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Roberts v The Queen

Roberts v The Queen

Case [2021] VSCA 28 26 February 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0249

JASON JOSEPH ROBERTS	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, NIALL and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 January 2021
DATE OF JUDGMENT:	26 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 28
JUDGMENT APPEALED FROM:	[2020] VSC 793 (Beach JA)

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CRIMINAL LAW – Appeal – Bail – Murder – Miscarriage of justice – Retrial ordered after convictions quashed – Application for bail pending retrial – Bail refused – Appeal from refusal of bail – Whether exceptional circumstances exist that justify the grant of bail – Appellant in custody for 20 years before convictions quashed – Whether period of custody constitutes pre-trial delay – Reliance on injustice of corrupted trial and resulting hardship of incarceration – Whether continued incarceration unjust – Whether judge misconstrued applicable provisions – Whether refusal of bail unreasonable – No specific error – Refusal of bail reasonably open – Appeal dismissed – Bail Act 1977 ss 1B, 3AAA, 4A, 4E.

WORDS AND PHRASES – ‘exceptional circumstances exist that justify the grant of bail’.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P Matthews and Mr P Smallwood	Stary Norton Halphen
For the Respondent	Mr B Ihle SC with Mr G Hayward	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
NIALL JA
EMERTON JA:

Summary

On 15 August 2000, the appellant was arrested and charged with murdering two police officers. On 31 December 2002, he was convicted of both charges of murder. On 24 February 2003, he was sentenced to life imprisonment, with a non-parole period of 35 years. Successive applications for leave to appeal to the Court of Appeal and the High Court failed.

In 2019, the appellant commenced fresh proceedings in this Court under pt 6.4 of the Criminal Procedure Act 2009, seeking leave to appeal on the ground that his trial had been vitiated by non-disclosure of relevant evidence. On 10 November 2020, the appeal against conviction was allowed. The Court quashed the murder convictions and ordered a retrial on both charges.[1]
[1]Roberts v The Queen [2020] VSCA 277 (‘Roberts’).

The appellant then applied for bail pending the retrial. Because the appellant is charged with murder, the judge was obliged to refuse the application unless satisfied that ‘exceptional circumstances exist that justify the grant of bail’.[2] The judge was not so satisfied and the application for bail was refused.[3]
[2]Bail Act 1977 s 4A(1A) (‘Bail Act’).
[3]Re Roberts [2020] VSC 793 (‘Reasons’).

The appellant now appeals from the decision refusing him bail. The decision to grant or refuse bail being discretionary, the appellant accepts that appellate intervention would only be warranted if he could show that the judge had made a specific error or else that it was not reasonably open to the judge in the circumstances of the case to refuse the application.

As to specific error, the appellant submits that the judge misconstrued the applicable provisions and,…

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 Roberts v The Queen

Details

AGLC: Roberts v The Queen [2021] VSCA 28
Case: [2021] VSCA 28
Decision Date: 26 February 2021

CaseChat Overview and Summary

Roberts appealed against the refusal of bail pending his retrial for murder. The respondent, The Queen, opposed the appeal. The appellant's previous convictions for murder were quashed by the High Court after 20 years of incarceration, and a retrial was ordered. Roberts applied for bail pending the retrial, which was refused by a judge of the Supreme Court. The judge found that there were no exceptional circumstances to justify bail and that the refusal was reasonably open. The appeal was based on the argument that the refusal was unreasonable due to the injustice of the corrupted trial and the resulting hardship of incarceration.

The legal issues before the court were whether exceptional circumstances existed that justified the grant of bail and whether the period of custody constituted a pre-trial delay. The appellant argued that the period of incarceration before the quashing of his convictions constituted a pre-trial delay, and the injustice of the corrupted trial and the hardship of incarceration constituted exceptional circumstances. The respondent submitted that the refusal of bail was reasonably open and that there was no specific error in the judge's decision.

The court held that the period of custody did not constitute a pre-trial delay, and the injustice of the corrupted trial and the hardship of incarceration did not constitute exceptional circumstances. The court found that the appellant's incarceration was a consequence of his criminal conduct and not a result of any error or miscarriage of justice. The court also held that the refusal of bail was reasonably open, and there was no specific error in the judge's decision. The appeal was dismissed, and the refusal of bail was upheld.

The court did not make any orders as the appeal was dismissed. The appellant remained in custody pending his retrial for murder. The court found that the refusal of bail was reasonably open and that there were no exceptional circumstances that justified the grant of bail. The court held that the injustice of the corrupted trial and the hardship of incarceration did not constitute exceptional circumstances, and the period of custody did not constitute a pre-trial delay.

Orders