired the two shots at Sergeant Silk, one of which struck him in the chest.
Accordingly, it is open to the jury to be satisfied beyond reasonable doubt, on charge 12, that the accused aided and abetted Debs in the murder of Senior Constable Miller, and alternatively that he participated in a joint criminal enterprise with Debs by which Debs shot and killed Senior Constable Miller.
For those reasons, I have concluded that the accused does have a case to answer on charge 12.
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