Roberts v The Queen
[2020] VSCA 58
•25 March 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0232
| JASON JOSEPH ROBERTS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | OSBORN and T FORREST JJA, TAYLOR AJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 11-13 February 2020 | |
| DATE OF JUDGMENT: | 25 March 2020 | First amendment: 1 September 2020 [28] |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 58 | |
| 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 – Preconditions to grant of leave to appeal – Murder of police officers – Whether one or two offenders – Circumstantial case at trial – Dying declarations – Whether fresh and compelling evidence that should, in the interests of justice, be considered on appeal – Allegations of police misconduct and manipulation of evidence – Backdating of police statement – Revision, non-retention &/or destruction of original police statements – Subsequent evidence from examinations before Independent Broad-based Anti-corruption Commission – Whether fresh evidence – Whether compelling evidence – Whether reliable evidence – Whether substantial evidence – Whether evidence may affect credibility of accounts of dying declarations – Forensic utility of evidence to defence – Evidence highly probative in context of issues at trial – Non-disclosure of material evidence – Serious question as to fairness of trial – Serious issue as to reliability of evidence regarding dying declarations – Interests of justice – Leave to appeal granted – Criminal Procedure Act 2009, ss 326A, 326C, 326D – Van Beelen v The Queen (2017) 262 CLR 565 considered.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr P Matthews with Mr P Smallwood Ms K Ballard | Stary Norton Halphen |
| For the Respondent | Ms F Dalziel QC with Ms S Wallace | Ms A Hogan, Solicitor for Public Prosecutions |
OSBORN JA
T FORREST JA
TAYLOR AJA:
Introduction
In November 2019, the Victorian Parliament passed the Justice Legislation Amendment (Criminal Appeals) Act 2019. Subject to the grant of leave to appeal, the provisions introduced by that Act permit a second or subsequent appeal against a conviction for an indictable offence. By so doing, they make a significant change to the criminal law of this State.
This is the first application for leave to appeal under this new legislation. It is made by Jason Roberts, who together with Bandali Debs, was convicted in 2002 of the murder of two police officers — Sergeant Gary Silk and Senior Constable Rodney Miller — at Moorabbin on Sunday, 16 August 1998.
The jury verdict in respect of both men was reached at the conclusion of a four and a half month trial over which Cummins J presided. An appeal by both men was dismissed by the Court of Appeal on 6 April 2005.[1] In turn, special leave to appeal was refused by the High Court on 18 November 2005.[2]
[1]R v Debs and Roberts [2005] VSCA 66 (‘Appeal Reasons’).
[2]Debs v The Queen; Roberts v The Queen [2005] HCA Trans 971.
Upon his conviction, the applicant was sentenced to life imprisonment with a non-parole period of 35 years.[3]
[3]DPP v Debs and Roberts [2003] VSC 30.
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.[4]
[4]4:25 am on Sunday, 16 August 1998.
The trial proceeded on the basis that the statement recorded the substantially contemporaneous recollection of the witness. The statement included material matters which were not included in an initial statement which was in fact made four hours after the relevant events.
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.
Background facts
There is, and was at trial, no dispute that Sergeant Silk and Senior Constable Miller were murdered when they intercepted a car outside the Silky Emperor Restaurant on Cochranes Road, Moorabbin, at around 12:15 am on 16 August 1998 and were shot shortly thereafter.
At trial, both Debs and the applicant disputed that they were the offenders and, as a subsidiary proposition, each submitted to the jury that they could not be satisfied that there were two offenders as distinct from one acting alone.
The Crown case at trial was a circumstantial one involving six principal threads of evidence.[5]
[5]The way the Crown case was put was summarised by Vincent JA at [155]–[178] in the Appeal Reasons.
First, it was submitted that Debs and the applicant had jointly committed a series of 10 armed robberies (codenamed ‘the Hamada robberies’) in the period leading up to the killings. The robberies involved standalone restaurants and other outer suburban premises which were vulnerable to robbery, particularly at about the close of business. On each occasion, the robbers adopted a procedure which involved mutual cooperation. Moreover, on each occasion at least one was armed with a handgun and, on the majority of occasions, both were observed to be so armed.
The premises outside which Sergeant Silk and Senior Constable Miller were killed had been identified by police as a further potential target of the armed robbers who had committed the Hamada robberies. Sergeant Silk and Senior Constable Miller were participating in an operation intended to prevent further armed robberies. They were killed when they pulled over a car which attended the premises and aroused their attention.
The fact that Debs and the applicant perpetrated the Hamada robberies was bitterly contested at trial and on appeal but is now admitted by the applicant. The armed robberies provide a circumstantial context for the evidence as a whole going to the applicant’s guilt, by demonstrating a consistent modus operandi involving two offenders and explaining the presence of the police officers at the scene of their deaths. The background of the robberies was also relied on by the Crown at trial as providing a possible motive for the killings.
Secondly, the car used by the offender or offenders[6] was owned by Nicole Debs, the daughter of Bandali Debs, and the then girlfriend of the applicant. This fact was again contested at trial by both Debs and the applicant giving rise to the need for detailed examination of forensic evidence relating to shattered glass found at the scene of the shootings and other matters. At trial, counsel for the applicant did not ultimately argue against the Crown case in this regard.[7] The applicant now accepts that the car used was that of Nicole Debs. The use of Nicole Debs’s car supported the inference that the offender(s) were either both or one of Debs and the applicant.
[6]Hereafter ‘offender(s)’.
[7]Counsel for Debs postulated a police conspiracy to manufacture evidence as a central part of his case on this issue.
Thirdly, the Crown submitted that forensic evidence established two handguns were used in the killings and, on the view of the evidence propounded by the Crown, shots were fired by Senior Constable Miller in different directions, supporting the inference that they were fired at different targets. Further, on the view of the evidence propounded by the Crown, one shot was fired by an offender from within the car used by the offender(s) and other shots fired close in time to that were themselves fired from outside the car. Each of these factors were relied on as supporting the conclusion that there were two offenders.
Fourthly, a number of police attending the scene immediately after the shootings heard Senior Constable Miller say words which indicated that there were two offenders. The accounts of what was said differed in detail but 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 pocket book.
·Senior Constable Gardner heard Senior Constable Miller say ‘two, one on foot’ and made a note of this in his pocket book on the night.
·Senior Constable Thwaites heard Senior Constable Miller say ‘get them cunts’.
We interpolate for completeness that a number of other police officers 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, the effect of the police evidence concerning Senior Constable Miller’s statements was materially corroborated by a contemporaneous statement made over the police Intergraph by Clarke (‘Cheltenham 206’) as a warning and direction to other police officers in the area.
CHELTENHAM 206 Cheltenham 206, urgent.
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.[8]
[8]This statement differs from Clarke’s evidence that Senior Constable Miller said ‘one on foot’ but confirms Clarke’s understanding at the time that Senior Constable Miller said there were two offenders.
Fifthly, covert recordings of conversations in which Debs and/or the applicant participated after the killings, were said to implicate them in the murders as the two offenders responsible for them. The Crown relied upon what were said to be both express and implied admissions.
Sixthly, the applicant was said to have told deliberate lies demonstrating consciousness of guilt.
