JUDGES:	WARREN, C.J., WINNEKE, P. and VINCENT, J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9-12 August 2004
DATE OF JUDGMENT:	6 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 66	1^st Revision – 27 April 2005

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Criminal Law – Conviction – Murder – Whether separate trial should have been ordered – Whether trial judge failed to separate adequately evidence admissible in the case of the applicants throughout his charge – Whether trial judge erred in admitting evidence relating to the alleged commission of other offences – Whether proof of motive required in circumstances – Joinder of counts relating to murder and separate offences of robbery – Identification evidence – Adequacy of Judge’s directions – Consciousness of guilt – Whether Edwards v. R (1993) 178 C.L.R. 193 direction required – Discharge of jury – Criminal enterprise (aiding and abetting) – Application for discharge of jury based upon claimed change of Crown case – Applications dismissed.

Criminal Law – Sentence – Manifest excess – No non-parole period fixed in case of older offender – Sentencing Act 1991 (Vic) s. 11(1) – Murder of two police officers in order to escape lawful apprehension – Principle of general deterrence of great significance in such cases – Head sentence of life imprisonment within range in respect of youthful offender – Applications dismissed.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr P.A. Coghlan, Q.C., D.P.P.
Ms C.M. Quin
Mr J.J. Serong

Ms K.Robertson,
Solicitor for Public Prosecutions

For the Applicant Debs

For the Applicant Roberts

Mr O.P. Holdenson, Q.C.
Mr C.B. Boyce

Mr P.F. Tehan, Q.C.
Mr L.C. Carter

Victoria Legal Aid

Lethbridges

WARREN, C.J.:

The applicants, Bandali Michael Debs and Jason Joseph Roberts, appealed against their conviction of the murders of two members of the Victorian Police Force, Sergeant Gary Silk and Senior Constable Rodney Miller. For the reasons stated by Vincent, J.A., I would dismiss both applications for leave to appeal against conviction.

The applicants also sought leave to appeal against the sentences imposed on them. The applicants' crimes were chilling. They shocked and threatened the Victorian community. For the reasons stated by Vincent, J.A., I consider both applications for leave to appeal against sentence should be dismissed.

WINNEKE, P.:

I have had the considerable advantage of reading the reasons for judgment which Vincent, J.A. proposes to publish in these applications. Substantially, for the reasons which his Honour gives, I agree with his conclusion that each application for leave to appeal against conviction and sentence should be dismissed. I desire to add some remarks of my own in respect of the grounds which both applicants have taken challenging the trial judge’s ruling to admit the evidence of what has been called the “Hamada” robberies (Grounds 6 and 7 of Debs’ application; and Grounds 5 and 6 of Roberts’ application).

Hamada

Those grounds, which asserted that his Honour was in error in admitting into evidence the substantial body of material calculated to prove that the applicants had committed a number of armed robberies of commercial premises in the south and east of Melbourne in the six months preceding the events at the Silky Emperor restaurant, initially struck me as having substance on the basis that the clear prejudicial effect of that evidence was disproportionate to its probative value. It remains a significant premise which underlies the administration of criminal justice according to common law principle that an accused person should not be convicted

of serious offences on the basis of bad reputation or his criminal propensity[1]. To be admissible evidence of this type must have a cogent probative value which clearly transcends its prejudicial effect. That is so whether the test of admissibility is described by common law principles or the provisions of s.398A of the Crimes Act (Vic.)[2] .
[1]cf. Sutton v. R. (1984) 152 C.L.R. 528 at 534 per Gibbs, C.J.
[2]cf. R. v. Tektonopoulos [1999] 2 V.R. 412.

My initial concern about the admissibility of this evidence was premised upon a number of factors:

·The fact that it could not, by itself, identify the applicants as the killers;
·The significant prejudice which would naturally flow from the body of evidence placed before the jury from which they were asked to determine the implication of the applicants in a number of armed robberies;
·The fact that the prosecution was contending that the guilt of the applicants could be established whether or not the jury was satisfied that the applicants were the “Hamada” robbers.

Upon reflection, however, I have come to the conclusion that his Honour was correct to admit the evidence for the reasons which he gave. Essentially those reasons were:

·That the evidence interacted with other evidence to identify the applicants as the persons in the Hyundai car intercepted by the deceased policemen;
·That it provided a motive to use the extreme measures which were used to avoid detection;
·That it put the evidence of the events at the Silky Emperor restaurant and Cochranes Road into a realistic contextual setting;
·It demonstrated the close criminal association between the applicants which they had sought to deny in their interviews with the police.

In my view these reasons entitled the judge to conclude that the evidence had a cogency which outstripped its prejudicial effect, in the sense that it had such a material bearing on the issues to be decided as to warrant its admission notwithstanding the prima facie rule of exclusion[3].
[3]cf. Sutton v. R., supra, at 547 per Brennan, J.; Perry v. R. (1982) 150 C.L.R. 580 at 604, 605 per Wilson, J.; Markby v. R. (1978) 140 C.L.R. 108 at 117 per Gibbs, A.C.J.

It is true, as the Crown conceded, that the evidence which was led to prove that the applicants were the “Hamada” robbers was not sufficient, by itself, to prove that the applicants were the killers of the deceased policemen. Nevertheless, it provided a body of evidence which, if accepted, was capable of inter-acting with other evidence to identify the applicants as the persons who committed these crimes. There were three significant “bodies of evidence” led by the prosecution which, when taken together, were capable of creating a strong circumstantial case that the applicants were the killers. Those three bodies of evidence were:

(i)The “Hamada” robberies;
(ii)The forensic evidence which, so the Crown contended, identified the Hyundai vehicle as the vehicle at the scene;
(iii)The evidence of admissions captured on listening devices and intercepts.

Proof, to the satisfaction of the jury, that the applicants were the persons who had committed a series of armed robberies in company in the south and east of Melbourne against similar “targets” to the Silky Emperor restaurant in the months preceding the murders, when combined with the evidence (if accepted) that the vehicle intercepted in Cochranes Road was the vehicle owned by Nicole Debs, afforded strong proof identifying the applicants as the persons in that vehicle at the time it was intercepted. It was this combination of evidence which put it beyond coincidence that the car was occupied by persons who had been demonstrated to have a connection with it, and who had also been shown to have been involved in robberies of a type which suggested that they were preparing to commit a similar crime[4]. Such evidence will, as McHugh, J. said in Pfennig (supra at 513):
[4]cf. R. v. Pfennig (1995) 182 C.L.R. 461.
“… be admissible as a matter of law and not discretion if the probative force of the evidence ‘outweighs’ or ‘clearly transcends’ its prejudicial effect. As the reasoning of the Court’s decision in Harriman v. The Queen[5] shows, the principles concerning the admissibility of evidence revealing other acts of misconduct are not confined to the so-called similar facts cases. They apply in any criminal trial where the Crown wishes to lead evidence tending to show that the accused has been guilty of wrongful acts other than those with which the accused has been charged.”[6]
[5](1989) 167 C.L.R. 590.
[6]His Honour, inter alia, referred to Sutton (supra), Perry (supra), Hoch v. R. (1988) 165 C.L.R. 292 at 300, Thompson v. R. (1989) 169 C.L.R. 1 at 16.

The matters to which I have referred in the preceding paragraph – although significant in the formation of his Honour’s view that the evidence of the robberies had a cogency which warranted its admission – were not the only matters upon which he relied in determining its admissibility. His Honour took the view that, in the absence of the evidence of the “Hamada” robberies, there would be a contextual “vacuum” in the Crown case, in the sense that the jury would have no explanation for the presence of the applicants, or the police, at the Silky Emperor restaurant in the early hours of the morning – and no explanation for the deceased policemen following the Hyundai vehicle out of the Silky Emperor car park into Cochranes Road for the purpose of intercepting it. Furthermore, without the “Hamada” evidence, there would have been no foundation for the assertion by the Crown that the applicants had a motive for taking the extreme measures which were taken to avoid apprehension. His Honour also formed the view, correctly in my opinion, that the impugned evidence had additional cogency for a further two reasons:

(i)because it demonstrated a close criminal association between the applicants which they sought to disavow in their respective records of interview; and
(ii)the evidence of the applicants’ participation in the armed robberies interacted with the other two substantial “bodies” of evidence to add strength to the circumstantial case which the Crown was making against the applicants. Quite apart from the interaction with the evidence demonstrating whose vehicle it was at the scene, there were admissions by Debs, captured on the listening devices about the “jobs” which had been done, the “tying up” of people and the concealment, at a specified place, of guns used and items of jewellery stolen. When the police, acting on these admissions, located (in Sydney) these items, they corresponded with guns used in one or more of the armed robberies and items of jewellery taken from victims of those robberies. Furthermore, the listening device material demonstrated the closeness of the criminal association which existed between the applicants.

In determining to admit the evidence of the uncharged armed robberies, the learned judge – after referring to the relevant authorities – was satisfied that the evidence had a high degree of cogency and probative force which exceeded its prejudicial effect. In my view it has not been demonstrated that he was in error in so concluding. It should also be noted that in determining to admit the evidence, his Honour further concluded – again, in my view, correctly – that it was “just to admit” it in accordance with s.398A of the Crimes Act. In this regard, it is pertinent to note the further opinion expressed by McHugh, J. in Pfennig’s case (supra at 515) that:

“… once it is accepted that the prejudicial effect of the evidence is a matter going to its admissibility, no scope remains for the exercise of the discretion to reject probative evidence in criminal trials on the ground that it is unduly prejudicial to the accused.”

In admitting the evidence, the learned judge recognized that the significance of the evidence to the circumstantial case being made by the Crown was such that it would be necessary to direct the jury that they should be satisfied to the criminal standard of the involvement of the applicants in the robberies before acting upon such evidence; and that, further, they should be directed that they could not use such evidence simply because it demonstrated that the accused had a general disposition

or propensity to commit crime or crimes of a particular type[7].
[7]In this context, I note what I said in R. v. Papamitrou [2004] 7 V.R. 375 at [31]:
“It is obvious that evidence of this type carries with it a ‘prejudice’ to the accused. But the ‘prejudice’ of which s.398A speaks can rarely be a prejudice which flows from evidence which is strongly probative, which this evidence clearly was.”

For these reasons, together with those given by Vincent, J.A., I would dismiss grounds 6 and 7 of Debs’ application; and grounds 5 and 6 of Roberts’ application. In agreeing with the reasons given by Vincent, J.A. on all other grounds of the application for leave to appeal against conviction, I should mention that I have listened to the relevant recordings of the conversations between the applicants, or in which they participated, which were captured by authorized listening devices or intercepts.

Sentence

I agree with Vincent, J.A. that no legitimate basis has been identified for interfering with the sentences which the learned judge imposed upon each applicant. Those who go armed for the purpose of committing serious crimes, and who kill police officers for the purpose of avoiding lawful apprehension, deserve the full measure of punishment which our law can impart. His Honour, in my view, was correct not to fix a non-parole period in respect of the first named applicant; and, again in my view, has not been shown to be in error in fixing a non-parole period of 35 years in respect of Roberts.

