Roberts v The Queen
[2020] VSCA 277
•10 November 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0232
| JASON JOSEPH ROBERTS | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | T FORREST and OSBORN JJA and TAYLOR AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 June 2020 |
| DATE OF JUDGMENT: | 10 November 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 277 |
| JUDGMENT APPEALED FROM: | DPP v Debs and Roberts [2003] VSC 30 |
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CRIMINAL LAW – Second or subsequent appeal against conviction – New statutory provision – Murder of police officers – Whether one or two offenders – Circumstantial case at trial – Dying declarations – Fresh evidence establishing non-disclosure of material evidence at trial bearing on reliability of dying declarations – Police misconduct and manipulation of evidence – Back-dating of police statement – Revision, non-retention and/or destruction of original police statements – Subsequent evidence from examinations before Independent Broad-based Anti-corruption Commission – Crown’s duty of disclosure – Whether substantial miscarriage of justice as a result of non-disclosure – Potential breadth of concept of substantial miscarriage of justice – Whether limited to cases where fresh evidence establishes significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at trial – Whether fresh evidence establishes accused did not receive a fair trial due to a material error or irregularity in prescribed processes for trial – Whether conviction inevitable – Court satisfied there has been a substantial miscarriage of justice – Non-disclosure constituted a serious departure from the prescribed processes for trial – Alternatively, Court cannot be satisfied irregularity did not make a difference to the outcome of the trial – Conviction not inevitable – Appeal allowed – Convictions quashed – Retrial ordered – Criminal Procedure Act 2009, ss 326A, 326D – Van Beelen v The Queen (2017) 262 CLR 565, Baini v The Queen (2012) 246 CLR 469, Wilde v The Queen (1988) 164 CLR 365, Lee v The Queen (2014) 253 CLR 455, Saricayir v The Queen [2018] VSCA 319 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant: | Mr P J Matthews Mr P J Smallwood Ms K Ballard Ms A J Beech | Stary Norton Halphen |
| For the Respondent: | Mr B Ihle SC Ms S G Wallace | Ms A Hogan, Solicitor for Public Prosecutions |
TABLE OF CONTENTS
Introduction
(1) What must the appellant establish by way of fresh evidence to demonstrate a substantial miscarriage of justice?
(2) What is the factual context in which the significance of the fresh evidence must be assessed?
The basis of the Crown Case at trial
(i) Evidence as to the Hamada robberies
(ii) The evidence relating to the offender(s)’ car
(iii) The circumstantial evidence at the scene as to the use of two handguns
(iv) The dying declaration evidence
(v) Evidence as to covert recordings (listening devices and telephone intercepts)
(vi) Statements to police and lies told by the appellant
The Crown case as a whole
(3) What was the duty of disclosure upon the Crown at trial?
(4) What is the nature of the non-disclosure established by the fresh evidence?
(5) Was conviction inevitable in any event?
Was conviction inevitable irrespective of the dying declaration evidence?
Was Senior Constable Pullin’s evidence of no real significance to the dying declaration evidence as a whole?
Was the Intergraph evidence overwhelming evidence of Senior Constable Miller’s dying declarations?
(i) Evidence of Senior Constable Clarke
(ii) Recollections of other first-responders
(iii) The circumstances in which Senior Constable Clarke used the Intergraph
(iv) The Intergraph descriptions of one offender only
(v) Conclusion as to the Intergraph evidence(6) Was the non-disclosure a serious departure from the prescribed processes for trial resulting in a substantial miscarriage of justice?
(7) Alternatively, has an irregularity occurred which the Court of Appeal cannot be satisfied did not make a difference to the outcome of the trial resulting in a substantial miscarriage of justice?
(8) What is the appropriate disposition of the appeal?
Conclusion
T FORREST JA
OSBORN JA
TAYLOR AJA:
Introduction
In the early hours of the morning of 16 August 1998, two officers of Victoria Police, Sergeant Gary Silk and Senior Constable Rodney Miller, were shot dead in the course of performing their duties in Cochranes Road, Moorabbin.
In 2002, Bandali Debs and Jason Roberts (‘the appellant’) were convicted of the murders of the two police officers at the conclusion of a four and a half month trial.
Upon his conviction, the appellant was sentenced by the trial judge, Cummins J, to life imprisonment with a non-parole period of 35 years.[1]
[1]DPP v Debs and Roberts [2003] VSC 30 (‘Sentencing Reasons’).
An appeal by both the convicted men was dismissed by the Court of Appeal on 6 April 2005.[2] In turn, special leave to appeal was refused by the High Court on 18 November 2005.[3]
[2]R v Debs and Roberts [2005] VSCA 66 (‘Appeal Reasons’).
[3]Debs v The Queen; Roberts v The Queen [2005] HCA Trans 971.
Both the trial and the appeal were conducted on the basis of a joint defence on the part of the two alleged offenders (albeit with some different emphases). The central issue at the trial was whether the Crown could prove the identity of the offenders.[4]
[4]The case put forward on behalf of the appellant at trial is summarised by Vincent JA in Appeal Reasons [179]–[197].
Between August 2016 and November 2019, the appellant lodged three petitions for mercy with the Attorney-General, seeking to have his case referred to the Court of Appeal. The petitions included sworn statements in which the appellant both confessed to a series of circumstantial matters raised against him at trial and deposed to evidence that Debs alone was the offender. The appellant’s statements were supported by alibi evidence and expert reports which took issue with aspects of the Crown case at trial.
By letter dated 6 August 2018, the Attorney-General referred a point arising out of the second petition (noting that the second petition relied in part upon the first) to three judges of the Trial Division of the Supreme Court pursuant to s 327(1)(b) of the Criminal Procedure Act 2009 (‘Criminal Procedure Act’). The point referred was whether the new evidence as to the whereabouts of the appellant on the night of the murders was credible.
The Director of Public Prosecutions (‘the Director’) accepted the role of contradictor with respect to the referral to the Court, but a hearing of the matter did not proceed because the appellant sought to obtain further evidence and, in particular, evidence from the Independent Broad-based Anti-corruption Commission (‘IBAC’) arising out of ongoing investigations into the manner in which police statements were obtained and altered as part of the investigation of the murders.[5]
[5]The IBAC investigations were prompted by a review of the case by Detective Senior Sergeant Ron Iddles and the production by a whistle-blower of an original police statement which was not included in the prosecution brief at trial.
On 4 November 2019, the appellant lodged a third petition based upon material obtained from IBAC and further expert reports which had been obtained with respect to aspects of the Crown case. The IBAC material comprised transcripts and exhibits derived from a series of both private and public examinations of relevant witnesses.
The matters raised by reference to the IBAC material were said to cast doubt on the reliability of aspects of the police evidence at trial.
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. The appellant then lodged an application for leave to appeal which (as the Director accepts) effectively overtook the petition for mercy process which he had previously instituted.
On 25 March 2020, this Court granted leave to appeal against the convictions on the following grounds:
There is fresh and compelling evidence that:
1.1:the original police investigation and the trial and appeals that followed were compromised by:
1.1.1:serious police misconduct, and/or
1.1.2:non-compliance with the duty of disclosure; and/or
1.2:witnesses who were important to the prosecution case at trial lacked credibility and/or were unreliable.
We summarised our reasons for doing so as follows:
The grant of leave under the new appeal provisions is subject to strict preconditions intended to preclude unmeritorious repeat appeals. The Court of Appeal must be satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on appeal.
For the reasons we set out below, we have come to the conclusion in the present case that there is fresh and compelling evidence that should be considered on appeal in the interests of justice.
A central issue at the applicant’s trial was whether the prosecution could prove that there was more than one offender involved in the killings. In turn, a pivotal part of the Crown case on this issue was evidence of what Senior Constable Miller said to police officers whilst in a fatally wounded condition.
As a result of evidence given by way of private and public examinations to the Independent Broad-based Anti-corruption Commission (‘IBAC’), the applicant can now adduce evidence that an officer or officers of Victoria Police fabricated evidence relating to statements made by Senior Constable Miller.
In particular, a written statement made by Senior Constable Pullin which was in fact made 10 months after the murders, was expressed to be, and subsequently adopted at the committal as, a statement made only some four hours after the events in issue.
The trial proceeded on the basis that the statement recorded the substantially contemporaneous recollection of the witness.[6] The statement included material matters which were not included in an initial statement which was in fact made four hours after the relevant events.
[6]4:25 am on Sunday, 16 August 1998.
The second statement was put forward in the prosecution brief without disclosure of its falsity as to the stated date of its making and without disclosure of the existence or contents of the original statement. Senior Constable Pullin also gave false evidence at the committal as to the date of the making of the second statement.
There is no dispute that the IBAC evidence with respect to these matters is fresh and, in our view, it is compelling. It is highly probative in the context of the issues at the trial in that:
(a) it raises a serious question as to the fairness of the trial; and
(b)it raises a serious issue as to the reliability of evidence of what Senior Constable Miller actually said by way of dying declarations.
In turn, we are satisfied that it is in the interests of justice that the applicant be granted leave to appeal.
The applicant also seeks to rely on evidence obtained as a result of examinations before IBAC to demonstrate that there was a multifaceted manipulation of the evidence bearing on the issue of Senior Constable Miller’s dying declarations. It is submitted on behalf of the applicant that:
·evidence by a series of police officers as to the circumstances in which they made statements demonstrates that their evidence was manipulated;
·original documents relating to the preparation of evidence as to what Senior Constable Miller said are now unavailable and a number have been destroyed;
·the senior officer who oversaw the gathering of the evidence relating to this issue has been discredited and his account of the process of gathering evidence should be rejected as unsatisfactory.
