R v Debs & Roberts [2005] VSCA 66

1 The applicants, Bandali Michael Debs and Jason Joseph Roberts, appealed against their conviction of the murders of two members of the Victorian Police Force, Sergeant Gary Silk and Senior Constable Rodney Miller. For the reasons stated by Vincent, J.A., I would dismiss both applications for leave to appeal against conviction.

2 The applicants also sought leave to appeal against the sentences imposed on them. The applicants' crimes were chilling. They shocked and threatened the Victorian community. For the reasons stated by Vincent, J.A., I consider both applications for leave to appeal against sentence should be dismissed.

3 I have had the considerable advantage of reading the reasons for judgment which Vincent, J.A. proposes to publish in these applications. Substantially, for the reasons which his Honour gives, I agree with his conclusion that each application for leave to appeal against conviction and sentence should be dismissed. I desire to add some remarks of my own in respect of the grounds which both applicants have taken challenging the trial judge's ruling to admit the evidence of what has been called the "Hamada" robberies (Grounds 6 and 7 of Debs' application; and Grounds 5 and 6 of Roberts' application).

4 Those grounds, which asserted that his Honour was in error in admitting into evidence the substantial body of material calculated to prove that the applicants had committed a number of armed robberies of commercial premises in the south and east of Melbourne in the six months preceding the events at the Silky Emperor restaurant, initially struck me as having substance on the basis that the clear prejudicial effect of that evidence was disproportionate to its probative value. It remains a significant premise which underlies the administration of criminal justice according to common law principle that an accused person should not be convicted

of serious offences on the basis of bad reputation or his criminal propensity[1]. To be admissible evidence of this type must have a cogent probative value which clearly transcends its prejudicial effect. That is so whether the test of admissibility is described by common law principles or the provisions of s.398A of the Crimes Act (Vic.)[2] .

5 My initial concern about the admissibility of this evidence was premised upon a number of factors:

• The fact that it could not, by itself, identify the applicants as the killers;
• The significant prejudice which would naturally flow from the body of evidence placed before the jury from which they were asked to determine the implication of the applicants in a number of armed robberies;
• The fact that the prosecution was contending that the guilt of the applicants could be established whether or not the jury was satisfied that the applicants were the "Hamada" robbers.

6 Upon reflection, however, I have come to the conclusion that his Honour was correct to admit the evidence for the reasons which he gave. Essentially those reasons were:

• That the evidence interacted with other evidence to identify the applicants as the persons in the Hyundai car intercepted by the deceased policemen;
• That it provided a motive to use the extreme measures which were used to avoid detection;
• That it put the evidence of the events at the Silky Emperor restaurant and Cochranes Road into a realistic contextual setting;
• It demonstrated the close criminal association between the applicants which they had sought to deny in their interviews with the police.

In my view these reasons entitled the judge to conclude that the evidence had a cogency which outstripped its prejudicial effect, in the sense that it had such a material bearing on the issues to be decided as to warrant its admission notwithstanding the prima facie rule of exclusion[3].

7 It is true, as the Crown conceded, that the evidence which was led to prove that the applicants were the "Hamada" robbers was not sufficient, by itself, to prove that the applicants were the killers of the deceased policemen. Nevertheless, it provided a body of evidence which, if accepted, was capable of inter-acting with other evidence to identify the applicants as the persons who committed these crimes. There were three significant "bodies of evidence" led by the prosecution which, when taken together, were capable of creating a strong circumstantial case that the applicants were the killers. Those three bodies of evidence were:

(ii) The forensic evidence which, so the Crown contended, identified the Hyundai vehicle as the vehicle at the scene;

(iii) The evidence of admissions captured on listening devices and intercepts.

Proof, to the satisfaction of the jury, that the applicants were the persons who had committed a series of armed robberies in company in the south and east of Melbourne against similar "targets" to the Silky Emperor restaurant in the months preceding the murders, when combined with the evidence (if accepted) that the vehicle intercepted in Cochranes Road was the vehicle owned by Nicole Debs, afforded strong proof identifying the applicants as the persons in that vehicle at the time it was intercepted. It was this combination of evidence which put it beyond coincidence that the car was occupied by persons who had been demonstrated to have a connection with it, and who had also been shown to have been involved in robberies of a type which suggested that they were preparing to commit a similar crime[4]. Such evidence will, as McHugh, J. said in Pfennig (supra at 513):

"... be admissible as a matter of law and not discretion if the probative force of the evidence 'outweighs' or 'clearly transcends' its prejudicial effect. As the reasoning of the Court's decision in Harriman v. The Queen[5] shows, the principles concerning the admissibility of evidence revealing other acts of misconduct are not confined to the so-called similar facts cases. They apply in any criminal trial where the Crown wishes to lead evidence tending to show that the accused has been guilty of wrongful acts other than those with which the accused has been charged."[6]

8 The matters to which I have referred in the preceding paragraph - although significant in the formation of his Honour's view that the evidence of the robberies had a cogency which warranted its admission - were not the only matters upon which he relied in determining its admissibility. His Honour took the view that, in the absence of the evidence of the "Hamada" robberies, there would be a contextual "vacuum" in the Crown case, in the sense that the jury would have no explanation for the presence of the applicants, or the police, at the Silky Emperor restaurant in the early hours of the morning - and no explanation for the deceased policemen following the Hyundai vehicle out of the Silky Emperor car park into Cochranes Road for the purpose of intercepting it. Furthermore, without the "Hamada" evidence, there would have been no foundation for the assertion by the Crown that the applicants had a motive for taking the extreme measures which were taken to avoid apprehension. His Honour also formed the view, correctly in my opinion, that the impugned evidence had additional cogency for a further two reasons:

(i) because it demonstrated a close criminal association between the applicants which they sought to disavow in their respective records of interview; and

(ii) the evidence of the applicants' participation in the armed robberies interacted with the other two substantial "bodies" of evidence to add strength to the circumstantial case which the Crown was making against the applicants. Quite apart from the interaction with the evidence demonstrating whose vehicle it was at the scene, there were admissions by Debs, captured on the listening devices about the "jobs" which had been done, the "tying up" of people and the concealment, at a specified place, of guns used and items of jewellery stolen. When the police, acting on these admissions, located (in Sydney) these items, they corresponded with guns used in one or more of the armed robberies and items of jewellery taken from victims of those robberies. Furthermore, the listening device material demonstrated the closeness of the criminal association which existed between the applicants.

9 In determining to admit the evidence of the uncharged armed robberies, the learned judge - after referring to the relevant authorities - was satisfied that the evidence had a high degree of cogency and probative force which exceeded its prejudicial effect. In my view it has not been demonstrated that he was in error in so concluding. It should also be noted that in determining to admit the evidence, his Honour further concluded - again, in my view, correctly - that it was "just to admit" it in accordance with s.398A of the Crimes Act. In this regard, it is pertinent to note the further opinion expressed by McHugh, J. in Pfennig's case (supra at 515) that:

"... once it is accepted that the prejudicial effect of the evidence is a matter going to its admissibility, no scope remains for the exercise of the discretion to reject probative evidence in criminal trials on the ground that it is unduly prejudicial to the accused."

In admitting the evidence, the learned judge recognized that the significance of the evidence to the circumstantial case being made by the Crown was such that it would be necessary to direct the jury that they should be satisfied to the criminal standard of the involvement of the applicants in the robberies before acting upon such evidence; and that, further, they should be directed that they could not use such evidence simply because it demonstrated that the accused had a general disposition

or propensity to commit crime or crimes of a particular type_[7]_.

10 For these reasons, together with those given by Vincent, J.A., I would dismiss grounds 6 and 7 of Debs' application; and grounds 5 and 6 of Roberts' application. In agreeing with the reasons given by Vincent, J.A. on all other grounds of the application for leave to appeal against conviction, I should mention that I have listened to the relevant recordings of the conversations between the applicants, or in which they participated, which were captured by authorized listening devices or intercepts.

11 I agree with Vincent, J.A. that no legitimate basis has been identified for interfering with the sentences which the learned judge imposed upon each applicant. Those who go armed for the purpose of committing serious crimes, and who kill police officers for the purpose of avoiding lawful apprehension, deserve the full measure of punishment which our law can impart. His Honour, in my view, was correct not to fix a non-parole period in respect of the first named applicant; and, again in my view, has not been shown to be in error in fixing a non-parole period of 35 years in respect of Roberts.

12 [8]At approximately 12.15 a.m. on Sunday 16 August 1998, a motor car entered a car park located below and to the rear of a restaurant, known as The Silky Emperor, in Warrigal Road, Moorabbin. Its progress was observed by two members

of the Victoria Police, Sergeant Gary Silk and Senior Constable Rodney Miller, who were nearby in an unmarked vehicle. They were there as part of a police endeavour to apprehend two offenders who, it was thought, had committed a number of armed robberies in the south-eastern suburbs of Melbourne.

13 The preferred targets of these persons appeared to be business premises, generally restaurants, located on main roads, but which were relatively isolated and vulnerable. The robberies were usually carried out at weekends and at or around the closing time of the selected establishment. Although there were variations in the method and descriptions of the perpetrators involved, there were, the police considered, sufficient similarities for limited profiles to be developed concerning them and for possible targets to be predicted.

14 On the basis that there was a sufficiently high probability an attempt might be made to carry out a further armed robbery in the area during that weekend, a number of businesses identified as prospective subjects for attention by the armed robbers had accordingly been placed under police surveillance on that night.

15 Sergeant Silk and Senior Constable Miller were assigned to this duty. Having completed surveillance of another of the designated businesses, they had been directed to take up a position at the Silky Emperor, the rear of which was not covered.

16 So it was, that they were in place[9] when their attention was attracted by a vehicle which entered and then, shortly afterwards, left the car park. They followed this car out into Warrigal Road and turned left into Cochranes Road, a short distance away, where they intercepted it; stopping approximately a car's length to its rear.

17 Two other police members, Detective Senior Constable Sherren and Detective Senior Constable Bendeich, who had been observing the front of the Silky Emperor from a position on the opposite side of Warrigal Road, had followed the two cars in order to provide support, if required. They also proceeded into Cochranes Road. According to Sherren, he saw Silk and Miller outside their vehicle. Silk was near the driver's side door of the intercepted car talking to a male person who, he assumed, was the driver, and Miller was positioned between the two cars; a little to the right of the number plate of the front car. A similar description of the scene was given by Bendeich. They drove past the vehicles, executed a turn to the right and took up a position on the opposite side of the road about 100 metres further on, in a side street, Capella Crescent, facing into Cochranes Road.

18 Sherren saw someone, who he believed, by reason of his stature, to be Silk, move across the front of the intercepted vehicle. Moments later, he heard a volley of approximately four gunshots coming from that vicinity. The sounds indicated that different calibre weapons had been discharged.

19 He immediately called for assistance on the police radio, operated the boot release and, with Bendeich, moved from the car to get two ballistic vests that were kept there. He then heard another volley of three or four shots. As they reached the rear of the car, four more shots were heard.

20 Rather than risk being hit whilst trying to protect themselves with the vests that they knew were hard to remove from their packaging and awkward to put on, the two members decided to observe what was occurring. They then saw the intercepted vehicle moving along Cochranes Road at a normal speed. It passed them and continued in a westerly direction.

21 They re-entered their car and moved further into Cochranes Road, so that they could maintain observation. However, they soon lost sight of the car as it passed over the crest of a hill. They then returned to the area where the other police car was parked. The engine of that vehicle was running; the headlights were still on, and the blue flashing light was operating. They found Sergeant Silk lying on the grass verge, a short distance away, and concluded that he was dead. [10]

22 Bendeich described the intercepted vehicle as a black or dark blue hatchback with two doors. The wheels appeared to be distinctive, with the street lighting causing them to luminesce as though they were metallic silver in colour. The car was fitted with a spoiler. Later, after looking at photographs of a number of vehicles, he formed the view that the car that he saw on that night was an Hyundai Excel hatchback, dark in colour with a spoiler and silver-coloured wheels that created a spoking effect as it moved.

23 Sherren described the vehicle as a small Asian two-door hatchback, dark in colour and fitted with a low profile spoiler on the rear. It appeared to have non- standard wheel rims. He was unable to be precise as to the colour of this vehicle or the wheels with which it was fitted.

24 Senior Constable Clarke attended at the scene very shortly after this occurrence. He was standing at the intersection of Cochranes Road and Warrigal Road when he heard a male voice calling for help. The person appeared to be located to his south on Warrigal Road, and so he ran in that direction; calling out "Where are you? Keep calling". The voice continued to repeat, "Help me". He came upon Senior Constable Miller lying on the footpath, a short distance from the restaurant, with a revolver at his feet.

25 Miller was clearly very seriously injured, and said, "Help me, help me, don't let me die". Clarke asked him, "How many were there?" Miller responded, "Two - two, one on foot". Clarke asked him, "How long ago did it happen?". He responded "Not long, just before the cars went past". Clarke asked whether he was referring to the police cars with their lights and sirens and he said "Yes".

26 Constable Pullen also spoke to the injured man. He enquired "How many shots did you fire?" Miller replied, "Three or four". He asked what had happened, and Miller responded "Two - one on foot." He asked whether there was any vehicle involved, and Miller replied, "Dark Hyundai".

27 Detective Senior Constable Howard said that he also spoke to the deceased at the scene. While he was trying to reassure Miller that he was going to be alright, he placed his police radio on the ground nearby. There was a broadcast in which reference was made to an Asian-style small car. Miller reacted; saying that it was definitely an Hyundai coupe or hatch and probably dark blue in colour. This comment was heard by other police members in attendance at that time. Senior Constable Poke heard him say, "Get them, I'm fucked". He kept repeating this expression, and then said "Two - one on foot - six foot - dark hair - check shirt - and dark Hyundai." Senior Constable Miller was taken to the Monash Medical Centre where he underwent surgery. He died later that night.

28 [11]Another description of what took place was provided by the applicant, Bandali Debs, to his father, Malik Debs, in the following exchange between them at the Debs' home in Narre Warren on 15 February 2000:

"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?'"

29 Dr Shelley Diane Robertson, who later conducted the autopsies upon the bodies of both deceased officers, attended the scene in Cochranes Road at 6:15am on Sunday 16 August 1998.

30 She stated that the body of Sergeant Silk, was semi-face down, on his right side, on the grass surface in front of a panel beating premises. His head area was heavily bloodstained, with an apparent injury in that region. She certified him deceased at 6:35a.m.

31 Robertson conducted an autopsy at the Victorian Institute of Forensic Medicine commencing at 3 p.m. on that Sunday afternoon.

32 She gave evidence that there were three bullet wounds to the body. First, there was what she described as a "distant" gunshot injury to the head. The projectile had entered behind the left ear, and passed through the cranial cavity causing extensive brain damage and comminuted skull fracturing until it lodged in the right cranial fossa within the brain tissue. The term "distant", she defined as indicating that the gun was not close against the head when discharged.

33 She also stated that, in her opinion, "The head injury would have rapidly caused death within a matter of seconds and he would have immediately lost consciousness". Dr Robertson observed that there was no downward flow of blood from the entry point of the bullet. Had the deceased been in an upright position for any length of time, even a few seconds, one would have expected, she considered, that some such indication was likely. In that circumstance she formed the view that he was shot from above and slightly behind whilst he was lying on the ground.

