Director of Public Prosecutions v Roberts (Ruling No 15)

[2022] VSC 345

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:	20 June 2022
DATE OF RULING:	21 June 2022
CASE MAY BE CITED AS:	DPP v Roberts (Ruling No 15)
MEDIUM NEUTRAL CITATION:	[2022] VSC 345

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CRIMINAL LAW – Murder (two charges) – Evidence – Relevance – Accused evidence that he assisted offender to dispose of weapons and other items involved in offending – Fifteen years subsequently accused advised police of location of weapons and items – Whether subsequent finding of similar items at location relevant to issue other than credibility – Evidence Act 2008 ss 55, 101A, 102.

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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:

1. The prosecution case has closed, and the accused man has given evidence in the trial.  He will also call other witnesses on his behalf, including Mr Ron Iddles, who was formerly a Detective Senior Sergeant of police.  The prosecution has objected to evidence, which the defence proposes to lead from Mr Iddles, that, in 2013, police located certain items, specifically some buckets and tape, from a location in Noojee.  The prosecution has objected to that evidence on the basis that, at most, it is relevant only to the credibility of the accused.

1. At the conclusion of argument, I gave a brief ruling upholding the admissibility of the evidence.  The following are my reasons for that decision.

1. The accused has given evidence that he was not present at, and did not participate in, the murder of Sergeant Silk and Senior Constable Miller by Bandali Debs.  In his evidence, he stated that some time after the murders, he assisted Debs to dispose of the firearms that Debs had used in the course of the murders.  He  said that Debs and he first buried the firearms, and other firearms that Debs wanted to hide, in Cranbourne Cemetery.  Subsequently, they removed the firearms from that location, and took them to Noojee near Toorongo Falls, where they buried them together with other items that Debs wished to dispose of, including buckets and rolls of tape.  According to the accused, Debs and he subsequently removed the firearms from that location and Debs took them to New South Wales where he disposed of them.

1. In March 2012, while Mr Iddles was attached to the Homicide Squad, he was requested by the Director of Public Prosecutions to investigate a claim made by the accused that he had not been present with Debs on the night that Sergeant Silk and Senior Constable Miller were murdered.  For that purpose, Mr Iddles interviewed the accused and took a statement from him, in which the accused described how he and Debs had disposed of the firearms used by Debs in the murder of the two police members.  As a consequence, Mr Iddles took the accused from prison on a custodial permit to visit particular locations, including at Noojee, to search for evidence that corroborated his account.  It was in the course of those searches that Mr Iddles, in 2013, found buckets and tape at the location nominated by the accused man.  Mr Iddles would give evidence that the items that were found at that location are consistent with the items that the accused had described to him.

1. It is submitted, on behalf of the accused, that the evidence that is proposed to be led from Mr Iddles is relevant in relation to an aspect of the evidence given by Debs.  In that respect, Debs stated that after the two police members were murdered, he used a grinder to cut up two of the firearms, that were used in the murders, placed them into a bucket, and then disposed of them in industrial bins which were located on building sites in the suburbs.  It is submitted on behalf of the accused that the evidence of Mr Iddles, that he located the buckets and tape at Noojee, is capable of supporting the account given by the accused man in respect of how and where the firearms, used in the murder of the two police members, had been disposed of.  It is further submitted that that evidence is thus relevant to the assessment by the jury of the evidence given by Debs against the accused man, and to its assessment of the evidence given by the accused.

1. On behalf of the prosecution, it has been submitted that the evidence, sought to be led from Mr Iddles, is only relevant to the credibility of Debs and the accused, and that it is not relevant for any other material issue in the case.

Analysis and conclusion

1. Section 55(1) of the Evidence Act 2008 provides that evidence is relevant in a proceeding if it could rationally affect (‘directly or indirectly’) the assessment of the probability of the existence of a fact that is in issue in the proceeding. Section 102 provides that ‘credibility evidence’ about a witness is not admissible. Section 101A defines credibility evidence as evidence that is relevant only because it affects the assessment of the credibility of a witness or a person.