VINCENT, J.A.:

12 [8]At approximately 12.15 a.m. on Sunday 16 August 1998, a motor car entered a car park located below and to the rear of a restaurant, known as The Silky Emperor, in Warrigal Road, Moorabbin. Its progress was observed by two members
[8]The description of events set out in this narrative has been prepared from the Summary of Evidence provided to the Court, the passages in the trial transcript to which our attention has been drawn, the judge’s charge, and the recordings and related transcripts of monitored conversations involving the applicants that were tendered in the trial.

of the Victoria Police, Sergeant Gary Silk and Senior Constable Rodney Miller, who were nearby in an unmarked vehicle. They were there as part of a police endeavour to apprehend two offenders who, it was thought, had committed a number of armed robberies in the south-eastern suburbs of Melbourne.

The preferred targets of these persons appeared to be business premises, generally restaurants, located on main roads, but which were relatively isolated and vulnerable. The robberies were usually carried out at weekends and at or around the closing time of the selected establishment. Although there were variations in the method and descriptions of the perpetrators involved, there were, the police considered, sufficient similarities for limited profiles to be developed concerning them and for possible targets to be predicted.

On the basis that there was a sufficiently high probability an attempt might be made to carry out a further armed robbery in the area during that weekend, a number of businesses identified as prospective subjects for attention by the armed robbers had accordingly been placed under police surveillance on that night.

Sergeant Silk and Senior Constable Miller were assigned to this duty. Having completed surveillance of another of the designated businesses, they had been directed to take up a position at the Silky Emperor, the rear of which was not covered.

So it was, that they were in place[9] when their attention was attracted by a vehicle which entered and then, shortly afterwards, left the car park. They followed this car out into Warrigal Road and turned left into Cochranes Road, a short distance away, where they intercepted it; stopping approximately a car’s length to its rear.
[9]They had previously left their position in order to check a suspicious vehicle which, it transpired, was driven by a car thief who was in the vicinity looking for parked cars from which he could steal the contents.

Two other police members, Detective Senior Constable Sherren and Detective Senior Constable Bendeich, who had been observing the front of the Silky Emperor from a position on the opposite side of Warrigal Road, had followed the two cars in order to provide support, if required. They also proceeded into Cochranes Road. According to Sherren, he saw Silk and Miller outside their vehicle. Silk was near the driver’s side door of the intercepted car talking to a male person who, he assumed, was the driver, and Miller was positioned between the two cars; a little to the right of the number plate of the front car. A similar description of the scene was given by Bendeich. They drove past the vehicles, executed a turn to the right and took up a position on the opposite side of the road about 100 metres further on, in a side street, Capella Crescent, facing into Cochranes Road.

Sherren saw someone, who he believed, by reason of his stature, to be Silk, move across the front of the intercepted vehicle. Moments later, he heard a volley of approximately four gunshots coming from that vicinity. The sounds indicated that different calibre weapons had been discharged.

He immediately called for assistance on the police radio, operated the boot release and, with Bendeich, moved from the car to get two ballistic vests that were kept there. He then heard another volley of three or four shots. As they reached the rear of the car, four more shots were heard.

Rather than risk being hit whilst trying to protect themselves with the vests that they knew were hard to remove from their packaging and awkward to put on, the two members decided to observe what was occurring. They then saw the intercepted vehicle moving along Cochranes Road at a normal speed. It passed them and continued in a westerly direction.

They re-entered their car and moved further into Cochranes Road, so that they could maintain observation. However, they soon lost sight of the car as it passed over the crest of a hill. They then returned to the area where the other police car was parked. The engine of that vehicle was running; the headlights were still on, and the blue flashing light was operating. They found Sergeant Silk lying on the grass verge, a short distance away, and concluded that he was dead. [10]
[10]There were indications that he may have been taking notes when he was shot, as his pen was later found near his right foot and his notebook was missing.

Bendeich described the intercepted vehicle as a black or dark blue hatchback with two doors. The wheels appeared to be distinctive, with the street lighting causing them to luminesce as though they were metallic silver in colour. The car was fitted with a spoiler. Later, after looking at photographs of a number of vehicles, he formed the view that the car that he saw on that night was an Hyundai Excel hatchback, dark in colour with a spoiler and silver-coloured wheels that created a spoking effect as it moved.

Sherren described the vehicle as a small Asian two-door hatchback, dark in colour and fitted with a low profile spoiler on the rear. It appeared to have non- standard wheel rims. He was unable to be precise as to the colour of this vehicle or the wheels with which it was fitted.

Senior Constable Clarke attended at the scene very shortly after this occurrence. He was standing at the intersection of Cochranes Road and Warrigal Road when he heard a male voice calling for help. The person appeared to be located to his south on Warrigal Road, and so he ran in that direction; calling out “Where are you? Keep calling”. The voice continued to repeat, “Help me”. He came upon Senior Constable Miller lying on the footpath, a short distance from the restaurant, with a revolver at his feet.

Miller was clearly very seriously injured, and said, “Help me, help me, don’t let me die”. Clarke asked him, “How many were there?” Miller responded, “Two – two, one on foot”. Clarke asked him, “How long ago did it happen?”. He responded “Not long, just before the cars went past”. Clarke asked whether he was referring to the police cars with their lights and sirens and he said “Yes”.

Constable Pullen also spoke to the injured man. He enquired “How many shots did you fire?” Miller replied, “Three or four”. He asked what had happened, and Miller responded “Two - one on foot.” He asked whether there was any vehicle involved, and Miller replied, “Dark Hyundai”.

Detective Senior Constable Howard said that he also spoke to the deceased at the scene. While he was trying to reassure Miller that he was going to be alright, he placed his police radio on the ground nearby. There was a broadcast in which reference was made to an Asian-style small car. Miller reacted; saying that it was definitely an Hyundai coupe or hatch and probably dark blue in colour. This comment was heard by other police members in attendance at that time. Senior Constable Poke heard him say, “Get them, I’m fucked”. He kept repeating this expression, and then said “Two - one on foot - six foot - dark hair - check shirt - and dark Hyundai.” Senior Constable Miller was taken to the Monash Medical Centre where he underwent surgery. He died later that night.

28 [11]Another description of what took place was provided by the applicant, Bandali Debs, to his father, Malik Debs, in the following exchange between them at the Debs’ home in Narre Warren on 15 February 2000:
[11]Recordings and related transcripts of a number of conversations involving one or both of the applicants were tendered in the trial. The passages to which reference is made in this judgment have all been separately checked against the recordings and transcripts with which we have been provided. As far as I am aware, and unless otherwise indicated, no challenge is made to the accuracy of any of them. There are other relevant passages to which reference has not been made which are to the like effect of those set out but, as I have indicated, only those concerning which no serious question of possible misunderstanding of the words or meaning can be seen to arise have been included.

“Bandali ‘Straight away, soon as we drove in the car park they came behind, I told him.’
Malik‘Anywhere …(inaudible)…’
Bandali‘What happened they was watchin inside and I just drove in and then drove out and they come straight behind.’
Malik‘Right. …(inaudible)… ’
Bandali‘What?’
Malik‘…(inaudible)… ’
Bandali‘Who?’
Malik‘Them.’
Bandali‘No, no those were the ones that were sittin’ there, when we drove in just to quickly look, they seen us so they drove behind us, and drove down the street to stop us, they stopped us. Then it’s not good.’
Malik‘It’s not good.’
Bandali‘Yeah.’
Malik‘Before then, when everything finished.’
Bandali‘I mean everything was finished, nobody was anywhere, nobody seen anything.’
Malik‘But when you went, did you see anyone.’
Bandali‘No, nobody seen nothing, nobody was anywhere.’
Malik‘Other people see …(inaudible)… ’
Bandali‘There was factory, there was nobody.’
Malik‘Are you sure, sometimes people do something …(inaudible)…’
Bandali‘No, but look …’
Malik‘They come, check out …(inaudible)… ’
Bandali‘A few shots, it’s no worries, a little thing.’
Malik‘That’s when they search, hear something …(inaudible)…’
Bandali‘As soon as that happened we went. But then they came, after everything happened they come in one minute.’
Malik‘One minute ah.’
Bandali‘That means they had other cars, somewhere, listen one car we were goin’ up another road, one car was goin’ so fast, if it made one mistake, two die in the car, it was flying.’
Malik‘…(inaudible)… ’
Bandali‘That’s the one that came straight away. No, no, no, but there was another car, already straight away there.’
Malik‘Ah.’
Bandali‘Oh yeah. Cause we heard it on this, we heard it on that, they said oh one is gone we can’t find the other one. After we left they come in 30 or 40 seconds. 30 or 40 seconds they were there, that means they had a few cars in the area.’
Malik‘Oh, yeh …(inaudible)…’
Bandali‘You see, Malik, is anyone left, see nobody knows what happened, and they don’t know what happened exactly. I talk, I talk, anybody can say anything.’
Malik‘Yeah?’
Bandali‘They can think, they want to know what happened so they can train the police and they train them, this happened …(inaudible)… they show ‘em what can happen, when they can’t show exactly, they don’t know what to do. You understand?’”

The injuries to the Deceased

Dr Shelley Diane Robertson, who later conducted the autopsies upon the bodies of both deceased officers, attended the scene in Cochranes Road at 6:15am on Sunday 16 August 1998.

She stated that the body of Sergeant Silk, was semi-face down, on his right side, on the grass surface in front of a panel beating premises. His head area was heavily bloodstained, with an apparent injury in that region. She certified him deceased at 6:35a.m.

Robertson conducted an autopsy at the Victorian Institute of Forensic Medicine commencing at 3 p.m. on that Sunday afternoon.

She gave evidence that there were three bullet wounds to the body. First, there was what she described as a “distant” gunshot injury to the head. The projectile had entered behind the left ear, and passed through the cranial cavity causing extensive brain damage and comminuted skull fracturing until it lodged in the right cranial fossa within the brain tissue. The term “distant”, she defined as indicating that the gun was not close against the head when discharged.

She also stated that, in her opinion, “The head injury would have rapidly caused death within a matter of seconds and he would have immediately lost consciousness”. Dr Robertson observed that there was no downward flow of blood from the entry point of the bullet. Had the deceased been in an upright position for any length of time, even a few seconds, one would have expected, she considered, that some such indication was likely. In that circumstance she formed the view that he was shot from above and slightly behind whilst he was lying on the ground.

The second injury, she described, was also a distant gunshot injury with the entry point being between the fourth and fifth ribs at the front of the chest of the deceased. She said the track of the bullet was from left to right, front to back with approximately 10 degrees of upward angulation. The bullet lodged there in the muscle.

This bullet disrupted a number of major organs, but it was probable that death would not have occurred instantaneously after receiving this injury, as the mechanism of death, in that event, would have been primary blood loss. These structures all bleed very heavily and rapidly, but it is likely there would have been some period elapsing before death actually occurred, perhaps even as much as a minute or so. The injury would not necessarily have induced an instantaneous loss of consciousness or affected Silk's mobility or ability to walk. The impact of the bullet striking the chest may have been sufficient to cause a loss of balance and would certainly have been enough to cause the deceased to stagger backwards or to lose balance. However, to collapse from blood loss would have taken some period of time, measured in seconds to minutes. She said that, assuming nevertheless that Silk was standing when shot in the chest, it was more likely he would have collapsed within a period of seconds to minutes. She considered that, given the direction of the injury, he would have been shot whilst positioned, more or less, face forward.