34 The second injury, she described, was also a distant gunshot injury with the entry point being between the fourth and fifth ribs at the front of the chest of the deceased. She said the track of the bullet was from left to right, front to back with approximately 10 degrees of upward angulation. The bullet lodged there in the muscle.

35 This bullet disrupted a number of major organs, but it was probable that death would not have occurred instantaneously after receiving this injury, as the mechanism of death, in that event, would have been primary blood loss. These structures all bleed very heavily and rapidly, but it is likely there would have been some period elapsing before death actually occurred, perhaps even as much as a minute or so. The injury would not necessarily have induced an instantaneous loss of consciousness or affected Silk's mobility or ability to walk. The impact of the bullet striking the chest may have been sufficient to cause a loss of balance and would certainly have been enough to cause the deceased to stagger backwards or to lose balance. However, to collapse from blood loss would have taken some period of time, measured in seconds to minutes. She said that, assuming nevertheless that Silk was standing when shot in the chest, it was more likely he would have collapsed within a period of seconds to minutes. She considered that, given the direction of the injury, he would have been shot whilst positioned, more or less, face forward.

36 Dr Robertson said that Silk had also sustained a distant gunshot wound to the pelvic region. The projectile had entered through the left hip and ultimately lodged in the muscle of his right buttock. She concluded that the track of the bullet was essentially straight across the back of the pelvis. The receipt of this injury was likely to have caused an upset in balance if the person was standing and probably would occasion considerable pain, but no vital structures were damaged. Theoretically, there was no reason why Silk would not have been mobile after receiving that injury but she opined that the likelihood was that he was not.

37 She said it was impossible from a medical point of view to determine which of the injuries was received first, and identified the cause of death of Sergeant Silk as multiple gunshot injuries to head, chest and pelvic regions.

38 Dr Robertson also performed the post mortem examination of the body of Senior Constable Miller. She observed a single bullet wound with the point of entry at the left mid-front to the side of his chest. The bullet which disrupted the liver, bowel, pancreas and kidney had exited above the hip on the right side from the body. The injury track was from left to right with approximately 30 degrees downward and 10 degrees backward angulation.

39 Dr Robertson said that the bullet impact may have caused loss of balance and caused Miller to stagger backwards, but there was no neurological or nerve damage which would necessarily have resulted in the deceased collapsing immediately. There was nothing about the injuries or the blood loss that would have prevented him from walking 150 to 200 metres after he had been shot. The 30 degrees downward angulation did not mean that he was shot from above, rather it referred to the direction of the injury within the body, given that he was standing in the anatomical reference position. For example, the trajectory observed would be accounted for if Miller was leaning forward when shot.

40 Senior Constable Miller, as I have earlier mentioned, was found alive, however mortally wounded. When Senior Constable Clarke asked how many offenders there were, he replied, "Two, one on foot". All the officers who attended the wounded man stated that Miller appeared to be lucid, responsive and capable of providing coherent answers to questions put to him. Dr Robertson expressed the opinion that there was no reason to suppose that, at the time that these statements were made, his cognitive functions may have been impaired by his injuries.

41 Miller's observation was supported by the ballistic evidence according to which Silk was shot with two different weapons, one of .357 calibre and the other of .38 calibre. Whilst the bullet that killed Miller was not recovered, it was the opinion of the ballistics expert that he was likely to have been shot with a .357 calibre weapon. The only other type of bullet found at the scene was identified as having been fired from that of Miller himself. I will return to this aspect.

42 Save for the passage of the intercepted vehicle past their location, the events in Cochranes Road were witnessed by Bendeich and Sherren from a distance of about 100 metres. Neither of them observed more than one occupant of the Hyundai. However, their opportunity to make accurate observations was clearly limited.

43 Bendeich said that he heard between six and ten shots and saw two muzzle flashes from the roadside where the interception had taken place. He said that the sequence was as follows: One shot and a pause, six shots and a pause, and then two further shots with about a second between them. All shots were fired in relatively quick succession. His evidence would account for at least nine shots. According to other evidence from crime scene investigators, there were four shots fired from the gun of Senior Constable Miller. Three bullets were recovered from the body of Silk. One bullet hit and passed through the body of Miller but was not recovered. One bullet was fired out through the back window of the Hyundai and passed by Miller; another went through a "For Sale" sign in the vicinity, and one was found near the body of Silk. The investigators concluded that Miller fired in two directions from his position behind the intercepted car. The prosecution later argued that it was accepted that the shots were fired in quick succession and that Miller fired in two directions, therefore, the inference could be drawn that he was firing at two persons.

44 Senior Constable Phillip James Stephens was one of the crime scene examiners who attended the scene. He arrived there at 2:05 a.m. on the Sunday morning. He observed that the vehicle of Sergeant Silk and Senior Constable Miller was parked parallel to and about 1.8 metres out from the curb in front of an empty lot at 154 Cochranes Road and a short distance from the premises of Supafinish Panel Works.

45 He noted that a roller door at the front of the Supafinish factory appeared to have been struck by two bullets, one of which passed through it whilst the other had been deflected. On the concrete apron in front of the door, he located a fired bullet. He saw another fired bullet lying in the grass near Sergeant Silk.

46 On 18 August Stephens' conducted an examination of the police vehicle used by Silk and Miller at the Victoria Forensic Science Centre. He noted an impression in the dust on the tail-light consisting of lines, as if someone's head had been pressed up against it. The prosecution advanced the argument that this mark had probably been produced by contact with the head of Miller as he tried to obtain some cover from fire that was being directed at him from inside the Hyundai.

47 Senior Constable Vincent, who was attached to the firearms and toolmarks section of the State Forensic Science Centre, attended Cochranes Road at 2:10am. Upon his arrival, he observed the body of Silk lying on the side of the roadway. The deceased's service revolver was locked down in its holster and with the thumb clip in position behind the hammer. He removed the weapon and found that it was fully loaded. There were no discharged cartridges related to this gun in the area and it was apparent that it had not been fired.

48 On examination of the Supafinish Panel Works premises, he also observed that there were two areas of damage to its front roller type door, consistent with bullet impact.

49 Inside the building, he located fragments of the bullet which had penetrated the door.[12] He subsequently located a bullet on the ground at the front of the premises below the other damaged area. The material found inside the factory was consistent with a single shot that passed through the door from a north-easterly direction; that is, from the position of the police car. He expressed the opinion that it also seemed likely that the bullet found on the concrete apron had been fired from the same general direction, although he stated it is difficult to determine the trajectory of a deflected bullet.

50 Bandali Debs provided further details concerning the events in the following exchange which took place between his father, Malik Debs and himself, on 15 February 2000:

"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.'"

51 On Monday 17 August 1998, Vincent returned to Cochranes Road and found a further piece of bullet material near a lamp-post.

52 On the 11 September 1998, he examined bullet damage to a nearby advertising sign. He considered that it was consistent with the passage of a bullet that came from the rear of the sign, and could have been fired from the vicinity of police vehicle. He searched for the bullet but was unable to find it.

53 Sergeant Silk was equipped with a .38 Special Smith and Wesson, three inch barrel revolver loaded with six standard police issue Winchester hollow point cartridges. They were all unfired. Senior Constable Miller was equipped with a similar weapon. There were four fired cartridge cases in his firearm and two unfired cartridges.

54 In relation to his examination of the fired bullets from Cochranes Road, Vincent said that the bullet on the concrete driveway in front of the Supafinish factory, was a .38 Special 147 grain hollow point bullet, police issue, and had been fired from Miller's weapon.

55 The fired bullet fragments found on the factory floor inside the Supafinish premises were consistent with a police issue 147 grain jacketed hollow point bullet but, due to the amount of damage to them, he was unable to determine precisely from what firearm they came.

56 The bullet near the lamp post also had been fired from Miller's revolver.

57 The bullet located on the grass near where Silk was lying was of .38 calibre, but it had not been fired from a police issue weapon. He said that the lands and grooves on this bullet were of a relatively uncommon type and associated with English manufactured firearms from the early 1900s, such as Enfield, or Webley and Scot, revolvers. These weapons are of similar appearance.

58 The fired bullet extracted from Silk's chest was of that type.

59 Vincent was unable to say whether the two .38 bullets were fired from the same gun, but they were certainly not fired by a police issue weapon.

60 He examined the bullets which caused the injuries to Sergeant Silk's head and hip. They were unlike the one that had struck him in the chest. They were of a .357 magnum calibre and both were copper washed bullets. The only manufacturer of bullets in that configuration is the Winchester company in the United States. Although it was possible that they had been fired from the one gun, it was clear, however, that they had been fired from a different gun from which the .38 non-police bullet had been discharged. According to his evidence, at least three weapons had been fired; the police weapon and two others. Silk had been shot with at least two guns.

The Forensic Investigations****[13] with respect to the car used by the perpetrators

61 As I have mentioned, Miller told the police members who were attending him some minutes after the events, that the car which had been intercepted was a dark coloured Hyundai. The other two police members who saw it at the scene, described a dark or dark blue two door hatchback vehicle. Otherwise, at that stage, there was little to identify the car involved and, of course, the perpetrator or perpetrators were unknown. However, there were fragments of glass on the roadway in front of the police vehicle. These were collected by Senior Constable Stephens and were shown later that morning to David Albers from a glass replacement company, Windscreens O'Brien. Mr Albers considered that they had probably come from the rear windscreen of a Korean manufactured car, possibly from an Hyundai Excel.

62 During the following week, the fragments were examined by Peter Ross, a scientist, at the Victorian Forensic Centre. He too formed the view that they had probably come from an Hyundai Excel and, noting that the glass was bright with no scratching, considered it likely that they had been lying on the roadway for a relatively short time.

63 Ross observed that some of the glass pieces were in the form of long thin rectangular shards. This indicated, in his opinion, that those pieces had been adjacent to a relatively high velocity impact site. There was one piece which had an eroded bevelled edge to it of the kind that he associated with bullet impacts. As the bevelling was on the exterior surface of the glass, he concluded that, if this piece did relate to a bullet impact, the shot would most probably have been fired from the interior of the vehicle. He sampled the interior surface of this piece and other long shard pieces and he found, consistent with this scenario, approximately four gunshot residue particles that had derived from the primer mechanism of the ammunition used.

64 The next step of his initial examination involved looking in more detail at the recovered pieces. Over the next few weeks he reached the conclusion that the glass originated from an Hyundai Excel X3 model hatchback or tailgate version and was either a three or five door vehicle.

65 Ross stated that he found two very small fragments of glass with features that assisted in its identification. One piece was imprinted with a horizontal bar with a section of a square H, and another with a triangular symbol. He was able to ascertain that the H was part of the Hyundai Motor Company Symbol -HMC-, and that the triangular symbol represented the Keumkang Chemical Company insignia. Keumkang were the manufacturers of glass for Hyundai and it appears that there is a similar symbol on the window of every Hyundai vehicle.

66 Ross ascertained that, on 18 April 1997, the Keumkang Chemical Company changed the colour of the production label printed on the rear windows of these vehicles. Prior to that date, the label was brown, whereas after 18 April 1997, it was black. The symbol found on Cochranes Road was brown.

67 Keumkang also had a production date code system of marking glass with a series of dots and a single number. Enquiries revealed that a production code with 10 dots and a 7 meant that the window was manufactured in February 1997.

68 Ross found that some of the glass found at Cochranes Road contained border patterns. It transpired that the Lantra, Sonata and Excel Hyundai vehicles are distinguishable by these patterns. The glass found at Cochranes Road had the pattern of the Excel.

69 He was able to distinguish the different models of the Excel X1, X2 and X3 due to the different placement of the demister structures. With this information, he formed the opinion that the glass from Cochranes Road came from the rear window of a three or five door Hyundai Excel X3 vehicle.

70 His examination of an Hyundai, Excel X3 registration number OJI 862, owned by Nicole Debs, commenced in the laboratory of the forensic science centre, on 31 July 2000, following the arrest of Debs. He progressively stripped the interior of the vehicle in this process and found that the build plate of the vehicle indicated that OJI 862 was constructed in March 1997. He observed that there were two types of glass, some tinted and some clear in the vehicle. In relation to the clear glass, he was unable to distinguish between that recovered from OJI 862, the Cochranes Road Glass and some glass fragments, which he had found on Miller's clothing.

71 When the interior of the car was stripped down to bare metal, Ross noted that there was an area, on the inside of the closing rim of the hatch door, where the surface was rough. He had that area further examined and this indicated that there seemed to be some distortion to the metal. An opinion was then sought from Senior Constable Vincent who expressed the view that the damage was most likely caused by a long flat tool, such as a screw driver, being hammered into the surface.

72 Ross then took a closer look at the depression in order to establish if there were any materials adhering within it that might indicate how it had been caused. He found numerous particles of primer residue, individual particles containing lead materials, and gunshot residue materials. Although he considered that this was not direct evidence that the depression had been caused by a bullet impact, it indicated that, within that area, there were materials derived from the shooting of a bullet.

73 Ross continued the examination of the rest of the vehicle by means of vacuum filtration. He found a number of propellant grains in various vacuum samples and when these were examined under an electron microscope he could not distinguish between the partly burnt propellant located in OJI 862 and that which results from the discharge of a Winchester .357 magnum revolver.

74 In the boot area of the vehicle, using vacuum filtration, a small metal fragment was recovered, analysis of which revealed that it was composed primarily of lead, but with an associated flake of copper. The lead adjacent to the copper was antimony enriched. This indicated, he considered, that this fragment was consistent with having originated from a copper wash bullet. That finding excluded the possibility that it could have come from a police round as they are not so constructed. Minute glass fragments of similar composition to Keumkang glass were also embedded in the metal fragment.

75 On 28 August 1998, Ross examined the checked shirt, jacket, blue jeans, a pair of boots and socks worn by Miller at the time that he was shot. He detected a number of glass fragments on his clothing that he found to be indistinguishable from those found at Cochranes Road and the glass recovered from the Debs' vehicle. He also observed a large number of propellant grains in the material.

76 On 17 March 2000, he further examined the clothing in order to identify the source of the propellant and to investigate further the area of bullet damage. He found over 100 propellant grains containing the same compounds as a Winchester .357 propellant. There was a small lead fragment on the right hand side of the jacket which had a coating of copper with adjacent areas rich in antimony. This indicated, he said, that this piece of lead was consistent with being derived from a Winchester .357 magnum copper wash bullet. The size of the bullet holes in the fabric was also consistent with this finding. He concluded that Miller must have been standing within two metres of the car in order for that much propellant to be deposited on him.

77 There had been an earlier, but, according to the evidence, less detailed examination of the vehicle conducted on 22 December 1998 by Edward Kennedy-Ripon, another scientist at the Victoria Forensic Centre. Other than removing the spare wheel from the back of the car, he did not remove any other fittings or carpet at that time.

78 He did not detect any differences in the thickness, elemental composition, decals, the demister bands and colour between the glass from that vehicle and that collected from Cochranes Road. He performed a refractive index analysis on two randomly chosen fragments from OJI 862 and compared them to a single fragment of the Cochranes Road glass. Upon his analysis, he found a slight, but significant, difference in the index between them and that fragment, leading him to the conclusion that the vehicle could be eliminated as a source of the Cochranes Road fragments.