Ultimately, the applicant’s case in this regard crystallized in 12 allegations of misconduct which it was said gave rise to matters which could have been of real forensic utility to the defence.
Some aspects of the evidence relied on in respect of these allegations reinforce our conclusion relating to the fresh evidence concerning the statement of Senior Constable Pullin.
More particularly, there was evidence that officers were dissuaded from including evidence as to Senior Constable Miller’s dying declarations in statements made on the morning of the murders; original statements were subsequently revised; records of that process were destroyed; and none of these matters were substantially disclosed at trial.[7]
[7]Roberts v The Queen [2020] VSCA 58, [5]–[17] (citation in original) (‘Leave Reasons’).
Upon the hearing of the appeal, this Court’s function is governed by s 326D of the Criminal Procedure Act which provides:
326D Determination of second or subsequent appeal against conviction
(1)On an appeal under section 326A, the Court of Appeal must allow the appeal against conviction if it is satisfied that there has been a substantial miscarriage of justice.
(2)In any other case, the Court of Appeal must dismiss an appeal under section 326A.
In addressing this test, the parties have joined issue on five critical questions:
(1) What must the appellant establish to demonstrate a substantial miscarriage of justice?
(2) What is the significance of the fresh evidence upon which the appellant relies?
(3) Did a serious departure from the prescribed processes occur at the appellant’s trial?[8]
(4) Alternatively, is the case one in which the Court of Appeal ‘cannot be satisfied that the error or irregularity did not make a difference to the outcome of that trial’?[9]
(5) What is the appropriate disposition of the appeal?
[8]Baini v The Queen (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) (‘Baini’).
[9]Ibid.
Both on the leave application and upon the appeal, transcripts of both private and public examinations before IBAC were received as evidence by the Court without objection from the respondent.
It is not disputed that this fresh evidence establishes non-disclosure at the appellant’s trial of matters which should have been disclosed to him.
In summary:
(a) The appellant contends that a substantial miscarriage of justice may be demonstrated by fresh evidence demonstrating procedural irregularity or by fresh evidence bearing on the question of substantive guilt. In turn, a procedural irregularity may constitute a substantial miscarriage of justice either if it constitutes a serious departure from the prescribed processes for trial or if the Court of Appeal cannot be satisfied that the irregularity did not make a difference to the outcome of the trial. The respondent contends that the sole test of substantial miscarriage of justice is whether there is a significant possibility that the jury acting reasonably would have acquitted the appellant had the fresh evidence been before it at trial.
(b) The appellant contends that the fresh evidence demonstrates the fairness of his trial was vitiated by non-disclosure of relevant evidence by the Crown and that the matters which were not disclosed cast substantial doubt upon the reliability of evidence which was significant to the Crown case. The respondent contends that, although non-disclosure occurred, it did not materially affect the weight of the evidence against the appellant.
(c) The appellant contends that the irregularity constituted by non-disclosure was so serious that without more it justifies the conclusion that a substantial miscarriage of justice has occurred. The respondent contends that the non-disclosure did not give rise to a fundamental miscarriage of the trial and did not result in a substantial miscarriage of justice.
(d) The appellant contends in the alternative, that having regard to the non-disclosure, this Court cannot be satisfied that the irregularity which occurred did not make a difference to the outcome of the appellant’s trial. The respondent contends that conviction was inevitable.
(e) The appellant contends that his convictions should be quashed and that he should be acquitted. The respondent contends that the appellant’s convictions should not be set aside.
For the reasons set out below, we have come to the following conclusions:
(a) The circumstances in which a substantial miscarriage of justice may be demonstrated include (but are not limited to) both those where fresh evidence establishes that an accused did not receive a fair trial due to a material error or irregularity in the prescribed processes for trial, and those where fresh evidence establishes that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at trial.
(b) The fresh evidence in the present case demonstrates facts bearing on the reliability of evidence adduced by the Crown at trial going to a central issue in the case, namely whether the Crown could demonstrate beyond reasonable doubt that there was more than one offender.
(c) Irregularity in the appellant’s trial, resulting from the non-disclosure of material evidence to the defence, gave rise to a serious departure from proper process affecting the fundamental fairness of the trial.
(d) Alternatively, this Court cannot be satisfied that the non-disclosure of material evidence did not make a difference to the outcome of the trial.
(e) The appellant’s convictions should be quashed and an order made for a new trial.
In order to explain these conclusions we will address the following questions:
(1) What must the appellant establish by way of fresh evidence to demonstrate a substantial miscarriage of justice?
(2) What is the factual context in which the significance of the fresh evidence must be assessed?
(3) What was the duty of disclosure upon the Crown at trial?
(4) What is the nature of the non-disclosure established by the fresh evidence?
(5) Was conviction inevitable in any event?
(6) Was the non-disclosure a serious departure from the prescribed processes for trial resulting in a substantial miscarriage of justice?
(7) Alternatively, has an irregularity occurred which the Court of Appeal cannot be satisfied did not make a difference to the outcome of the trial resulting in a substantial miscarriage of justice?
(8) What is the appropriate disposition of the appeal?
(1)What must the appellant establish by way of fresh evidence to demonstrate a substantial miscarriage of justice?
Before allowing an appeal pursuant to s 326D, the Court of Appeal must be satisfied that there has been a substantial miscarriage of justice. That phrase falls to be understood having regard to its plain meaning, purpose and context.[10]
[10]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–6 [47]; [2009] HCA 41 (Hayne, Heydon, Crennan and Kiefel JJ). See also Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523, 539–40 [47] (French CJ, Crennan, Kiefel, Gageler and Keane JJ).
In Baini v The Queen,[11] the High Court considered the proper construction of s 276 of the Criminal Procedure Act which governs the determination of a first appeal against a conviction for an indictable offence in Victoria and provides:
[11](2012) 246 CLR 469.
276 Determination of appeal against conviction
(1)On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that—
(a)the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b)as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c)for any other reason there has been a substantial miscarriage of justice.
(2)In any other case, the Court of Appeal must dismiss an appeal under section 274.
The majority of the High Court[12] made some preliminary observations which are of guidance by analogy in the present case. First, this Court’s essential task is construction of the statute:
Whether there has been a ‘substantial miscarriage of justice’ within the meaning of s 276(1)(b) requires consideration of the text of the statute. As the Court said in Fleming v The Queen,[13] ‘[t]he fundamental point is that close attention must be paid to the language’ of the relevant provision because ‘[t]here is no substitute for giving attention to the precise terms’ in which that provision is expressed. Paraphrases of the statutory language, whether found in parliamentary or other extrinsic materials or in cases decided under the Act or under different legislation, are apt to mislead if attention strays from the statutory text.[14] These paraphrases do not, and cannot, stand in the place of the words used in the statute.[15]
[12]French CJ, Hayne, Crennan, Kiefel and Bell JJ.
[13](1998) 197 CLR 250, 256 [12].
[14]See generally Catlow v Accident Compensation Commission (1989) 167 CLR 543, 550 (Brennan and Gaudron JJ); Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); 437 (Toohey J); Marshall v Director-General, Department of Transport (2001) 205 CLR 603, 632–3 [62] (McHugh J); Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259, 270 [31] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 265 [33]–[34] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Brennan v Comcare (1994) 50 FCR 555, 572–3 (Gummow J); Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32, 39; [1970] AC 113, 127.
[15]Baini (2012) 246 CLR 469, 476 [14] (citations in original).
Secondly, the use of the phrase ‘substantial miscarriage of justice’ in different contexts in earlier legislation does not govern its meaning in s 276.[16]
[16]Ibid 478 [21].
Thirdly, the concept of ‘substantial miscarriage of justice’ as adopted in ss 276(1)(b) and (c) is a protean one:
Section 276 must be read recognising that miscarriages of justice may occur in many circumstances and may take many forms. As s 276(1)(b) contemplates, it will be possible sometimes to describe the cause of complaint as ‘an error or an irregularity in, or in relation to, the trial’. That is a description which is apt to encompass any departure from trial according to law. But as s 276(1)(c) shows by its reference to ‘any other reason’ (emphasis added), the description contemplated in para (b) is not exhaustive. When read together, paras (b) and (c) encompass any and every form of substantial miscarriage of justice. Yet the ultimate question will remain the same: has there been ‘a substantial miscarriage of justice’?
No single universally applicable description can be given for what is a ‘substantial miscarriage of justice’ for the purposes of s 276(1)(b) and (c).[17] The possible kinds of miscarriage of justice with which s 276(1) deals are too numerous and too different to permit prescription of a singular test. The kinds of miscarriage include, but are not limited to, three kinds of case. First, there is the case to which s 276(1)(a) is directed: where the jury have arrived at a result that cannot be supported. Secondly, there is the case where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial. Thirdly, there is the case where there has been a serious departure from the prescribed processes for trial.[18] This is not an exhaustive list. Whether there has been a ‘substantial miscarriage of justice’ ultimately requires a judgment to be made.[19]
[17]Compare Weiss v The Queen (2005) 224 CLR 300, 317 [44] in relation to the proviso to the common form criminal appeal provision.
[18]See, eg, AK v Western Australia (2008) 232 CLR 438, 456 [55]–[56]; Handlen v The Queen (2011) 245 CLR 282.
[19]Baini (2012) 246 CLR 469, 479 [25]–[26] (emphasis in original) (citations in original).
