Roberts v The Queen

Case [2021] VSCA 28


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

  1. 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.

  1. 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. 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’).

  1. 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.

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

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Roberts v The Queen [2021] VSCA 28
Case
[2021] VSCA 28
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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.

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Background

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Decision

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