Dr Robertson said that Silk had also sustained a distant gunshot wound to the pelvic region. The projectile had entered through the left hip and ultimately lodged in the muscle of his right buttock. She concluded that the track of the bullet was essentially straight across the back of the pelvis. The receipt of this injury was likely to have caused an upset in balance if the person was standing and probably would occasion considerable pain, but no vital structures were damaged. Theoretically, there was no reason why Silk would not have been mobile after receiving that injury but she opined that the likelihood was that he was not.

She said it was impossible from a medical point of view to determine which of the injuries was received first, and identified the cause of death of Sergeant Silk as multiple gunshot injuries to head, chest and pelvic regions.

Dr Robertson also performed the post mortem examination of the body of Senior Constable Miller. She observed a single bullet wound with the point of entry at the left mid-front to the side of his chest. The bullet which disrupted the liver, bowel, pancreas and kidney had exited above the hip on the right side from the body. The injury track was from left to right with approximately 30 degrees downward and 10 degrees backward angulation.

Dr Robertson said that the bullet impact may have caused loss of balance and caused Miller to stagger backwards, but there was no neurological or nerve damage which would necessarily have resulted in the deceased collapsing immediately. There was nothing about the injuries or the blood loss that would have prevented him from walking 150 to 200 metres after he had been shot. The 30 degrees downward angulation did not mean that he was shot from above, rather it referred to the direction of the injury within the body, given that he was standing in the anatomical reference position. For example, the trajectory observed would be accounted for if Miller was leaning forward when shot.

Two – one on foot

Senior Constable Miller, as I have earlier mentioned, was found alive, however mortally wounded. When Senior Constable Clarke asked how many offenders there were, he replied, “Two, one on foot”. All the officers who attended the wounded man stated that Miller appeared to be lucid, responsive and capable of providing coherent answers to questions put to him. Dr Robertson expressed the opinion that there was no reason to suppose that, at the time that these statements were made, his cognitive functions may have been impaired by his injuries.

Miller’s observation was supported by the ballistic evidence according to which Silk was shot with two different weapons, one of .357 calibre and the other of .38 calibre. Whilst the bullet that killed Miller was not recovered, it was the opinion of the ballistics expert that he was likely to have been shot with a .357 calibre weapon. The only other type of bullet found at the scene was identified as having been fired from that of Miller himself. I will return to this aspect.

Save for the passage of the intercepted vehicle past their location, the events in Cochranes Road were witnessed by Bendeich and Sherren from a distance of about 100 metres. Neither of them observed more than one occupant of the Hyundai. However, their opportunity to make accurate observations was clearly limited.

Bendeich said that he heard between six and ten shots and saw two muzzle flashes from the roadside where the interception had taken place. He said that the sequence was as follows: One shot and a pause, six shots and a pause, and then two further shots with about a second between them. All shots were fired in relatively quick succession. His evidence would account for at least nine shots. According to other evidence from crime scene investigators, there were four shots fired from the gun of Senior Constable Miller. Three bullets were recovered from the body of Silk. One bullet hit and passed through the body of Miller but was not recovered. One bullet was fired out through the back window of the Hyundai and passed by Miller; another went through a "For Sale" sign in the vicinity, and one was found near the body of Silk. The investigators concluded that Miller fired in two directions from his position behind the intercepted car. The prosecution later argued that it was accepted that the shots were fired in quick succession and that Miller fired in two directions, therefore, the inference could be drawn that he was firing at two persons.

The Crime Scene Examination
Senior Constable Stephens

Senior Constable Phillip James Stephens was one of the crime scene examiners who attended the scene. He arrived there at 2:05 a.m. on the Sunday morning. He observed that the vehicle of Sergeant Silk and Senior Constable Miller was parked parallel to and about 1.8 metres out from the curb in front of an empty lot at 154 Cochranes Road and a short distance from the premises of Supafinish Panel Works.

He noted that a roller door at the front of the Supafinish factory appeared to have been struck by two bullets, one of which passed through it whilst the other had been deflected. On the concrete apron in front of the door, he located a fired bullet. He saw another fired bullet lying in the grass near Sergeant Silk.

On 18 August Stephens’ conducted an examination of the police vehicle used by Silk and Miller at the Victoria Forensic Science Centre. He noted an impression in the dust on the tail-light consisting of lines, as if someone's head had been pressed up against it. The prosecution advanced the argument that this mark had probably been produced by contact with the head of Miller as he tried to obtain some cover from fire that was being directed at him from inside the Hyundai.

Senior Constable Vincent

Senior Constable Vincent, who was attached to the firearms and toolmarks section of the State Forensic Science Centre, attended Cochranes Road at 2:10am. Upon his arrival, he observed the body of Silk lying on the side of the roadway. The deceased’s service revolver was locked down in its holster and with the thumb clip in position behind the hammer. He removed the weapon and found that it was fully loaded. There were no discharged cartridges related to this gun in the area and it was apparent that it had not been fired.

On examination of the Supafinish Panel Works premises, he also observed that there were two areas of damage to its front roller type door, consistent with bullet impact.

Inside the building, he located fragments of the bullet which had penetrated the door.[12] He subsequently located a bullet on the ground at the front of the premises below the other damaged area. The material found inside the factory was consistent with a single shot that passed through the door from a north-easterly direction; that is, from the position of the police car. He expressed the opinion that it also seemed likely that the bullet found on the concrete apron had been fired from the same general direction, although he stated it is difficult to determine the trajectory of a deflected bullet.
[12]There was a fired bullet core in an upstairs office and various pieces of fired bullet fragments on the factory floor.

Bandali Debs provided further details concerning the events in the following exchange which took place between his father, Malik Debs and himself, on 15 February 2000:

“Bandali:‘Yeah, he, it was all mixed up how we done it, it doesn’t matter how much, they won’t go over it, they don't know what happened.’
Malik:‘…(inaudible)…’
Bandali:‘Yeah, that’s what they want to work out, they don’t know.’
Malik:‘…(inaudible)… beside the car.’
Bandali:‘Oh no, he wasn’t beside the car, he was right away from the car. He was from here, do you know the door, you know the back door there. From here to the back door away.’
Malik:‘…(inaudible)…’
Bandali:‘He wasn’t near the factory..’
Malik‘…(inaudible)…’
Bandali:‘He called him away to talk to him.’
Malik:‘…(inaudible)… shoot him.’
Bandali:‘He went …(inaudible)…’
Malik:‘…(inaudible)…’
Bandali:‘But there’s all the holes in the door of the factory, because the bullet goes through him and through the factory.’
Malik:‘…(inaudible)… one shot, fired only one shot …(inaudible)…’
Bandali:‘And then he emptied his gun, six times, then, that’s why they can’t find the rest of them, when he’s fired the rest of them up there, they’d have found one there on the top of the building, from there.’
Malik:‘On top of the building.’
Bandali:‘Yeah. You know where the roller door is, …(inaudible)…’
Malik:‘…(inaudible)… first one, not good, that means, they think one was on the roof.’
Bandali:‘Yeah, (laughs)’
Malik:‘…(inaudible)…’
Bandali:‘That's all mixed up. I’ll tell you, when it went through him, it went through the fuckin’ door, as well. You understand.’”

On Monday 17 August 1998, Vincent returned to Cochranes Road and found a further piece of bullet material near a lamp-post.

On the 11 September 1998, he examined bullet damage to a nearby advertising sign. He considered that it was consistent with the passage of a bullet that came from the rear of the sign, and could have been fired from the vicinity of police vehicle. He searched for the bullet but was unable to find it.

Sergeant Silk was equipped with a .38 Special Smith and Wesson, three inch barrel revolver loaded with six standard police issue Winchester hollow point cartridges. They were all unfired. Senior Constable Miller was equipped with a similar weapon. There were four fired cartridge cases in his firearm and two unfired cartridges.

In relation to his examination of the fired bullets from Cochranes Road, Vincent said that the bullet on the concrete driveway in front of the Supafinish factory, was a .38 Special 147 grain hollow point bullet, police issue, and had been fired from Miller's weapon.

The fired bullet fragments found on the factory floor inside the Supafinish premises were consistent with a police issue 147 grain jacketed hollow point bullet but, due to the amount of damage to them, he was unable to determine precisely from what firearm they came.

The bullet near the lamp post also had been fired from Miller's revolver.

The bullet located on the grass near where Silk was lying was of .38 calibre, but it had not been fired from a police issue weapon. He said that the lands and grooves on this bullet were of a relatively uncommon type and associated with English manufactured firearms from the early 1900s, such as Enfield, or Webley and Scot, revolvers. These weapons are of similar appearance.

The fired bullet extracted from Silk's chest was of that type.

Vincent was unable to say whether the two .38 bullets were fired from the same gun, but they were certainly not fired by a police issue weapon.

He examined the bullets which caused the injuries to Sergeant Silk's head and hip. They were unlike the one that had struck him in the chest. They were of a .357 magnum calibre and both were copper washed bullets. The only manufacturer of bullets in that configuration is the Winchester company in the United States. Although it was possible that they had been fired from the one gun, it was clear, however, that they had been fired from a different gun from which the .38 non-police bullet had been discharged. According to his evidence, at least three weapons had been fired; the police weapon and two others. Silk had been shot with at least two guns.

The Forensic Investigations[13] with respect to the car used by the perpetrators

[13]Although the assertion was advanced in the course of the trial that some of the prosecution witnesses had conspired to fabricate or misrepresent evidence relating to the forensic investigations, there was for practical purposes little, if anything, to support this claim which can, I consider, be regarded as having been rejected by the jury.

As I have mentioned, Miller told the police members who were attending him some minutes after the events, that the car which had been intercepted was a dark coloured Hyundai. The other two police members who saw it at the scene, described a dark or dark blue two door hatchback vehicle. Otherwise, at that stage, there was little to identify the car involved and, of course, the perpetrator or perpetrators were unknown. However, there were fragments of glass on the roadway in front of the police vehicle. These were collected by Senior Constable Stephens and were shown later that morning to David Albers from a glass replacement company, Windscreens O’Brien. Mr Albers considered that they had probably come from the rear windscreen of a Korean manufactured car, possibly from an Hyundai Excel.

During the following week, the fragments were examined by Peter Ross, a scientist, at the Victorian Forensic Centre. He too formed the view that they had probably come from an Hyundai Excel and, noting that the glass was bright with no scratching, considered it likely that they had been lying on the roadway for a relatively short time.

Ross observed that some of the glass pieces were in the form of long thin rectangular shards. This indicated, in his opinion, that those pieces had been adjacent to a relatively high velocity impact site. There was one piece which had an eroded bevelled edge to it of the kind that he associated with bullet impacts. As the bevelling was on the exterior surface of the glass, he concluded that, if this piece did relate to a bullet impact, the shot would most probably have been fired from the interior of the vehicle. He sampled the interior surface of this piece and other long shard pieces and he found, consistent with this scenario, approximately four gunshot residue particles that had derived from the primer mechanism of the ammunition used.

The next step of his initial examination involved looking in more detail at the recovered pieces. Over the next few weeks he reached the conclusion that the glass originated from an Hyundai Excel X3 model hatchback or tailgate version and was either a three or five door vehicle.