As the majority explained, the alternatives elaborated in s 276(1) make clear that ‘“substantial miscarriage of justice” encompasses not only cases identified by inaccuracy of result but also cases identified by departure from process even if it can be shown that the verdict was open or it is not possible to conclude whether the verdict was open’.[20]
[20]Ibid 479–80 [27].
In the present case, the Director submits that the exclusive test of substantial miscarriage of justice upon a second or subsequent appeal is that formulated by the High Court in Mickelberg v The Queen[21] and applied by the High Court in Van Beelen v The Queen,[22] namely ‘whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.’[23]
[21](1989) 167 CLR 259 (‘Mickelberg’).
[22](2017) 262 CLR 565 (‘Van Beelen’).
[23]Ibid 575 [22] (Bell, Gageler, Keane, Nettle and Edelman JJ).
In consequence, it is submitted that even evidence of serious irregularity at trial will not of itself justify a conclusion of substantial miscarriage of justice. The Court must always form a judgment as to the effect of the fresh evidence upon the ultimate weight of the evidence going to the substantive question of the accused’s guilt.
Van Beelen concerned the application of s 353A of the Criminal Law Consolidation Act 1935 (SA). As we noted in the Leave Reasons in this matter, the provisions of the equivalent South Australian legislation are substantially analogous to those which we are required to consider in the present appeal.[24] The relevant power of the Court was expressed as follows:
The Full Court may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice.[25]
[24]Leave Reasons [36]–[37].
[25]Criminal Law Consolidation Act 1935 (SA) s 353A(3).
We entirely accept that for the purpose of establishing a substantial miscarriage of justice, the High Court’s decision in Van Beelen states the test governing fresh evidence adduced on a second appeal following conviction in the first instance at a fair trial. In this regard, the High Court stated:[26]
… Kourakis CJ was not persuaded that a properly directed jury would necessarily have convicted the appellant at a trial at which Dr Manock’s dogmatic opinion as to the time of death was not in evidence.[27]
As the respondent submits, the latter conclusion is suggestive of the application of a less stringent test than applies to the determination of an appeal on fresh evidence under the common form criminal appeal provision.[28] Nonetheless, his Honour’s ultimate conclusion[29] was stated conformably with the test that commanded the support of the majority in Mickelberg v The Queen:[30] whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.
It is not in issue that the Full Court was right to hold that the question of whether there has been a substantial miscarriage of justice for the purposes of s 353A(3) is answered by applying the Mickelberg test.[31] As the majority observed, the presupposition for a second or subsequent appeal is that the accused has had a fair trial according to law on the available evidence. There is no reason why an appeal under s 353A should be determined by applying a less rigorous test than applies to an appeal against conviction on fresh evidence under s 353 of the [Criminal Law Consolidation Act].[32]
[26]Van Beelen (2017) 262 CLR 565, 575 [21]–[23] (Bell, Gageler, Keane, Nettle and Edelman JJ) (emphasis added) (citations in original).
[27]R v Van Beelen (2016) 125 SASR 253, 276 [77].
[28]Mickelberg (1989) 167 CLR 259, 273 (Mason CJ); 288–9 (Deane J); 301 (Toohey and Gaudron JJ).
[29]R v Van Beelen (2016) 125 SASR 253, 276 [78].
[30](1989) 167 CLR 259.
[31]R v Van Beelen (2016) 125 SASR 253, 273 [59] (Kourakis CJ); 297–8 [171]–[173] (Vanstone and Kelly JJ), citing (1989) 167 CLR 259, 273 (Mason CJ).
[32]Ibid 298 [173].
Van Beelen was itself a case in which the fresh evidence raised a question concerning the reliability of expert evidence given at the trial. It did not raise any issue as to the fairness of the trial in the first instance. The issue on the appeal was whether the appellant had established on the balance of probability that in light of fresh expert evidence taken with the evidence adduced at the trial, there was a significant possibility that a jury, acting reasonably, would have acquitted.[33]
[33]Van Beelen (2017) 262 CLR 565, 578 [32] (Bell, Gageler, Keane, Nettle and Edelman JJ).
In our view, a substantial miscarriage of justice may also be established by demonstration of a material error or irregularity in the trial process. The decision in Van Beelen was not directed to this issue and there are a series of considerations which, taken together, overwhelmingly support this conclusion.
First, the term ‘substantial miscarriage of justice’ is, as a matter of ordinary language, apt to describe both procedural and substantive miscarriages of justice.
Secondly, the notion of miscarriage of justice has historically been understood to embrace both procedural and substantive miscarriages of justice. In Davies v The King,[34] the High Court addressed the concept as including:
not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.[35]
[34](1937) 57 CLR 170.
[35]Ibid 180 (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ).
Thirdly, the very same piece of legislation as that which contains s 326D uses the phrase ‘substantial miscarriage of justice’ in s 276(1)(b) in respect of first appeals, as extending to miscarriages arising from ‘an error or an irregularity in, or in relation to, the trial’.
Fourthly, there may be a substantial practical difficulty in forming a concluded view as to the net effect of the evidence at trial coupled with fresh evidence in terms of substantive proof of guilt if the reliability of the evidence at trial is materially undermined by evidence which establishes irregularity at or in relation to the trial. The fresh evidence may demonstrate that the evidence at trial was not properly tested and that, as a result, it is difficult to evaluate.
Fifthly, in some cases the fresh evidence may establish that there has in effect been no trial on the evidence by jury at all as a result, for example, of a juror being suborned, or the jury acting improperly by way of undertaking its own investigations or otherwise. Likewise, fresh evidence may potentially demonstrate that the trial has fundamentally miscarried in other ways, eg where it demonstrates that an accused was not fit to plead or fit for trial.
Sixthly, in the passage we have quoted from Van Beelen, the High Court reasoned by reference to the improbability of it being intended that a different ultimate standard should apply on a second appeal to that applicable on a first appeal. We can see no sensible reason in principle to ascribe a narrower ambit to the notion of substantial miscarriage of justice on a second or subsequent appeal from that appropriate to a first appeal.
If the Director is correct in her construction of s 326D then the same fresh evidence demonstrating a procedural irregularity could make out a substantial miscarriage of justice on a first appeal but fail to do so (through no fault of an appellant) upon a second or subsequent appeal. This would be an entirely anomalous outcome dependent upon the date on which the fresh evidence was discovered.
Seventhly, the South Australian Court of Criminal Appeal accepted in R v Keogh (No 2),[36] that the majority judgment in Baini provides authoritative guidance as to the potential breadth of the meaning of substantial miscarriage of justice as a basis for allowing a criminal appeal under legislation analogous to that with which we are concerned. We take the same view.
[36](2014) 121 SASR 307, 341 [124] (Gray, Sulan and Nicholson JJ).
Eighthly, when regard is had to its factual basis, the decision in Van Beelen does not require the notion of substantial miscarriage of justice to be read down as having a materially narrower meaning than that articulated by the majority in Baini.
Ninthly, in Baini the majority of the High Court accepted that the Second Reading Speech for the Bill which became the Act there in question was useful insofar as it confirmed s 276 took into account both questions of result and questions of process.[37] The same holds true here. In the Second Reading Speech introducing the provision for second and subsequent appeals, the Attorney-General, Jill Hennessy, stated:
Even though a second or subsequent right of appeal is likely to be granted only in rare circumstances, I acknowledge that establishing a new avenue of appeal may cause distress and create further anxiety or trauma for victims in those cases. It is important that victims can have a sense of finality and certainty that a criminal case is over, and that the appeals process has come to an end. But this must be balanced against the risk that a person has been wrongfully convicted or has not received a fair trial, which is the right of every accused person. [38]
[37]Baini (2012) 246 CLR 469, 482 [35].
[38]Victoria, Parliamentary Debates, Legislative Assembly, 17 October 2019, 3689 (emphasis added).
In the first instance, the appellant’s case is that non-disclosure of relevant evidence deprived him of a fair trial. In our view, such a deprivation may constitute a substantial miscarriage of justice irrespective of the relative weight of the evidence as to guilt. It will do so without more if there has been a sufficiently serious departure from the prescribed processes for trial.[39] It will also do so if an error or irregularity occurs and the Court of Appeal cannot be satisfied that the irregularity did not make a difference to the outcome of the trial.[40]
[39]Baini (2012) 246 CLR 469, 479 [26].
[40]Ibid.
Further, as the majority in Baini observed, a court’s satisfaction that a guilty verdict was inevitable will not in every case be conclusive of the issue of whether there has been a substantial miscarriage of justice although it is a matter to be taken into account.[41]
(2)What is the factual context in which the significance of the fresh evidence must be assessed?
The basis of the Crown Case at trial
[41]Ibid 480 [30].
In order to understand the significance of the fresh evidence upon which the appellant relies, it is necessary to address the basis of the case at trial.
It is convenient first to summarise the sequence of events to which that evidence relates.
Immediately prior to the murders, Sergeant Silk and Senior Constable Miller were participating in a police operation known as Operation Hamada. This was directed to intercepting the perpetrators of a series of 10 armed robberies which had been performed by two men (who the appellant now admits were Debs and himself) (‘the Hamada robberies’).
Operation Hamada required a number of police to attend and observe potential target premises which were believed to have characteristics generally similar to those which had been the subject of the previous armed robberies. These characteristics included the fact that the premises were generally relatively isolated, located in the eastern and south-eastern suburbs of Melbourne, holding ready cash, and vulnerable to robbery at about the time of closure of business.
After first attending other premises, Sergeant Silk and Senior Constable Miller were directed to attend the Silky Emperor Restaurant in Cochranes Road, Moorabbin. Having arrived at the premises they placed the rear carpark under surveillance and observed a car enter the carpark and then exit into Warrigal Road before turning left into Cochranes Road a short distance away.