At trial, both Debs and the applicant joined issue with each strand of the Crown case and the conclusions (if any) which could be drawn from the combined effect of the circumstantial evidence as a whole.[9]
[9]The way the defence case was put at trial was summarised by Vincent JA at [179]–[197] of the Appeal Reasons.
In so doing, the applicant placed particular emphasis amongst other things upon the following matters:
(a) doubt as to whether he was one of the Hamada robbers;
(b) the failure of witnesses who observed the offender(s)’ car shortly before, at the time of, and shortly after the shootings, to observe more than one person in that car; coupled with observations of an occupant of the car who did not meet the applicant’s description, and further coupled with an absence of radio communication from Sergeant Silk concerning that car (having regard to the procedures adopted for the purpose of the Hamada robberies investigation). This was said to suggest that he and Senior Constable Miller saw only one person in it;
(c) the possibility that Senior Constable Miller was mistaken in his belief that there were two offenders, together with uncertainty as to what he said and meant when he spoke to other police officers whilst in a fatally wounded condition at the scene;
(d) uncertainty as to the conclusions that could ultimately be drawn from the ballistic and other forensic evidence as to whether more than one offender was involved. In this regard, defence counsel outlined a sequence of events which involved a single offender that was said to be reasonably consistent with the forensic evidence;
(e) uncertainty as to the content of indistinct covert recordings (only some of which recordings were admissible against the applicant) and uncertainty as to whether statements made by him should be regarded as incriminating; and
(f) consistent denials of involvement in the killings by the applicant in his police interviews coupled with otherwise responsive and cooperative answers.
The applicant now seeks leave to appeal on the basis of two aspects of what is said to be fresh evidence going to:
(a) the fairness of his trial; and
(b) the credibility and reliability of the evidence of police witnesses at the trial as to statements made by Senior Constable Miller when fatally wounded.
The statutory scheme
The power to grant leave to appeal is contingent upon the satisfaction of a series of strict statutory requirements which it is necessary to examine before turning to an analysis of the evidence.
Sections 326A, 326C and 326D of the Criminal Procedure Act 2009 now provide as follows:
326A Right of second or subsequent appeal against conviction
(1)A person convicted of an indictable offence by an originating court who—
(a)has exhausted the person's right to appeal against conviction under Division 1 of Part 6.3; or
(b)has previously appealed under this Part but leave to appeal was not granted or the appeal was dismissed, in whole or in part—
may appeal to the Court of Appeal against the conviction if the Court of Appeal gives the person leave to appeal.
(2)An appeal under subsection (1) may also include an appeal against a conviction for a related summary offence.
326C Determination of application for leave to appeal under section 326A
(1)The Court of Appeal may grant leave to appeal under section 326A if it is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
(2)The Court of Appeal may grant leave to appeal under section 326A against a conviction for a related summary offence only if it grants leave to appeal under subsection (1) in relation to the indictable offence.
(3)In this section, evidence relating to an offence of which a person is convicted is—
(a) fresh if—
(i) it was not adduced at the trial of the offence; and
(ii)it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
(b) compelling if—
(i) it is reliable; and
(ii) it is substantial; and
(iii) either—
(A)it is highly probative in the context of the issues in dispute at the trial of the offence; or
(B)it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
(4)Evidence that would be admissible on a second or subsequent appeal is not precluded from being fresh or compelling only because it would not have been admissible in the earlier trial of the offence that resulted in the conviction.
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.
Some elements of analogous provisions have been considered by the High Court in Van Beelen v The Queen in the context of broadly similar legislation in South Australia.[10]
[10]See the discussion of s 353(A) of the Criminal Law Consolidation Act 1935 (SA) in Van Beelen v The Queen (2017) 262 CLR 565 (‘Van Beelen’). The relevant section is now contained in s 159 of the Criminal Procedure Act 1921 (SA). See also the discussion of Van Beelen in Neill-Fraser v Tasmania [2019] TASSC 10 in the context of comparable Tasmanian legislation, namely s 402A of the Criminal Code Act 1924 (Tas).
The South Australian legislation in respect of second or subsequent appeals provided:
(1)The Full Court may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
(2)A convicted person may only appeal under this section with the permission of the Full Court.
(3)The Full Court may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice.
(4)If an appeal against conviction is allowed under this section, the Court may quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.
...
(6)For the purposes of subsection (1), evidence relating to an offence is –
(a) fresh if –
(i)it was not adduced at the trial of the offence; and
(ii)it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
(b)compelling if –
(i) it is reliable; and
(ii) it is substantial; and
(iii) it is highly probative in the context of the issues in dispute at the trial of the offence.
(7)Evidence is not precluded from being admissible on an appeal referred to in subsection (1) just because it would not have been admissible in the earlier trial of the offence resulting in the relevant conviction.
In the present case, the applicant falls within the class of persons covered by s 326A(1) of the Victorian statute. The critical provision for the purpose of the application is s 326C.
The following basic principles emerge from the language of the statute and the authority of Van Beelen.
First, the section manifests an intention that the finality of the criminal process yield in the face of fresh and compelling evidence which, taken with the evidence at trial, satisfies an appellate court that there has been a substantial miscarriage of justice.[11]
[11]Van Beelen (2017) 262 CLR 565, 576 [27].
Second, the right to seek leave to appeal is additional to, and is to be contrasted with, the mechanism of executive referral in the case of a petition for mercy. The leave requirement is intended to prevent successive meritless applications.[12]
[12]Ibid.
Third, the statutory preconditions to the grant of leave may be compared and contrasted with the terms of s 274 of the Criminal Procedure Act 2009 governing the grant of leave to appeal in the ordinary case.[13]
[13]Section 274 provides:
A person convicted of an offence by an originating court may appeal to the Court of Appeal against the conviction on any ground of appeal if the Court of Appeal gives the person leave to appeal.
Fourth, the notion of fresh evidence as against new evidence reflects an underlying concept commonly applied by intermediate appellate courts in this country. In Mickelberg v The Queen, Toohey and Gaudron JJ said:[14]
The underlying rationale for a court of criminal appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice: see, eg, Gallagher v The Queen.[15] There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen,[16] per Barwick CJ, noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials. See also Lawless v The Queen.[17]
[14](1989) 167 CLR 259, 301 (citations in original).
[15](1986) 160 CLR 392, 395, 402, 410.
[16](1974) 131 CLR 510, 516–17.
[17](1979) 142 CLR 659, 666, 675–7.
Fifth, the Court must be satisfied that the fresh evidence has the qualities prescribed by s 326C(3). This follows from the plain terms of the section. It will not be sufficient for the purpose of leave under the Victorian statute to establish that it is reasonably arguable that the evidence has these qualities.[18]
[18]Cf R v Keogh (No 2) (2014) 121 SASR 307, 331 [86].
Sixth, the onus is upon the applicant to satisfy the Court that the preconditions to the grant of leave are met. The Court must be positively persuaded that the preconditions to the exercise of its power to grant leave have been satisfied.