79 However, on 24 August 1999, Kennedy-Ripon received more glass and carried out a further analysis between 3 and 22 September. On this occasion, he examined 46 fragments of glass from OJI 862 and found that the refractive index ranges overlapped considerably. This meant, he considered, (contrary to his earlier finding) that the vehicle could not be so eliminated. He did find a single fragment of glass in the car with a significantly different refractive index. This supported, he considered, the hypothesis that there had been another window screen in the vehicle.

80 In August of 1999, Ross received a phone call from Detective Sergeant Ritchie who advised him that it was believed that there had been two replacement rear windscreens fitted to Debs' vehicle, the first of which had broken. He asked whether Kennedy-Ripon may have analysed the glass from the first replacement windscreen. Ross, upon ascertaining that Kennedy-Ripon had examined only a small amount of glass, considered that there was a possibility that his results were unreliable, and decided to review his work.

81 He concluded that, on the basis of his examination of the material, there was no difference between the glass at Cochranes Road and that from OJI 862.

82 On 31 July 2000 Paul Thomas-Lee Murrihy, a forensic officer at the Victorian Forensic Science Centre, examined the build plate, compliance plate, engine production plate and the VIN number of the Debs car. He concluded that the vehicle was built in March 1997. He observed that the rear windscreen and the inner rear bumper bar appeared to have been replaced post-manufacture, possibly in April 1997. The car was equipped with Race Lace alloy wheels and it had a spoiler mounted on the rear of the hatch.

83 He examined the paint layer thickness to see whether there were any anomalies on the Hyundai and whether there had been any repairs effected to it. The only such area that he identified was on the rear of the hatch on the nearside between the hinge and gas strut. It was in this area that he noticed both a change in colour and the physical shape. This was then examined further by Ross and Vincent as I have indicated.

84 On Sunday 16 August 1998 at 9:45am, Harald Andreas Wrobel, another forensic scientist at the Victorian Forensic Science Centre, attended Cochranes Road to examine the scene for gun shot residue. This included the hands and the area around the wound to the left side of the head of Silk. He found five lead particles on the back of the left hand of the deceased and one particle of lead and antimony on his left palm. Wrobel was of the opinion that, although it did not appear that Silk had fired a gun on that night, he may have handled his revolver on a previous occasion.

85 On 22 December 1998 and in July 2000, he sampled the Debs' vehicle and found no gunshot residue on either occasion.

86 On 25 October 2000, he received a number of bags of materials taken from the area of the lower trim, hatch door trims and from under the rear seats and boot. He found no gunshot residue in any of those items.

87 On 17 April 2001, he received nine plastic bags containing materials secured through vacuum filtration. He found one particle of gunshot residue in the material from the offside floor mat of the Hyundai.

88 On 31 July 2002, he received a sealed bag containing Silk's windcheater. There were numerous lead and antimony primer related particles on this garment at the point of entry of the bullet into the front. He concluded that the bullet was fired at two metres or less as he would not have expected primer related particles to be deposited at a greater distance form the muzzle of the weapon.

89 In July 2002, Professor Raphael Grzebieta examined the deformed section hatch of the Debs' vehicle. He formed the view that the shape of the deformation was consistent with the impact of a ricocheting bullet fired from outside the car, although he did not exclude the possibility of a glancing blow of some other kind. On the other hand, he considered that the damage was unlikely to have been caused by the boot being closed on top of a metal rod with the top of the rod coming into contact with the underside of the hatch, which, I should add, was the version given by Debs to the police with respect to the breakage of the windscreen.

90 Shane Andrew Richardson, a mechanical engineer and specialist in accident analysis and combat vehicles, also addressed the possibility that the deformation had been caused by a bullet impact. He employed a mathematical formula known as the Mill d'mar equation, which deals with the circumstances which determine whether a bullet would be likely to penetrate or ricochet upon striking a steel surface. The relevant factors, he stated, are the thickness of the material hit and the velocity and size of the projectile, the angle of incidence being then determinative of whether a bullet will pass through or ricochet from the object struck.

91 He was given information regarding the diameter of a Winchester Special .38 calibre hollow point round (a police bullet) and the mass and the velocity of such a bullet at muzzle exit. Applying these figures to the equation, he calculated that a projectile of that kind fired at the car would not penetrate the metal of the vehicle but ricochet, if it struck at any angle below 37 degrees.

92 The cause of the damage to the car was also discussed by the applicant Debs and his father in their conversation on 15 February 2000 to which I have earlier referred[14]:

"Bandali 'I said I knocked the boot with a big bit of steel, and the window smashed.'

Malik 'I don't mean that.'

Bandali 'There's no holes.'

Malik '...(inaudible)... '

Bandali 'Huh?'

Malik '...(inaudible)... because the lead, because the ...(inaudible)... '

Bandali 'No what happened, it hit it forward...'

Malik 'Ah.'

Bandali '... they've hit it forward, but when it hit it forward it went chch, like that, but when it hit it like that, forward, it bounced, it bounced off.'

Malik '...(inaudible)... '

Bandali '...(inaudible)..., the lead.'

Malik '...(inaudible)... '

Bandali 'Around ...(inaudible)... '

Malik '...(inaudible)... '

Bandali 'All's I done was I squeezed the ...(inaudible)... then I just went like that, ...(inaudible).... Cause it had the dint but it didn't go through, had the dint like, like that.'

Malik '...(inaudible)... wasn't it close to the tin.'

Bandali 'It hit the tin.'"

93 In another conversation between them on 13 May 2000, the following exchange took place:

"Bandali 'Do you know what? Ya know what, where they went to, why they went to Sydney to talk to my mother and Robert? They're lookin' for, cause they asked them which car do you drive. They're lookin' for stolen Hyundais. They're lookin' for stolen cars, somebody put it somewhere. They're lookin' all around Australia for them. Cause do ya know how many of those cars are stolen, and they can't find them? They reckon about fifty to one hundred. They can't find those cars.'

...

Bandali 'And ya see, what the trouble is, if a grey one or green one or black one was stolen, they can respray the car.'

Malik: '...(inaudible)...'

Bandali 'You understand. That's what they don't, can't work out. They, ...(inaudible)...'

Malik: 'That's ...(inaudible)... the, that's ...(inaudible)...'

Bandali 'Yeh, but if there's a hole in it they can put magnets over it and find the hole.'

Malik: '...(inaudible)...'

Bandali '...(inaudible)...'

Malik: 'Mm.'

Bandali 'See this, if there's tin there then there's a hole and they filled it with filler, they can tell.'

Malik: '...(inaudible)...'

Bandali 'Oh yeah.'

Malik: 'Mm.'

Bandali 'Even, you can weld. You can weld bits of tin there, alright, but you got to put a filler over it. Bring it back. They knows. Then fix.'

Malik: 'All the, ...(inaudible)...'

Bandali 'They see, they're runin, ah, a special like a, like a, the, the forensic science they got a thing which goes over the whole car. If there's some hole there or something.'

Malik: '...(inaudible)...'

Bandali 'No, no, not ...(inaudible)...'

Malik: 'Yeh.'

Bandali 'They do it with a machine. They got to have the whole car ...(inaudible)... There could be too.'

Malik: 'What, that. But the, but the ...(inaudible)... I thought you were ...(inaudible)...'

Bandali 'Yeh, but listen. Like if a windows broken and been hit on the edge, nobody can tell.'

Malik: 'No.'

Bandali 'Because when it's been cleaned and you put sils, the thing nobody can tell it.'

Malik: 'No, no.'

Bandali 'No holes.'

Malik: '...(inaudible)... Nothing. They think that ...(inaudible)... everyone knows about it. Almost like a ...(inaudible)... That's it.'

Bandali 'No, no it's got to go through.'"

This description corresponded closely with the findings and conclusions earlier set out.

94 Later again on 31 May 2000, referring to a police check of the car, Roberts said:

"Jason: 'Then I'm lookin' at this clown, I'm laughing I'm try, tryin' not to laugh, right, he opens it then shuts. Opens it, right up and then straight away, carpet, moves, to look ...(inaudible)... Checked the masonite for holes, straight away up and around the spare tyre with his hands, see if there's any holes, cause they think it went like this, straight through, into the ...(inaudible)... and off the wall and there was some repair, der, der, right, so that the cop went like that, breath.'"

It is apparent that Roberts understood that no bullet had passed into the vehicle.[15]

95 Within days of the shooting of the two police members, a group was set up to pursue enquiries with respect to locating the Hyundai Excel involved. This aspect of the investigation was named Operation High. The team examined the registration records of all Hyundai Excel X3 three and five door hatch vehicles registered and sold in Victoria, including all stolen and rental vehicles, replacement windscreen sales, cancelled registrations and written vehicles. It involved, according to the evidence, the physical examination of 2,606 Hyundai Excel model cars throughout the State.

96 Michael Edward Silke, a farmer, who also engaged in the restoration of cars and the sale of parts, bought two damaged Hyundai Excel vehicles on 29 July 1998. One was a white 1997 model and the other was a mauve X3 1996 Hyundai Excel. Both had damage to the front but neither had sustained damage to its rear section. He placed advertisements in the local and Melbourne Newspapers on Thursday 13 August 1998 and on Saturday 15 August 1998 with a view to selling parts from them. He did not receive many calls, but recalled that there was one from a man who wanted to purchase a complete car. Silke indicated that he was not interested in the vehicle at that stage but might later change his mind if he was not able to sell a sufficient number of parts from it. Telephone records indicated that the call was made on Sunday 16 August 1998 at 4:48 p.m.; that is, within a matter of hours of the shootings. The call came from Debs' home in Springfield Drive, Narre Warren. However the caller did not leave a name.

97 On 21 August 1998 at 1:52 p.m., another telephone call was received by Silke. It came from the home of the Roberts' family at Cranbourne. Silke did not know anyone named Roberts who lived at Cranbourne and he did not obtain the name of the caller.

98 On Monday 24 August 1998, Grant Phillip Walker, director of Grant Walker Motors of Bayswater, received a telephone call from a woman asking for tailgate glass for an Hyundai vehicle. His business sold Korean glass, of Keumkang manufacture. She indicated that she was interested in a rear screen for an Hyundai X3. Telephone records later revealed that this call was made at 1:30 p.m. on a mobile phone registered in the name of Marina Roberts, Jason Roberts' mother.

99 On 25 August 1998, Walker was requested by the police to inform them of any persons making inquiries about rear screens for Hyundai vehicles, specifically the Hyundai X3 model.

100 On 26 August 1998, two persons, a man and woman, came to his premises seeking to purchase a windscreen of that type. Walker asked the woman whether she was the person who had rung earlier regarding the tailgate glass. She said that she was. Walker and one of his salesman, Bedrich Fliszar, spoke to the couple. Fliszar asked them how the tailgate glass had been broken and they replied that someone had tried to break into the vehicle to steal the sub-woofer "in some suburban street somewhere". Another employee, Melvyn Harris, noted the registration of their car (a Mazda 323 which was displaying a P-plate). This vehicle belonged to Joanne Debs, another daughter of the applicant. He described the male as being short, with black hair, wearing a cap, light build and light olive skin. The female was of about the same height, black hair, tied back and light olive skin. Walker sold them a February 1997 model rear windscreen and they left.

101 The prosecution asserted at the trial that this windscreen must have been fitted into the Debs' Hyundai during either the afternoon of 26 August 1998, or the morning of 27 August 1998, as it was in place during the afternoon of 27 August 1998, when Roberts and Nicole Debs were spoken to by Detective Sergeant Ritchie and Detective Senior Constable Illingworth. As a result of this conversation, Debs was spoken to by the police, on 31 August 1998, and made a statement to the effect that he had accidentally smashed the windscreen at a building site in Jaguar Close, on 19 August, when he closed the hatch on some building materials inside the car.

102 It appears that just over a month after the Hyundai was repaired, the replacement windscreen "blew out" as the car was being driven, necessitating the purchase of a second windscreen.

103 Michael Bourke, of Elite Screens Narre Warren, had also been contacted by the police as to whether he had fitted a windscreen to an Hyundai Excel. He was requested to inform them if anyone came to his business premises enquiring about a rear windscreen for a Hyundai and, if possible, to ascertain their identity. A few days later, he received a phone call from a woman inquiring about a rear screen for a Hyundai Excel. She indicated that they would fit it themselves. Bourke suggested that this would not be wise as it was a difficult job and there were safety issues involved. This advice was accepted and, on 3 October 1998, he fitted a second replacement windscreen to OJI 862. When doing so, he noted the clean condition around the window frame. He said that it was already trimmed back and he did not see any broken glass. A receipt, a copy of which was forwarded to one of the police involved in the case, was issued when the car was collected.

104 On Saturday 19 August 2000, Bourke received a telephone call from a woman who identified herself as Nicole. She wished to see a copy of that receipt. Bourke faxed this to her after contacting the police.

105 There were a number of references to the police search for the car involved in the shootings in monitored conversations involving one or both of the applicants. For example, the applicant Debs and his father discussed the possibility that there may be further enquiries made concerning it in a conversation, on 11 February 2000:

"Bandali 'Nobody can do anything. I'm just thinkin' if they'll come 'round. Been one and a half years.'

Malik: 'Nobody knows, ...(inaudible)...'

Bandali 'I don't think they can because they haven't got nothin' to talk about.'

Malik: 'Maybe they offer to ...(inaudible)... and this and that.'

Bandali 'Ah, that's too bad I'm not worried about ...(inaudible)... When they come again I just say, oh look the police come here[16] and all's I said was I don't even remember they come here, they said something, I forget what they even talked about, I wasn't interested. I can say that ...(inaudible)... and then they can't do nothin'. I said, Oh yeah, do you remember what's happened?'

Malik: '...(inaudible)...'

Bandali 'If they say to me, oh, ya remember what's happened? Look, to tell you the truth, I'm not interested and I don't, ah, remember anything. It wasn't ya know 'til the police come here and talked to my father, and, ah, I didn't take much interest 'cos I didn't know anything about anything. That's all I have to say, and if they asked me a question, I say look, I don't remember. That's all I have to say. And ya know when you do that?'

...

Bandali '... doesn't mean nothin'. And when they come here the garage open, everything's open, nobody worries about anything, nobody says anything and, ah, when they come and seen me I said, oh yeah, this strip, see this strip, brass. I put it in the car and it broke, bad luck. And they can't do anything. If you haven't got anything, that's when they, or if you, if you speak to someone and you mix it up...'

Malik: 'If you ...(inaudible)...to somebody...(inaudible)... '

Bandali 'And when ...(inaudible)... I said, yeah it just broke on the strip, the thing. I don't know I said, it smashed and I was upset. That's one thing I've gotta accept and, ah, I broke the ...(inaudible)... up and what I wanna do. That's it. But if I said it happened after it happened ...(inaudible)... it happened after ...'

Malik: '...(inaudible)...'

Bandali 'Yeah. Makes a lotta difference. A lotta of difference, Malik.'

Malik: '...(inaudible)... She said it was Wednesday and it happened because, what is your thoughts on that.'

Bandali 'No, it happened on Sunday.'

Malik: 'Er.'

Bandali 'It happened on Sunday but, ah, I don't know a week later or, ...'

Malik: '...(inaudible)...'

Bandali 'A week and a half or something.'

Malik: 'No but ...(inaudible)...'

Bandali 'Yeah, ...(inaudible)...'