The police officers did not make radio contact with their base identifying the car as potentially containing the armed robbers. At trial, the appellant contended that this tended to support the inference that the car was observed to have only one passenger rather than to fit the profile of joint offending comprised in the Hamada robberies.
Sergeant Silk and Senior Constable Miller followed the car they had observed exit the restaurant carpark and intercepted it, requiring it to pull over to the side of Cochranes Road. They parked their own car a short distance behind the intercepted car. They then got out of the police car.
A short time later they were directly observed by the occupants of another police car, Senior Constables Bendeich and Sherren, who had been maintaining surveillance of the front of the Silky Emperor Restaurant from the opposite side of Warrigal Road. They followed the car occupied by Sergeant Silk and Senior Constable Miller into Cochranes Road, and passed by it at a slow speed, in order to provide potential support.[42] According to Sherren, he saw Sergeant Silk and Senior Constable Miller outside their vehicle. Sergeant Silk was near the driver’s side door of the intercepted car talking to a standing male person whom, he assumed, was the driver, and Senior Constable Miller was positioned between the two cars, on the right side of the rear of the front car. Bendeich gave a similar description of the scene. The intercepted driver was wearing a flannel shirt and was described by Bendeich as tall with shoulder-length black straight-ish hair.
[42]Sherren described the speed as ‘walking pace’, while Bendeich described it as between 30 and 40 kilometres per hour.
The intercepted car was a small hatchback. Neither Bendeich nor Sherren saw a second occupant, a fact relied upon heavily by the defence at trial and by the appellant on this appeal as supporting the real possibility that there was only one offender.
After they drove past the stationary vehicles, Bendeich and Sherren drove on, executed a right turn, and took up a position on the opposite side of the road about 100 metres further on in a side street, facing into Cochranes Road.
Sherren then saw someone, whom he believed to be Sergeant Silk, move across the front of the intercepted vehicle. Very soon afterwards, he and Bendeich heard a volley of gunshots coming from the vicinity of the stationary vehicles.
Sherren immediately called for assistance on the police radio and he and Bendeich moved from their car in order to obtain ballistic vests from the boot. They then heard another volley of shots and determined that they should observe what was occurring. They saw the intercepted vehicle move along Cochranes Road at a normal speed. It passed them and continued on. They followed it in their own car but lost sight of it as it passed over the crest of a hill.
They then returned to the area where the other police car was parked. They found Sergeant Silk lying on the grass verge a short distance away and concluded that he was dead. There were indications that he may have been taking notes when he was shot. His pen was later found near his right foot and his notebook was missing. Sergeant Silk’s police revolver was in its holder and the covering flap of the holder was buttoned down. He had been shot in the chest, pelvis and head.
A number of civilian witnesses gave evidence in relation to the intercepted vehicle that was pulled over by Sergeant Silk and Senior Constable Miller.
Stephen Price was returning from a concert in his Saab, with two passengers, Kimberley Connell and her husband Steven Sculli. Price gave evidence that he was forced to slow to a speed of approximately 10–15 miles per hour when passing Sergeant Silk and Senior Constable Miller’s police car and the intercepted vehicle, in order to negotiate the narrow passageway between their cars and the median strip. Price said that he was concentrating on the road and that his peripheral vision was limited due to an eye injury. Price gave evidence that as they were passing the intercepted vehicle, which he observed to have both front doors open, Connell yelled ‘Oh no, he’s got a gun’ and something like ‘Quick, get out of here’, immediately following which he accelerated to approximately 60–70 kilometres an hour. Price did not see any person in either of the stationary cars.
Kimberley Connell, who sat in the front passenger seat of Price’s car, gave evidence that she saw one male, standing stationary on the concrete adjacent to the police car, and that she thought the driver’s door of the intercepted vehicle was open. Connell gave evidence that the male was holding a gun with two hands with arms outstretched, he was of skinny or medium build, and he was wearing a light shirt. Connell did not see any other person. Steven Sculli, sitting in the back passenger seat of the Saab, gave evidence that he did not see any person at all but saw that the driver’s side door of the intercepted vehicle was open.
Julie Dietrich, a passenger in her husband William Dietrich’s car, gave evidence that, in what must have been only a short time after the shooting, she saw a dark blue Hyundai sedan in Cochranes Road ‘going fast’. She saw only a driver in the car and was unable to describe that person. William Dietrich did not see anything of the occupant or occupants in the car.
The Crown case (based on subsequent reconstruction from the circumstantial evidence) was that Sergeant Silk was shot by the appellant with a .38 handgun and that Senior Constable Miller, who had taken up a position behind the intercepted vehicle, then drew his police revolver and fired in the direction of the appellant.
Debs then fired at Senior Constable Miller through the rear hatch of the intercepted vehicle with a .357 Magnum handgun. One shot mortally wounded Senior Constable Miller as he crouched forward behind the intercepted vehicle.
Senior Constable Miller also fired shots in the direction of Debs (being on the Crown case a different direction from the shots initially fired towards the appellant). Senior Constable Miller then managed to struggle away from the scene to seek help.
Debs went up to Sergeant Silk and shot him in the pelvis and then in the head, killing him instantly.
The offenders then fled the scene.
Shortly afterwards, Senior Constable Miller was found by other police officers in a fatally wounded condition in Cochranes Road near Warrigal Road. In a series of statements Senior Constable Miller described the offender(s)’ car, described one offender in detail and referred to the presence of two offenders.
At the time of the killings, Debs was aged 45 and the appellant, 17. Subsequent investigations ultimately revealed that the car intercepted at the time of the murders was owned by Nicole Debs, the daughter of Debs and the then girlfriend of the appellant.
The way the Crown case was put at trial was summarised by Vincent JA at [155]–[178] of the Appeal Reasons. The prosecutor framed the Crown case by reference to five major areas of evidence addressing the jury within this framework both in his opening and closing addresses:
(a) the circumstantial evidence at the scene;
(b) the identification of Nicole Debs’ Hyundai as the car used by the offenders;
(c) listening device and telephone intercept material;
(d) evidence as to the Hamada robberies; and
(e) records of interview and lies told by the accused.
The circumstantial evidence at the scene comprised two distinct components, namely physical circumstantial evidence and evidence of dying declarations made by Senior Constable Miller after he was discovered nearby in a fatally wounded condition. For ease of comprehension, we shall address in sequence the evidence relating to the Hamada robberies; the evidence relating to the offender(s)’ car; the evidence relating to the use of two handguns; the dying declaration evidence; the evidence derived from covert recordings; and the evidence as to statements to police and lies told by the appellant.
(i) Evidence as to the Hamada robberies
A great part of the trial was concerned with the giving of evidence relating to the Hamada robberies and the calling of evidence demonstrating that the car used by the offender or offenders[43] was the Hyundai owned by Nicole Debs.
[43]Hereafter ‘offender(s)’.
Both of these matters are now the subject of admissions made by the appellant in sworn statements lodged in support of his petitions for mercy.
There was some dispute before us as to whether the respondent could rely on this fresh evidence. In our view, it is open to the respondent to do so.
In Van Beelen, the High Court observed of the consideration of the interests of justice requirement which conditions the grant of leave to appeal in cases such as the present (the South Australian equivalent of the first element of s 326C(1) of the Criminal Procedure Act) as follows:
Jurisdiction under s 353A(1) is further conditioned on the Full Court’s satisfaction that it is in the interests of justice to consider the fresh and compelling evidence on appeal. Commonly, where fresh evidence is compelling, the interests of justice will favour considering it on appeal. Nonetheless, as the respondent submits, it is possible to envisage circumstances, such as where an applicant has made a public confession of guilt, where the interests of justice may not favour that course. Contrary to the analysis of the majority,[44] the circumstance that a conviction is long-standing does not provide a reason why, in the interests of justice, fresh and compelling evidence should not be considered on a second or subsequent appeal.[45]
[44]R v Van Beelen (2016) 125 SASR 253, 295–6 [165].
[45]Van Beelen (2017) 262 CLR 565, 578 [30] (citation in original).
It would be an illogical outcome if fresh confessional material bearing on the interests of justice could be considered at the leave stage of a second or subsequent appeal but not upon the consideration of the ultimate question of substantial miscarriage of justice. It is not suggested that the admissions in issue are untrue, and to ignore them would result in an entirely artificial evaluation of the evidence admissible against the appellant as it now stands.
In our view, the respondent is entitled to rely on fresh evidence which has come to light since the appellant’s trial and first appeal. Such evidence may be relied on to rebut or realistically assess inferences which might otherwise be drawn from the fresh evidence relied upon by the appellant in the same way as it could upon a first appeal. In Ratten v The Queen,[46] Barwick CJ observed that, upon the receipt of fresh evidence (on a first appeal), the appellate court ‘will be entitled to receive evidence which tends to support, contradict or weaken the new evidence or the inferences which might be drawn therefrom’.[47] The same principle should apply in the present context.
[46](1974) 131 CLR 510.
[47]Ibid 518.
This said, the same sworn statements relied upon by the respondent raise a case not only that a single offender acted alone (as was contended by the appellant at trial) but specifically that that offender was Debs. This contention is self-serving and the statements have not been tested in cross-examination but the Crown case must now be assessed by reference to it. The respondent cannot rely on the mixed statements made by the appellant without bringing this contention squarely before the Court.[48] Once again, to ignore the full content of the mixed statements would obscure the real issues in the case as they now appear.