Seventh, the words ‘reliable’, ‘substantial’, and ‘highly probative’ are to be given their ordinary meanings. In Van Beelen, the High Court observed (of the equivalent South Australian provision):
Nothing in the scheme of the CLCA or the extrinsic material provides support for a construction of the words ‘reliable’, ‘substantial’ and ‘highly probative’ in other than their ordinary meaning. Understood in this way, each of the three limbs of sub-s (6)(b) has work to do, although commonly there will be overlap in the satisfaction of each. The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly ‘substantial’. Evidence that meets the criteria of reliability and substantiality will often meet the third criterion of being highly probative in the context of the issues in dispute at the trial, but this will not always be so. The focus of the third criterion is on the conduct of the trial. What is encompassed by the expression ‘the issues in dispute at the trial’ will depend upon the circumstances of the case. Fresh evidence relating to identity is unlikely to meet the third criterion in a case in which the sole issue at the trial was whether the prosecution had excluded that the accused’s act was done in self-defence. On the other hand, fresh evidence disclosing a line of defence that was not apparent at the time of trial may meet the third criterion because it bears on the ultimate issue in dispute, which is proof of guilt.[19]
[19](2017) 262 CLR 565, 577 [28] (citations omitted); see also R v Keogh (No 2) (2014) 121 SASR 307, 338–9 [112].
Eighth, when compared with the South Australian statute, the Victorian statute raises as a further alternative to the final component of ‘compelling’ evidence, that which would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
Ninth, jurisdiction under s 326C(1) is further conditioned upon the appellate court’s satisfaction that it is in the interests of justice that the fresh evidence be considered on appeal. In Van Beelen, the High Court observed (of the equivalent South Australian provision):
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, 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.[20]
[20](2017) 262 CLR 565, 578 [30] (citation omitted).
We note that the observations of the High Court recognise that evidence other than the fresh evidence relied on by the applicant and coming to light independently of the trial may bear on the question of the interests of justice.
Tenth, whilst the judgment required as to the interests of justice is an intermediate one, it may be informed by the potentially broad scope of the notion of substantial miscarriage of justice.[21] The issue if leave is granted is not limited to consideration of evidentiary questions going to the ultimate issue of the applicant’s guilt but may embrace questions of irregularity in an applicant’s trial.
[21]See Baini v The Queen (2012) 246 CLR 469, 479 [25]–[26].
Eleventh, the question whether a proposed ground of appeal is reasonably arguable may demonstrate that it is in the interests of justice that leave be granted.[22] Nonetheless, the concept of the interests of justice is not to be conflated with the ultimate issue of a substantial miscarriage of justice.[23] The High Court’s decision in Van Beelen demonstrates the application of this principle. In that case, fresh evidence undermined the basis of opinion evidence given at trial as to the probable time of death of a murder victim. Such evidence met the criteria for the grant of permission to appeal, as it is known in South Australia, because the time of death was in dispute at the trial.[24] Nonetheless, the fresh evidence did not ultimately demonstrate a miscarriage of justice because it did not establish that, having regard to the evidence at trial, there was a significant possibility that a jury, acting reasonably, would have acquitted the accused if apprised of it.
[22]Cf R v Keogh (No 2) (2014) 121 SASR 307, 331 [85].
[23]Van Beelen (2017) 262 CLR 565, 578 [31].
[24]Ibid 577 [29].
The proposed ground of appeal
The applicant seeks leave to appeal on the following ground:
Fresh and compelling evidence establishes that there has been a substantial miscarriage of justice.
Particulars:
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.
As we understand the proposed ground:
·Particular 1.1 potentially raises the question whether the applicant obtained a fair trial or whether the trial was tainted by such irregularity that the verdict should be set aside.[25]
·Particular 1.2 potentially raises the question whether, having regard to the fresh evidence considered in the context of the evidence as a whole, the Court considers that there is a significant possibility that the jury acting reasonably would have acquitted the applicant had the fresh evidence been before it at the trial.[26]
[25]Baini v The Queen (2012) 246 CLR 469, 479 [26]; Saricayir v The Queen [2018] VSCA 319; Carson (a pseudonym) v The Queen [2019] VSCA 317.
[26]Van Beelen (2017) 262 CLR 565, 574 [20], 575 [22]–[23], 590–1 [75].
In turn, the application for leave to appeal is founded upon what is said to be fresh evidence of misconduct or otherwise relevant matters which were not disclosed to the applicant at trial. It is submitted that the applicant was thereby deprived of an opportunity to challenge the reliability of the prosecution case in a variety of ways.
The duty of disclosure to an accused
Before turning to the fresh evidence upon which the applicant relies for the purpose of the leave application, it is desirable to set out the principles governing the duty of disclosure to an accused.
It is now accepted that it is fundamental that there must be full disclosure in criminal trials.[27] It is a ‘golden rule’.[28] The duty is to disclose all relevant material of help to an accused.[29] It is owed to the court, not the accused.[30] It is ongoing.[31] It includes, where appropriate, an obligation to make enquiries.[32] It is imposed upon the Crown in its broadest sense.[33] And a failure in its discharge can result in a miscarriage of justice.[34]
[27]As to the position as a matter of history see the judgment of Brooking J in Sobh v Police Force of Victoria [1994] 1 VR 41.
[28]R v H and C [2004] 2 AC 134, 147.
[29]Cannon v Tahche (2002) 5 VR 317, 340–1 [58].
[30]Ibid.
[31]It subsists even after the appellate process has been exhausted. See R v Ward [1993] 1 WLR 619 (‘Ward’).
[32]A J v The Queen [2011] VSCA 215, [22] citing R v Garofalo [1999] 2 VR 625, 637 (Ormiston JA).
[33]R v Lucas [1973] VR 693; A J v The Queen [2011] VSCA 215.
[34]Ward [1993] 1 WLR 619; Mallard v The Queen (2005) 224 CLR 125 (‘Mallard’); Grey v The Queen (2001) 75 ALJR 1708.
The duty is mandated by a combination of statute, prosecutorial guidelines and judicial authority.
Currently, the Criminal Procedure Act 2009 delineates the obligations of disclosure upon an informant in indictable matters.[35] Section 110 relevantly provides for the contents of a hand-up brief and s 111 provides for a continuing obligation of disclosure. At the time of the arrest, committal hearing and trial of the applicant, the relevant statutory provisions concerning pre-trial disclosure were found in the Magistrates’ Court Act 1989.[36] Schedule 5 of that Act applied to committal proceedings. Its terms made plain the ongoing nature of the duty. Clause 6(k) of sch 5 provided:
[35]See pt 4.4.
[36]Section 56(2) of the Magistrates’ Court Act 1989.
6. Service of hand-up brief by informant
(1)Subject to sub-clause (2), the informant must serve on the defendant a hand-up brief which must contain—
…
(k) a list of any other admissible statements or other documents relevant to the charge that are available to the informant but on which the informant does not intend to rely;
Clause 7(4) of sch 5 was in the following terms:
7. Time for service of hand-up brief
…
(4)If a document a copy of which would have been required to be included, or material which would have been required to be listed, in a hand-up brief had it been in the informant’s possession, or had the informant been aware of it, at the time of service of the hand-up brief, comes into the informant’s possession or to his or her notice at any time thereafter, a copy of the document or the list (as the case requires) must be served on the defendant, and a copy filed with the registrar and another copy forwarded to the Director of Public Prosecutions, as soon as practicable after the document or material comes into the informant’s possession or to his or her notice.