1. The question of the admissibility of the evidence, proposed to be led from Mr Iddles, involves a consideration of two issues.  The first issue is whether the evidence of Mr Iddles, concerning the items that he located at Noojee in 2013, is capable of supporting the evidence of the accused man, and, conversely, weighing against the evidence of Debs, as to how and where the firearms, that had been used in the murders, were disposed of.  The second issue is whether the jury’s consideration of that point is relevant to an assessment by the jury of the competing accounts given by Debs and the accused concerning the question whether the accused man was present at, and participated in, the murder of Sergeant Silk and Senior Constable Miller.  That is, if the evidence is capable of supporting the account of the accused or of weighing against the account of Debs, as to how and where the firearms had been disposed of, the second issue is whether the resolution of that question by the jury is capable of affecting its assessment of the account given by Debs that Roberts was present with him in the Hyundai in Cochranes Road at the time of the murders, and the accused’s account that he was not present at, and did not participate in, the murders of the two police members.

1. In considering those issues, it is important to bear in mind that the prosecution bears the onus of proving the guilt of the accused man, on the two charges that are before the jury, beyond reasonable doubt.  The question is not whether the proposed evidence could persuade the jury in respect of the issues that I have outlined above.  Rather, the question is whether the evidence could rationally be regarded by the jury as supporting a reasonable possibility that the account given by the accused, that he was not present at the scene of the murders, was truthful.[1]

   [1]Cf R v Lockyer (1989) 89 A Crim R 457, 459–60 (Hunt CJ at CL); R v Cakovski (2004) 149 A Crim R 21; DPP v Campbell & Ors (Ruling No 1) [2013] VSC 665, [41] (Kaye J).

1. For the reasons that follow, I consider that the potential relevance for the evidence is marginal, but the evidence is capable of having some probative value.  That is, the evidence is capable of going beyond affecting the mere credibility of both Debs and the accused as witnesses in the trial, as it could indirectly affect the jury’s assessment of the probability of one or more facts in issue in the trial.

1. In respect of the first issue, I consider that the evidence, that police located the buckets and tape at the location in Noojee, is capable of adding some, albeit limited, weight to the account given by the accused, and as such it is capable of having a converse effect of weighing against the account given by Debs, as to how and where the firearms, which had been used in the murder of the two police members, were disposed of.  The fact that in 2013, Mr Iddles found the items at Noojee, which were consistent with the items that the accused has said were buried with the firearms, used in the murders, at Noojee, could rationally be considered by the jury to provide some support to the account given by the accused as to how and where he and Debs disposed of the firearms after the murder of the two police members.

1. The second question is whether, in that event, the evidence, proposed to be adduced from Mr Iddles, is relevant to the jury’s assessment of the evidence given by Debs that the accused was present at, and participated in, the murder of the two police members, and, correspondingly, to an assessment by the jury of the evidence given by the accused that he was not present with Debs in Cochranes Road on the night of the murders.

1. The resolution of that issue is by no means clear cut.  However, I am persuaded that, if the jury were to accept the account given by the accused, in preference to the account given by Debs, as to how and where the firearms were disposed of, its finding to that effect could rationally be considered by the jury to support the evidence given by the accused, as to the central issue in the case, namely, whether the accused man was present at and participated in the murder of the two police members.

1. The disposal of the weapons, used in the murder of the two police members, was a relevant and inter-connected aspect of the murders themselves.  If the jury were to accept the accused’s account of that part of the events, it could provide some limited weight to the version of the events given by the accused, and could correspondingly detract from the credibility and reliability of the account given by Debs.

1. Further, if the jury were to accept the accused’s evidence, as to how and where the firearms were disposed of, it would provide a reason why he may have felt implicated in the murders, notwithstanding that (on his account) he was not present at the time that they were committed by Debs.  As such, it might provide an explanation why, in a number of the recorded conversations in which the accused was involved with Debs and others after the murders, the accused expressed interest in, and concern about, the progress of the police investigation into the murders.  It is also capable of providing an explanation for aspects of the accused’s continued relationship with Debs after the murders.

1. For those reasons, while I do consider that the potential probative value of the evidence, sought to be adduced from Mr Iddles, is limited, I have concluded that the evidence is capable of providing some rational probative support to the account given by the accused, and of thus weighing against the account given by Debs, on the central issue in the case.  I consider that the relevance of the issue goes beyond affecting the credibility of either Debs or the accused, but it does have the capability of rationally affecting the assessment by the jury of the fundamental question whether it is satisfied, beyond reasonable doubt, that the accused man was present at, and participated in, the murder of the two police members in Cochranes Road. 

1. Accordingly, the evidence sought to be adduced from Mr Iddles is admissible.

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