[48]Nguyen v The Queen (2020) 94 ALJR 686, 695–6 [37]–[41] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
The evidence as to the Hamada robberies demonstrates that the robberies were perpetrated by two men acting together as a team in confronting those they robbed. On each occasion one was armed with a handgun and on the majority of occasions both were observed to be so armed.[49] As we observed on the leave application,[50] the history of the Hamada robberies provided a circumstantial context for the assessment of the evidence as a whole going to the appellant’s guilt, by demonstrating a consistent modus operandi involving two offenders; by explaining the presence of the police officers at the scene of their deaths; and as providing a possible motive for the killings.
[49]A distinction was also drawn by some witnesses between the size of the firearm carried by the older offender (Debs) and the smaller calibre firearm carried by the younger offender (Roberts).
[50]Leave Reasons [23].
Before this Court, the respondent contended:
The importance of Hamada was central, it alone provided the compelling basis, irrespective of any dying declaration evidence, for concluding that there were two offenders.
This is not the way the Crown case was put at trial or on the first appeal. On the first appeal, Vincent JA (with whom Warren CJ agreed) analysed the Hamada evidence as follows:
As earlier mentioned, Sergeant Silk and Senior Constable Miller were on duty in the vicinity of the Silky Emperor restaurant as part of an operation, designated Hamada, that had been mounted in an endeavour to apprehend two persons who, it was believed, were responsible for a spate of armed robberies that had been committed in the south eastern region of Melbourne in the preceding five months. In consequence, when attention came to be focused on the two applicants, the possibility of linking them with those robberies and thereby supporting the evidence connecting them with the deaths of the two police members was pursued. It would seem to be beyond dispute that the investigators reasoned that if the applicants had committed these offences, they could be seen to possess a powerful motive to avoid capture and additional support would be provided for the evidence identifying them as the perpetrators of the two shootings.
It is important to bear in mind that, whilst the Hamada robberies provided the background and reason for the police activities on the night of the shootings, including the presence of Silk and Miller behind the Silky Emperor, the finding that the applicants had committed them could not of itself lead to the conclusion that they were responsible for the deaths of the two police members or were even in the vicinity at the time. Whilst the presence of the Debs car would have given circumstantial support for that inference, again it would not have provided an adequate foundation for a finding of guilt to be made against either man. As the summary set out earlier indicates, the case against each centrally rested upon the evidence of the forensic investigations and his own highly incriminating statements and conduct. This was made clear to the jury from the outset by the prosecutor who said in his opening:
It is important for you to remember important to appreciate that you are not obliged to use any of the Hamada evidence in considering your verdicts on the murder charges. The Crown says that there is ample evidence even without the armed robbery evidence upon which you would be entitled to convict both the accused and you can do that as I said without even looking at the armed robbery evidence. Nevertheless it is led, it’s there to assist you and is available for your use in some of the manners in which I have indicated to you.
I will address the uses to which the prosecution contended that the evidence could be put when later considering some of the appeal grounds. He repeated this general statement of the significance of the Hamada evidence at the commencement of his closing address:
The manner in which you approach your task, including the order in which you consider the issues and the evidence, and the manner in which you use that evidence, is a matter entirely up to you. Indeed, this case can be resolved by you without having regard to all of the evidence which the prosecution has led in proof of the Crown case. For example, I said at the outset of the case that you can reach a state of satisfaction beyond reasonable doubt about the guilt of the accused without having regard at all to the armed robbery evidence. That remains true at the end of the case as well.
Similarly, it would be conceptually possible for you to reach verdicts without having regard to the scientific evidence which we contend establishes beyond doubt that the Debs’ Hyundai OJI-862 was the car that was used by the murderers of Sergeant Silk and Senior Constable Miller. You could reach your verdict by that route if you were satisfied that the admissions made by each of the accused on the listening devices were unequivocal admissions by them to their participation in the murders of the two police officers.
There can be little room for doubting that the position was appreciated by the counsel appearing for the respective applicants and the trial judge who directed the jury that a finding that the applicant, whose case they were considering was one of the perpetrators of some or all of the earlier robberies, could only provide circumstantial support for the inference that the particular person was a party to what occurred in Cochranes Road. It is sufficient, for present purposes, to state, however, that a considerable amount of evidence was adduced by the prosecutor and, in my view, grossly disproportionate attention was directed to the establishment of the guilt of each of the applicants of the Hamada robberies.[51]
[51]Appeal Reasons [131]–[133].
Nonetheless, we accept that the consistent history of the manner in which the Hamada robberies were committed by Debs and the appellant raises a strong probability that (absent other evidence) if the Hyundai car was present at the Silky Emperor for the purposes of robbery, then both men were present.
In turn, the Crown points to the appellant’s admission that Debs had identified the Silky Emperor as a potential target. In his statement of 26 March 2013, the appellant stated:
On 15th August Nicole and I went out to dinner to the ‘Bear House’ on the Frankston Cranbourne road. I cannot tell you the time but it would not have been late, as we did not eat late, it could have been around 6 O’clock. Went home to Nicole’s house. Ben[[52]] wanted to go out, and I told him I had a couple of beers with dinner, and I wanted to stay home and arrange my 18th birthday which was the following week. I was looking to get a Limousine. Ben said he knew of a job that he could do on his own as he done the tiling there, and there would only be a couple of people there. Ben told me that he had done jobs on his own before and got heaps, he was trying to entice me to come out. I told him no, and he said then I would not get any of the proceeds.[53]
[52]The nickname by which Debs was known to the appellant.
[53]Debs had previously carried out tiling work at the Silky Emperor.
The appellant now contends that Debs went out alone after the appellant had refused to go with him, either intending to rob the restaurant alone or for the purpose of night reconnaissance.
Before leaving the topic of the Hamada evidence, it should be noted that an incidental consequence of this aspect of the Crown case was that the jury were required to consider and evaluate the cumulative weight of direct evidence concerning 10 armed robberies.
(ii) The evidence relating to the offender(s)’ car
The car used by the offender(s) was a small dark blue Hyundai hatchback owned by Nicole Debs. It was described in general terms by Bendeich and Sherren and with some precision by Senior Constable Miller as he lay fatally wounded at the scene.
After initial error in the forensic scientific investigation, it was ultimately established that shattered glass left at the scene came from the Hyundai.
The identity of the vehicle was not admitted by the appellant at trial and was directly challenged on behalf of Debs by way of an allegation of fabrication of evidence. For reasons to which we shall return, it is necessary to give some idea of the complexity of the evidence relating to this issue with which the jury was confronted. Vincent JA summarised the evidence in the Appeal Reasons as follows:
Scientific analysis established that:
(1) The glass at the crime scene was consistent with having been deposited by Hyundai OJI 862, belonging to Nicole Debs;
(2)Some of that glass showed indications of having come from the vehicle when a gun was discharged from within it;
(3)Gunshot propellant particles, found on the clothing of Miller, and a small lead fragment, found embedded on the right side of his jacket, suggested that the projectile which had been fired at Miller, was a Winchester 0.357 magnum calibre.
With regard to the question of the identity of the car used by the killers of Silk and Miller, scientific testing of the glass found at the crime scene, together with observations made by Bendeich and Sherren, justified the conclusion that:
(1) The vehicle used by the perpetrators, was a three or five-door Hyundai Excel X3 model;
(2) It was dark in colour;
(3) It was fitted with silver mag-type wheels.
In addition to those particular features, it was highly probable that the glass in the rear windscreen of that vehicle was manufactured in February 1997, that the vehicle itself was built in March or early April 1997, and that it had a low-profile spoiler on the rear.
Based on this evidence, a comparison could be made between Nicole Debs’ car and that present in Cochranes Road. Nicole Debs’ vehicle was a three-door Hyundai Excel X3 model built in March 1997. It was fitted with rear spoiler, silver Race Alloy wheels and was Potomac Blue in colour.
The body of scientific evidence adduced by the prosecution established further that:
(1)The Debs car had bullet damage to the rear hatch and attempts had been made to seal or repair that bullet damage.
(2) Gunshot residue, in the form of propellant and primer residues, were found in the Debs Hyundai and matched the gunshot residue found on Miller’s clothing.
(3) Gunshot residue was found on Debs rear hatch which was consistent with having come from a Winchester .357 magnum bullet and was the same as that found on Miller’s clothing.
(4) Fragments of a bullet or bullets were found in the Debs’ car, and glass adhering to some of it matched the glass found in Cochranes Road and on Miller. The bullet fragments found on the glass were deposited as a result of a bullet impact.
The prosecution advanced the possibility of two breakages in the back window. One when the bullet was fired through the windscreen by one of the accused at Miller. That bullet passed very close to him showering him with glass and then Miller fired back at the car, hitting the car in the rear hatch area, causing that damage to the car and blowing out bits of glass.
The evidence led inevitably to the conclusion that the bullet which penetrated Miller’s jacket was fired from inside the Debs’ car, passing through the rear windscreen, and that Miller had himself fired a bullet at the car which hit it, dislodged glass from the rear frame and damaged the rear hatch area.
Accordingly, based on this evidence, it was open to conclude, beyond reasonable doubt, that Nicole Debs’ Hyundai OJI862 was the vehicle involved in the shootings of the two policemen.[54]
[54]Appeal Reasons [161]–[167].
In summary, the Hyundai suffered damage to the rear window and rear hatch in the course of the exchange of gunfire at the time of the killings and received gunshot residue. These matters not only formed evidence linking Debs and the appellant to the scene but formed part of the further forensic evidence as to what occurred at the scene.