Malik: '...(inaudible)...'

Bandali 'I'm not gunna, and ya know what I said,..'

Malik: 'Yeah.'

Bandali '.. and I mixed it up, cos I said, I dunno, Wednesday, Thursday, I ...(inaudible)...'

Malik: '...(inaudible)... yeah, er, ...(inaudible)...'

Bandali 'Yeah, put some stuff in the car but you can, you can believe it's fucking anything, they can't do nothin'. But it's all mixed up, and they can't, I'm gunna put some oil in the car. They can't do anything. Where's the bucket, I need that bucket.'"

106 Following a visit by the police to the home of his brother in Sydney, Debs discussed the situation, on 14 February 2000, with Roberts and Nicole Debs:

"Bandali 'Oh, they wanted to know if, if, if she, what they're aft, what they're actually lookin' for is anybody who's got a Hyundai.'

Jason: 'Their probably asking them up there if they've got one that looks similar.'

Bandali 'Yeh. They're lookin' for a Hyundai up there now.'

Bandali 'No, but it makes it very hard cause you can't talk on the telephone. Ya know what I mean. I don't want to talk about those matters, but I want to, fuckin' know what's goin' on.'

Bandali 'Yeah, it is strange. Is very strange. Oh, the police say anything, ya know. The police tell me, oh, somebody said this and that. Well, youse get 'em in court and we'll stuff it. You, who said what. That's all you say to 'em. Get it in court and we'll say, who said what. What, what's this bullshit.'

Bandali 'What's that. If one, one what got taken. Yeh. No, no that's finished now. They're lookin'. This is what they're looking for. They're looking for, they're looking for a car which has got fuckin' holes in it and which ...(inaudible)... I'm talkin' many holes.'

Bandali 'I'm not talking one or two. Maybe 4, 5 holes. They can't come and hassle us for anythin' else. I mean the car's here.'

Bandali 'Well, they reckon they're lookin' for fif, fifty cars just in Victoria, which have disappeared.'

Jason: 'Disappeared.'

Bandali '50 Hyundai's. They just can't find them.'

Nicole: 'Oh, well they'll be thinking it's one of them. ...(inaudible)... it's obviously that colour, that they're, that interested ...(inaudible)...'

Bandali 'Yeh, but one minute. They said to my mother, does anyone own a red one or a blue one, or blah, blah, blah. Different colour or whatever. That means somebody's changed the colour of one of them. Do ya know anyone who owns a Hyundai.'

Nicole: 'What did your mother say.'

Bandali 'She said I don't, I don't, I don't look what, my mother said I don't look what, what sort of car anyone drives. I'm not interested. But they asked her who's car was that out the front. Said that's my car. Ya know, she's got a Toyota brown, brown Toyota. That, that, they asked her, do ya know anyone who's got a Hyundai or a fuckin' red one or a green one or fuckin' God knows what.'

Nicole: '...(inaudible)... Chrisy hasn't got one.'

Bandali 'No, no, no, no, nothing's got one up there. They're trying to link something. They're trying something very hard. Well, how much money are they spending runnin' around.'"

107 When speaking about the matter with his father, on 15 February 2000, he said:

"Bandali 'I think, I think they have to look, they're looking for some car.'

Malik: '...(inaudible)...'

Bandali 'They're not searching the right car.'

Malik: '...(inaudible)...'

Bandali 'I don't know, because they ask my mother, you know somebody who got red Hyundai or green Hyundai, you know what that means, you know somebody who changed the colour. They think somebody changed the colour.'

Malik: 'Mm.'

Bandali 'They'll be thinking everything.'

Unidentified male: (In background - inaudible)

Bandali 'If somebody changed the colour, they run to that car. Because they think they have changed it from blue to different colour. That means they'll be checkin' windscreens and everything all bullshit and - '

Malik: 'They look for the ...(inaudible)..., but they won't find it.'

Bandali 'Yeah, if that's why, that's why they think that it's gone through ...(inaudible)... the lead and the lead goes through, pass through it.'"

108 As mentioned earlier, the possible identification of the Debs vehicle as the Hyundai at the scene was the subject of a number of conversations involving the two applicants. For example, on 2 May 2000, Roberts and Nicole Debs were stopped by police who wanted to check the vehicle. They subsequently discussed the incident with Debs:

"Jason: 'He told me that before though. He goes, 'Oh, the reason we actually pulled. This is the reason. Oh, the reason we actually pulled youse over, not because ya goin' fast or nothin' like that. Um, it's cause we're after like this car'. I said, 'What do ya mean this fuckin' car?' He said, 'The 97 model Hyundai. We're after one of these'. I said, 'What the fuck for?' I go to him. He goes. (laughs) What the fuck for? He goes, 'Oh, um, er, it was used a couple of years ago like in'. I said, 'What?'. He goes, 'Ya know how two police got murdered. The people that murdered them were in a car like this one'.'

Jason: 'I said, 'Fuck me, you're fucken jokin'. Ya know about it?'

Bandali 'Fuck.'"

109 The various conversations in which the applicants engaged on this topic are also informative in that, as I have indicated, each of them demonstrated knowledge of the fact that no bullet passed through the windscreen into the car. Debs specifically referred to one that ricocheted off the metal. The overwhelming inference from the various discussions that took place concerning the vehicle is that both men were well aware of the circumstances in which the rear windscreen was damaged and its incriminating significance.

110 Their presence in Cochranes Road was accepted, or evident by implication, in several conversations between them. One, which also involved Nicole Debs, a daughter of Debs and the partner of Roberts, occurred on 31 May 2000. It was conducted against the background of the release, by the police, of a statement that they had received a telephone call from a witness to what had taken place.[17]

"Bandali 'No one was there but us.'

Nicole: 'It's someone fuckin' shittin. Why would they ...(inaudible)...'

Jason: 'Why would someone ring up and not give the details, just say that and then hang up.'

Bandali 'Nah, it's someone who's hasslin 'em.'

Nicole: '...(inaudible)...'

Bandali 'But what's act-, what's actually happenin' is, they're, they're playin' with 'em.'

Jason: 'Yeah.'

Bandali 'Someone's playin' with 'em.'

Nicole: 'Why.'

Bandali 'You know or.'

Joanne: 'Or they've just done that so.'

Bandali 'Or they've, they've pullin' a fasty.'

Joanne: 'Yeah.'

Jason: 'Just to see.'

Bandali 'Just to see.'

Joanne: 'Tryin' to scare someone.'

Bandali 'Just to see if people ring up or.'

Joanne: 'React to it.'

...

Bandali 'Oh, what did sh, ya know what did, did actually say, they, they reckon it could be somebody who seen whatever happened.'

Joanne: 'Yeah, as well like they.'

Bandali 'As well.'

Joanne: 'Or a relation or someone had seen it. ...(inaudible)...'

Bandali 'Yeah, but seen what happened. Now.'

Joanne: 'But an eye witness wouldn't actually know the identification of each person though.'

Jason: 'They'd have a number plate before they could see people in the dark.'

Joanne: 'Yeah, well that's it.'

Bandali 'So I'm fucked.'

Nicole: 'It's all, they're just contradicting themselves.'

Jason: '...(inaudible)... and no-one was there though.'

Bandali 'Huh.'

Jason: 'No one was there.'

Bandali 'I'm not interested.'

Nicole: 'It's all just contradictions.'

...

Jason: '...Let me finish the sentence off, it's not being unco, I know the person, I'm not after the reward of anything, but I know it's ...(inaudible)... um, it's relations. Oh right. Um, bye. What about if it was this person, oh, I'll give you a ring back. If someone's gonna ring up they wouldn't ask 'em to ring back. Saying stuff like that, they'd finish the whole fuckin, whatever happened you know, to the cops. The cops are playin' with the public or someone from the public's playin' with the fuckin' cops. One of the two.'

Nicole: 'Yeah, it's either one of the two.'

...

Jason: 'They want money.'

Bandali 'No, no, no, no what they're doin' is they're ringin' up or something like, every time, see when the cops say we need information for, this and that, cunts, cunts just ring up, oh, but, but one, one, one minute. This is what makes me laugh, they detail to the CP's that, how it happened and nobody can know that.'

Joanne: 'No. The person that rang up.'

Bandali 'Yeah.'

Joanne: 'Said that, said how it happened right, and it was consistent with the way the police thought it happened.'

Bandali 'So that means, somebody can.'

Joanne: 'Ya know what I mean.'

Bandali 'No. So.'

Joanne: 'No, the police have an idea, they think they know how it happened, of course.'

Jason: 'Yeah, and I've seen two of their ways that they...'

Joanne: 'And.'

Jason: '...think it happened, and it's fuckin' backwards.'"

This conversation can, I think, be reasonably described as typical of the discussions that took place between the two men as they followed reports of the progress of the investigation.

111 As part of the same process of disinformation, shortly afterwards, the police released a photo image closely resembling Roberts, with the intimation that a witness had seen the person depicted. Debs and he discussed, on 17 July 2000, whether he should approach the police in consequence. Roberts said:

"Bandali 'Talk like a cockhead.'

Jason 'That's what I'm gonna do. Fuckin oath. We decided.'"

The implication of joint involvement evident in this passage emerges in several conversations between them.

112 For example, the proposed visit was further discussed in Deb's motor car on 18 July 2000:

"Jason: 'Yeah but it's all bullshit tomorra, Ben.'

Bandali Oh just see what the fuck, ah, ah-ha, Oh, just fuckin'. Well if it was serious, they would have come and seen you.'

Jason: 'Yeah, they've asked,- they didn't even bother. They asked me when was the ...(inaudible)... do ya know what I mean? Yeah.'

Bandali 'They seem to be too nice about it, don't they? Fucked if I know. But what I like to know is where they, how after two years they got a picture...'

Jason: 'They just took a photo.'

Bandali '...picture like that. And what about the other picture of the cunt with long hair?'

Jason: 'Yeah, that was meant to shoot him and all this shit? And then they come up with that one, ya know what I mean?'

Bandali 'Nah, it's got me bluffed. And what's this about alibis? This way?'

Jason: 'Nah, go up and then we'll go, go to the factory there.'

Bandali 'One minute. What - what's this shit about alibis?'

Jason: 'Oh, just on the thing, it's just shit Ben. They've fucked it. Don't worry about nothing like that. It's no comment on that anyway Ben.'

Bandali 'But you've already made a statement.'

Jason: 'My boss reckons, right,..'

Bandali 'mm'

Jason: '... that they've got someone in mind. He read it, he sat in the car and read it this morning. Ya know when you rang?'

Bandali 'Yeah.'

Jason: 'Yeah, he sat in the car just reading it. He reckons.... they've got someone, right, he said, because it's full of shit he said.'

Jason: '...About South Australia and everything. So they're watchin' someone, do ya know what I mean? Thinking they're South Australian, they've put ...(inaudible)...thinkin' that they'll slip and shit. Is that it.'

Bandali 'Which one? Oh, further up.'

Jason: 'Yeah.'

Bandali 'Ya reckon? Oh, fuckin','

Jason: 'No they won't catch up with me mate, they're fuckin' with the cunts. The same um, ...'"

Versions given by Deb's and Roberts as to the circumstances under which the rear windscreen was damaged

113 I have earlier mentioned the demonstrably untrue version given by Debs to the police to the effect that the windscreen was damaged on Wednesday 19 August.

114 Mark Spiteri first met Roberts when they became workmates some months earlier. Roberts was 17 years old, and they shared an interest in cars. Spiteri recalled an occasion on which Roberts asked him where he could obtain a rear windscreen for an Hyundai. Spiteri suggested that he should go to Elite Windscreens in Narre Warren. Roberts told him that "Ben" (Debs) had put "a heap of tools" in the back and closed the hatch whilst one of the tools was protruding out too far, causing it to smash. He said that he was told by Roberts that the windscreen had broken on more than one occasion, and that they had tried to "fix it up [themselves] to save money" but that "it blew out".

115 Raymond and Melinda Fardon were the next door neighbours of Nicole Debs and Jason Roberts. Their houses had a common driveway. Raymond Fardon met Nicole's father who was introduced to him as Ben. He said that Debs and Roberts often left the house together between 8:30 and 10:30 during the evening and about three or four times per week. They usually took Ben's car, a Holden VC Commodore station wagon. Roberts drove a Ford SLR Torana and Nicole a dark blue Hyundai hatchback. Melinda Fardon remembered that Debs would regularly visit the house next door at around 7 or 8 p.m. and sometimes leave with Roberts at about 9:30 p.m.

116 The evidence indicated that Roberts gave three different versions over one month, concerning the broken rear windscreen, to Raymond and Melinda Fardon. They were:

1. The heating element had been smashed by a stone from a truck;

2. Ben had dropped a tool box on the back of the window screen; and

Sightings relating to the Hyundai Excel OJI 862 with a broken rear windscreen

117 Kirsten Hetherington stated in evidence that, in 1998, she resided with her partner, Denis Catherine, in Jaguar Close. In August 1998 a house was being built opposite to where they lived. On one evening, when they were returning home at about 10 p.m., she noticed a car on the nature strip in front of the house opposite. Its back window was missing. She had not noticed this vehicle previously. She noticed that there were glass fragments left around the rim, but that most of the glass was gone. She thought that she saw this vehicle early in the week, either Monday, Tuesday or Wednesday and about a week after 8 or 9 August, when her boyfriend had undergone a knee operation. The observation may have been on the Wednesday of that week as, according to her diary, she was not working on that day.

118 Denis Catherine gave evidence that as they were returning home at about 9 or 10 o'clock one night, he saw, opposite their house, and in front of a house under construction, a small dark car that looked like a Hyundai with no rear windshield. He said that there was only a little thin bead of glass around the rubber seal. When he left his home on the next morning, the car had gone. This sighting was made, he said, probably within two weeks after his operation.

119 Robert Jamieson was living with Hetherington and Catherine in 1998. He also noticed the car with the smashed back window opposite the house, when he was returning home from work on a weekday at around that time between 2.30 and 3.30 p.m. He noticed that there was a fringe of glass around the edge of the window.

120 Lisa Thomas was living at Jaguar Close in 1998. One day, while driving up the street in her car, she noticed, in her rear vision mirror, that there was a car parked facing down the hill, where a house was being built. Its back windscreen was broken. She knew it was a weekday because her husband was not home and he worked during the week. When she returned, the car had been moved to the other side of the road, and was parked facing the other direction. She noticed again that the rear windscreen was broken and she thought there were two people in the vehicle. She stated that these observations were made at around the time of the shooting of two police officers. They would have been made somewhere between a Monday and the following Wednesday and before lunch time. She thought that the car was a dark blue Hyundai.

121 Kevin Milbourne commenced work on a building site at Jaguar Close, on 19 August 1998. At about 9.30 a.m. on that morning, he noticed an ivory coloured Commodore station wagon parked outside the premises. He asked the person in it whether he was "Ben the tiler". The person said "Yes" and asked how he knew that. Melbourne replied that "Peter the plumber" had requested him to say "hello". He probably spoke to this person for about 5-10 minutes and never saw him again.

122 Emad Farag was engaged to build a house in Jaguar Close. It was constructed between January and August 1998. During the building he sub-contracted part of the work to a tiler called Ben (Debs). He saw members of Ben's family there on a couple of occasions and Ben told him that the people present were his wife, daughter and another man. They would come to the site in an Hyundai car. Farag had the responsibility to ensure that the area was kept clean and tidy, including the nature strip. He did not recall seeing any automotive glass lying outside at any time.