Clause 15 of the Prosecution Policy of the Director of Public Prosecutions for Victoria[37] provides that subject to any claim of public interest immunity or legal professional privilege or any statutory provisions to the contrary, prosecutors must disclose to the accused any material known to them which, on their sensible appraisal, falls within at least one of three categories. First, it is relevant or possibly relevant to an issue in the case. Second, it raises or possibly raises a new issue that is not apparent from the evidence the prosecution proposes to use. Third, it holds out a real as opposed to fanciful prospect of providing a line of inquiry that falls within either the first or second category.
[37]Current version authorised 17 December 2019.
This formulation reflects the common law principles articulated in R v Keane[38] and R v Brown,[39] followed in R v Spiteri,[40] and approved by this Court in R v Farquharson.[41] The fundamental content of the duty of disclosure upon prosecutors has not materially altered since the time of the arrest of the applicant. In R v Brown, Lord Hope of Craighead put the principle as follows:
The rules of disclosure which have been developed by the common law owe their origin to the elementary right of every defendant to a fair trial. If a defendant is to have a fair trial he must have adequate notice of the case which is to be made against him … the great principle is that of open justice. It would be contrary to that principle for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence.[42]
[38][1994] 1 WLR 746.
[39][1998] AC 367; discussed by Ormiston JA in R v Garofalo [1999] 2 VR 625, 633–4 [58], [61].
[40](2004) 61 NSWLR 369.
[41](2009) 26 VR 410. The obligations are subject to the limitations set out at 464–5 [214].
[42][1998] AC 367, 374 (emphasis added).
In Mallard v The Queen,[43] the plurality stated that the decision in Grey v The Queen[44] stood as authority for the proposition that the prosecution must at common law disclose all relevant evidence to an accused and that a failure to do so may in some circumstances require the quashing of a verdict of guilty.
[43](2005) 224 CLR 125 134 [17] (Gummow, Hayne, Callinan and Haydon JJ).
[44](2001) 75 ALJR 1708.
The importance of the duty has been the subject of much judicial comment. It is unnecessary here to detail the history of that comment. The point may be illustrated by the following observations of Kirby J in Mallard following such a review:
The foregoing review of the approach of courts, in national and international jurisdiction, indicates the growth of the insistence of the law, particularly in countries observing the accusatorial form of criminal trial, of the requirement that the prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial. It must ordinarily provide such evidence to the defence. Especially is this so where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused.[45]
[45]Mallard (2005) 224 CLR 125, 155 [81] (Kirby J) (citation omitted).
That a breach of the duty can result in a miscarriage of justice serves to underscore that importance. As stated in Ward:
Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence.[46]
[46]Ward [1993] 1 WLR 619, 642.
In short, the duty of disclosure is a significant element of a fair trial and a conspicuous aspect of the Crown’s duty to ensure that the case against an accused is presented with fairness.
The evidence of Senior Constable Pullin
A critical issue at the trial was whether the Crown could prove that the murdered police officers were killed by more than one offender. This issue was emphasised by senior counsel for the applicant in his response to the prosecution opening. It was again identified as the threshold issue in his final address:
… the first question to be asked, we submit to you, in the case against our client must be: can we really be satisfied beyond reasonable doubt on the reliable and admissible evidence that there were two offenders, two shooters, operating from that car intercepted by Sergeant Silk and Senior Constable Miller on Cochranes Road, as the prosecution assert?
In his own final address, the prosecutor reminded the jury of the way the applicant had joined issue on this question at the outset of the trial and specifically submitted to the jury that in addition to the inferences that could be drawn from the Hamada robberies evidence, the starting point for the resolution of this issue was the evidence of what Senior Constable Miller said when found in a fatally wounded condition by other police officers following the shootings.
The prosecutor summarised the evidence of five of those officers who gave evidence relating to dying declarations by Senior Constable Miller. He then submitted that ‘there is a consistency running right throughout the evidence, right throughout the dying declaration evidence of Mr Miller that he had seen two people …’.
The prosecutor’s emphasis upon the evidence as to dying declarations reflected the emphasis of the evidence of Superintendent Sheridan, the officer who directed the investigation into the murders by what was called the Lorimer Taskforce. At trial, Superintendent Sheridan gave the following evidence in the course of cross-examination:
Question —I take it that you have got a way of dismissing one person with two guns?
Answer —In relation to this case, yes.
Question —You had better tell us how you do that?
Answer —The account, for a start, of Senior Constable Miller describes two offenders at the outset.[47]
[47]Superintendent Sheridan went on to address the other elements of the evidence which supported his conclusion.
In his final address, senior counsel for the applicant addressed this aspect of the case by way of a series of submissions. First, it was said that Senior Constable Miller may have been mistaken in a belief as to the number of offenders given the extreme circumstances he was in at the time of the shootings and his position behind the police car. Second, it was submitted that what Senior Constable Miller said may have been misinterpreted in the chaos and confusion surrounding him as he spoke in short bursts while struggling for breath. Third, attention was drawn to the differences in the various accounts of what Senior Constable Miller said. Fourth, it was submitted that if Senior Constable Miller had seen two offenders, he would have described two persons, but in fact he only described one. Fifth, if there were two offenders and the description given by Senior Constable Miller is that of the second offender, that description does not fit the applicant.
As was noted in submission before this Court, senior counsel for the applicant did not mount a direct attack on the credit of the first responder dying declarations witnesses.
Given the prominence of the issue of Senior Constable Miller’s dying declarations in the addresses of counsel, it is not surprising that the trial judge in turn summarised the relevant evidence in detail for the jury, reminding them of it as a necessary part of their considerations.
The evidence as to Senior Constable Miller’s dying declarations was on its face appealing in its simplicity and emotional force. The Hamada robberies evidence required the jury to assess weeks of detailed evidence about 10 armed robberies. The listening device evidence required the jury to assess many hours of covertly recorded material of variable quality and contentious content. The evidence relating to the offender(s)’ car and as to ballistic matters was in part quite technical. By comparison, the force of the evidence of what Senior Constable Miller said as he lay on the ground knowing that Sergeant Silk was dead, and aware that he himself was seriously and potentially fatally wounded, was something the jury could readily appreciate and evaluate.
Senior Constable Pullin’s evidence formed an important part of the evidence upon which the prosecutor relied because:
(a) the evidence as to what Senior Constable Miller said is a composite derived from the evidence from different witnesses and Pullin’s evidence formed a discrete element of this composite;
(b) Pullin took a central role in speaking with Senior Constable Miller when he was found;
(c) Pullin’s evidence materially corroborated evidence of Senior Constable Clarke as to what Senior Constable Miller said; and
(d) Pullin’s evidence contributed to the ‘consistent narrative’ asserted by the Crown that Senior Constable Miller described two offenders. Whilst the defence sought to challenge the probative value of different statements attributed to Senior Constable Miller by different police officers, the cumulative effect of the evidence was, on the face of it, compelling.