Ross stated that he found two very small fragments of glass with features that assisted in its identification. One piece was imprinted with a horizontal bar with a section of a square H, and another with a triangular symbol. He was able to ascertain that the H was part of the Hyundai Motor Company Symbol –HMC-, and that the triangular symbol represented the Keumkang Chemical Company insignia. Keumkang were the manufacturers of glass for Hyundai and it appears that there is a similar symbol on the window of every Hyundai vehicle.

Ross ascertained that, on 18 April 1997, the Keumkang Chemical Company changed the colour of the production label printed on the rear windows of these vehicles. Prior to that date, the label was brown, whereas after 18 April 1997, it was black. The symbol found on Cochranes Road was brown.

Keumkang also had a production date code system of marking glass with a series of dots and a single number. Enquiries revealed that a production code with 10 dots and a 7 meant that the window was manufactured in February 1997.

Ross found that some of the glass found at Cochranes Road contained border patterns. It transpired that the Lantra, Sonata and Excel Hyundai vehicles are distinguishable by these patterns. The glass found at Cochranes Road had the pattern of the Excel.

He was able to distinguish the different models of the Excel X1, X2 and X3 due to the different placement of the demister structures. With this information, he formed the opinion that the glass from Cochranes Road came from the rear window of a three or five door Hyundai Excel X3 vehicle.

His examination of an Hyundai, Excel X3 registration number OJI 862, owned by Nicole Debs, commenced in the laboratory of the forensic science centre, on 31 July 2000, following the arrest of Debs. He progressively stripped the interior of the vehicle in this process and found that the build plate of the vehicle indicated that OJI 862 was constructed in March 1997. He observed that there were two types of glass, some tinted and some clear in the vehicle. In relation to the clear glass, he was unable to distinguish between that recovered from OJI 862, the Cochranes Road Glass and some glass fragments, which he had found on Miller’s clothing.

When the interior of the car was stripped down to bare metal, Ross noted that there was an area, on the inside of the closing rim of the hatch door, where the surface was rough. He had that area further examined and this indicated that there seemed to be some distortion to the metal. An opinion was then sought from Senior Constable Vincent who expressed the view that the damage was most likely caused by a long flat tool, such as a screw driver, being hammered into the surface.

Ross then took a closer look at the depression in order to establish if there were any materials adhering within it that might indicate how it had been caused. He found numerous particles of primer residue, individual particles containing lead materials, and gunshot residue materials. Although he considered that this was not direct evidence that the depression had been caused by a bullet impact, it indicated that, within that area, there were materials derived from the shooting of a bullet.

Ross continued the examination of the rest of the vehicle by means of vacuum filtration. He found a number of propellant grains in various vacuum samples and when these were examined under an electron microscope he could not distinguish between the partly burnt propellant located in OJI 862 and that which results from the discharge of a Winchester .357 magnum revolver.

In the boot area of the vehicle, using vacuum filtration, a small metal fragment was recovered, analysis of which revealed that it was composed primarily of lead, but with an associated flake of copper. The lead adjacent to the copper was antimony enriched. This indicated, he considered, that this fragment was consistent with having originated from a copper wash bullet. That finding excluded the possibility that it could have come from a police round as they are not so constructed. Minute glass fragments of similar composition to Keumkang glass were also embedded in the metal fragment.

On 28 August 1998, Ross examined the checked shirt, jacket, blue jeans, a pair of boots and socks worn by Miller at the time that he was shot. He detected a number of glass fragments on his clothing that he found to be indistinguishable from those found at Cochranes Road and the glass recovered from the Debs’ vehicle. He also observed a large number of propellant grains in the material.

On 17 March 2000, he further examined the clothing in order to identify the source of the propellant and to investigate further the area of bullet damage. He found over 100 propellant grains containing the same compounds as a Winchester .357 propellant. There was a small lead fragment on the right hand side of the jacket which had a coating of copper with adjacent areas rich in antimony. This indicated, he said, that this piece of lead was consistent with being derived from a Winchester .357 magnum copper wash bullet. The size of the bullet holes in the fabric was also consistent with this finding. He concluded that Miller must have been standing within two metres of the car in order for that much propellant to be deposited on him.

There had been an earlier, but, according to the evidence, less detailed examination of the vehicle conducted on 22 December 1998 by Edward Kennedy-Ripon, another scientist at the Victoria Forensic Centre. Other than removing the spare wheel from the back of the car, he did not remove any other fittings or carpet at that time.

He did not detect any differences in the thickness, elemental composition, decals, the demister bands and colour between the glass from that vehicle and that collected from Cochranes Road. He performed a refractive index analysis on two randomly chosen fragments from OJI 862 and compared them to a single fragment of the Cochranes Road glass. Upon his analysis, he found a slight, but significant, difference in the index between them and that fragment, leading him to the conclusion that the vehicle could be eliminated as a source of the Cochranes Road fragments.

However, on 24 August 1999, Kennedy-Ripon received more glass and carried out a further analysis between 3 and 22 September. On this occasion, he examined 46 fragments of glass from OJI 862 and found that the refractive index ranges overlapped considerably. This meant, he considered, (contrary to his earlier finding) that the vehicle could not be so eliminated. He did find a single fragment of glass in the car with a significantly different refractive index. This supported, he considered, the hypothesis that there had been another window screen in the vehicle.

In August of 1999, Ross received a phone call from Detective Sergeant Ritchie who advised him that it was believed that there had been two replacement rear windscreens fitted to Debs’ vehicle, the first of which had broken. He asked whether Kennedy-Ripon may have analysed the glass from the first replacement windscreen. Ross, upon ascertaining that Kennedy-Ripon had examined only a small amount of glass, considered that there was a possibility that his results were unreliable, and decided to review his work.

He concluded that, on the basis of his examination of the material, there was no difference between the glass at Cochranes Road and that from OJI 862.

On 31 July 2000 Paul Thomas-Lee Murrihy, a forensic officer at the Victorian Forensic Science Centre, examined the build plate, compliance plate, engine production plate and the VIN number of the Debs car. He concluded that the vehicle was built in March 1997. He observed that the rear windscreen and the inner rear bumper bar appeared to have been replaced post-manufacture, possibly in April 1997. The car was equipped with Race Lace alloy wheels and it had a spoiler mounted on the rear of the hatch.

He examined the paint layer thickness to see whether there were any anomalies on the Hyundai and whether there had been any repairs effected to it. The only such area that he identified was on the rear of the hatch on the nearside between the hinge and gas strut. It was in this area that he noticed both a change in colour and the physical shape. This was then examined further by Ross and Vincent as I have indicated.

On Sunday 16 August 1998 at 9:45am, Harald Andreas Wrobel, another forensic scientist at the Victorian Forensic Science Centre, attended Cochranes Road to examine the scene for gun shot residue. This included the hands and the area around the wound to the left side of the head of Silk. He found five lead particles on the back of the left hand of the deceased and one particle of lead and antimony on his left palm. Wrobel was of the opinion that, although it did not appear that Silk had fired a gun on that night, he may have handled his revolver on a previous occasion.

On 22 December 1998 and in July 2000, he sampled the Debs’ vehicle and found no gunshot residue on either occasion.

On 25 October 2000, he received a number of bags of materials taken from the area of the lower trim, hatch door trims and from under the rear seats and boot. He found no gunshot residue in any of those items.

On 17 April 2001, he received nine plastic bags containing materials secured through vacuum filtration. He found one particle of gunshot residue in the material from the offside floor mat of the Hyundai.

On 31 July 2002, he received a sealed bag containing Silk’s windcheater. There were numerous lead and antimony primer related particles on this garment at the point of entry of the bullet into the front. He concluded that the bullet was fired at two metres or less as he would not have expected primer related particles to be deposited at a greater distance form the muzzle of the weapon.

In July 2002, Professor Raphael Grzebieta examined the deformed section hatch of the Debs’ vehicle. He formed the view that the shape of the deformation was consistent with the impact of a ricocheting bullet fired from outside the car, although he did not exclude the possibility of a glancing blow of some other kind. On the other hand, he considered that the damage was unlikely to have been caused by the boot being closed on top of a metal rod with the top of the rod coming into contact with the underside of the hatch, which, I should add, was the version given by Debs to the police with respect to the breakage of the windscreen.

Shane Andrew Richardson, a mechanical engineer and specialist in accident analysis and combat vehicles, also addressed the possibility that the deformation had been caused by a bullet impact. He employed a mathematical formula known as the Mill d’mar equation, which deals with the circumstances which determine whether a bullet would be likely to penetrate or ricochet upon striking a steel surface. The relevant factors, he stated, are the thickness of the material hit and the velocity and size of the projectile, the angle of incidence being then determinative of whether a bullet will pass through or ricochet from the object struck.

He was given information regarding the diameter of a Winchester Special .38 calibre hollow point round (a police bullet) and the mass and the velocity of such a bullet at muzzle exit. Applying these figures to the equation, he calculated that a projectile of that kind fired at the car would not penetrate the metal of the vehicle but ricochet, if it struck at any angle below 37 degrees.

The cause of the damage to the car was also discussed by the applicant Debs and his father in their conversation on 15 February 2000 to which I have earlier referred[14]:
[14]See paragraph [17].

“Bandali‘I said I knocked the boot with a big bit of steel, and the window smashed.’
Malik‘I don’t mean that.’
Bandali‘There’s no holes.’
Malik‘…(inaudible)… ’
Bandali‘Huh?’
Malik‘…(inaudible)… because the lead, because the …(inaudible)… ’
Bandali‘No what happened, it hit it forward…’
Malik‘Ah.’
Bandali‘… they’ve hit it forward, but when it hit it forward it went chch, like that, but when it hit it like that, forward, it bounced, it bounced off.’
Malik‘…(inaudible)… ’
Bandali‘…(inaudible)…, the lead.’
Malik‘…(inaudible)… ’
Bandali‘Around …(inaudible)… ’
Malik‘…(inaudible)… ’
Bandali‘All’s I done was I squeezed the …(inaudible)… then I just went like that, …(inaudible)…. Cause it had the dint but it didn’t go through, had the dint like, like that.’
Malik‘…(inaudible)… wasn’t it close to the tin.’
Bandali‘It hit the tin.’”

