JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2020
DATE OF JUDGMENT:	26 November 2020
CASE MAY BE CITED AS:	Re Roberts
MEDIUM NEUTRAL CITATION:	[2020] VSC 793

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CRIMINAL LAW – Bail – Murder – Applicant convicted of two charges of murder – Irregularity in applicant’s trial – Non-disclosure of material evidence to defence, giving rise to serious departure from proper process affecting fundamental fairness of trial – Applicant’s conviction quashed and new trial ordered – Applicant in custody for more than 20 years before order quashing convictions made – Strong Crown case – Whether exceptional circumstances exist that justify grant of bail – Existence of exceptional circumstances not established – Bail refused – Bail Act 1977, ss 1B, 3AAA and 4A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Matthews	Stary Norton Halphen
For the Respondent	Mr B Ihle SC with Ms S Wallace	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

On 16 August 1998, in the course of performing their duties, two officers of Victoria Police, Sergeant Gary Silk and Senior Constable Rodney Miller, were shot dead. A little over four years later, the applicant and one Debs were convicted of their murders. Upon his conviction, the applicant was sentenced to life imprisonment with a non-parole period of 35 years.[1] Applications for leave to appeal against conviction and sentence were dismissed,[2] as was an application for special leave to appeal to the High Court.[3]
[1]DPP v Debsand Roberts [2003] VSC 30 (‘Sentencing Reasons’).
[2]R v Debsand Roberts [2005] VSCA 66.
[3]Debs v The Queen; Roberts v The Queen [2005] HCA Trans 971.

In November 2019, the Victorian Parliament passed the Justice Legislation Amendment (Criminal Appeals) Act 2019. That Act permitted a second or subsequent appeal against a conviction for an indictable offence subject to a strictly conditioned requirement for the grant of leave to appeal. Following the passing of that Act, the applicant filed a second application for leave to appeal against his convictions. On 25 March 2020, the Court of Appeal granted that application.[4] On 10 November 2020, the Court of Appeal allowed the appeal, quashed the applicant’s convictions and made an order for a new trial.[5]
[4]Roberts v The Queen [2020] VSCA 58.
[5]Roberts v The Queen [2020] VSCA 277 (‘Second Appeal Reasons’).

On 17 November 2020, the applicant filed an application for bail in this Court. Murder is a sch 1 offence within the meaning of s 3 of the Bail Act 1977 (‘the Act’). Accordingly, pursuant to s 4A of the Act, in order to be granted bail, the applicant must satisfy the Court that ‘exceptional circumstances exist that justify the grant of bail’.

Applicant’s material and contentions

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Roberts

Details

AGLC: Re Roberts [2020] VSC 793
Case: [2020] VSC 793
Decision Date: 26 November 2020

CaseChat Overview and Summary

The case of Re Roberts involved the applicant, who was convicted of two counts of murder and had been in custody for over 20 years before his convictions were quashed. The court had to determine whether the applicant was entitled to bail pending the outcome of a retrial. The court considered the statutory provisions of the Bail Act 1977, including sections 1B, 3AAA, and 4A, which relate to the circumstances in which bail may be granted.

The central legal issue was whether the exceptional circumstances necessary to justify the granting of bail to the applicant existed, given the serious nature of the charges against him and the length of time he had already spent in custody. The court examined whether the principles set out in relevant case law, such as that concerning the weighing of the interests of justice and the rights of the accused, supported the granting of bail in this instance. The applicant’s argument centred on the lengthy period already served and the absence of any material evidence against him following the quashing of his convictions.

The court found that while the applicant’s situation was indeed unusual, the existence of exceptional circumstances was not established. The court recognised the gravity of the charges and the need to balance the rights of the accused with the interests of the community. The court concluded that the exceptional circumstances required to grant bail in this case had not been demonstrated, and therefore, the application for bail was refused. The court emphasised the need for a high threshold to be met in cases involving serious offences and lengthy periods of detention before granting bail.

Orders