At the committal, Pullin adopted a statement, a copy of which was provided to the Court on the application for leave to appeal in marked-up format, to assist the Court in understanding its evolution. To this end, the parties agreed that the passages italicised and underlined below contain incidental changes to an original statement and the passages simply underlined contain material changes.
I am a Senior Constable of Police stationed at Malvern Police Station. On Sunday, 16th August, 1998, I was on duty at Malvern 311 divisional van with Senior Constable GERARDI.
At approximately 12.15 am on the same date, we were patrolling the Chadstone Shopping Centre when I heard Moorabbin 406 come up on the air and request assistance at the intersection of Cochranes Road and Warrigal Road Moorabbin in relation to a member being shot. On this, we attended towards the scene south on Warrigal Road.
Upon our arrival, I observed approximately 4 police units at that intersection, all of which were parked in Cochranes Road. I instructed S/C GERARDI to park our van approximately 10 meters south of Cochranes Road on Warrigal Road across the north bound carriageway. I alighted the van and placed my ballistic vest on and started to walk toward the other units on Warrigal Road. I began to walk across Warrigal Road approximately 1 minute after alighting the van. As I began to walk I heard a male voice yell ‘Help. Help’. I looked further south on Warrigal Road and observed a person I know now to be S/C Rod Miller lying in the driveway of a premises at 477 Warrigal Road, approximately 100 meters south of Warrigal Road.
I ran towards him and arrived at him with another member S/C CLARKE from Cheltenham Police Station. I observed a police issue firearm lying at his feet. I observed a small amount of blood on the left upper part of his t shirt and observed blood coming from a wound on the right side of his abdomen. I lifted his t shirt and observed a small hole on the left upper side of his chest. I told him to lie still and that an ambulance was on the way. He was conscious and said ‘Silkies dead. Silkies dead.’ I continued to calm him and he stated that he couldnt breath. I assisted him to move into a position whereby he felt comfortable. Other members were arriving and I opened the chamber of the police issue firearm and observed that approximately 4 shots had been fired from the firearms. I said to him ‘Did you hit him’ and he replied ‘I don’t think so’. I also asked him ‘Were they in a car or on foot?’ and he replied ‘They were on foot’. I asked him ‘How long ago did it happen?’ and he replied ‘Couple of minutes’. MILLER was quite obviously in pain so I didnt ask him any more questions, I tried to comfort him. I closed the chamber of the firearm and replaced the firearm on the ground where I had found it. By this time a number of police were in attendance and were continually arriving.
I left MILLER to be comforted by other members and myself, S/C HOWELL from Caulfield Police Station and another member conducted a search in the lower car park of the premises at 477 Warrigal Road, Moorabbin. We did not locate anybody.
I returned to MILLER and again comforted him. Whilst I was with MILLER, he continued to repeat ‘It hurts, get me an ambulance.’ I was kneeling next to him and speaking with him trying keep him calm. During this time, a number of members were asking questions of MILLER as he lay on the ground. I dont recall exactly what he was being asked, but I believe the questions were similar to what I had asked him earlier. MILLER was answering some of these questions, the only answer I remember was that he didnt know where the offender was. I was mainly concerned with making MILLER comfortable. Upon the arrival of the ambulance several minutes later, myself and other members assisted him onto the stretcher and into the ambulance. I removed MILLERS’s ASP baton and OC Spray from their holders prior to placing him on the stretcher. I placed the OC spray and ASP baton on the ground with the firearm. I did this at the request of the ambulance officers to remove all unnecessary items from MILLER. I instructed a Constable, whos name I do not know, to travel with MILLER in the ambulance to hospital and to take notes of anything MILLER said in the ambulance. MILLER was taken away in the ambulance with this member.
D/S/C HANSON had arrived at the scene earlier and I detailed my observations to him. I placed crime scene tape across both carriageways of Warrigal Road and allowed no unauthorised person to enter past these tapes. As I was placing the tapes, I observed 2 sets of recent tyre marks on the median strip on Warrigal Road. These tyre marks were approximately 150 metres further south of MILLER’S position. One set appeared to have come from a vehicle with large tyres and a limited slip diff, in that the tyre marks on the grass were even and constant. It appeared that the vehicle that caused these marks has been facing north on Warrigal Road and had done a U turn on the grass and travelled south on Warrigal road. The other set were approximately 10 metres further south of the first set. These tyre marks appeared to have been made by a smaller vehicle, due to the width of the tyre marks, and appeared to have a standard diff, as only one wheel had spun. These tyre marks appeared to have been made by a vehicle travelling south on Warrigal Road in the north bound carriageway from the vicinity of 477 Warrigal Road, and had crossed the median strip to the south bound carriageway and caused a skid mark on the concrete gutter of the median strip which continued for approximately 2 meters further south on Warrigal Road.
Upon the arrival of the Homicide Squad I detailed my observations to them. I was conveyed to the Moorabbin Police Station by D/S/S BEZZINA with S/C SHERREN and made this statement there.
[signed by Pullin]
I hereby acknowledge that this statement is true and correct and I make it in behalf that a person making /false statement in the circumstances is liable to the penalties of perjury.
[Signed by Pullin]
Acknowledgment made and signature witnessed by me at Moorabbin at 4.25 am on Sunday 16th August 1998.
[signed by Bezzina]
The amended statement purports to have been made at 4:25 am on the morning of the Sunday on which Senior Constable Miller was shot (ie approximately four hours after the events it describes).
The evidence obtained from IBAC now establishes that:
· the statement in its current form was prepared, signed and witnessed approximately 10 months after the shootings;
· Pullin did make an initial statement on the morning of the shootings but it did not contain the material matters which are emphasised above, including hearing the statement ‘they were on foot’, nor did it explain that at a subsequent time Pullin was not listening carefully to what Senior Constable Miller said to others but was concentrated on comforting him; and
· the original of Pullin’s initial statement has disappeared.
The applicant’s defence was thus conducted on the basis of a mistaken belief that Pullin had made a statement as to what Senior Constable Miller said in the immediate aftermath of the shootings. The mistaken belief was directly induced by the statement fabricated some 10 months after the shootings.
At trial, Pullin gave evidence essentially in accordance with his second statement. He was cross-examined and re-examined by reference to the contents of the fabricated statement. The defence was not aware that Pullin’s evidence might be susceptible to an allegation of invention subsequent to the events in issue, and further that the processes adopted by investigating police were open to serious challenge. It may be inferred that if the changes to the statement had been known to have been made 10 months after the initial statement, then the course of cross-examination may have been radically different. To adopt the language of the High Court in Van Beelen,[48] the fresh evidence discloses a line of defence which was not apparent at trial.
[48](2017) 262 CLR 565, 577 [28].
In argument before us, senior counsel for the respondent conceded that the applicant’s trial counsel was, as a result, deprived of a legitimate forensic choice as to the approach he might have taken to the evidence as to Senior Constable Miller’s dying declarations.