(iii) The circumstantial evidence at the scene as to the use of two handguns
The Crown adduced evidence as to the cause of death of each victim and further ballistic evidence as to the cartridges left at the scene and bullet damage caused both to surrounding structures and to the Hyundai. The evidence demonstrated that two handguns were used in the killings. The bullet damage suggested that Senior Constable Miller had also fired shots in two different directions. In consequence, the Crown invited the inference that he fired at two different targets. In addition, on the view of the evidence propounded by the Crown relating to the damage to the Hyundai, at least one shot was fired by an offender from within the car used by the offenders and other shots fired close in time to that shot were themselves fired from outside the car. Each of these matters was relied on as supporting a conclusion that there were two offenders. Conversely, the defence contended that the ballistic evidence was explicable by reference to a scenario involving one offender.[55]
[55]A further scenario was advanced on behalf of the appellant in the petition for mercy material lodged on his behalf.
In our view, the most powerful aspect of this portion of the evidence is simply that two handguns were used. It adds to the evidence that the majority of the Hamada robberies were committed by two individuals, each separately armed with a handgun.
It follows that the combination of the Hamada, the Hyundai and the ballistics forensic examination evidence taken together supports the probability that there were two offenders, despite the fact that only one was directly observed. Nonetheless, it cannot be said that this combination of evidence entirely excludes the possibility of one offender in circumstances where only one was observed at the scene by direct witnesses.
(iv) The dying declaration evidence
An evaluation of the significance of the dying declaration evidence is critical to this appeal.
Once Bendeich and Sherren raised the alarm by radio, a number of police officers from different units attended the scene in a short time.
Senior Constable Miller was found by Senior Constable Clarke in a seriously wounded condition some distance from the point where the shootings occurred. Other police also came to his assistance and ultimately some 10 officers were in Senior Constable Miller’s vicinity at various points in time during which he made statements. A number of police attending the scene immediately after the shootings heard Senior Constable Miller say words which indicated that there were two offenders. Some police who were present alongside Senior Constable Miller did not hear him say words referring to two offenders and at least one of them heard him refer to a single offender. Nonetheless, on the Crown case, there was essential consistency in the thrust of the evidence of five separate police officers.
·Senior Constable Clarke was told by Senior Constable Miller that there were two offenders: ‘He said two, he repeated the word “two” and then said, “one on foot”’.
·Senior Constable Clarke and Senior Constable Pullin gave evidence that Pullin asked Senior Constable Miller ‘Were they in a car or on foot?’ and he responded ‘They were on foot’.
·Senior Constable Poke gave evidence: ‘The first thing I heard him say to me was “get them, I’m fucked”. He kept saying “get them, I’m fucked”. He then blurted out “two, one on foot. Six foot. Dark hair. Check shirt. Dark Hyundai”.’ She made notes of these statements on the night in her diary.
·Senior Constable Gardner heard Senior Constable Miller say ‘two, one on foot’ and made a note of this in his notebook on the night.
·Senior Constable Thwaites heard Senior Constable Miller say ‘get them cunts’.
The evidence of the individual police witnesses was complemented by evidence recorded on the police Intergraph of transmissions from the scene. The transcript of the Intergraph transmissions included the following:
(Time check: 00.32.30)
…
CHELTENHAM 206[[56]] Cheltenham 206, urgent.
[56]‘Cheltenham 206’ was Senior Constable Clarke.
INTERGRAPH Cheltenham 206, go ahead.
CHELTENHAM 206 Cheltenham 206, we’ve found the second member. He’s been shot in the stomach, he’s about 100 metres south of Cochranes Road on Warragul Road.
INTERGRAPH Cochranes, Cochranes on Warragul. And he’s conscious at the moment and breathing?
CHELTENHAM 206 Conscious and breathing. He’s been shot twice, once in the chest, once in the stomach. He said there’s two offenders, there’s two on foot. There’s two on foot, at this stage no idea of direction of travel from here.
INTERGRAPH Roger Cheltenham 206. Two offenders on foot, direction of travel not known. Have we got any descriptions at all?
CHELTENHAM 206 206, at this stage negative. And the job is not that old, he said it’s only a couple of minutes. It happened before the other unit started whipping past.[57]
[57]This statement differs from Clarke’s evidence that Senior Constable Miller said ‘one on foot’ but tends to confirm Clarke’s understanding at the time that Senior Constable Miller said there were two offenders.
…
[Canine units were deployed to find ‘a dog scent’.]
…
(Time check: 00.34.40)
…
CAULFIELD 252[[58]] Caulfield 252, it’s a new, possibly a 323. Similar to a Laser, hatchback, dark blue. It’s got mags, crisscross pattern. One male has been sighted, he’s possibly 6, 6 foot, black hair which is fairly long. Received?
…
(Time check: 00.36.20)
…
FRANKSTON 401[[59]] It is possibly a dark coloured Hyundai. Repeat, a dark coloured Hyundai.
[58]‘Caulfield 252’ was Sergeant Chris Murray and another.
[59]‘Frankston 401’ was Detective Senior Constable Alistair Hanson.
The respondent now submits that compared to the Intergraph recording the viva voce evidence as to dying declarations has less weight and impact.
We shall return to this issue below but we note that this is not the way the case was put to the jury. In final address, the prosecutor emphasised the cumulative evidence of a series of witnesses.
Beyond that process of what we say logical reasons from the Hamada robberies which we will have to look at with you later, we say that there is other evidence in the case itself quite independent of Hamada which points to there being two killers at this scene on that night.
What’s the starting point? The dying declaration of Mr Miller. I don’t want to go into this in detail, but you know that Mr Miller was mortally wounded lying on the footpath outside Silky Emperor. He is dying and he knows is he dying [sic]. He is a police officer. He wants to convey as much information as he possibly can in as short a time as he has to live, information that might assist his colleagues in finding the person who killed him and killed his partner. He tells Mr Clarke, I think the first person on the scene, if not the person, certainly one of the first people on the scene, ‘two, one on foot’. ‘Two, one on foot.’ That was immediately relayed to Intergraph. Mr Gardner you might recall him, very tall thin officer, jammed his hand I think before coming into the witness box and spent most of the time bleeding in the box, was sitting by Senior Constable Miller as he lay on the footpath outside the Silky Emperor and was writing notes at the time. He wrote in his diary which is an exhibit in this case and was put up on the screen. He wrote ‘two, one on foot’. Gardner was a very deliberate and precise witness. That phrase ‘two, one on foot’, was heard by very many police who attended Rod Miller that night. He went on to give other descriptions he felt could be of assistance, or may be of assistance to those who were going to hunt down the perpetrators of this terrible crime. Described one of the offenders being six foot, dark hair with a check shirt. He described the car as a dark Hyundai, and later said to another officer ‘probably dark blue’. All the officers who attended Rod Miller and have given evidence in this court have said that he was lucid, he was responsive, he was giving coherent answers to questions put to him. There has been no challenge to this evidence.
Doctor Shelley Robertson gave evidence that the bullet caused no nerve or neurological damage to Mr Miller. Certainly no damage that would have necessarily resulted in an immediate collapse. She suggested that the absence of any neurological damage strongly suggested that Mr Miller's cognitive functions were not impaired by his injuries. Thus you can accept, we say, that Miller's observations were accurate and they were reliable. More than that, it is supported by other evidence in the case. What did Senior Constable Miller mean when he said to these officers ‘two, one on foot’? The answer that he gave, that answer which he gave was to the question ‘how many were there’. ‘How many were there?’ ‘Two, one on foot.’ ‘Two’ we suggest to you was a clear reference to the two offenders. The two people who have been involved in the shooting. The ‘one on foot’ is a reference to the one shooter, the one offender who Miller saw out of the car and on foot and standing at the time of the shooting. That is a reference to Roberts. The ‘one on foot’ is reference to Roberts who was standing over on the grassy edge of the road with Gary Silk. Debs at the time the shooting commenced was inside the Hyundai firing out through the back window. At that time Debs was not on foot, he is, in fact, inside the car. Roberts was on foot being out of the car, and, of course, if he ran away after firing at Sergeant Silk, as we suggest probably happened, then it would have reinforced in Mr Miller's mind what he was dealing with, ‘one on foot’ who fired out the car and had run away, and the ‘two’ is a reference to Debs being inside the Hyundai firing out through the back window.
When you come to consider the dying declaration, as we call it in the law, of Rod Miller you will, of course, also remember that he told Pullen [sic], as he was gasping for breath, ‘they were on foot’, ‘they’ it is a plural, ‘they were on foot’, and finally he told Helen Poke ‘get them, fucked’. She gave that evidence and was not cross-examined about that. ‘Get them’, and also ‘they were on foot’. So there is a consistency running right throughout the evidence, right throughout the dying declaration evidence of Mr Miller that he had seen two people, one of them on foot being out of the car, one inside the car firing out through the back window, and ‘on foot’ perhaps being a further reference to having someone on foot having run away from the scene.[60]
(v) Evidence as to covert recordings (listening devices and telephone intercepts)
[60]Emphasis added.
Because of initial error in the investigation of the identity of the Hyundai, there was an extended period during which Debs and the appellant were not charged with murder but were under surveillance by Victoria Police.
During this period, in excess of 2,500 covert recordings were made of conversations involving Debs and the appellant, or one or other of them with other persons.
In determining the first appeal, Vincent JA set out in some detail 22 passages of transcript taken over 14 dates on which recordings were made. Nine of these passages record conversations when the appellant was present.