In another conversation between them on 13 May 2000, the following exchange took place:

“Bandali‘Do you know what? Ya know what, where they went to, why they went to Sydney to talk to my mother and Robert? They’re lookin’ for, cause they asked them which car do you drive. They’re lookin’ for stolen Hyundais. They’re lookin’ for stolen cars, somebody put it somewhere. They’re lookin’ all around Australia for them. Cause do ya know how many of those cars are stolen, and they can’t find them? They reckon about fifty to one hundred. They can’t find those cars.’
…
Bandali‘And ya see, what the trouble is, if a grey one or green one or black one was stolen, they can respray the car.’
Malik:‘…(inaudible)…’
Bandali‘You understand. That’s what they don’t, can’t work out. They, …(inaudible)…’
Malik:‘That’s …(inaudible)… the, that’s …(inaudible)…’
Bandali‘Yeh, but if there’s a hole in it they can put magnets over it and find the hole.’
Malik:‘…(inaudible)…’
Bandali‘…(inaudible)…’
Malik:‘Mm.’
Bandali‘See this, if there’s tin there then there’s a hole and they filled it with filler, they can tell.’
Malik:‘…(inaudible)…’
Bandali‘Oh yeah.’
Malik:‘Mm.’
Bandali‘Even, you can weld. You can weld bits of tin there, alright, but you got to put a filler over it. Bring it back. They knows. Then fix.’
Malik:‘All the, …(inaudible)…’
Bandali‘They see, they’re runin, ah, a special like a, like a, the, the forensic science they got a thing which goes over the whole car. If there’s some hole there or something.’
Malik:‘…(inaudible)…’
Bandali‘No, no, not …(inaudible)…’
Malik:‘Yeh.’
Bandali‘They do it with a machine. They got to have the whole car …(inaudible)… There could be too.’
Malik:‘What, that. But the, but the …(inaudible)… I thought you were …(inaudible)…’
Bandali‘Yeh, but listen. Like if a windows broken and been hit on the edge, nobody can tell.’
Malik:‘No.’
Bandali‘Because when it’s been cleaned and you put sils, the thing nobody can tell it.’
Malik:‘No, no.’
Bandali‘No holes.’
Malik:‘…(inaudible)… Nothing. They think that …(inaudible)… everyone knows about it. Almost like a …(inaudible)… That’s it.’
Bandali‘No, no it’s got to go through.’”

This description corresponded closely with the findings and conclusions earlier set out.

Later again on 31 May 2000, referring to a police check of the car, Roberts said:

“Jason:‘Then I’m lookin’ at this clown, I'm laughing I’m try, tryin’ not to laugh, right, he opens it then shuts. Opens it, right up and then straight away, carpet, moves, to look …(inaudible)… Checked the masonite for holes, straight away up and around the spare tyre with his hands, see if there’s any holes, cause they think it went like this, straight through, into the ...(inaudible)... and off the wall and there was some repair, der, der, right, so that the cop went like that, breath.’”

It is apparent that Roberts understood that no bullet had passed into the vehicle.[15]
[15]See the passages in the earlier conversation between Debs, Nicole and Roberts in [106] below.
Operation High

Within days of the shooting of the two police members, a group was set up to pursue enquiries with respect to locating the Hyundai Excel involved. This aspect of the investigation was named Operation High. The team examined the registration records of all Hyundai Excel X3 three and five door hatch vehicles registered and sold in Victoria, including all stolen and rental vehicles, replacement windscreen sales, cancelled registrations and written vehicles. It involved, according to the evidence, the physical examination of 2,606 Hyundai Excel model cars throughout the State.

Michael Edward Silke, a farmer, who also engaged in the restoration of cars and the sale of parts, bought two damaged Hyundai Excel vehicles on 29 July 1998. One was a white 1997 model and the other was a mauve X3 1996 Hyundai Excel. Both had damage to the front but neither had sustained damage to its rear section. He placed advertisements in the local and Melbourne Newspapers on Thursday 13 August 1998 and on Saturday 15 August 1998 with a view to selling parts from them. He did not receive many calls, but recalled that there was one from a man who wanted to purchase a complete car. Silke indicated that he was not interested in the vehicle at that stage but might later change his mind if he was not able to sell a sufficient number of parts from it. Telephone records indicated that the call was made on Sunday 16 August 1998 at 4:48 p.m.; that is, within a matter of hours of the shootings. The call came from Debs’ home in Springfield Drive, Narre Warren. However the caller did not leave a name.

On 21 August 1998 at 1:52 p.m., another telephone call was received by Silke. It came from the home of the Roberts’ family at Cranbourne. Silke did not know anyone named Roberts who lived at Cranbourne and he did not obtain the name of the caller.

On Monday 24 August 1998, Grant Phillip Walker, director of Grant Walker Motors of Bayswater, received a telephone call from a woman asking for tailgate glass for an Hyundai vehicle. His business sold Korean glass, of Keumkang manufacture. She indicated that she was interested in a rear screen for an Hyundai X3. Telephone records later revealed that this call was made at 1:30 p.m. on a mobile phone registered in the name of Marina Roberts, Jason Roberts’ mother.

On 25 August 1998, Walker was requested by the police to inform them of any persons making inquiries about rear screens for Hyundai vehicles, specifically the Hyundai X3 model.

On 26 August 1998, two persons, a man and woman, came to his premises seeking to purchase a windscreen of that type. Walker asked the woman whether she was the person who had rung earlier regarding the tailgate glass. She said that she was. Walker and one of his salesman, Bedrich Fliszar, spoke to the couple. Fliszar asked them how the tailgate glass had been broken and they replied that someone had tried to break into the vehicle to steal the sub-woofer “in some suburban street somewhere”. Another employee, Melvyn Harris, noted the registration of their car (a Mazda 323 which was displaying a P-plate). This vehicle belonged to Joanne Debs, another daughter of the applicant. He described the male as being short, with black hair, wearing a cap, light build and light olive skin. The female was of about the same height, black hair, tied back and light olive skin. Walker sold them a February 1997 model rear windscreen and they left.

The prosecution asserted at the trial that this windscreen must have been fitted into the Debs’ Hyundai during either the afternoon of 26 August 1998, or the morning of 27 August 1998, as it was in place during the afternoon of 27 August 1998, when Roberts and Nicole Debs were spoken to by Detective Sergeant Ritchie and Detective Senior Constable Illingworth. As a result of this conversation, Debs was spoken to by the police, on 31 August 1998, and made a statement to the effect that he had accidentally smashed the windscreen at a building site in Jaguar Close, on 19 August, when he closed the hatch on some building materials inside the car.

It appears that just over a month after the Hyundai was repaired, the replacement windscreen “blew out” as the car was being driven, necessitating the purchase of a second windscreen.

Michael Bourke, of Elite Screens Narre Warren, had also been contacted by the police as to whether he had fitted a windscreen to an Hyundai Excel. He was requested to inform them if anyone came to his business premises enquiring about a rear windscreen for a Hyundai and, if possible, to ascertain their identity. A few days later, he received a phone call from a woman inquiring about a rear screen for a Hyundai Excel. She indicated that they would fit it themselves. Bourke suggested that this would not be wise as it was a difficult job and there were safety issues involved. This advice was accepted and, on 3 October 1998, he fitted a second replacement windscreen to OJI 862. When doing so, he noted the clean condition around the window frame. He said that it was already trimmed back and he did not see any broken glass. A receipt, a copy of which was forwarded to one of the police involved in the case, was issued when the car was collected.

On Saturday 19 August 2000, Bourke received a telephone call from a woman who identified herself as Nicole. She wished to see a copy of that receipt. Bourke faxed this to her after contacting the police.

There were a number of references to the police search for the car involved in the shootings in monitored conversations involving one or both of the applicants. For example, the applicant Debs and his father discussed the possibility that there may be further enquiries made concerning it in a conversation, on 11 February 2000:

“Bandali‘Nobody can do anything. I’m just thinkin’ if they’ll come ‘round. Been one and a half years.’
Malik:‘Nobody knows, …(inaudible)…’
Bandali‘I don’t think they can because they haven’t got nothin’ to talk about.’
Malik:‘Maybe they offer to …(inaudible)… and this and that.’
Bandali‘Ah, that’s too bad I’m not worried about …(inaudible)… When they come again I just say, oh look the police come here[16] and all’s I said was I don’t even remember they come here, they said something, I forget what they even talked about, I wasn’t interested. I can say that …(inaudible)… and then they can’t do nothin’. I said, Oh yeah, do you remember what’s happened?’
[16]The prosecution used these passages in the trial as evidence of Debs’ method of handling the police investigation.
Malik:‘…(inaudible)…’
Bandali‘If they say to me, oh, ya remember what’s happened? Look, to tell you the truth, I’m not interested and I don’t, ah, remember anything. It wasn’t ya know ‘til the police come here and talked to my father, and, ah, I didn’t take much interest ‘cos I didn’t know anything about anything. That’s all I have to say, and if they asked me a question, I say look, I don’t remember. That’s all I have to say. And ya know when you do that?’
…
Bandali‘… doesn’t mean nothin’. And when they come here the garage open, everything’s open, nobody worries about anything, nobody says anything and, ah, when they come and seen me I said, oh yeah, this strip, see this strip, brass. I put it in the car and it broke, bad luck. And they can’t do anything. If you haven’t got anything, that’s when they, or if you, if you speak to someone and you mix it up…’
Malik:‘If you …(inaudible)…to somebody…(inaudible)… ‘
Bandali‘And when …(inaudible)… I said, yeah it just broke on the strip, the thing. I don’t know I said, it smashed and I was upset. That’s one thing I’ve gotta accept and, ah, I broke the …(inaudible)… up and what I wanna do. That’s it. But if I said it happened after it happened …(inaudible)… it happened after …’
Malik:‘…(inaudible)…’
Bandali‘Yeah. Makes a lotta difference. A lotta of difference, Malik.’
Malik:‘…(inaudible)… She said it was Wednesday and it happened because, what is your thoughts on that.’
Bandali‘No, it happened on Sunday.’
Malik:‘Er.’
Bandali‘It happened on Sunday but, ah, I don’t know a week later or, ...’
Malik:‘…(inaudible)…’
Bandali‘A week and a half or something.’
Malik:‘No but …(inaudible)…’
Bandali‘Yeah, …(inaudible)…’
Malik:‘…(inaudible)…’
Bandali‘I’m not gunna, and ya know what I said,..’
Malik:‘Yeah.’
Bandali‘.. and I mixed it up, cos I said, I dunno, Wednesday, Thursday, I …(inaudible)…’
Malik:‘…(inaudible)… yeah, er, …(inaudible)…’
Bandali‘Yeah, put some stuff in the car but you can, you can believe it’s fucking anything, they can’t do nothin’. But it’s all mixed up, and they can’t, I’m gunna put some oil in the car. They can’t do anything. Where’s the bucket, I need that bucket.’”

Following a visit by the police to the home of his brother in Sydney, Debs discussed the situation, on 14 February 2000, with Roberts and Nicole Debs:

“Bandali‘Oh, they wanted to know if, if, if she, what they’re aft, what they’re actually lookin’ for is anybody who’s got a Hyundai.’
Jason:‘Their probably asking them up there if they've got one that looks similar.’
Bandali‘Yeh. They’re lookin’ for a Hyundai up there now.’
…
Bandali‘No, but it makes it very hard cause you can’t talk on the telephone. Ya know what I mean. I don’t want to talk about those matters, but I want to, fuckin’ know what’s goin’ on.’
Jason:‘It’s strange.’
Bandali‘Yeah, it is strange. Is very strange. Oh, the police say anything, ya know. The police tell me, oh, somebody said this and that. Well, youse get ‘em in court and we’ll stuff it. You, who said what. That’s all you say to ‘em. Get it in court and we’ll say, who said what. What, what’s this bullshit.’
…
Bandali‘What’s that. If one, one what got taken. Yeh. No, no that’s finished now. They’re lookin’. This is what they’re looking for. They’re looking for, they’re looking for a car which has got fuckin’ holes in it and which …(inaudible)… I’m talkin’ many holes.’
Nicole:‘Mm.’
Bandali‘I’m not talking one or two. Maybe 4, 5 holes. They can’t come and hassle us for anythin’ else. I mean the car’s here.’
…
Bandali‘Well, they reckon they’re lookin’ for fif, fifty cars just in Victoria, which have disappeared.’
Jason:‘Disappeared.’
Bandali‘50 Hyundai’s. They just can’t find them.’
Nicole:‘Oh, well they'll be thinking it's one of them. …(inaudible)… it’s obviously that colour, that they’re, that interested …(inaudible)…’
Bandali‘Yeh, but one minute. They said to my mother, does anyone own a red one or a blue one, or blah, blah, blah. Different colour or whatever. That means somebody’s changed the colour of one of them. Do ya know anyone who owns a Hyundai.’
Nicole:‘What did your mother say.’
Bandali‘She said I don’t, I don’t, I don’t look what, my mother said I don’t look what, what sort of car anyone drives. I’m not interested. But they asked her who’s car was that out the front. Said that’s my car. Ya know, she’s got a Toyota brown, brown Toyota. That, that, they asked her, do ya know anyone who’s got a Hyundai or a fuckin’ red one or a green one or fuckin’ God knows what.’
Nicole:‘…(inaudible)… Chrisy hasn’t got one.’
Bandali‘No, no, no, no, nothing’s got one up there. They’re trying to link something. They’re trying something very hard. Well, how much money are they spending runnin’ around.’”