In oral submissions however, the respondent emphasised that the Crown case did not depend upon Pullin’s evidence. Amongst other matters, it was said:
·the dying declarations evidence as a whole was not critical to the Crown case. It was open to convict on the basis of the matters now admitted with respect to the Hamada robberies and the offender(s)’ car, coupled with the listening devices evidence and the ballistic evidence;
·there were at least 10 police officers present in the immediate vicinity of Senior Constable Miller when Clarke and Pullin spoke with him. A number of these officers did not hear Senior Constable Miller utter words identifying two offenders;[49]
·the strongest attacks that are able to be made on the evidence of the first responder witnesses are made on the evidence of Pullin and Thwaites. Those witnesses refer to Senior Constable Miller speaking of the offenders in the plural but do not give evidence that he specifically stated there were two offenders as do Clarke, Poke and Gardner;
·if Pullin’s evidence is entirely disregarded, he simply falls into the category of those who were present but cannot depose to statements probative of two offenders;
·the key dying declaration made by Senior Constable Miller in terms of the police investigation was the identification of the offender(s)’ car as a dark blue Hyundai;
·the evidence of Clarke is materially corroborated by the Intergraph recording, and the evidence of Poke and Gardner is corroborated by notes made in pocket books at the time; and
·it is plain that the police at the scene believed that there were two offenders because after the departure of the offender(s)’ car (necessarily driven by one person), an exhaustive search was mounted on foot, by police canine units and by helicopter, for another offender in the vicinity.
[49]Gerardi, Small, Hanson, Howard and de Silva.
We accept that the question of what Senior Constable Miller said as he lay fatally wounded formed only one part of the prosecution case. We also accept that this aspect of the evidence was not an indispensable link in a chain without which the prosecution case was bound to fail.
Likewise, we accept that Pullin’s evidence was not indispensable to the Crown case as to Senior Constable Miller’s dying declarations. Nonetheless, as we have explained, it was presented as an integral part of that case.
Does the Pullin evidence satisfy the requirements of s 326C?
The evidence as to the concealed back-dating of Pullin’s statement is ‘fresh’ in the sense defined by s 326C(3)(a).
It may also be accepted that such evidence is reliable. There is no dispute that the statement adopted and tendered at committal was not in fact made immediately after the events in issue but a substantial time later. There is also no dispute that an original statement made by Pullin immediately after the events in issue, which did not record dying declarations by Senior Constable Miller, was concealed and not disclosed to the defence.
The evidence is substantial in that it is of real significance or importance with respect to the matter it is tendered to prove. More particularly, it is relied on by the applicant to demonstrate:
(a) that he did not get a fair trial in that the evidence presented against him was tainted by irregularity; and
(b) that the reliability of the evidence of Pullin as to what Senior Constable Miller said by way of dying declarations is open to serious challenge and doubt.
The evidence is highly probative in the context of the issues in dispute at the trial. It is relevant in both the senses identified by the applicant. It possesses the requisite high probative value because Pullin’s evidence itself went to an issue which was central to the trial. Pullin’s evidence had force in its own right, as directly corroborating part of Clarke’s evidence (who was, on one view, the central witness with respect to this issue), as part of a composite account of what Senior Constable Miller said and as demonstrating a consistent narrative which had cumulative power. The fresh evidence demonstrates that the applicant was denied a legitimate opportunity to attack the veracity of Pullin’s evidence and the weight (if any) which could be accorded to it. The fresh evidence demonstrates that there was a reasonable basis upon which the applicant’s counsel could adopt different lines of cross-examination and submission to the jury from those which were in fact pursued at trial. Looked at from the point of view of the defence, the applicant’s counsel was arguably deprived of significant forensic choices, and the applicant was exposed to significant forensic disadvantage.
Pullin gave evidence to IBAC in 2015 by way of private examination, and in 2019 by way of public examination, concerning the making of his statements and the underlying facts in issue. The respondent submits that his explanations for variations in his account concerning the making of his statements and his evidence at committal are unsatisfactory and that his evidence to IBAC with respect to this issue cannot be considered reliable. Nonetheless, it is emphasised that ultimately Pullin’s evidence as to what Senior Constable Miller actually said has been essentially consistent at trial and before IBAC.
Whatever may be said about the substance of the evidence Pullin might give at a hypothetical fair trial in which the history of his statements was disclosed, the fresh evidence remains highly probative in the context of the issues at the trial for the reasons we have explained.
It is not necessary for the Court to conclude either that the dying declarations evidence as a whole was indispensable to the Crown case, or that Pullin’s evidence was indispensable to the Crown case as to dying declarations in order to reach the conclusion that the evidence was highly probative in the requisite sense.
The question is not whether a jury would inevitably acquit having regard to the fresh evidence, but whether it is of high probative value with respect to a central issue at the trial.
Further, the concept of the issues in dispute at the trial extends to the underlying question of whether the applicant received a fair trial according to law. It is not limited to specific forensic issues concerning Senior Constable Miller’s dying declarations. The fresh evidence discloses lines of defence which were not apparent either at the time of trial or at the time of appeal.
It follows that the evidence upon which the applicant relies is properly characterised as ‘compelling’ within the meaning of s 326C(3)(b).
In Van Beelen,[50] the High Court observed that commonly where fresh evidence is compelling in the requisite sense, the interests of justice will favour considering it on appeal.
[50](2017) 262 CLR 565.
There are no supervening circumstances in the present case which mitigate against the ordinary conclusion.
We reject the submission that the present case can be contrasted to that where fresh evidence establishes that a witness was lying or that they have resiled from their trial evidence. The evidence shows that Pullin gave false and misleading evidence at the committal; the true content of his original statement was not disclosed at trial; the true date of the making of his second statement was not disclosed at trial; and the evidentiary implications of these matters were unable to be explored by the defence at trial.
Accordingly, the applicant should be granted leave to appeal on the ground sought by him.
It remains to address the broader case on his behalf which amplifies the potential basis for the grant of leave.
Broad ranging manipulation of the evidence
The applicant submits that the IBAC evidence demonstrates a broad ranging, multifaceted manipulation of the evidence as to Senior Constable Miller’s dying declarations. On the applicant’s case, this manipulation commenced at Moorabbin Police Station on the morning of the murders when Detective Sergeant Kelly of the Homicide Squad gave directions to police officers who had attended Senior Constable Miller that relevant matters should be excluded from their written statements. It continued thereafter through a process of revision of original statements which was managed by Detective Sergeant Buchhorn. This process of revision was concealed to a material extent by the destruction of original documents.
The applicant argued that had the true state of affairs regarding the evolution of the evidence been known to the defence at trial, counsel would have been in a position to mount a full-blown attack on the credibility and reliability of the relevant police witnesses, and ultimately submit to the jury that little or no regard should be paid to the evidence of dying declarations.
The respondent conceded appropriate disclosure had not been made and that the applicant’s trial counsel was not, but should have been, in an informed position to challenge the evidence of the dying declarations given by the first responders. But, as we have said, it was further submitted that the evidence of the dying declarations was important in, but not critical to, the Crown case.
The applicant put his case by reference to 12 allegations of misconduct. Two of those allegations related to the making of a revised statement by Pullin and the concealment of that fact by Pullin’s sworn evidence at the committal. We have already canvassed these matters. It is convenient to summarise the remaining 10 allegations and the response of the respondent to them.