The evidence of covert recordings was relied upon at trial to demonstrate a series of matters including:
(a) a continuing close relationship between Debs and the appellant (buttressing the Hamada evidence);
(b) statements by Debs constituting direct admissions of presence at the murders;
(c) statements by both Debs and the appellant demonstrating extreme hostility towards the police;
(d) discussions involving both Debs and the appellant concerning concealment of the damage caused to the Hyundai;
(e) discussions of the circumstances of the murders by both Debs and the appellant from which it might be inferred that they had direct knowledge of the murders; and
(f) statements by both Debs and the appellant indicating a very close interest in the progress of the investigation of the murders by police.
The respondent submits that the listening devices material includes admissions by the appellant comprising statements demonstrating an intimate knowledge of the events associated with the murders, his complicity in concealing them and his deep antipathy and callousness towards police. It is also submitted that they undermine his more recent suggestion that he was in a subordinate role to Debs. Attention is drawn in the respondent’s written case to the following statements in particular:
(a) B6 Appellant: ‘The amount of units I saw’.
(b) B27 Debs: ‘Remember this set of lights?’
Appellant: ‘Oh fuck, yeah’
Debs: ‘Where they flew past wasn’t it.’
(c) B103Appellant: ‘Yeah, and I’ve seen two of their ways that they… think it happened and it’s fuckin’ backwards.’
(d) B135Appellant: ‘Do you think he (referring to Debs) might have pulled one little murder attempt on it own?’
(laughter)’
(e) B151Appellant: ‘I didn’t know that. I had so much fun. Fuckin hell.’
…
Appellant:‘You tell ...(inaudible)... but there’s no problem about being, me being in the car. You know I don’t give a fuck Ben.’ [61]
[61]B6, B27, B135, B151 do not appear in the Appeal Reasons.
Four observations may be made about this evidence. First, as counsel for the respondent accepted in the course of argument, none of the passages highlighted contained direct admissions by the appellant of the kind made by Debs in the course of conversations with his father, Malik. The following conversations took place at Debs’s home in Narre Warren on 15 February 2000 and exemplify these admissions:
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?’
And further, on the same day:
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.’
At trial, the jury were strongly directed that this evidence (and other conversations to which the appellant was not a party which were overwhelmingly probative of Debs’s guilt) were not admissible against the appellant. On the leave application and on this appeal, the respondent did not retreat from this position.
Secondly, in addition to the passages highlighted by the respondent above, the covert recording evidence as a whole undoubtedly demonstrated that the appellant actively cooperated in concealing the use of the Hyundai in the murders. The recordings also demonstrated extreme hostility on the part of the appellant towards police.
Thirdly, there is some longstanding controversy as to the accuracy of transcripts and content of covert recordings relied upon at the trial.[62] That is of limited relevance for present purposes, but we note that the third recording now highlighted by the respondent (B103) was not put forward on appeal as commencing with the statement by Debs in the presence of the appellant, ‘No one was there but us’, as it appears in the original transcript. Other purported transcripts of recordings, which were relied upon by the prosecution at trial and are the subject of substantial controversy, were also not pursued by the respondent for the purposes of the appeal.[63]
[62]The accuracy of the transcripts was challenged in part by expert evidence at the trial and by further expert evidence lodged in support of the appellant’s petitions for mercy. The challenge formed part of the appellant’s application for leave to appeal but was not ultimately pursued as a ground of appeal.
[63]Including the statement ‘I kill Ds’ attributed to the appellant at trial and discussed by Vincent JA in the Appeal Reasons at [294].
Deane J[137] said that ‘[t]he fundamental prescript of the administration of criminal justice in this country is that no person should be convicted of a serious crime except by the verdict of a jury after a fair trial according to law’, and the proviso did not negate this principle. In a case where impropriety or unfairness permeated or affected a trial to an extent where it ceased to be a fair trial according to law, an appeal court could not dismiss an appeal on the basis that there had been no substantial miscarriage of justice. In Jago v District Court (NSW),[138] his Honour referred to the circumstance where irregularity in proceedings was such that the trial ‘has been rendered unfair or has lost its character as a trial according to law’.[139]
[136](2014) 253 CLR 455 (‘Lee’). Lee was in a sense the obverse of the present being one in which the prosecution was armed with evidence to which it was not entitled, whereas the present case is one in which the defence was not armed with evidence to which it was entitled.
[137]Wilde (1988) 164 CLR 365, 375.
[138](1989) 168 CLR 23, 56.
[139]Lee (2014) 253 CLR 455, 471–2 [47] (citations in original).
In Saricayir, having reviewed relevant authorities, the Court concluded:
The authorities to which we have referred demonstrate, we think, that although there is recognised as being a kind of case where there has been a serious departure from the prescribed processes for trial, for which reason there will be, in such a case, a substantial miscarriage of justice, nonetheless the circumstances which give rise to the application of the principle are a rarity. Moreover, even in circumstances of apparently serious error, there will not always be unanimity of opinion.[140]
[140]Saricayir [2018] VSCA 319, [74] (Kaye, T Forrest and Ashley JJA).
With respect, we agree with these observations. The departure from the prescribed processes for trial must be fundamental to that trial; it must go to the essence or root of a fair trial according to law. It cannot be a departure of a lesser nature — if it is, it may attract the other relevant test contemplated in Baini.[141]
[141]See above [25].
A central question confronting the Court in this appeal concerns the characterisation of the police misconduct in the preparation for, and at, the appellant’s trial. After anxious consideration we have concluded that Pullin’s undisclosed misconduct so corrupted the fairness of the appellant’s trial as to poison it to its root. Whilst it will be a rare event where circumstances will arise that are sufficiently aberrant as to invoke the application of the principle, we consider that the combination of the following circumstances require that it be applied.
We are satisfied on the balance of probabilities that Pullin’s destruction of his initial statement; the substitution on the police brief of a backdated statement (which incorporated important additions to the relevant declarations of Senior Constable Miller); his perjury as to the provenance of the false second statement both in the acknowledgment on the document itself and at the committal; and his failure to disclose any of this course of conduct to the defence amounted to a gross and fundamental corruption of the trial process. The appellant was confronting a trial of extraordinary gravity. A central plank of his defence was that the jury ought not be satisfied that there was more than one offender. Senior Constable Miller’s alleged dying declarations went directly to this issue and, as we have explained, Pullin’s evidence bore directly on the weight of the dying declaration evidence. If the jury were satisfied that there was more than one offender, it was a short step to conclude that the second offender was the appellant. Due to Pullin’s course of conduct, the appellant’s trial counsel were denied the opportunity to challenge Pullin fairly on this important issue. In our view, this was not an incidental error or some moderate departure from the prescribed trial processes. Pullin’s undisclosed dishonest sequence of conduct influenced the trial in the prosecution’s favour and to the detriment of the appellant on a critical issue in the trial. Whilst there is ‘no rigid formula’ to determine what constitutes such a radical or fundamental ‘departure from the essential requirements of the law that … goes to the root of the proceedings’, we are comfortably satisfied that Pullin’s course of conduct meets that very high test.
This is a case in which impropriety and unfairness permeated and affected the trial to an extent that it ceased to be a fair trial according to law.[142]
[142]Lee (2014) 253 CLR 455, 471–2 [47].
It follows that we consider that the trial miscarried as a consequence of Pullin’s conduct, and that there is, strictly speaking, no need to resort to any analysis of whether this conduct made any difference to the outcome of the trial.
We are fortified in our view that there was a serious departure from the prescribed processes for trial by our conclusions concerning other aspects of police conduct in the brief preparation process. These aspects also concern Senior Constable Miller’s dying declarations.
At paragraph [148] and following of these reasons we set out the effect of evidence obtained in the course of the IBAC examinations concerning the manner in which other police statements dealing with Senior Constable Miller’s dying declarations were produced. In summary and to recapitulate:
·Police witnesses[143] to Senior Constable Miller’s dying declarations were directed by Detective Sergeant Kelly to omit any statements made by Senior Constable Miller from their initial police statements and they complied with that direction. This fact was not disclosed at trial.
·At the committal, Thwaites concealed the fact that he had made a statement on the morning of the murders.
·Detective Sergeant Buchhorn, some time after the murders, coordinated the production of police statements. He implemented a practice of requesting revision of initial police statements, and when those revised statements were received they were supplied as part of the hand-up brief. The original statements did not form part of the hand-up brief and were not disclosed to either the prosecution or the defence at trial.
·Initial, potentially relevant, police statements from police officers including Thwaites, Poke, Adams and Gerardi were not retained and are now missing.
·The practices adopted in relation to the making of statements failed to meet the requirements stipulated by Inspector Collins in the early months of the investigation.
[143]Thwaites and Clarke.
Whilst each of the above irregularities considered in isolation may not constitute a serious departure from prescribed processes for trial, their combined force when considered with Pullin’s established misconduct reinforces our conclusion that there was such a departure in the appellant’s trial. The defence were precluded from properly exploring a central plank of the prosecution case. It was not possible to trace the evolution of relevant police statements, expose those matters which were not included in initial contemporaneous statements, and identify other material changes in the evidence. It follows that we are satisfied that a substantial miscarriage of justice has occurred.
(7)Alternatively, has an irregularity occurred which the Court of Appeal cannot be satisfied did not make a difference to the outcome of the trial resulting in a substantial miscarriage of justice?
If we are in error in characterising the irregularities we have cited as constituting a serious departure from the prescribed processes for trial, then the second category identified in Baini to which we have referred falls for consideration. It is clear from our reasons thus far that we are of the view that there have been material irregularities in relation to the trial. In the language of Baini, the question becomes: are we satisfied that the irregularity or irregularities did not make a difference to the outcome of the trial? If we are so satisfied then, under this second category, there will have been no substantial miscarriage of justice and the appeal will fail.