When speaking about the matter with his father, on 15 February 2000, he said:

“Bandali‘I think, I think they have to look, they’re looking for some car.’
Malik:‘…(inaudible)…’
Bandali‘They're not searching the right car.’
Malik:‘…(inaudible)…’
Bandali‘I don’t know, because they ask my mother, you know somebody who got red Hyundai or green Hyundai, you know what that means, you know somebody who changed the colour. They think somebody changed the colour.’
Malik:‘Mm.’
Bandali‘They’ll be thinking everything.’
Unidentified male: (In background – inaudible)
Bandali‘If somebody changed the colour, they run to that car. Because they think they have changed it from blue to different colour. That means they’ll be checkin’ windscreens and everything all bullshit and – ‘
Malik:‘They look for the …(inaudible)…, but they won't find it.’
Bandali‘Yeah, if that’s why, that’s why they think that it’s gone through …(inaudible)… the lead and the lead goes through, pass through it.’”

As mentioned earlier, the possible identification of the Debs vehicle as the Hyundai at the scene was the subject of a number of conversations involving the two applicants. For example, on 2 May 2000, Roberts and Nicole Debs were stopped by police who wanted to check the vehicle. They subsequently discussed the incident with Debs:

“Jason: ‘He told me that before though. He goes, ‘Oh, the reason we actually pulled. This is the reason. Oh, the reason we actually pulled youse over, not because ya goin’ fast or nothin’ like that. Um, it’s cause we’re after like this car’. I said, ‘What do ya mean this fuckin’ car?’ He said, ‘The 97 model Hyundai. We’re after one of these’. I said, ‘What the fuck for?’ I go to him. He goes. (laughs) What the fuck for? He goes, ‘Oh, um, er, it was used a couple of years ago like in’. I said, ‘What?’. He goes, ‘Ya know how two police got murdered. The people that murdered them were in a car like this one’.’
Jason:‘I said, ‘Fuck me, you’re fucken jokin’. Ya know about it?’
Bandali‘Fuck.’”

The various conversations in which the applicants engaged on this topic are also informative in that, as I have indicated, each of them demonstrated knowledge of the fact that no bullet passed through the windscreen into the car. Debs specifically referred to one that ricocheted off the metal. The overwhelming inference from the various discussions that took place concerning the vehicle is that both men were well aware of the circumstances in which the rear windscreen was damaged and its incriminating significance.

Their presence in Cochranes Road was accepted, or evident by implication, in several conversations between them. One, which also involved Nicole Debs, a daughter of Debs and the partner of Roberts, occurred on 31 May 2000. It was conducted against the background of the release, by the police, of a statement that they had received a telephone call from a witness to what had taken place.[17]
[17]I should add, at this point, that as part of their investigative technique, the police had disseminated a certain amount of disinformation with a view to unsettling the two men whose activities and conversations they were, by that stage, monitoring.

“Bandali‘No one was there but us.’
Nicole: ‘It’s someone fuckin’ shittin. Why would they ...(inaudible)…’
Jason:‘Why would someone ring up and not give the details, just say that and then hang up.’
Bandali‘Nah, it’s someone who’s hasslin ‘em.’
Nicole: ‘…(inaudible)…’
Bandali‘But what’s act-, what’s actually happenin’ is, they’re, they’re playin’ with ‘em.’
Jason:‘Yeah.’
Bandali‘Someone’s playin’ with 'em.’
Nicole: ‘Why.’
Bandali‘You know or.’
Joanne:‘Or they’ve just done that so.’
Bandali‘Or they’ve, they’ve pullin’ a fasty.’
Joanne: ‘Yeah.’
Jason:‘Just to see.’
Bandali‘Just to see.’
Joanne:‘Tryin’ to scare someone.’
Bandali‘Just to see if people ring up or.’
Joanne:‘React to it.’
…
Bandali‘Oh, what did sh, ya know what did, did actually say, they, they reckon it could be somebody who seen whatever happened.’
Joanne:‘Yeah, as well like they.’
Bandali‘As well.’
Joanne:‘Or a relation or someone had seen it. ...(inaudible)...’
Bandali‘Yeah, but seen what happened. Now.’
Joanne:‘But an eye witness wouldn’t actually know the identification of each person though.’
Jason:‘They’d have a number plate before they could see people in the dark.’
Joanne:‘Yeah, well that’s it.’
Bandali‘So I’m fucked.’
Nicole:‘It’s all, they’re just contradicting themselves.’
Jason:‘…(inaudible)… and no-one was there though.’
Bandali‘Huh.’
Jason:‘No one was there.’
Bandali‘I’m not interested.’
Nicole: ‘It’s all just contradictions.’
…
Jason:‘…Let me finish the sentence off, it's not being unco, I know the person, I'm not after the reward of anything, but I know it’s ...(inaudible)... um, it's relations. Oh right. Um, bye. What about if it was this person, oh, I’ll give you a ring back. If someone’s gonna ring up they wouldn’t ask 'em to ring back. Saying stuff like that, they'd finish the whole fuckin, whatever happened you know, to the cops. The cops are playin’ with the public or someone from the public’s playin’ with the fuckin’ cops. One of the two.’
Nicole:‘Yeah, it’s either one of the two.’
…
Jason:‘They want money.’
Bandali‘No, no, no, no what they’re doin’ is they’re ringin’ up or something like, every time, see when the cops say we need information for, this and that, cunts, cunts just ring up, oh, but, but one, one, one minute. This is what makes me laugh, they detail to the CP's that, how it happened and nobody can know that.’
Joanne:‘No. The person that rang up.’
Bandali‘Yeah.’
Joanne:‘Said that, said how it happened right, and it was consistent with the way the police thought it happened.’
Bandali‘So that means, somebody can.’
Joanne:‘Ya know what I mean.’
Bandali‘No. So.’
Joanne:‘No, the police have an idea, they think they know how it happened, of course.’
Jason:‘Yeah, and I’ve seen two of their ways that they…’
Joanne:‘And.’
Jason:‘…think it happened, and it’s fuckin’ backwards.’”

This conversation can, I think, be reasonably described as typical of the discussions that took place between the two men as they followed reports of the progress of the investigation.

As part of the same process of disinformation, shortly afterwards, the police released a photo image closely resembling Roberts, with the intimation that a witness had seen the person depicted. Debs and he discussed, on 17 July 2000, whether he should approach the police in consequence. Roberts said:

“I’m gonna walk straight in, like a wanker.”

He was advised:
“Bandali ‘Talk like a cockhead.’
Jason ‘That's what I'm gonna do. Fuckin oath. We decided.’”

The implication of joint involvement evident in this passage emerges in several conversations between them.

For example, the proposed visit was further discussed in Deb’s motor car on 18 July 2000:

“Jason:‘Yeah but it’s all bullshit tomorra, Ben.’
BandaliOh just see what the fuck, ah, ah-ha, Oh, just fuckin’. Well if it was serious, they would have come and seen you.’
Jason:‘Yeah, they’ve asked,- they didn’t even bother. They asked me when was the ...(inaudible)... do ya know what I mean? Yeah.’
Bandali‘They seem to be too nice about it, don’t they? Fucked if I know. But what I like to know is where they, how after two years they got a picture...’
Jason:‘They just took a photo.’
Bandali‘...picture like that. And what about the other picture of the cunt with long hair?’
Jason:‘Yeah, that was meant to shoot him and all this shit? And then they come up with that one, ya know what I mean?’
Bandali‘Nah, it’s got me bluffed. And what’s this about alibis? This way?’
Jason:‘Nah, go up and then we’ll go, go to the factory there.’
Bandali‘One minute. What - what’s this shit about alibis?’
Jason:‘Oh, just on the thing, it’s just shit Ben. They’ve fucked it. Don’t worry about nothing like that. It’s no comment on that anyway Ben.’
Bandali‘But you’ve already made a statement.’
Jason:‘My boss reckons, right,..’
Bandali‘mm’
Jason:‘… that they’ve got someone in mind. He read it, he sat in the car and read it this morning. Ya know when you rang?’
Bandali‘Yeah.’
Jason:‘Yeah, he sat in the car just reading it. He reckons…. they’ve got someone, right, he said, because it’s full of shit he said.’
Jason:‘…About South Australia and everything. So they’re watchin’ someone, do ya know what I mean? Thinking they’re South Australian, they’ve put …(inaudible)…thinkin’ that they’ll slip and shit. Is that it.’
Bandali‘Which one? Oh, further up.’
Jason:‘Yeah.’
Bandali‘Ya reckon? Oh, fuckin’,’
Jason:‘No they won’t catch up with me mate, they’re fuckin’ with the cunts. The same um, ...’”

Versions given by Deb’s and Roberts as to the circumstances under which the rear windscreen was damaged

I have earlier mentioned the demonstrably untrue version given by Debs to the police to the effect that the windscreen was damaged on Wednesday 19 August.

Mark Spiteri first met Roberts when they became workmates some months earlier. Roberts was 17 years old, and they shared an interest in cars. Spiteri recalled an occasion on which Roberts asked him where he could obtain a rear windscreen for an Hyundai. Spiteri suggested that he should go to Elite Windscreens in Narre Warren. Roberts told him that “Ben” (Debs) had put “a heap of tools” in the back and closed the hatch whilst one of the tools was protruding out too far, causing it to smash. He said that he was told by Roberts that the windscreen had broken on more than one occasion, and that they had tried to “fix it up [themselves] to save money” but that “it blew out”.

Raymond and Melinda Fardon were the next door neighbours of Nicole Debs and Jason Roberts. Their houses had a common driveway. Raymond Fardon met Nicole’s father who was introduced to him as Ben. He said that Debs and Roberts often left the house together between 8:30 and 10:30 during the evening and about three or four times per week. They usually took Ben’s car, a Holden VC Commodore station wagon. Roberts drove a Ford SLR Torana and Nicole a dark blue Hyundai hatchback. Melinda Fardon remembered that Debs would regularly visit the house next door at around 7 or 8 p.m. and sometimes leave with Roberts at about 9:30 p.m.