123 Phillip Luckman worked with "Ben the tiler", on the site. He had also worked previously with Debs at other locations. They carried out their tasks in adjacent rooms, but would have breaks or lunch together when they would chat. He recalled that, on one day, Debs had lunch with his daughter. Luckman did not have any recollection of Debs mentioning to him that he had broken the rear windscreen of his daughter's car at the site.

124 Les and Alina Kopers built their house in Jaguar Close in 1998. There were a number of tradesmen involved. A tiler, who drove a light coloured station wagon was one of them. One day Les Kopers noticed that some people came to visit the tiler in a blue car. He was not sure, but thought that they may have been a man and a woman. On another occasion, his wife and he were driving along Jaguar Close when he saw a car, which had some damage to the back windscreen, parked near their house. Initially, it appeared that all of the glass was missing but he then noticed that there was some remaining. He thought the car was parked on the other side of the road. His wife remembered it as being parked on the nature strip next door to their house and said it looked like a late model Hyundai Excel.

Further responses of the applicants to the investigation

125 The inference that each of the applicants was implicated in the deaths of the two deceased can be seen to be strengthened by their respective responses to the investigation as they followed it in the newspapers. It is necessary only to refer to passages earlier set out to illustrate this point. However, there were a number of other statements made that carried the same implication. On a number of occasions, Debs expressed the view that further police should be killed in order to confuse investigators. The first recorded expression of this thought took place almost immediately after he had become aware that the police had called at the home of his brother Robert, in Sydney, and that they proposed to talk to his mother as well. It is apparent from the recorded conversations that he was troubled by this turn of events. He discussed the situation with his daughter Joanne at his home on the night of 11 February 2000. In the course of their conversation the following exchanges took place:

"Bandali 'Look, listen Joanne. I don't want you to worry or anything, but I'm telling you straight. Within the next 6 months we're goin' to have to get rid of a another 2 CP's, listen.'

Joanne: 'You need some luck.'

Bandali 'No, no, ya know why? To make the investigation to spread stupidly.'

Joanne; 'Yeh, but what for, they've already been here.'

Bandali 'Ah.'

Joanne: 'Right. They've questioned, taken the car. If they found anything on that car, don't you think that they would have been fuckin' pullin' you'se both into the police station by now.'

...

Bandali 'Look, um. Look, let me just say one thing. The cops are desperate to solve any case.'

Joanne: 'Fair enough, but it's been how long now?'

Bandali 'Yeh, but you don't understand, Joanne. How they solve case sometimes is after 18 months, 2 years, 3 years, when they go and search places, blah, blah, blah.'

Joanne: 'Yeh, but what are they going to find?'

Bandali 'Fuck all here.'

Joanne: 'That's right ...'

Bandali 'Fuck all at Robert's place.'

Joanne: 'That's right, that's right. So what are you worried for about, ya know, others?'

Bandali 'Those things have disappeared, what have been used. Beg ya pardon?'

Joanne: 'Could they have been found?'

Bandali 'Na. One was cut up and one's put in the fuckin' lake, water keeps on flowin' everywhere, and over a period of time, they degenerate, they acetate and inside the barrel and everything they get a different reading if it was fired again. But, ah, what's got me fucked is why the Homicide Squad, hmm.'

...

Bandali 'Oooh. Robert's goin' to ring me tomorrow night. Oh, fucked if I know. They just can't go and search anyone's place like that can they? Unless they've got a really.'

Joanne: 'Yeh, but what ...(inaudible)... they're not goin' to find anything.'

Bandali 'there's nothing at Robert's place but at my mother place there's stuff in the ground but they won't find it.'

Joanne: 'They would not be looking in the ground, would they?

Bandali 'They'll be looking through the place.'

Joanne: 'Yeh, it's right ...(inaudible)... digging, where ...(inaudible)... the back.'

Bandali 'Underneath the house stumps.'

Joanne: 'Huh?'

Bandali 'Ya know the stumps for the house?'

Joanne: 'Under that?'

Bandali 'Yeh.'

Joanne: 'How the fuck did you get it under there, must have been digging for days.'

Bandali 'No, no, I know what to do. Um.'

Joanne: 'They would not look there. That would be the last place they'd look.'

Bandali 'They're just goin' to look through the house.'

Joanne: 'Yeh.'

Bandali 'But remember, Bernard's died. He's got a few guns inside the wall.'

Joanne: 'He's got ...(inaudible)...'

Bandali 'Yes, they belong to him. And he's got,. There's a few hand guns there as well, in, yeh, they belong to me, but.'

Joanne: 'Oh she'll just say their his.'

Bandali 'They're his and he's died.

Joanne: 'Yeh, same as anything that they find, even if they do happen to dig, I don't now it must have been Bernards, that's it.'

Bandali 'Mm Ya fuckin' oath...'

Joanne: 'Ya see without evidence, like I mean hard evidence without ..'

Bandali 'But why would the Homicide Squad be going?'

...

Joanne: 'You don't even know if it's about that?'

Bandali 'But the Homicide, the Homicide Squad's just not going to go there for nothing.'

Joanne: 'Maybe they think he's killed someone?'

Bandali 'No.'

Joanne: 'You don't know who he knows.'

Bandali 'No.'

Joanne: 'What?'

Bandali 'I have to disagree with that it has to do with something because he would not say anything on the phone, he's, he basically said how, how I could it, it's got something to do with the CPs, the 2 CPs that went down, but he would not, he would not say that.'

Joanne: 'Oh.'

Bandali 'Verbally.'

Joanne: 'Yeh, but it could be anything. Why don't you just wait and stop fucking worrying about it and wait til ..'

Bandali 'I'm not worried, ...'

Joanne: 'Yeh, well?'

Bandali 'Uh.'

Joanne: 'Look don't do anything fuckin' stupid. You don't ...'

Bandali 'But I'm telling you now, if this continues like this, on this matter, 2 CPs have got to go down somewhere, so the investigation goes, stupid.'

Joanne: 'Yeh, but where it's gotta be far, though?'

Bandali 'It's got to be out of this area.

Joanne: 'Hm.'

Bandali 'It could be.'

Joanne: 'Across the other side of the city.'

Bandali 'On the other side of the city.'

Joanne: 'That's where it's gotta be though.'

Bandali 'Yeah.'

Joanne: 'It has to be.'

Bandali 'Yeh. So it fucks the whole situation up and we can't go through E tag or anything like that.'

Joanne: 'Yeh, but you ...'

Bandali 'Back roads and that's it. I'm tellin' ya.'

Joanne: 'But then I don't reckon there's goin to be any need. Seriously, I don't reckon there will. Just wait and see what he says tomorrow, when he calls you.'

Bandali 'We'll discuss it, tomorrow night. Don't say one word to your mother.'"

126 The possibility of killing two more police members for the purpose of derailing the investigation was raised on the following morning, on 12 February 2000, in a discussion with his father:

"Bandali 'I'm telling ya, another 2 have to go.'

Malik 'They make worse.'

Bandali 'To make it.'

Malik 'Make worse.'

Bandali 'No, not really. They don't know what to do then. Na, it won't make it worse, what'll happen is, they won't know what to do. I tell you that's what gotta happen. To make it too big, have to another two go down.'

Malik 'You have to. They have to get down. They, they don't stop.'"

...

Bandali 'That's the biggest case they're got. They're not interested in any other cases. Ya know that.'

Malik 'I know. Because that matter is too big to them.'

Bandali 'I'll fix it, don't worry.

Malik 'No, you don't go and do nothing. You'll make ...(inaudible)... worse.'

Bandali 'No, no, no, no, no. Another 2 have to go, in time. Traffic or anything Malik. Have to go. But not in this area. Have to be on the other side. Have to. Because you remember that one big robbery, I met this ...(inaudible)...

Malik 'But, I want say something. If ...(inaudible)... can't get off.'

Bandali 'Take it ...(inaudible)...'

Malik 'Mm.'

Bandali 'You can't, you get rid of it straight away. In the water.'

Malik 'Yes.

Bandali 'Straight away. Soon as it's done, straight in the water, in the. Ya, ya know the Yarra. Doesn't matter who stop, you can be anyone. They can't stop every car, and you can't go, you can't go on that new highway, ya know where the beeper is. Cause that, every car that passes from there, they got the number. Ya know why they done that. To catch people.'

Malik '"The, the ...'

Bandali 'That's like security thing.'

Malik 'But doesn't ah, ...(inaudible)...'

Bandali 'Ordinary roads, nothing. Just on the new freeway.'"

He returned to this theme of the creating of confusion by the killing of another police member in a conversation with Roberts and Nicole Debs, on 2 October 2000, after he had accidentally encountered Detective Sergeant Thomas, one of the investigators, in a supermarket:

"Bandali 'But there's no way he would have been followin' me around with me all day. And like the fuckin' bigger copper, "How ya goin?" "Huh, well, hey how are ya? Ya know, but I said, "Oh how ya goin' bludger? What's happenin'? Oh nnnothin', um. Then straight away I said, Did ya catch those two arseholes yet? Ooh, um, nah. I said what about the Hyundai? What's goin' on? Ya know cause we're gotta buy a new one. He goes oh, oh whwha he, he just about went to say it and he says, ' Oh we got a lot of leads, we've got leads. I said beautiful, fantastic. So they must be runnin' round'

...

Bandali 'So that's very interesting I'd like to know where this cunt lives. He's livin' very close to the shopping centre,.. Jase.'

Jason: 'What'

Bandali 'He's livin' very close to the shoppin' centre'

Nicole: 'Probably'

Bandali 'A, I think he went for a little jog'

Jason: 'I wonder where he lives'

Bandali 'Huh'

Jason: 'I'd love to know'

Bandali 'Oh yeah, and get him.'"

He spoke to his father about this encounter, which clearly had unsettled him, on 15 June 2000:

"Bandali 'You know what I can do? I can find out where he lives and get him.'

Malik: '..(inaudible) ..'

Bandali 'Oh, yeah. Oh yes, I think I can.'

...

Bandali 'No, he did not actual-, he, he remembered me but he did not remember what I was doing'

Joanne: 'Yeah'

Bandali 'So that means, that they're not actually really investigating me.'

Joanne: 'Yeah'

Bandali 'Do you know what I'm tryin' to say?'

Joanne: 'Hmm'

Bandali 'Otherwise he'd know every detail about me'

Joanne: 'Yeah'

Bandali 'Cause if, cause he said um, he said, "Oh, what are ya doin'?" I said, "I'm doin' rooves, plasterin', tilin', rooves." He said, "Oh whatever comes along?" I said, "Yeah just clean up the people and give 'em a lolly pop." He just looked at me. That's how you've gotta talk to the people. Fuckin' hell. But he was mainly the boss there. He was the one that tried to take Nicole in the car. Nicole never said anything, anyway.'

Joanne: 'Mmm'

Bandali 'You know what I mean?'

Bandali 'Very interesting, Joanne'

Joanne: 'Hmm'

Bandali 'Very, very interesting. He's livin' in Berwick. So that means he's a family man, in Berwick. That, that will be easy'

Joanne: 'How old is he?'

Bandali 'He's very close to fifty.'

Joanne: '...(inaudible)...'

Bandali 'I'll have to get rid of him.'

Joanne: '...(inaudible)...'

Bandali 'Huh'

Joanne: '...(inaudible)...'

Bandali 'What?'

Joanne: '...(inaudible)...'

Bandali 'No, I, I think I'll have to.'

Joanne: 'Mmm'

Bandali 'Find out where he lives and kill him.'"

127 The idea of killing one or more police members had clearly not been forgotten by Debs as he returned to it over a month later when, on 22 July 2000, he spoke with another daughter, Kylie:

"Bandali 'Another two CPs are just goin' get dropped'

Kylie: 'Oh, and they will think it's the same people'

Bandali 'No, it's goin' be just all fuckin blown apart'

Kylie: 'What do you mean blown apart ?'

Bandali 'What are they goin' to do? They're not goin' to know what the fuck's going on.'

Kylie: 'maybe'

Bandali 'Maybe '"

128 On the same day he had a conversation with his wife, Joanne Debs:

"Bandali 'I tell you what, I tell you what, anybody who's been jogging and has got a ...(inaudible)... shirt, been sweating a bit, no way he's going to get, drop in a supermarket and get some stuff for a friend. No way. He's livin' in Berwick. Don't give a fuck what anyone says. And I'm gonna find out where he lives. I'm fuckin' serious. I'm gonna find out where he lives. Then I'm gonna fix the cunt up. Ooh yeah. '

...

Bandali 'This cunts a smart arse. I'm tellin ya.'

Joanne: 'Don't worry.'

Bandali 'Oh, do ya think I'm worried. I might look for where he lives.'

Joanne: 'What fuckin' for?'

Bandali 'Well if something happens, they're gonna say fuck, he must be involved. ...'"

129 The reference to Thomas who had seemingly become the focus of attention by Debs, as being potentially regarded as "involved" related to a possibility adverted to by Debs and Roberts in earlier conversations that the investigation might be diverted as a consequence of disclosures being made at around that time concerning corruption in the Victoria Police. In a conversation with Roberts at Narre Warren, on 11 May 2000, for example, he described a media report concerning a raid on the St Kilda Police Station by investigators as "very interesting", saying to Roberts "they goes' blame the police on a lot of things". When speaking to his father and his daughter, Kylie, on the following day, he said:

"Bandali: 'Listen, all this stuff that was found was it in the Detective's division?'

Kylie: 'Yeh. And in one of the um, like, squads and that. Like, ya know, the Embona Taskforce.'[18]

Bandali: 'Embona?'

Kylie: 'Yeh. Taskforce.'

Bandali: 'You know what they're investigating don't you?'

Kylie: 'No.'

Bandali: 'I want to read all that shit. Fuck.'

(inaudible conversation)

Bandali: 'There'll be a big stink about that.'

Kylie: 'Yeah, ...(inaudible)...'

Bandali: 'They'll disband Embona. And they'll, um.'

Kylie: 'Mm.'

Bandali: 'They'll have to disband the squad. Mm?'

Malik: '...(inaudible)...'"

"Malik: 'Maybe they put on those two police.'

Bandali: 'I think so.'"

Later, on the same day, he mentioned this development to Roberts:

"Bandali: 'Ya know Embona.'

Jason: 'Yeh.'

Bandali: 'Those two cops were in the same squad.'

...

Bandali: 'Yeh, but don't you understand. The Embona squad ...'

Jason: '...(inaudible)...'

Bandali: '... was the same fuckin' squad runnin' 'round all the restaurants.'

Jason: 'Was it.'

Bandali: 'Exactly the same fuckin' squad.'"

...

130 On 31 May 2000, Roberts and he again referred to the possible confusion created by the various disclosures and allegations of police corruption with the clear intimation that they could operate to their advantage.

Bandali: 'D'you know who was talkin' about it. You know the guy who fixed my car, I never even mentioned it.'

Jason: 'Yeah, he was tellin' me right, that the crooks, they would have been the ones, the ones that were involved in this big scam.'

Joanne: 'Yeah, that's what.'

Jason: 'The drugs at St.Kilda.'