(i)Direction by Detective Sergeant Kelly to omit material from statements
The applicant referred to the evidence given at IBAC examinations of officers Clarke, Thwaites, Poke and Detective Sergeant Kelly to establish that at Moorabbin Police Station in the early hours of 16 August 1998, both Clarke and Thwaites were directed by Kelly to omit any statements by Senior Constable Miller from their police statements. And they did.
The applicant submits that this was a deliberate failure to capture the contemporaneous evidence of the dying declarations and a deliberate manipulation of junior officers.
In response, the respondent argued that the IBAC evidence of Clarke established that at the time his first statement was made, Clarke knew he would make a second statement after reviewing the Intergraph tape and transcript. Further, it could not be safely concluded that Thwaites heard a description uttered by Senior Constable Miller that he was told to exclude. It was possible that he only heard what was said over the Intergraph and was therefore told that such hearsay should not be included.
In any event, the respondent submitted that the behaviour of Kelly was neither misconduct nor manipulation. It was conceded that the vice was the later non-disclosure of that behaviour.
(ii) False or misleading evidence by Senior Constable Clarke at trial
The applicant contrasted the evidence given by Clarke at trial and before IBAC as to why critical words of the dying declarations were omitted from his first statement. At trial, Clarke did not refer to the direction to omit he received from Kelly at all and attributed the absence of the words from his first statement to tiredness and stress, as well as an inability to correctly recall the detail. This, it was submitted, was in stark contrast to Clarke’s evidence at IBAC, where he said that he and Kelly discussed the Intergraph and the omission of the remembered words. The applicant submitted that this amounted to complicity between Clarke and Kelly to conceal the role of Kelly and to ensure that Clarke’s statement from memory immediately after the incident would not conflict with the recorded evidence of the Intergraph.
The respondent submitted that there was no material difference between the reasons offered by Clarke at trial and before IBAC as to why the material was omitted from his first statement. In any event, it could not be inferred that Clarke intended to conceal the discussion with Kelly. There was no need to, as there was nothing nefarious about the interaction.
The respondent further submitted that the fact that Clarke, who had listened to the tape and read the transcript of the Intergraph prior to making his second statement, did not simply directly adopt its language, supports his credibility.
(iii) False or misleading evidence by Senior Constable Thwaites
The applicant rehearsed the evidence establishing that Thwaites made a statement within hours of the murders on 16 August 1998. His statement on the hand-up brief was dated 23 October 1998. It was submitted that Thwaites concealed the fact of the first statement, as well as the direction by Kelly as to the content of that statement, until confronted with a Facebook post made by Poke on 23 November 2017, when giving evidence before IBAC.
At committal, Thwaites said that he did not know why his statement was not made immediately after the murders. Before IBAC, Thwaites admitted that when he gave that answer, he did so knowingly and because he may have wanted to hide what had happened at the Moorabbin Police Station. The applicant submitted that this was tantamount to an admission to perjury.
The respondent submitted that the failure by Thwaites to give evidence about the role of Kelly is relevant to the credibility of Thwaites, but is insufficient to justify a conclusion of misconduct on the part of Kelly.
In the course of argument, it was further conceded that the concealment of the fact of the making of Thwaites’s first statement deprived defence counsel of a legitimate forensic option in responding to the dying declarations evidence.
(iv) False or misleading evidence by Senior Constable Poke
The applicant noted the evidence of Poke at committal that she did not make a statement on 16 August 1998 because she was upset. This was contrasted with the content of her Facebook post of 23 November 2017 and her evidence before IBAC that she refused to make a statement because she was upset at being directed by Kelly as to what could or could not be contained in it.
The applicant argued that the evidence at committal was at least misleading insofar as the use of the word ‘upset’ conveyed that the upset was caused by the emotion and stress of attending to Senior Constable Miller.
In contrast, the respondent argued that the real issue is the credibility and reliability of Poke, and not whether the evidence reveals police misconduct or conspiracy. In this regard, the respondent emphasised that neither Poke, nor any other police officer who heard what Senior Constable Miller said, has now said that their evidence about those utterances was wrong or false.
(v)Lorimer Taskforce practice of memoranda requesting statement revision
The applicant noted the practice within the Lorimer Taskforce whereby memoranda were written by Detective Sergeant Buchhorn requesting revision of statements, statements were revised and only those revised statements were included on the hand-up brief. The existence of the original statements was, by that practice, unknowable to both the prosecution and defence.
The applicant outlined the evidential basis for eight instances where this occurred, apart from Pullin. He also highlighted three instances in which memoranda from Buchhorn to investigating police officers are intact.[51] Without now reiterating the detail of the eight instances, the essential submission by the applicant was that there are eight missing statements, including a number from people in a position to hear the dying declarations.[52] Through a lack of transparency, the defence were denied the opportunity to consider and/or properly challenge that evidence.
[51]The memoranda requesting revisions for Detective Senior Constable Olle and Detective Senior Constable Morris contained varying numbers of points for correction, some of which were ticked off and some of which were not. The memorandum relating to Clarke was found attached to Clarke’s day book and was described by counsel for the applicant as ‘not being a memorandum so much as a note assuming it had been checked… the statement against the notes.’
[52]As we understand it, Thwaites, Poke, Gerardi, Adams and Pullin.
The respondent conceded that original statements should have been disclosed but joins issue with the extent to which it can be concluded that statements on the hand-up brief were in fact replacement statements.
(vi)Practice of statement revision coordinated by Detective Sergeant Buchhorn
The applicant submitted that Buchhorn had, before IBAC, confirmed unequivocally that he coordinated the process of statement revision.
The respondent accepted that.
(vii)Practice of statement revision known to Superintendent Sheridan and Inspector Collins
The applicant submitted that the evidence showed that Buchhorn’s system of replacing original statements on the hand-up brief with revised statements and not disclosing either the original version or the memoranda requesting the revisions, was implemented with the knowledge of both Superintendent Sheridan and Inspector Collins, or at least there was a strong possibility that this was so.
The applicant argued that this was a matter of some significance because if the jury had accepted that such a concerning practice had been condoned by the most senior officers, the jury might also conclude that the practice was likely to be more widespread and, consequently, the police evidence generally should be treated with scepticism.
The respondent submitted that there is insufficient evidence to conclude that either Sheridan or Collins knew about the practice. Both denied knowledge when giving evidence before IBAC.
(viii) False evidence by Inspector Collins at committal
The applicant noted that at committal Collins gave evidence that there were no statements, signed or unsigned, that did not form part of the hand-up brief or the disclosed 7A material.[53] Given the previous submission by the applicant that Collins must have known about the practice of Buchhorn of revising statements without disclosing the unrevised version, that answer must have been false.
[53]That is admissible material not forming part of the hand-up brief that was formally identified as being in the possession of the police but upon which the informant did not intend to rely in accordance with cll 6(1)(k) and (l) of sch 5 of the Magistrates’ Court Act 1989 and Form 7A of the Magistrates’ Court (Committals) Rules 1999.
The respondent submitted that there was insufficient evidence to conclude that Collins knew of the practice.