The evidence indicated that Roberts gave three different versions over one month, concerning the broken rear windscreen, to Raymond and Melinda Fardon. They were:

1.        The heating element had been smashed by a stone from a truck;
2.        Ben had dropped a tool box on the back of the window screen; and
3.        Ben had shut the rear hatch on a metal strip.

Sightings relating to the Hyundai Excel OJI 862 with a broken rear windscreen

Kirsten Hetherington stated in evidence that, in 1998, she resided with her partner, Denis Catherine, in Jaguar Close. In August 1998 a house was being built opposite to where they lived. On one evening, when they were returning home at about 10 p.m., she noticed a car on the nature strip in front of the house opposite. Its back window was missing. She had not noticed this vehicle previously. She noticed that there were glass fragments left around the rim, but that most of the glass was gone. She thought that she saw this vehicle early in the week, either Monday, Tuesday or Wednesday and about a week after 8 or 9 August, when her boyfriend had undergone a knee operation. The observation may have been on the Wednesday of that week as, according to her diary, she was not working on that day.

Denis Catherine gave evidence that as they were returning home at about 9 or 10 o’clock one night, he saw, opposite their house, and in front of a house under construction, a small dark car that looked like a Hyundai with no rear windshield. He said that there was only a little thin bead of glass around the rubber seal. When he left his home on the next morning, the car had gone. This sighting was made, he said, probably within two weeks after his operation.

The complaints with respect to his Honour’s instructions regarding the possible attribution of responsibility to the applicants on the basis of common purpose rest upon different but equally unstable ground. Under this heading, it was argued that, accepting that they had driven to the vicinity of the Silky Emperor in order to commit an armed robbery, there was no doubt that that enterprise had been “called off’ before they were intercepted in Cochranes Road. In that situation, they could no longer be said to be pursuing a common purpose of a kind encompassed by the concept.

Although, and for somewhat different purposes, the expression “called off” has been interpreted as referring to a communicated withdrawal from an activity or the taking of some unequivocal step evidencing the fact that the accused is no longer a participant in it, there is no justification in principle for concluding that two armed men who, detecting the presence of police, decide not to proceed further and to make their escape from the location of their planned offence could not be said to be pursuing a common criminal purpose. Here, the Crown case was that the applicants drove to the Silky Emperor intent upon committing an armed robbery. They had handguns and ammunition in their possession. The jury were entitled to form the view that both accepted the possibility that these weapons would be used, either in the robbery or in order to avoid apprehension. To confine the notion of criminal enterprise in the fashion for which the applicants have contended before us would be, I think, to introduce a degree of unreality that would divide a piece of criminal activity into arbitrary compartments and exclude the making of a successful escape after the crime was committed, or perforce of police intervention abandoned, as part of the enterprise.

These grounds fail.

Roberts – Ground 14
Debs – Ground 9

At the conclusion of his Honour’s charge, the exception (inter alia) was taken that:

“MR HILL:We say that in respect to two witnesses to whom we put prior inconsistent statements and proved them, Linda Lee, through Senior Constable, I think Sergeant Beanland, and Gunawardana from the Green Papaya, and which we tendered Exhibit R1, being the statement from the committal, that Your Honour should have given the jury a direction as to how they treat prior inconsistent statements.
HIS HONOUR: I didn't give them that direction, I thought they had enough law, and I certainly technically should have. I thought the absence of direction would help Mr Roberts, I wasn't doing it for that reason, but it was in fact I thought they had had enough law, but I take your point.”

Ms Lee, the owner of the Jade Kew Chinese Restaurant, stated in evidence-in-chief that the taller of the armed robbers was about six feet in height and that his companion was “slightly over five feet”. However, she agreed in cross-examination that she had told a policeman in 2000 that the smaller offender was “maybe five foot eleven’.

Mr Gunawandana, who was, at the time of the robbery, a food and beverage attendant at the Green Papaya, referred to a “tall guy” and a “short guy” in his evidence-in-chief. In cross-examination, he was taken to a questionnaire that he completed in January 2000 in which he stated that both offenders were tall and solid, and both were more than five foot eight inches tall. Initially, he said that this was true, but then denied that he had made that statement in relation to both of them. When challenged about this answer by reference to his evidence at the committal hearing by Mr Dane for Debs, he responded that he could not remember what he said at that time. The relevant question and answer were then tendered.

In each case, the witness concerned had made a prior inconsistent statement which could well have impacted upon the jury’s assessment of the reliability of the evidence given by that person. It would be reasonable to assume that, attributing to them a modicum of common sense, the members of any jury would have had regard to such variations in assessing the credibility and reliability of the versions given by the respective witnesses in evidence. In so far as inconsistency of the version can be seen to impact upon the credibility or reliability of a witness, it can hardly matter whether the inconsistent statements are made in or out of court. The real risk to a fair trial by the introduction of a prior inconsistent statement in the absence of an instruction by the trial judge is that the out of court statement may be treated by the jury as evidence of the facts asserted, and it is to that danger that the standard instruction is usually directed.

Whilst his Honour did not provide that standard instruction, I fail to see how its absence could have, in any significant respect, disadvantaged the applicants.

Debs – Ground 18

This ground raises a compendious complaint that the failure of the trial judge to address properly the matters encompassed by earlier grounds and the manner in which he did instruct the jury concerning “some of the significant ‘planks’” of the applicant’s defence impermissibly undermined his defence.

The written submissions before the court adopt a series of submissions to this effect made by counsel appearing for Debs at the trial and no further argument was advanced with respect to them. In broad terms, at the conclusion of the judge’s charge, counsel complained about his Honour’s manner of delivery, including his juxtaposition of various arguments and his reference to making “no comment” about them at different stages, the accuracy of his presentation of the evidence of Dr Robertson as to the possible period of time that Silk may have lived after being shot, and his Honour’s treatment of an exchange between counsel and the witness Ross in connection to a subsequent demonstration in the courtyard of the court building using an Hyundai vehicle.

There is no need to deal with these complaints seriatim. It is, I consider, sufficient to state that, having read the relevant passages in the transcript to which they relate and the entirety of his Honour’s charge, none of them possess substance. Some could, in the context of the trial, be reasonably described as trivial, and all appear to reflect the heightened sensitivity and tension that almost invariably is experienced by all engaged towards the end of a long and demanding criminal trial.

Roberts – Ground 19

There is simply no substance in this ground. The matters raised by Roberts in his defence were relatively straightforward and appropriately addressed by the trial judge in his directions to the jury. The possibility that the jury may not have appreciated what was advanced on his behalf or the evidentiary bases upon which the various hypotheses presented in his defence rested, can, in my opinion, be discounted.

Debs – Ground 19

Accepting that there was evidence before the jury that was capable of supporting the scenario described by the prosecution in his final address, it was contended that the evidence also supported the following possibilities:

“(a)at some stage whilst Silk & Miller were following the Hyundai car out of the car park, along Warrigal Road and into Cochranes Road (Debs and Roberts having noticed Silk and Miller whilst in the car park), Debs and Roberts planned that, if the occupants of the car containing Silk and Miller were police officers and did intercept them, then Debs would courteously and calmly attempt to talk their way out of their then ‘predicament’, but if that attempt failed, then they would assault the two police officers before escaping from the scene of the intersection (by driving away very quickly); and
(b)the sole harm contemplated by Debs as being sustained by either Silk or Miller or both was less than ‘serious injury’; and
(c)whilst executing their plan, Roberts alone formed the intention to kill Silk and deliberately did so; and
(d)Silk was already dead when Debs subsequently twice shot Silk.

With respect to the assault referred to above, the nature/scope of the assault was that loaded firearms would be brandished in order to either ward off the two pursuers or force them into submission so that their guns could be taken from them so that they might then be incapacitated in some way (e.g., with and by tape).
With respect to the harm referred to above, the presentation of a loaded weapon so as to avoid apprehension thereby exposes the victims to an appreciable risk of the requisite injury for the purpose of the offence of manslaughter by unlawful and dangerous act.”

This view of the situation was not advanced in the course of the trial and specifically his Honour was not requested to instruct the jury on this basis. It rests in relation to some vital aspects upon no evidence at all. Fundamental to the acceptance of this possibility is speculation as to discussions in which the applicants could have engaged with regard to their intention and course of conduct if intercepted by the police. It is to be noted that there is absolutely nothing in their subsequent conversations that conveys event he slightest hint that any such discussions took place or that the deaths of the two witnesses may have been occasioned in that manner. As far as Debs is concerned, there is nothing other than the forensic evidence and that of his actions and statements upon which the jury could act in coming to a view as to his intentions at the time. If they accepted that he fired at both Miller and Silk, it would be almost inconceivable that they would accept the reasonable possibility that he contemplated causing less than serious injury to either of them. Finally, of course, it would involve the jury concluding that he was not aiding and abetting Roberts at the time that he fired at Silk.

It is evidence that no such direction was required in the present case.

Roberts – Grounds 20 and 21
Debs – Grounds 20 and 21

It follows from what I have said in relation to the various matters raised by these applications that there was no aggravation of errors which can be seen to have caused this trial to miscarry. Nor am I of the opinion that the verdicts against the applicants can be properly described as unsafe or unsatisfactory.

Accordingly, I have concluded that both applications for leave to appeal should be dismissed.

The Application for Leave to Appeal against Sentence

Each of the applicants also seeks leave to appeal against the sentence imposed upon him on the following grounds:

Debs:
“1.The sentence was manifestly excessive under all the circumstances.
2.[The sentencing judge] did not set a minimum.”

Roberts:
“1.The individual sentences of life imprisonment and the maximum term of 35 years' imprisonment are manifestly excessive.
2.The learned sentencing judge gave insufficient weight to the applicant’s youth.”

The findings of the sentencing judge (which, I should add, have not been the subject of criticism) concerning the circumstances and roles played by the applicants were set out by him in his sentencing remarks as follows:

“You, Mr Roberts, without any warning, with your .38 calibre handgun grievously shot Sergeant Silk at close range in the chest. You intended to kill him. As the prosecutor has said, Sergeant Silk had nothing more lethal in his hands than a pen. His police revolver was in its holster and the covering flap of the holster was buttoned down. He fell to the ground where you shot him. Senior Constable Miller, who was then between the two vehicles, drew his police revolver and shot at you, Mr Roberts, in defence of Sergeant Silk. You, Mr Debs, immediately fired at Senior Constable Miller through the hatch window of your vehicle which you had re‑entered to obtain your .357 magnum handgun. Your fired repeatedly at Senior Constable Miller, one shot mortally wounding him. In great pain, Senior Constable Miller managed to struggle away from the scene to seek help and for your apprehension. In order to avoid the risk of being shot or identified, you did not pursue him. Instead, you, Mr Debs, went up to the helpless and immobile Sergeant Silk who was lying on the grassy verge, shot him in the pelvis and then shot him in the head, the last shot killing him instantly. You executed him - to ensure he could not identify either of you. Then you both returned to your car and drove away.”