Bandali: 'Yeah.'

Nicole: '...(inaudible)... since that's been, been brought up at the St Kilda, everyone thinks they're, they were just crooks.'

Jason: 'Yeah, everyone thinks they were crook, ya listen to 'em.'

Nicole: 'Yeah.'

Jason: 'Everyone thinks they were crooks and that they fucked someone off so.'"

"Jason: 'At the moment, do you know what the prosecution's on, if it was a couple of crooked cops.'

Bandali: 'Yeah.' (laughs)

(Joanne and Nicole inaudible conversation in background)

Jason: 'Because they were gonna dob on the forensic you know what I mean, so the two, the cops got rid of 'em or whatever.'

Bandali: 'But that, there's so many.'

Nicole: '...(inaudible)...so, have to prove it.'"

131 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.

132 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."

133 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.

134 It was the Crown contention that the ten armed robberies, which formed the series investigated under the name of Operation Hamada, had been carried out in a remarkably similar fashion and hence, by one partnership. They were committed over a five-month period between March and July of 1998, either at a weekend or on a public holiday.[19] Each of the premises was described as an "easy" suburban target. At none of them was there any form of security arrangements in place and, by reason of their location, all were relatively isolated. All were situated in the eastern and south-eastern suburbs of Melbourne. The robberies were committed, in each case, near the closing time of the business concerned when there was likely to be a substantial amount of cash on the premises and when most, if not all, of its customers would have been expected to have left the premises. All of the businesses robbed were located on main roads, or adjacent to a main road that allowed for easy reconnaissance, access and escape.

135 All of the robberies were carried out by two men and in nine of them both of the offenders were armed with handguns (in the other only one gun was sighted). Where witnesses were able to distinguish between an automatic type of handgun and a revolver, the offender who gathered the money in every case held a revolver. Revolvers were positively identified as employed in five out of the ten robberies (some witnesses described the weapons as handguns and two described seeing automatics). In four of the robberies which occurred in the last half of the series, a revolver resembling a Webley and Scott brand was used. All four sightings were within seven weeks of the shootings.

136 In all of the robberies, the victims were herded together and forced to lie face down. On several occasions their hands and feet were secured filament tape.

137 In all of the robberies, save one committed at the Jumbo Chinese restaurant in Blackburn, there was evidence of a division of labour between the two offenders. One of them would make the demands and gather the money, while the other one taped the victims and watched over them. The offender who took upon himself the role of interrogating the manager, or the person who he believed to be in control, and perhaps therefore have access to the money, also assisted with the taping on occasions.

138 On most occasions, the takings were obtained after interrogation of the person in charge, being either the manager or the owner of the business. That interrogation invariably involved the offenders demanding to know the location of the money, whether there was a safe on the premises, compelling the person in charge to collect the money and then generally asking questions about the success of the day's trading.

139 In most of the robberies, the offenders wore matching disguises. In the first of them, one wore a cap and sunglasses, while the other was equipped with a balaclava and sunglasses. At another committed at the Sportsmart store in Noble Park, stockings were used. In the robbery at the Treasure restaurant in Nunawading the offenders concealed their features with horror masks. In the robberies carried out at the Kuali-Indi, Jumbo, Jade Kew, Red Rooster, KFC and Green Papaya restaurants, the offenders wore masks, at least one of which was of a political figure, such as a former US president or Bob Hawke or both.

140 In nearly all of the robberies, one of the offenders was observed by the victims to be noticeably taller and heavier in build than his companion. He was generally described as being medium to solid build and placed in the upper five foot to six foot height range. The shorter offender was usually described as being thin and placed in the middle five foot height range. The taller offender was also described as appearing a deal older than his shorter companion.

141 The evidence of victims was to the effect that it was invariably the taller of the offenders who demanded and gathered the money while the shorter, thinner person controlled and taped the victims. It was also the heavier, taller offender, who appeared to the victims to be the leader. He was often described as being firm, aggressive, confident and in control. On the other hand, his companion was said to have been quiet during the robberies, to have been more compliant, and was, on occasions, heard to be seeking directions from the taller man. In a number of the robberies, the taller, bigger man gave directions and orders to the younger one about the taping of the victims; sometimes asking whether he had completed that particular task.

142 Most of these features, particularly when separately considered, could be reasonably regarded as common incidents of the crime of armed robbery. However, the prosecution contended at the trial, in combination with each other and some that could not be so described, including the relative differences in age, build and the apparent relationship between the two offenders, the inference that the same two persons were involved could be drawn. There were variations in the descriptions of the offenders and in the manner in which some of the offences were carried out, but they were not such, it was said, that reaching this conclusion would be unsafe.

Evidence implicating Debs and Roberts as the Hamada robbers

143 Roberts was aged 17 years and Debs was 47 years at the time of the Hamada robberies. Roberts' prison photograph shows him to be 174 centimetres, or fractionally 5'8" in height. According to Debs' passport, which was prepared from information he provided in 1975, he was 183 centimetres tall, or six feet. According to the photograph taken in the Metropolitan Reception Prison his height is 183 centimetres. The accuracy of the photograph was challenged and the defence adduced evidence from Simon Sostaric who measured Debs and said that he is 178 centimetres with his shoes on, or five foot ten.

144 Professor Spring, who was also called on behalf of Debs, unremarkably, said, that the perception of the height of a person can vary depending on the angle from which the observations are made. If the observer is positioned lower than the subject, then there will be an exaggerated, or at least unreliable, impression of height. In most instances, the victims of the armed robberies provided estimates of height made when they were lying on the ground looking upward. All of the victims, however, maintained that there was a height and build difference between the two offenders. A video-recording and photographs taken at Roberts' 18th birthday party during the week following the murders was tendered to indicate the difference in height and build between the two men.

145 Debs was identified as the older offender in the Bevics armed robbery by one of the victims, Tracy Chadwick, from a video identification parade. The reliability of this identification was challenged and the judge's instructions with respect to it are the subject of the grounds of appeal. I will return to this aspect.

146 In a listening device recording provided to the jury[20], Debs told his daughter Joanne he had buried "stuff" in the ground underneath the stumps of his mother's home. There was evidence that early in the second week of November 1998 he travelled to Sydney where his mother's house was located. A search warrant was executed following his arrest and a .44 calibre Smith & Wesson revolver identified by Allen Kishere and Ken Pullin as being similar to the weapon used by the larger offender in the Bevics armed robbery was found in a bucket buried underneath the stumps of the house. This evidence is the subject of a ground of appeal. Also found in the bucket were a ring and necklace identified by one of the robbery victims, Han Trinh, and his mother, Bich Ly, as jewellery stolen from Han Trinh during the robbery committed at the Jumbo Chinese restaurant.

147 There was evidence of a telephone call being made from the Debs' home in Wantirna to the Bevics store on the Saturday before the robbery.

148 Roberts was identified as the younger offender in the Sportsmart robbery (the second in the series) by one of the victims, Olivia Coffman. This evidence and the judge's instructions with respect to it have been challenged. I will also address these aspects later.

149 Coffman stated that she had seen the two offenders approaching the store from an alleyway without any disguises and that she could see through the stockings used to disguise their faces during the robbery. She recognised the younger offender but was not able to recall where she had previously encountered him. Roberts, when he was interviewed by the police following his arrest on 15 August 2000, told them he had been inside the Sportsmart store once when he was younger. He had also bought work clothes from a shop opposite Sportsmart. He said his mother worked in a shop nearby and he that had visited her there. Detective Senior Constable Tyler said that Mrs Roberts' work place was almost opposite Ian Street in Noble Park where the Sportsmart store was located.

150 Coffman prepared a F.A.C.E. image of the shorter, younger offender shortly after the robbery which the prosecution asserted bore a striking resemblance to photographs of Roberts at the time. She described him as having an undercut hairstyle with a ponytail. Roberts denied that he had such a hairstyle in his records of interview, however, there was evidence from work colleagues at DMS Glass gave evidence that he did have such a hairstyle around that time. His hairstyle was also the subject of discussion between Debs and himself in two monitored conversations. In one of them, they spoke about the production of a suitable photograph to the police in which his hairstyle was different. Another victim of the Sportsmart armed robbery, Vanessa Angus, also picked Roberts from a photoboard as being similar to the younger robber. This evidence is also the subject of grounds of appeal.

151 The applicants also demonstrated a familiarity with one of the Hamada targets, the Treasure restaurant. In their conversation on 14 June 2000, Roberts asked Debs:

Jason: 'Ya know where there's cops'

Bandali 'Where?

Jason: 'You know the Treasure'

Bandali 'Beg you pardon'

Jason: 'You know the Treasure'

Bandali 'Treasure what? Yeah, yeah, yeah yes'.

Jason: 'Up there all around there. Not, just about today at 4:30, just cops everywhere, not there, but just on the roads on Springvale Road up the top end there, ya know what I mean, up near Doncaster area there, I saw three cop cars on the way home. No body looks at the ute in the daytime. There's a work ute they'd be a 'trady'.. you know shit like'

The Treasure restaurant was located at what can be described as the Doncaster end of Springvale Rd.

152 There was evidence that the applicants had access to masks. In a conversation on 22 July 2000, Debs told Roberts to get rid of any unwanted items, in particular, "You've got the masks, you know, even if you get rid of those". That conversation occurred ten minutes after Detective Sergeant. Dean Thomas telephoned Debs and said that he was going to call around to see him. Further, a search of Roberts' premises following his arrest, on 25 July 2000, revealed the presence of two masks, one containing the DNA of Roberts. Neither of them, however, was identified as being used in the Hamada robberies and Roberts stated in his record of interview that he had had them since he was a child.

153 Filament tape of a similar kind used to bind a number of the victims of the Hamada armed robberies, was used by Roberts in the course of his employment at a company known as DMS Glass. The robbery at the Kuali Indi restaurant occurred approximately six weeks after Roberts commenced this employment. After the Kuali Indi robbery, filament tape was used to tape the victims in every robbery, save that committed at the Red Rooster store.

154 The applicants were jointly presented in the Supreme Court at Melbourne, in each case on two counts of murder. There is no need to set out in detail the history of the proceedings. It is sufficient to state that both the pre-trial and trial procedures were lengthy and relatively complex. Each of the applicants was represented by Senior Counsel throughout and virtually every imaginable issue appears to have been canvassed. The trial judge made a number of rulings in which relatively few of the contentions advanced in this Court were not addressed by him at one stage or another.

155 Very briefly formulated to the extent of possible over simplification, the Crown made the following contentions at the trial.

156 On the night that Miller and Silk were killed, the applicants were preparing to carry out an armed robbery at the Silky Emperor Restaurant in Warrigal Road, a typical target of the Hamada robbers.

157 The two men decided not to proceed, however, when they detected the presence of the car containing Silk and Miller in the car park of the restaurant. On being intercepted in Cochranes Road, and in order to escape apprehension, they shot and killed the two police members.

158 Based upon a careful examination of the scene, it appeared clear that Silk must have been shot, without warning, close to where his body was found. Further, it seemed highly likely that the first shot was fired by the person with whom he had been seen speaking on the nature strip. Miller then drew his police revolver and fired four shots in the general direction of the Hyundai where Silk and his assailant were positioned. He, in turn, was shot while he was between the rear of the Hyundai and the front of the police vehicle.

159 Although the perpetrators had escaped from the scene, clues as to their identities had been left behind. First, there was Miller's dying declaration in which he referred to two offenders and identified the car as a dark Hyundai. Second, there was glass, from that car, found at the scene. The glass fragments were collected and identified as coming from an Hyundai windscreen.

160 Following the investigations, it could be confidently stated that all Hyundai vehicles in Victoria, with the exception of that owned by Nicole Debs, the daughter of the accused Debs, were eliminated as being the source of these fragments.

(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.

162 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;

163 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.

164 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.

165 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.

166 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.

167 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.

168 The applicants concocted a story to explain how the original rear windscreen was smashed in an attempt to disguise the real origin of that damage. They also adopted each other's accounts of their whereabouts on the night of the shootings for the same purpose.

169 During the investigation, listening devices were installed in a number of locations, the first being placed in the Debs' home, at Narre Warren, on 20 November 1999. Over the period of time that these devices were operated, many hours of conversation were recorded by the police.

170 In some of the monitored conversations between Debs and Roberts, both applicants spoke about the shootings in clear and unmistakable terms. They discussed not only the events themselves, but also the police investigation into the shootings and spoke about various plans which were proposed to divert the police investigation and to make their detection more difficult.

171 There were a number of conversations in which both applicants left no room for doubt that each of them hated police with a depth and passion that was almost unimaginable. There were some in which Debs proposed that he should kill two more police officers in order to confuse and divert the investigations, and others in which Debs considered the possibility of killing Detective Sergeant Dean Thomas, who he accidentally encountered one day in a supermarket, for the same purpose.

172 The conversations also illustrated how each applicant seized upon totally unrelated news items concerned with the police in the hope that the necessity to direct police attention and resources to those other areas of crime might divert the investigators from pursuing them or might mistakenly lead them to conclude that Silk and Miller may have been murdered by drug dealers or corrupt police.

173 There were conversations in which the applicants hatched plans to deal with the police when the police come to them seeking information or desiring to ask them questions. There were strategies developed by the applicants to make themselves appear innocent and uninvolved in the deaths and, at times there was concern expressed about police activity and the progress of the investigation.

174 The manner in which the accused discussed the events, including the language that they used, the prosecution contended, left no doubt that they were talking about what had happened on the basis of first-hand personal knowledge.

175 The conversations which were monitored between the two applicants revealed that on many occasions they would go out together at night. Part of the significance of these nightly sojourns and the conversations which were recorded concerning them, the prosecution submitted, lay in the applicants' denials, during police interviews, after their arrests, that they did so.

176 Although the prosecution acknowledged that there were some differences between the circumstances and observations of witnesses with respect to the Hamada robberies, nevertheless, they were linked by an underlying similarity, pattern, unity and strength. The overall manner in which they were carried out was so strikingly similar, as to lead to the inevitable conclusion that the same pair of robbers was responsible for all the offences.

177 If the jury were satisfied that Debs and Roberts were the Hamada armed robbers and that the Silky Emperor was to be eleventh in that series of crimes then it provided assistance in reaching the conclusion that it was the applicants, not some other person or persons who were in the car park at the Silky Emperor Restaurant shortly after midnight on 16 August 1998.

178 The body of Hamada evidence proved a relevant association and relationship between the two men which in turn could assist in proving the identity and the respective roles played by them in the shootings as well as establishing a motive on the part of the two men to murder Silk and Miller.

The Cases Presented on behalf of the Applicants

179 Counsel for the applicants adopted a number of common positions on a number of matters, including the Hamada armed robberies; the isolation of the times and events that occurred at Cochranes Road; the inconsistencies in the evidence given by various witnesses of the armed robbers; the listening device material; and the question of whether there was only one or two offenders on the night in question. They also made clear from the outset of the trial that they challenged every contention advanced by the Crown as an indication of each of the applicants' guilt. Both contended that the Hamada evidence constituted a very important part of the Crown case as it bore upon the fundamental issues of identification and motive. However, it was submitted, the Hamada robberies were nothing more than a police construct linking a number of separate robberies that netted the relatively small sum of $31,382. The Crown's proposition that, in order to protect themselves from prosecution and keep the $31,382, the applicants killed two police members was, they argued, nonsensical.

