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Roberts v The Queen

Roberts v The Queen

Case [2020] VSCA 58 25 March 2020

Appeal

Criminal Liability

Admissibility of Evidence

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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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Roberts v The Queen

Details

AGLC: Roberts v The Queen [2020] VSCA 58
Case: [2020] VSCA 58
Decision Date: 25 March 2020

CaseChat Overview and Summary

In Roberts v The Queen, the appellant sought leave to appeal a conviction for the murder of police officers, arguing that there was fresh and compelling evidence that should be considered in the interests of justice. The case was heard by the High Court of Australia, which had to determine whether the appellant was entitled to leave to appeal against his conviction. The central legal issue before the court was whether the evidence, which included allegations of police misconduct and manipulation of evidence, was fresh, compelling, and reliable, and whether it was in the interests of justice to consider it. The court considered the statutory preconditions for leave to appeal under the Criminal Procedure Act 2009 and the principles established in Van Beelen v The Queen. The High Court concluded that the evidence presented by the appellant was indeed fresh, compelling, and reliable, and that it was in the interests of justice to consider it.

The court found that the evidence of police misconduct, including the backdating of police statements and the non-retention or destruction of original statements, was corroborated by subsequent evidence from examinations before the Independent Broad-based Anti-corruption Commission. This evidence was highly probative in the context of the issues at trial, particularly in relation to the reliability of the dying declarations and the fairness of the trial. The court held that the non-disclosure of this material evidence raised a serious question as to the fairness of the trial and a serious issue as to the reliability of the evidence regarding the dying declarations. Given the forensic utility of the evidence to the defence, the High Court found that it was appropriate to exercise its discretion to grant leave to appeal. The court determined that the evidence may affect the credibility of the accounts of the dying declarations and was substantial enough to warrant consideration on appeal.

The final orders of the court granted the appellant leave to appeal against his conviction, emphasising the importance of ensuring justice in criminal proceedings, particularly in cases involving the most serious of crimes such as the murder of police officers. The court's decision underscored the need for the highest standards of fairness and reliability in the administration of justice, and the critical role of the interests of justice in determining whether to grant leave to appeal in such complex cases.

Orders