(ix)Lorimer Taskforce practice of destroying or not retaining first unrevised statements and memoranda
The applicant submitted that the first statements of eight witnesses were never included on the brief and are now missing. Those witnesses are Thwaites, Poke, Gerardi, Adams, Gray, Morris, Olle and Edwards. And, all but three of Buchhorn’s memoranda regarding revisions are also missing. The three extant related to Olle, Morris and Clarke.[54] The applicant pointed to Buchhorn’s evidence before IBAC that it was his practice not to retain those documents.
[54]See fn 51 above regarding the different nature of the Clarke memorandum/note.
The respondent accepted that the evidence showed that Buchhorn did shred or destroy first statements. The respondent submitted that it was unclear what could be inferred from the two memoranda appended to the statements of Olle and Morris and with respect to Clarke, simply noted that the statement had been checked against Clarke’s day book notes. With respect to Poke, the evidence did not establish the existence of a first statement made on the night. The respondent submitted that the vice revealed by the evidence was a failure to follow the proper procedure for making supplementary statements and a failure to comply with the duty of disclosure.
(x) Detective Sergeant Buchhorn discredited
The applicant submitted that Buchhorn did not fare well in his evidence before IBAC, providing several examples where he dissembled and sought to shift the blame for his own conduct. It was said that he advanced patently false reasons for his conduct and then resiled from them when challenged. He had given scant evidence at committal and was not called at the trial.
The applicant argued that, had it been known, the conduct of Buchhorn would have been of major significance in the applicant’s trial. He was the senior officer responsible for collecting the evidence of the dying declarations. And that body of evidence lacks credibility, in large measure because of Buchhorn’s conduct.
The respondent conceded that Buchhorn did not fare well before IBAC but queried how far the conduct of Buchhorn could be said to infect the entire Lorimer Taskforce investigation and the whole of the Crown case.
The application of the statutory criteria to the additional fresh evidence
In our view, the evidence which is conceded to be fresh and probative as to the following matters constitutes a material addition to the fresh evidence relating to Pullin’s statement. In summary, that evidence is:
· the evidence that Kelly directed first responders to omit evidence relating to Senior Constable Miller’s dying declarations from their original statements;
· the evidence that, in his evidence at committal, Thwaites concealed the making of a first statement on the night of the murders;
· the evidence of revision of some statements in accordance with memoranda from Buchhorn; and
· the evidence that a number of original statements were not retained. In particular, potentially relevant original statements made by officers Thwaites, Adams and Gerardi are now missing.
Taken together, these matters mean that the applicant’s counsel and, in turn, the jury were not able to scrutinise and track the evolution of the accounts given by a number of police witnesses as to Senior Constable Miller’s dying declarations.
These matters fall to be assessed against the duty of disclosure which we have addressed above. They also fall to be assessed against the procedures which were recognised to be appropriate as part of the investigations of the Lorimer Taskforce. These included a written instruction as to the making and keeping of statements issued by Inspector Collins in the early months of the investigation.[55] Whilst taken individually, the matters which we have identified above might not be regarded as compelling in the relevant sense, when they are added to the fresh evidence with respect to Pullin’s statement, they are in aggregate, compelling for the same reasons we have identified with respect to the fresh evidence relating to Pullin.
[55]The instruction stated in part:
POINTS TO CONSIDER WHEN PREPARING STATEMENTS:
...
Statements can be either typed or hand written. Hand written statements must be legible. All statements received are down loaded onto the Homicide Squad programme regardless and are produced at subsequent Committals and Trials.
ENSURE THAT THE FOLLOWING IN FORMATION-IS INCLUDED AND FOLLOWED:
…
Times of arrival and departure from scene.
Details of all duties performed whilst at the scene.
Details of any conversation had with alleged suspects at the scene or Police Station should have been recorded at the time. Your notes will be required for production at court. Retain you original notes (unless specifically requested) and forward a copy with your statement.
Details of any conversations had with victim, if still alive, on Police arrival. This conversation MUST recorded (sic) contemporaneously and be a full and accurate account of what the victim stated.
NOTE:
All conversations should be recorded at first available opportunity, as they will be required at the subsequent trial and produced as original notes.
If first on the scene record all observations, including position, clothing, injuries of the victim and any sighted weapons or articles.
…
The statement must be checked, contain an acknowledgment and signature witnessed by a Sub Officer.
Statements are to be submitted at the first opportunity as Hand Up Briefs fall within a strict time frame for service on accused person. Statements are expected to be submitted within one week
You can fax a copy of the statement to the Homicide Squad on [REDACTED] Cover sheet marked ATTENTION CREW &. SEND IN THE ORIGINAL AND KEEP A COPY.
Original Statements are to be hand delivered or sent to Officer in Charge [REDACTED] Homicide Squad, Detective Senior Sergeant Graeme COLLINS, [REDACTED] 412 St. Kilda Road, Melbourne, 3004.
In essence, these matters contextualise Pullin’s evidence and amplify it by demonstrating a broader non-disclosure potentially affecting the fairness of the trial and a broader basis for potential attack upon the credibility and reliability of the police evidence as to Senior Constable Miller’s dying declarations.
In so finding, we accept the respondent’s submission that the ultimate significance of these matters is that they may demonstrate a deliberate manipulation of the evidence, not whether they demonstrate individual criminal or other serious misconduct by police officers as such.
In R v Lucas, Smith ACJ said:
For the purpose of establishing such an allegation of unfairness it is not necessary for the applicant to be able to point to the conduct of an identified person or persons concerned in the prosecution as having been blameworthy. It is sufficient for him to show that the totality of the acts of those concerned on behalf of the Crown in the preparation and conduct of the prosecution has operated unfairly against him.[56]
[56][1973] VR 693, 696; approved in Subramaniam v The Queen (2004) 79 ALJR 116, 127–8 [54].
The fresh evidence which we have identified further supports the conclusion that it is in the interests of justice that leave to appeal be granted. It is reliable, and taken as a whole, substantial. The fresh evidence is also highly probative in the relevant sense because it goes to an issue which was central to the trial. Once it is accepted that it is therefore compelling in the requisite sense, it follows that the interests of justice favour considering it on appeal.
In reaching these conclusions, we bear in mind the observations in Ward[57] which we have quoted above,[58] that non-disclosure is a potent source of injustice and that it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance of a case or opened up a new line of defence.
[57][1993] 1 WLR 619.
[58]See [63] above.
Further submissions as to credibility
The applicant made a further series of discrete submissions to the effect that evidence given before IBAC demonstrated that it would now be open to a jury to consider that individual police officers should not be regarded as reliable witnesses.
We accept the respondent’s submission that it is generally difficult to make credit assessments by reference to differences between evidence given at committal or at trial, and evidence given many years later before IBAC. Further, we have not had the advantage of seeing the witnesses cross-examined ourselves.
In our view, it is unnecessary and undesirable that we canvass further the matters put with respect to the reliability of the evidence of Senior Constable Pullin, Senior Constable Clarke, Senior Constable Poke, Senior Constable Thwaites, Constable Gardner and Senior Constable Gerardi.
To do so would require us to make preliminary findings about detailed collateral matters which are both contentious and difficult to evaluate.
Conclusion
For the reasons we have explained, the grant of leave to appeal on the proposed ground is justified by the matters which we have identified above.
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