180 Nor was the evidence concerning these robberies capable of assisting the jury in determining the identity of the persons who were present in Cochranes Road on the night of the shootings.

181 Even accepting that the Hamada evidence could be regarded as possessing relevance for one or other of these purposes, the evidence linking either of the applicants with any of the robberies was so weak that it could not be properly acted upon.

182 With respect to the issue of identification of Debs as one of the perpetrators of these robberies, his counsel questioned the varying descriptions then given by witnesses. Although he acknowledged that the power of observation can be affected by fear, it did not explain, he ultimately submitted in his address, the extent of variation in the descriptions of the "number one, older, taller perpetrator".

183 Similarly, counsel for Roberts emphasized the variations in the description given by witnesses of the "second" offender. With respect to the identification of his client by Ms Coffman, counsel for Roberts submitted that this evidence had to be seen as providing an unsafe and dangerous foundation for finding beyond reasonable doubt that Roberts was implicated, as the circumstances in which the witness made the identification raised a number of issues. No assistance could be derived by the prosecution, it was submitted, for evidence that in some of the robberies, the victims were bound with clear filament tape. Roberts had worked at DMS Glass where the use of such tape was common, but only a particular type and width of filament tape was used. None of the tape used in the robberies fitted that description.[21]

184 With respect to the items found under Debs' mother's home, in Sydney, his counsel submitted that Debs' brother Robert, who lived in Sydney, had a criminal record, and may well have been the source of the contents of the bucket.

185 Although some issues arose as to the precise expressions employed by Roberts, the central issues concerning the recorded conversations related whether, in view of the fact that there were many inaudible passages in them, the meaning of what was said could be safely discerned. Each, it was said, was "unfairly unclear".

186 The defence further submitted that the taped conversations were unfair in light of the way in which they were recorded, and the mass of media saturation that intervened between the event and the recording. The conversations took place at a time at which each of the applicants was aware that he was the subject of police attention. Against that background, a heightened interest in the progress of the investigation was hardly surprising. To some extent, animosity towards the police and a fear of wrongful implication in the killings could also be understood.

187 With regard to the conversations containing such expressions as "two CP's have got to go", counsel for Debs submitted that they should be dismissed as nothing more than the rantings of a "silly man" who disliked the police and was concerned about his situation, fearing that a vengeful police force needed a suspect.

188 Similarly, with respect to the taped conversations in which Roberts was a participant, his counsel submitted that his client was a 19 year old "block head" whose exaggerations should not be used to demonstrate his presence at Cochranes Road on the night of the police shootings.

189 Concerning the listening device transcripts and the conversations which demonstrated a degree of interest in the police investigation, counsel for Roberts submitted that his client commenced to direct attention to its progress at a time after 1 May 2000. This, counsel stated, was attributed to the level of police activity at the time as there were a couple of incidents where Roberts was either pulled over or cut off by a police car. Relevant also to his developing interest was the fact that a photofit image of him was released at the time.

190 The defence for each applicant and, in particular, that advanced on behalf of Debs, challenged the forensic evidence adduced by the prosecutor arguing that it provided an unreliable foundation for the finding that the Debs Hyundai was involved.

191 Debs' counsel criticised the manner in which the glass on Cochranes Road was collected and handled in that not only did the exhibit appear to change between finder and examiner, but neither of them weighed, measured, itemised, or calibrated it in any way. This glass was of crucial importance to the case against his client. Specifically the defence submitted that the evidence that tinted glass was found was suspect due to the previous exculpation, by scientists, of the Debs' Hyundai. He contended that the entire investigation was a litany of failures that were quite improperly addressed by the fabrication or misrepresentation of evidence by persons involved in the investigation. Whilst counsel for Roberts did not dissociate his client from this position, he did not advance the contention that there had been deliberate falsification or misrepresentation of evidence by those various individuals.

192 With regard to the enquiries concerning the purchase of a Hyundai within hours of the shooting from Mr Silk, it was the defence of Debs that there was no proof that it was he who made that call even though a call was made from the Debs' household. Further, if he was so desperate to purchase the tailgate of an Hyundai vehicle, he would have gone to great lengths in order to secure possession of that part. Instead the caller sought to purchase a whole car.

193 Noting that when Miller and Silk followed a vehicle out into Warrigal Road and then Cochranes Road, no radio communication was made by either of them, it was then argued in each case that they must have observed one occupant as otherwise they would have called for assistance. In support of this contention, counsel drew attention to the fact that neither Bendeich and Sherren saw a second offender. Counsel for Roberts also submitted that Miller only provided a description of one perpetrator, further lending support to the notion that there was only one person present.

194 With respect to the description of the person seen by Sherren and Bendeich, counsel for Roberts submitted that the description given by Bendeich did not match Roberts as there were discrepancies in the age, height and length of hair. Debs' defence also made a similar submission, in that the description given by Bendeich, the observer on the night and a trained officer, did not match Debs.

195 Counsel for Roberts submitted that Raymond and Melinda Fardon, Roberts' and Nicole's next-door neighbours, seemed a little confused from time to time about their observations and their evidence should be disregarded as unreliable.

196 During his police interview Roberts', at all times, the defence submitted, maintained his innocence. He didn't exercise his rights or give "no comment" answers, rather he was responsive to the questions put to him, in an interview that lasted hours.

197 Neither of the applicants gave evidence before the jury.

198 At the end of a trial occupying approximately four-and-a-half months, both were found guilty by the jury.

199 After hearing pleas in mitigation of penalty, the sentencing judge, on 24 February 2003, imposed terms of imprisonment for life for each of the offences. In the case of Debs, no parole period was fixed whilst his Honour directed that Roberts would not become eligible for parole for 35 years.

200 Each of the applicants now seeks leave to appeal against both his conviction and the sentence imposed upon him.

THE APPLICATIONS FOR LEAVE TO APPEAL AGAINST CONVICTION

"1. The learned trial judge erred in his directions to the jury concerning:

(i) the manner in which the jury was required to scrutinise, treat and/or consider the evidence of Ms Tracey Chadwick as to her visual identification of the Applicant as one of the armed robbers in the Bevics Auto Parts Shop armed robbery;

(ii) the manner in which the jury was required to scrutinise, treat and/or consider the evidence of Mr Ken Pullin as to his (circumstantial) evidence of identification of the Applicant as one of the armed robbers in the Bevics Auto Parts Shop armed robbery;

(iii) the dangers inherent in the said evidence of identification; and

(iv) the dangers of basing a finding (beyond reasonable doubt) that the Applicant was one of the armed robbers in the Bevics Auto Parts Shop armed robbery upon the said evidence of identification.

1. The learned trial judge, in directing the jury, failed to warn the jury either sufficiently or at all as to:

(i) the manner in which the jury was required to scrutinise, treat and/or consider the evidence of Ms Tracey Chadwick as to her visual identification of the Applicant as one of the armed robbers in the Bevics Auto Parts Shop armed robbery;

(ii) the manner in which the jury was required to scrutinise, treat and/or consider the evidence of Mr Ken Pullin as to his (circumstantial) evidence of identification of the Applicant as one of the armed robbers in the Bevics Auto Parts Shop armed robbery;

(iii) the dangers inherent in the said evidence of identification; and

(iv) the dangers of basing a finding (beyond reasonable doubt) that the Applicant was one of the armed robbers in the Bevics Auto Parts Shop armed robbery upon the said evidence of identification.

1. 3. The learned trial judge erred by failing to exclude the evidence of the visual identification by Ms Olivia Coffman of Roberts as one of the armed robbers in the Sportsmart armed robbery on 29 March, 1998.
2. 4. The learned trial judge erred in his directions to the jury concerning:

(i) the manner in which the jury was required to scrutinise, treat and/or consider the evidence of Ms Olivia Coffman as to her visual identification of Roberts as one of the armed robbers in the Sportsmart armed robbery;

(ii) the manner in which the jury was required to scrutinise, treat and/or consider the evidence of Ms Vanessa Angus as to her (circumstantial) evidence of identification of Roberts as one of the armed robbers in the Sportsmart armed robbery;

(iii) the dangers inherent in the said evidence of identification; and

(iv) the dangers of basing a finding (beyond reasonable doubt) that Roberts was one of the armed robbers in the Sportsmart armed robbery upon the said evidence of identification.

1. 5. The learned trial judge, in directing the jury, failed to warn the jury either sufficiently or at all as to:

(i) the manner in which the jury was required to scrutinise, treat and/or consider the evidence of Ms Olivia Coffman as to her visual identification of Roberts as one of the armed robbers in the Sportsmart armed robbery;

(ii) the manner in which the jury was required to scrutinise, treat and/or consider the evidence of Ms Vanessa Angus as to her (circumstantial) evidence of identification of Roberts as one of the armed robbers in the Sportsmart armed robbery;

(iii) the dangers inherent in the said evidence of identification; and

(iv) the dangers of basing a finding (beyond reasonable doubt) that Roberts was one of the armed robbers in the Sportsmart armed robbery upon the said evidence of identification.

1. 6. The learned trial judge erred in ruling that the evidence of the Hamada armed robberies was admissible.
2. 7. The learned trial judge erred in failing to exclude, in the exercise of his discretion, the evidence of the Hamada armed robberies.
3. 8. The learned trial judge erred in his directions to the jury with respect to:

(a) the circumstances in which the jury could use the evidence of the Hamada armed robberies in the trial of the applicant in the proof of the Crown case; and

(b) the manner in which the jury was required to scrutinise, assess, consider and use the evidence of the Hamada armed robberies.

1. 9. The learned trial judge erred by failing to give the jury any direction in relation to prior inconsistent statements.
2. 10. There has been a miscarriage of justice because the Crown failed to allege/specify as separate counts on the presentment each of the Hamada armed robberies.
3. 11. The learned trial judge erred in his directions to the jury concerning the motive alleged by the Crown by failing to:

(i) direct the jury that the motive relied on by the Crown had to be proved beyond reasonable doubt; and

(ii) direct the jury that if the motive relied on by the Crown was not proved beyond reasonable doubt, then there was no evidence of motive.

1. 12. The learned trial judge erred in his directions to the jury concerning the matters relied upon by the Crown as evidencing or constituting a consciousness of guilt on the part of the applicant and has thereby failed to direct the jury sufficiently concerning these matters.
2. 13. The learned trial judge erred in failing to give the jury any or adequate directions relating to admissions alleged to have been made by the applicant, including alleged confessions, lies and/or implied admissions of guilt, concerning the two crimes charged and/or the Hamada armed robberies.
3. 14. There has been a substantial miscarriage of justice by reasons of the Crown particularising the alleged roles of the applicant and Roberts in the commission of the two offences specified on the presentment for the first time in the Crown prosecutor's final address to the jury.
4. 15. The learned trial judge erred in his directions to the jury concerning 'aiding and abetting'.
5. 16. The learned trial judge erred in leaving common purpose to the jury as a basis upon which criminal liability might be imposed upon the applicant.
6. 17. The learned trial judge erred in his directions to the jury concerning common purpose as a basis upon which criminal liability might be imposed upon the applicant.
7. 18. The learned trial judge has failed to either explain or put, either sufficiently or at all, the defence case and, as a consequence, there has been a substantial miscarriage of justice.
8. 19. The learned trial judge has erred in that he has failed to leave to the jury for its consideration, as an alternative verdict on count 1, the offence of manslaughter.
9. 20. There has been a substantial miscarriage of justice by reason of the combination or aggregation of the defects or errors in the trial of the applicant which have been identified in Grounds 1-19 herein.
10. 21. The verdicts of the jury are unreasonable and/or cannot be supported having regard to the evidence and, as a consequence, there has been a substantial miscarriage of justice.
11. The learned trial judge erred in his direction to the jury concerning the dangers inherent in the (circumstantial) evidence of identification of a gun said to be associated with the applicant as having been used by one of the two armed robbers in the Bevics Auto Parts Shop armed robbery.
12. The learned trial judge erred in that he failed to warn the jury with respect to the (circumstantial) evidence if identification of a gun said to be associated with the applicant as having been used by one of the two armed robbers in the Bevics Auto Part Shop armed robbery."

"1. The learned trial judge erred by failing to order a separate trial of the applicant from the co-applicant Bandali Debs.

1. 2. The trial of the applicant miscarried because of the failure of the Crown in the final address to properly separate the evidence against the applicant from the evidence against the co-applicant.
2. 3. The learned trial judge erred in failing to properly direct the jury upon the evidence to be considered separately in the trial of the applicant from that evidence to be considered separately in the trial of the co-applicant.
3. 4. Alternatively to ground one, the trial of the applicant miscarried because the course of the trial was such that he did not have a fair separate trial form the co-applicant.
4. 5. The learned trial judge erred in ruling admissible evidence of the hamada armed robberies.
5. 6. The learned trial judge erred in failing to exercise his discretion to exclude evidence of the Hamada armed robberies.
6. 7. There has been a miscarriage of justice by reason of the failure of the Crown to allege as counts on the presentment the Hamada armed robberies.
7. 8. The learned trial judge erred in failing to properly direct the jury upon the principle of similar fact evidence in so far as it applied to the similarities between the Hamada armed robberies and the alleged proposed armed robbery of the The Silky Emperor.
8. 9. The learned trial judge erred in directing the jury that they did not need to be satisfied that the applicant was a participant in each of the Hamada armed robberies.
9. 10. The learned trial judge erred in his directions to the jury concerning the motive alleged by the Crown by failing to:-

(i) direct the jury that the motive relied on by the Crown had to be proved beyond reasonable doubt; and

(ii) direct the jury that if the motive relied on by the Crown was not proved beyond reasonable doubt, then there was no evidence of motive.

1. 11. The learned trial judge erred by failing to exclude the evidence of the visual identification by Olivia Coffman of the applicant as an armed robbery on Sportsmart on 29 March 1998.
2. 12. The learned trial judge erred in his directions to the jury concerning identification evidence, including failing:-

(i) to warn the jury of the dangers of relying on the visual identification evidence of Olivia Coffman of the applicant as an armed robbery on Sportsmart on 29 March 1998;

(ii) to warn the jury of the dangers of relying on the similarity evidence of Vanessa Angus of the applicant as an armed robbery on Sportsmart on 29 March 1998;

(iii) to isolate and identify the matters which affected and/or undermined the reliability of the evidence of Olivia Coffman and Vanessa Angus; and

(iv) to warn the jury in relation to the visual identification evidence of Tracey Chadwick and the similarity evidence of Ken Pullin of the co-applicant as an armed robbery on Bevics Auto part Shop.

1. 13. The learned trial judge erred in failing to give the jury any warnings concerning evidence of description of the alleged offenders in the Hamada armed robberies.
2. 14. The learned trial judge erred by failing to give the jury any direction in relation to prior inconsistent statements.
3. 15. The learned trial judge erred in leaving common purpose to the jury as a basis on which the applicant could be convicted when the alleged common purpose was said to be in respect of an alleged proposed crime which was called off and the possibility of shooting was in the course of either that alleged proposed crime or leaving or escaping from the scene of the proposed crime.
4. 16. The trial of the applicant miscarried because the jury or some of them may have convicted the applicant upon the basis of common purpose.
5. 17. The learned trial judge erred in failing to give the jury any or adequate directions relating to alleged admissions made by the applicant, including alleged confessions, lies and/or implied admissions of guilt, concerning the crimes charged and/or the Hamada armed robberies.
6. 18. There has been a miscarriage of justice by reason of the Crown particularising the alleged roles of the applicant and co-applicant in the commission of the two offences specified n the presentment for the first time in the Crown prosecutor's final address to the jury.
7. 19. The learned trial judge erred by failing to properly put the defence case of the applicant.
8. 20. There has been a miscarriage of justice as a result of the aggregation of the defects and errors identified in the above grounds of appeal.
9. 21. The verdicts of the jury are unsafe and unsatisfactory having regard to the evidence and, as a consequence, there has been a miscarriage of justice."