It is appropriate to repeat the following observations from the majority judgment in Baini:
But, at least in cases like the present where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt.[144] Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made.[145]
[144]Cf R v Grills (1910) 11 CLR 400, 431 (Isaacs J).
[145]Baini (2012) 246 CLR 469, 481 [32].
The present case is equivalent to a case in which evidence was wrongly excluded.
At paragraphs [142]–[149] of these reasons we have set out our summary of the irregularities in both Pullin’s evidence and the broader evidence concerning the dying declarations of Senior Constable Miller.
At paragraph [161] and following we have considered the question of whether the appellant’s convictions were inevitable irrespective of the dying declaration evidence. It will be recalled that we concluded that:
·This was a circumstantial case, of the ‘strands in a cable’ type.
·Significant aspects of the Crown case are now squarely admitted by the appellant, including his involvement in the Hamada robberies. This supported the hypothesis of two offenders, one of them being the appellant, although this was not determinative of that issue.
·The use of two handguns in the shots fired at the victims and the ballistic evidence as a whole also supported the hypothesis that there were two offenders, although again this is not determinative of that issue.
·The covert recordings admissible against the appellant supported the hypothesis that he was one of the offenders, albeit they are arguably susceptible to explanation consistent with innocence.
·The case as a whole (disregarding the dying declaration evidence) was powerful but conviction was not inevitable.
·The dying declaration evidence was integral to the Crown case as articulated at trial.
·The impugned evidence was in turn an integral part of the dying declaration evidence.
It follows that we are not satisfied that the irregularities we have identified did not make a difference to the outcome of the trial. Putting this in less cumbersome language, we are not satisfied that, absent the impugned irregularities, convictions for murder were the inevitable consequence of the balance of the Crown case.
Accordingly, the appellant has established a substantial miscarriage of justice by reason of procedural irregularity on both of the bases we have analysed.
(8) What is the appropriate disposition of the appeal?
It follows from the above considerations that the appeal must be allowed.
Section 326E(1) further relevantly provides:
(1)If the Court of Appeal allows an appeal under section 326A, it must set aside the conviction of the offence (offence A) and must—
(a)order a new trial of offence A; or
(b)enter a judgment of acquittal of offence A; …
The appellant submits that the fresh evidence discloses police misconduct which has so tainted the criminal process that it would not be in the interests of justice to order a retrial and that the appropriate disposition of the appeal is to order an acquittal.
The appellant further relies on the following circumstances:
Undoubtedly, the gravity of the charges would — if it was the sole or determinative factor — support an order for a re-trial in this case. However, here, there are considerations that collectively support the entry of acquittals:
a)The appellant has been in custody since 15 August 2000, when he was 19 years old. Since March 2013 he has been imprisoned in the Acacia Unit at Barwon Prison, the highest security unit at the prison. This has entailed limited contact visits and telephone calls, limited time out of his cell, lockdown for 21 hours a day (involving confinement to his cell and a small rear yard), and highly restricted contact with other prisoners.
b)The substantial miscarriage of justice that has occurred in this case did not arise from some kind of misdirection or non-direction. It did not arise from an innocent mistake. It resulted from significant police misconduct that involved:
i)fabricated evidence;
ii)reprehensible conduct committed by investigating police;
iii)similarly ‘atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will’ to those committed by officers who encouraged Nicola Gobbo to inform on her own clients.
c)That significant police misconduct was not revealed by Victoria Police or those individual members who perpetrated and were responsible for its occurrence, who presumably were content for the appellant to serve out the balance of the life sentence that had been imposed notwithstanding that his trial had been deliberately corrupted. This Court ought condemn and deter such deliberate misconduct and concealment, which undermines the foundations upon which our system of criminal justice stands and depends. It may never have been exposed but for the referral to and the work of the Independent Broad-based Anti-corruption Commission.[146]
[146]Footnotes omitted.
The respondent submits that the Court should apply a two-stage test to inform the exercise of its discretion. First, the Court must consider whether the admissible evidence given at the original trial was sufficiently cogent to justify conviction, together with any fresh evidence supporting such conviction.
Secondly, the Court must take into account ‘any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused’.[147]
[147]DPP (Nauru) v Fowler (1984) 154 CLR 627, 630 (Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ). See also R v Thomas (No 3) (2006) 14 VR 512; R v Tang [2007] VSCA 144.
The respondent further submits that, as the majority judgment in R v Taufahema[148] made clear, the public interest in the proper administration of justice has two significant aspects in a case such as the present:
(a) the public interest in the due prosecution of offenders in respect of serious offences; and
(b) the desirability, if possible, for the guilt or innocence of an accused to be finally determined by a jury.
[148](2007) 228 CLR 232, 254–5 [49]–[51] (Gummow, Hayne, Heydon and Crennan JJ) (‘Taufahema’).
We accept that the first matter relevant to the disposition of the appeal is whether, despite the fresh evidence, there remains evidence upon which it would be reasonably open to convict the appellant. This question must be answered in the affirmative. Whilst, as we have said, we are not persuaded that conviction is inevitable, the Crown case remains strong.
Secondly, the Court must identify factors which might outweigh the obvious public interest in the due prosecution of offences as serious as those alleged in this case and the desirability for the guilt or innocence of an accused to be finally determined by the jury. In this regard, we note the following:
(1) Whilst reference to other cases helps to identify the relevant principles which we must apply,[149] each case must ultimately turn on its own facts.
[149]See Taufahema (2007) 228 CLR 232; R v Maxwell [2011] 4 All ER 941; Eastman v DPP (No 13) [2016] ACTCA 65.
(2) The non-disclosure forming the basis of our conclusions as to substantial miscarriage of justice relates to evidence which a jury would be well capable of evaluating in the context of the evidence as a whole upon a retrial.
(3) It is not submitted that the appellant has suffered irreparable prejudice in the presentation of his defence by reason of delay in the disclosure of the fresh evidence.
(4) Although the non-disclosure did not result from innocent mistake and reflects reprehensible conduct by police officers, we do not accept that the need to deter repetitions of such behaviour is of itself sufficient to justify an acquittal. The quashing of the appellant’s convictions and the fact of a retrial will of themselves have a deterrent effect.
(5) The police misconduct in issue was both concealed at trial and thereafter. We accept that it may never have been exposed but for the actions of a whistle-blower and the investigations of IBAC. Nonetheless, we are not persuaded that the evidence as to non-disclosure demonstrates that the integrity of the criminal justice system has been so prejudiced that a retrial cannot now proceed fairly and with the confidence of the community. In a fundamental sense, a retrial will vindicate the integrity of the criminal justice system.
(6) The fact that, as a result of a trial vitiated by a substantial miscarriage of justice, the appellant has suffered considerable personal hardship must be weighed in the balance. In this regard, we accept:
·the appellant has been in custody since 19 August 2000;
·the appellant was only 19 years of age when imprisoned;
·the appellant has been imprisoned under onerous conditions in high security; and
·protracted legal proceedings have and will involve significant stress.
Accepting that there are matters which weigh against a retrial, we are nonetheless of the view that the underlying public interest in the prosecution of the very serious offences here in issue and the desirability of the adjudication of the appellant’s guilt by jury must predominate. In our view, the issues raised by the fresh evidence are quintessentially matters suitable for determination by a jury.
The proper approach is that taken by the majority of the High Court in Taufahema, which was itself an appeal concerned with the alleged murder of a police officer:
The fact is that the trial which took place was a flawed one. The question is whether an order for a new trial is a more adequate remedy for the flaws in that trial than an order for an acquittal — that is, an order terminating the possibility of any investigation by a jury, in an unflawed fashion, of the accused’s role in the circumstances leading to Senior Constable McEnallay’s death. An order for acquittal conflicts with ‘the desirability, if possible, of having the guilt or innocence of the [accused] finally determined by a jury which, according to the constitutional arrangements applicable in [New South Wales], is the appropriate body to make such a decision’.[150] In Reid v The Queen[151] the Privy Council approved the following statement of the Full Court of Hong Kong:[152]
It is in the interest of the public, the complainant, and the appellant himself that the question of guilt or otherwise be determined finally by the verdict of a Jury, and not left as something which must remain undecided by reason of a defect in legal machinery.
The reference to ‘complainant’ is to be explained by the fact that that case was one in which a doctor allegedly raped a patient. It is not only those who live to complain about crime whose interests are relevant, but also the relatives and friends of those who do not. The Full Court of Hong Kong described the case before it as one ‘of peculiar heinousness’, and so is this case. The question, then, is whether there is some good reason for not allowing a jury to decide whether the prosecution can prove its case, and for allowing the matter to remain undecided because of the defects in the first trial.[153]
[150]R v Anderson (1991) 53 A Crim R 421, 453 (Gleeson CJ).
[151][1980] AC 343, 350 (Lords Diplock, Hailsham of St Marylebone, Salmon, Edmund-Davies and Keith of Kinkel).
[152]Ng Yuk Kin v The Crown (1955) 39 HKLR 49, 60 (Gould, Gregg and Wicks JJ).
[153]Taufahema (2007) 228 CLR 232, 255 [51] (Gummow, Hayne, Heydon and Crennan JJ) (citations in original).
We are not persuaded that in the present case adequate reason has been shown for not allowing a jury to decide whether the prosecution can prove its case upon a fair trial.
Conclusion
Accordingly, the appeal will be allowed, the appellant’s convictions for murder will be quashed, and an order will be made for a new trial.
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