The Application for Leave to Appeal against Sentence by Debs

In support of his application for leave to appeal against sentence imposed upon him, the applicant Debs has submitted through his counsel that, although terms of imprisonment for life without parole have been imposed for the crime of murder, this occurs very infrequently and is an appropriate disposition in only the most extreme situations. The present case could not be properly regarded as falling into that category as the murders in the present matter were not premeditated and almost certainly were committed in a rapidly escalating situation in which the applicant acted without careful deliberation. The circumstances could be distinguished on a number of bases from those in which no minimum terms have been fixed. Reference was made in this context to the cases of Lowe[45], Coulston[46], Camilleri[47], DJH[48] and Dupas[49], all of which could reasonably be described as exceptional for one reason or another. No complaint was made that the head sentence of life imprisonment was inappropriate but it was submitted that there was nothing in the nature of the offences or the applicant’s past history that justified the failure to set a non-parole period in his case.
[45]R. v. Lowe [1997] 2 V.R. 465.
[46]R. v. Coulston [1997] 2 V.R. 446.
[47]R. v. Camilleri (2000-2001) 119 A.Crim.R. 106.
[48]R. v. DJH [1998] VSCA 98.
[49]R. v. Dupas [2001] VSCA 109.

The applicant Debs was 45 years of age at the time of the killings with some prior convictions to which the learned sentencing judge attributed little significance in the circumstances. He was found by his Honour to be of “ordinary intelligence at best” but not suffering from any psychiatric illness or psychological disorder. However, and understandably, his Honour came to the view that the applicant, who demonstrated remarkable callousness and a total lack of remorse for his actions, possessed a “highly dangerous predisposition” with little, if any, prospects for his eventual rehabilitation.

When considering whether the learned sentencing judge fell into error in deciding not to fix a non-parole period in his case, it is required by s. 11(1) of the Sentencing Act 1991[50] to have regard to the “nature” [51] of the offences committed by him. His Honour made the finding that he “repeatedly fired at Miller” and that he “executed” Silk. These actions were taken to avoid apprehension for serious criminal offences. On any view of the circumstances, his conduct constituted extremely serious examples of the crime of murder. In this context, the role being performed by the two police members at the time that their lives were taken from them must also be taken into account. They were on duty in the middle of the night, playing their part in an endeavour to apprehend armed criminals who had been preying upon vulnerable people and businesses in this city and who, it was thought, may well be active during that weekend.
[50]“(1) If a court sentences an offender to be imprisoned in respect of an offence for –
(a)the term of his or her natural life; or
(b)a term of 2 years or more –
the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.”
[51]“In Victoria the courts have always, and rightly, acted upon the basis that although
s11 and its predecessors, s26 of the Penal Reform Act 1956, s534 of the Crimes Act 1958, s190 of what was originally called the Social Welfare Act 1970 and s17 of the Penalties and Sentences Act 1985, refer only ‘to the nature of the offence’, not to ‘the nature of the offence or the circumstances of its commission’, the phrase ‘the nature of the offence’ in the Victorian provision comprehends both the class or type of the offence and the circumstances in which it is committed. Compare Garlett v. R (1975) WAR 129.” R. v. Lowe ]1997] 2 V.R. 465 per Winneke, P., Brooking, J.A. and Southwell, A.J.A. at 487.

I suspect that we, as a community, seldom give thought to the dangers to which the men and women who protect us in this way are regularly exposed. Perhaps that just reflects the general sense of safety that we are fortunately able to experience in this community and to which they contribute so valuably. What is clear beyond any dispute is that the community, through its courts, must make perfectly plain that violent actions directed against them will not be tolerated. The principle of general deterrence assumes great significance as a sentencing consideration in such cases. This was recognized by the learned sentencing judge and I have not detected any error in his approach to this aspect.

When regard is had to the matters to which his Honour adverted in his sentencing remarks, including the nature of the offences committed by the applicant, the applicant’s total lack of remorse and his prospects of rehabilitation, I do not consider that this Court would be justified in finding that the sentencing judge fell into error in not fixing a non-parole period in his case.

I would dismiss this application.

The Application for Leave to Appeal against Sentence by Roberts

There are two grounds advanced in support of this application.

First, it is contended that both the individual sentences and the non-parole period of 35 years fixed by his Honour are manifestly excessive in the circumstances.

Under this heading, the attention of the Court was drawn to the applicant’s youth at the time of the commission of the offences, the absence of any prior convictions or any evidence of the absence of premeditation on his part, and the expressed view of the sentencing judge that:

“The proper sentence for murder of a serving police officer in order to escape apprehension for serious criminal conduct is life imprisonment.”

The first three matters were directly and appropriately addressed by his Honour. With regard to the last, he stated:

“The proper sentence for the murder of a police officer in the execution of the officer’s duty, in order to escape apprehension for serious criminal conduct, is life imprisonment. Upholding the law requires it. Protection of the police, and protection of the community they serve, require it.
…
In your cases, the motive each of you had on the night you murdered the two officers, was a callous and self-centred one – to escape apprehension at any cost. That motive was not restrained by a moral sense in either of you, but rather was emancipated by a contempt you both held for police and for the law.”

A little later, he said:
“You had a choice: apprehension or murder. You chose murder.”

I do not interpret his Honour’s remarks as indicating that a life sentence must inevitably follow upon a conviction for the murder of a police member without any regard being had to the actual circumstances of the offence or the offender involved; but he was certainly indicating such a sentence would normally be called for. This was so, he said:

“because the crime of murdering a police officer in the lawful execution of the officer's duty, in order to avoid apprehension for serious criminal conduct, is in the worst category of murder. A safe and functioning society depends upon its police force. An attack upon a serving police officer is an attack upon society itself. The nature and gravity of your offences are in that worst category.”

Save that it is inappropriate to approach the sentencing task in a given case by reference to categories of murder[52], I certainly agree with the general view of the circumstances taken by his Honour and, in particular, the significance to be attributed to the killing of a police member in the execution of their duty for the purpose of avoiding lawful apprehension. I also agree that, notwithstanding the youth of the applicant, the head sentence of life imprisonment imposed upon him was required in the proper exercise of sentencing discretion in the present case.

[52]See R. v. Dumas [1988] V.R. 65 per Young, C.J., Murray and McGarvie, JJ. at 71.

Concerning the background and role of Roberts, his Honour further stated:

“Mr Roberts, you are now 22 years of age, having been born on 23 August 1980. You were one week short of 18 years of age at the time of the killings, and were eight days short of 20 years at the time of your final arrest. You were brought up in a family environment. In 1990 your father died suddenly when you were but a child. You continued to live with your mother and younger brother at Cranbourne until in 2000 you commenced living nearby with Ms Nicole Debs, Mr Debs’ eldest daughter. You were educated to Year 10 level and thereafter worked. You suffer no psychiatric illness or psychological disorder. You are an intelligent person, just above average by psychometric testing (full scale of 105 on WAIS: Mr B. Healey’s psychological report of 15 February 2003) and by my observation well above average.
Your counsel rightly and strongly relied upon your young age, at the time of the killings and still. Plainly, your young age is a central consideration on sentence. Your counsel rightly relied upon your lack of any convictions. Your counsel rightly relied upon your good conduct in court and your positive conduct in custody awaiting trial, and the length and burden of your incarceration and of not knowing your fate until today. In custody you have been appointed a peer educator, a responsible position and one which shows the custodial authorities have confidence in you. You have completed a number of improvement courses. A youth development worker gave positive evidence on your behalf.
I take all those matters into account, both generally and also particularly on the question of rehabilitation.
…
As for your presence and conduct at Cochranes Road, I am affirmatively satisfied that you were there, and acted murderously there, fully by your own free choice and decision. We all know young people who act foolishly through immaturity or through misguided thrall of an older more worldly person or through both. You were not such a youth at Cochranes Road. You were on the threshold of adulthood. You were more mature, worldly and hardened than your years. You were there after ten armed robberies. You were armed, yet again, with a lethal, loaded firearm. You were not caught by surprise. You had time to think. You knew exactly what you were doing. You got out of the car with a loaded gun. You fired the first shot.”

His specific references to authorities bearing on the youth of an offender as an important factor in the determination of an appropriate sentence indicates that he was concerned to attribute appropriate weight to it . Against that background he stated:

“Despite your youth, the manifold elements of sentencing apply, Mr Roberts, and apply in full measure, to your murderous conduct. The Court, and the community, condemn your conduct. Next, you are to be punished in full measure for your conduct. You were almost 18 and acted with full knowledge and deliberation. Next, general deterrence is of especial application to your conduct, for the reasons I stated in sentencing Mr Debs. Next, specific deterrence is of real application to you. You must be deterred from further violence. Next, reformation is of significance with you. On the one hand, you have absolutely no remorse; on the other, you are young and have acted positively in custody. Your youth is of central relevance to the proper sentence to be imposed upon you, of itself, because of the matter of the extent your life expectancy at age 22, and because of chronological disparity with Mr Debs. But despite those considerations in your favour, I consider the elements of condemnation, punishment and general and special deterrence are of predominant significance in deriving the proper sentence to be imposed upon you. Conscious of its exceptional application to a young person, I conclude that the proper sentence to impose upon you, Mr Roberts, is life imprisonment.”

It is evident that the learned sentencing judge had regard to all of the matters upon which reliance has been placed in this application.

I am unpersuaded that any specific error has been demonstrated to have been made by him and regard both the individual sentences and the non-parole period fixed as falling within the available range.

I would dismiss this application.

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CERTIFICATE

I certify that this and the preceding 145 pages are a true copy of the reasons for judgment of Warren, C.J., Winneke, P. and Vincent, J.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 6 April 2005.
DATED the day of 2005.

Associate

Details

AGLC: R v Debs [2005] VSCA 66
Case: [2005] VSCA 66
Decision Date: 6 April 2005

CaseChat Overview and Summary

In the case of R v Debs & Roberts, the applicants were convicted of the murder of two police officers. The matter came before the court to challenge both the convictions and the sentences imposed. The applicants argued that a separate trial should have been ordered, claiming that the trial judge failed to adequately separate evidence admissible in their respective cases and erred in admitting evidence of other alleged offences. They further contended that a proof of motive was required in the circumstances, and that the joinder of counts relating to murder and separate offences of robbery was improper. Additionally, the applicants challenged the identification evidence, the adequacy of the judge’s directions to the jury, and the application for discharge of the jury based on a claimed change in the Crown’s case.

The court considered whether the trial judge’s handling of the evidence was adequate and whether the admission of evidence relating to other alleged offences was appropriate. It also examined the necessity of a proof of motive and the propriety of joining the murder and robbery counts. The court further assessed the reliability of the identification evidence, the judge’s directions to the jury, and the discharge of the jury. The applicants' contentions regarding the principle of general deterrence and the sentencing principles under the Sentencing Act 1991 (Vic) were also evaluated, particularly in light of the significant nature of the crime and the impact of the sentencing on the principle of general deterrence.

The court determined that the trial judge adequately managed the evidence and that the admission of other offence evidence was appropriate. It held that a proof of motive was not necessary in the circumstances and that the joinder of counts was proper. The identification evidence was deemed reliable, and the judge’s directions to the jury were considered adequate. The court also found no basis for discharging the jury. Regarding the sentences, the court concluded that the head sentence of life imprisonment was within the appropriate range for the youthful offender and that the principle of general deterrence justified the sentence. Consequently, the applications for discharge and sentence review were dismissed.

No orders were made to discharge the jury or to alter the sentences imposed on the applicants.

Orders