201 As a number of the grounds upon which reliance has been placed are related and, in substance, are common to the applicants, several can appropriately be considered together. I should add that, in relation to a number of grounds, the substantive arguments advanced have little direct connection to the grounds as expressed. It is to those arguments rather than the manner in which the grounds were formulated that I have principally directed attention.

202 The ground raises the complaint that the trial judge fell into error in failing to order a separate trial in his case.

203 An application seeking such an order was made prior to the empanelment of the jury, his counsel arguing that in a case in which the prosecution contended that there were two persons responsible for the deaths of the police members, certain evidence to be led by the Crown, which was inadmissible against his client, was so prejudicial that it would inevitably lead to unfairness of a kind and degree that could not be remedied by any judicial direction.[22] That evidence included, it was said, a confession by Debs to his father of his involvement in the murders of Silk and Miller and his discussion with family members of the possibility of killing Detective Sergeant Thomas or other police members for the purpose of complicating the investigation. Debs, it was pointed out, repeatedly referred in conversations with members of his family to the involvement of more than one person in the shootings. These references, counsel submitted, although inadmissible in the trial of Roberts, could well have been regarded by the jury as possessing a high degree of reliability and be accepted by them. Further, there was evidence of the discovery, in a bucket under Debs' mother's home in Sydney, of items linking him to two of the armed robberies, namely, a gun which witnesses described as similar in appearance to one used in the first robbery, and some jewellery taken from one of the victims of the robbery at the Jumbo Chinese restaurant.

204 There was no argument advanced before this Court that the trial judge failed to take into account any of the applicable principles of law or any of the considerations set out above. Rather, it was argued, he erred in the exercise of his discretion in several respects. First, it was submitted, his Honour underestimated the character and extent of the potential prejudice, that would almost certainly be attracted to Roberts, as a consequence of the conduct of a joint trial against that background.

205 It was claimed that his Honour failed to recognize that the case against Roberts was comparatively weak and that this arose not only from the smaller volume of admissible material in his case, but by comparison with the strength of that being presented against his co-accused. The judge, the argument proceeded, did not pay sufficient regard to the extent and significance of the differences in the situation of the two applicants or to the fact that the issues in Roberts' trial could be seen to be quite different from those presented in the case of Debs, specifically as Robert's defence raised the separate question whether the prosecution could establish that there was more than one person present in the intercepted car at Cochranes Road. There was a risk that the jury would be overwhelmed by the power of the case mounted against Debs and, in that situation, fail to address properly the difficulties for the prosecution when considering that of Roberts.

206 That a separate trial should be ordered in such circumstances is well founded in law and has been accepted in a number of authorities.[23]

207 Next, it was argued that his Honour overestimated the capacity of the jury to comply with judicial directions, and not to use hearsay material in the case of this applicant; and, finally, that undue weight was placed by him upon matters of convenience and cost at the expense of the fundamental objective of ensuring a fair trial to the applicant.

209 As His Honour pointed out in his ruling, it is accepted as generally desirable that all persons allegedly concerned with the one crime should be presented together in a single trial. Of course, that principle is subject to the limitation that where the presentation of an accused person in a joint trial would be calculated to cause injustice to that accused, a separate trial must be ordered. The critical question is whether a joint trial could result in an injustice, in the sense that the deliberations of the jury may be influenced by the presence of what they might perceive as powerful but which would, nevertheless, be inadmissible material in the case of the particular accused, or in which the position of the particular accused might be adversely affected by unwarranted exposure to the prejudicial impact of such material.

210 The trial judge was clearly conscious of the need to approach the question with care. I note that he directed specific attention to each of the matters upon which reliance has been placed in this Court, stating in his reserved ruling:

"The law is clear that generally when persons are charged jointly with an offence, then subject to prejudice their trial should be heard jointly and there are strong reasons both of principle and policy for such a rule. The rule is well established in authority that I do not need to recite in detail, in particular R v. Demirok [1976] VicRp 19; (1976) V.R. 244, Webb v R [1994] HCA 30; (1994) 181 C.L.R. 41, R v. Gibb and McKenzie [1983] VicRp 78; (1983) 2 V.R. 155 and R v. Vollmer & Ors [1996] VicRp 9; (1996) 1 V.R. 95. Particularly in Demirok at 254 the reasons for the rule were set forth, including the desirability to reach finality, the avoidance of inconsistent verdicts, the burden upon witnesses, and general principles of proper administration, including proper utilisation of court time and avoidance of unnecessary public expense. I must say that the most cogent reason in my view for joint trials, subject to prejudice, is that which was set forth in R v. Glover (1987) 46 S.A.S.R. 310 at 312 per King CJ, in whose judgment Jacobs J. substantially and Millhouse J. agreed, where His Honour said:

'....where two accused persons are charged with offences arising out of an incident in which they have both participated it is, generally speaking, highly desirable in the interests of justice that they should be tried together. It is, generally speaking, very unsatisfactory for jurors to have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. In order to arrive at the truth of the matter it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident. There are cases, of course, in which that important consideration has to give way to other considerations. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative but, generally speaking, participants in the same incident alleged to have been of a criminal nature or to have resulted in the commission of criminal offences ought to be tried together.'

"It is that insight into the duty of the jury to give a true verdict according to the evidence which is particularly cogent in the hearing of a trial of co-offenders together. That is highly desirable in the interests of the administration of justice. Here, if the critical issues are in respect of the second accused, (1) were there two shooters, and (2) if so was he one of them, it is highly desirable that the jury have all admissible material before them in relation to that matter. Numerous cases establish that where one accused seeks to cast blame on the other, it is desirable that, subject to prejudice, one jury hear the matter: R v. Grondkowski [1946] 1 K.B. 369 and R v. Vollmer & Ors which I have already cited. Plainly, it is in the interests of justice that the jury should have the whole picture presented to them, and not half of it, and should see the person on whom blame is sought to be cast, as well as the person seeking to cast it. The Crown also relies upon, as I have said, the concept of adoptive admissions, as contemplated in R v. Salahattin [1983] VicRp 49; [1983] 1 V.R. 521 at 527 per McInerney and Murray JJ citing R v. Smith (1897) 18 Cox C.C. 470 at 471 per Hawkins J., R v. Alexander [1994] VicRp 58; (1994) 2 V.R. 249 at 262-263 per curiam and R v. Gallagher (1998) 2 V.R. 671 at 697-699 per Ashley A.J.A.. It is notable in the listening device recordings that the personalities of the two accused appear to be different, and it is appropriate for the same jury to assess the demeanour and conduct of each accused, in the event such a matter of relativity becomes an issue in the trial, either generally, in relation to an issue joined with the prosecution, or in relation to the question of adoptive admissions.

Here, the cases against each accused are capable of clear definition: R v. Portillo [1999] V.S.C.A.70 per Phillips C.J. at para.27 and in whose judgment Ormiston and Callaway JJ.A. agreed and R v. Frugtniet and Frugtniet [1999] VSCA 58; (1999) 2 V.R. 297 at 328-329 per curiam. That again is an important matter in the decision as to the joinder or separation of two accused on the one presentment. It is easily demonstrable here, as a matter of law and fact, what is the admissible evidence against each accused, and a properly instructed jury, in my view, would have no difficulty in following such instructions, and in my view would also be well capable, psychologically, of fulfilling the judicial instructions as to admissibility. I see no reason to doubt that a jury would fulfil a judicial hearsay direction. That direction is clear and simple, the listening device conversations can readily be compartmentalised as to admissibility, and there is nothing in the material hearsay to the second accused like the prejudicial material as in Jones and Waghorn (1991) 55 A.Crim.R. 159 and Demirok above cited. The first accused in hearsay material does not nominate the second accused as the other assailant. And on the question whether there were two assailants, the prosecution has available to it evidence admissible against the second accused capable of proving the joint modus of the Hamada robberies including the possession by each of the Hamada robbers of a firearm, the use at Cochranes Road of two firearms, the different places where the two deceased were when each was shot, the dying declaration of Senior Constable Miller that there were two assailants, the presence of Nicole Debs' vehicle at the scene, as well as the statements of Mr Roberts in the listening device recordings which contain direct and indirect admissions according to the prosecution and to which I have earlier referred. There is no reason to think the jury would be unable or unlikely to comply with the judicial hearsay direction.

The prosecution says that in separate trials most of the evidence which would be led in a joint trial would be led in each separate trial. That repeated evidence is that which I have reviewed as joint material, the exception being (in each separate trial) about half the listening device conversations. Indeed the prosecution has foreshadowed a submission that the statements of the respective accused to investigating police are admissible against the absent accused on the basis of a concerted false story. Khan & Anor v. R (1967) A.C. 454, Boykovski and Atanasovski (1991) 58 A.Crim.R. 436 at 442 per Crockett and Teague JJ., Murphy J. dissenting, Katsuno (1997) 99 A.Crim.R. 350 at 370-371 per curiam. That submission can be made at the appropriate time.

The prosecution here says that the general nature of the evidence against each of the accused is the same, in that they jointly committed a series of armed robberies between March and July 1998 and that they had planned to commit a further armed robbery together on the Silky Emperor Restaurant on the night of the murders. The prosecution thus relies upon a provable criminal association between the two accused prior to the murders, relevant, as I have ruled in Ruling No.2, as a matter of identity and motive, to the killings in this case. The prosecution further says that it has evidence to establish that each of the accused was present at the scene of the murders, and was armed, and that each fired with murderous intent. The prosecution relies, in particular, upon the presence - which it says it can scientifically establish - at the scene of the murders of the Hyundai Excel motor vehicle owned by the daughter of the first accused, Nicole, who was the partner of the second accused, Mr Roberts. In approximately one half of the listening device conversations both accused took part, and the prosecution relies upon the material in which they both took part, some of which I have already cited. Each accused denied presence at the scene, and the prosecution seeks to lead the whole of the antecedent matters, together with all the relevant material in relation to the murders admissible as to each respective accused.

Mr Hill has submitted that the evidence against the first accused is significantly stronger and different from that against the second accused and that the second accused is likely to be caught up in a prejudice by reason of the strength and quality of the case against the first accused and which is inadmissible against him. On the other hand, the prosecution says that there is a common body of evidence available to the prosecution which it seeks to lead and thus is distinguishable from Guldur (1986) 25 A.Crim.R. 271 at 275 per Street, C.J. (in whose judgment Maxwell and Campbell JJ. agreed) who applied the criterion enunciated in R v Darby [1982] HCA 32; (1982) 148 C.L.R. 668 (a conspiracy case) at 678 that separate trials should be granted where the evidence admissible against one accused is "significantly different from" the evidence admissible against the other. In Guimond v. R (1979) 44 CCC (2d) 481 (also a conspiracy case and which the Court in Darby at 678 cited for the proposition I have just stated), Richie, J. (with whom the majority agreed) at 497 spoke of the evidence against one being "substantially stronger" than against the other. The prosecution also seeks to rely upon the principle enunciated in Festa v R [2001] HCA 72; (2001) 185 A.L.R. 394 of association of the second accused with the first accused. That will be a matter for submission later in the trial, but the principle is capable of application on the evidentiary material presently anticipated.

The relevant matters helpfully were enunciated by Hunt J in R v Middis (Supreme Court of N.S.W., 27/3/91, unreported, 1990 No.70413) where at p.4 His Honour said:

'The principles upon which separate trials will be ordered ... were laid down by the Supreme Court of Canada in Guimond v R ...and approved by the High Court in Darby v R ... the relevant principles are that (1) where the evidence against the applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and (2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and (3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.'

Kirby J in R v Patsalis and Spathis (1999) 107 A.Crim.R.433 at 435 cited that passage, noted that the requirements were not cumulative, and correctly (if I may respectfully say so) stated that the criterion was "risk of positive injustice" rather than proof of the existence of it. The risk needs to be a real one.

There are, of course, many cases of joint trials where the evidence is stronger in relation to one accused than another.

The prosecution here submits that the nature of the evidence against each accused is of a similar type, that the evidence in relation to the second accused is not significantly weaker than that against the first accused, and that there is no material external to the facts giving rise to the charges which is of a differential nature and that is a further matter relevant to consideration: R v. Ditroia and Tulle [1981] VicRp 28; (1981) V.R. 247 at 257-258 per curiam (from "Undoubtedly, it is only in exceptional cases ....), R v. Gibb and McKenzie [1983] VicRp 78; (1983) 2 V.R. 155 at 161-166 per curiam and particularly bearing in mind the analysis adumbrated by Crockett J. in Jones and Waghorn above cited at 164 as to unreal, contrived and convoluted judicial directions.

Applying the criteria I have alluded to, and having considered the matters I have stated, I am not satisfied that the second accused will suffer any prejudice in his trial if he is tried with the first accused. Indeed, I am affirmatively satisfied that the jury will be able to return a proper verdict on evidence admissible only in relation to the second accused without being affected by or prejudiced against him by evidence admissible only against the first accused.

Further, I am satisfied that the affirmative reasons for a joint trial, particularly those enunciated by King C.J. in R v. Glover and those laid down in R v. Demirok are here present."

211 I have set out a very substantial part of his Honour's ruling as its inclusion not only because it demonstrates the care with which he addressed this question but it provides an example of the thoroughness with which he dealt with the many and wide ranging submissions and applications made in the trial. Concerning the matter presently under consideration, it can be seen that he directed his mind to all relevant principles of law, factual considerations and arguments advanced before him. He was conscious of the need to avoid exposing the applicant to the risk that the deliberations of the jury might be contaminated by reliance on inadmissible material or diverted from the proper performance of their role by prejudice.

212 I am not only far from persuaded that his Honour fell into error in not directing that there should be separate trials in the circumstances, but consider that, for the reasons given by him, to make an order for severance would have been singularly inappropriate.

213 This ground also lacks substance. It is based upon what was claimed to be the failure of the prosecutor in his final address to separate adequately the evidence admissible against the applicant and that admissible against his co-accused. This, the argument proceeded, may well have led the jury into the error of taking into account in Robert's case evidence that was not admissible against him. Although the trial judge provided the jury with what were described in the applicant's written submissions as "orthodox" instructions, they would not have sufficed or indeed have been capable of correcting the situation, it was contended.

214 When an application was made to his Honour to discharge the jury without verdict by reason of this asserted source of prejudice and direct that a separate trial be conducted, the judge responded:

"I consider the submission does not found any ground for discharge of the jury. The jury were given clear instructions from me at the start and they will be given clear instructions by me at the end to separate out evidence admissible against the respective accused. This primarily relates to the listening device material. The direction of law is quite simple to apply. Every listening device item has at the commencement in its transcript an aid identifying who was present. The jury know and will remain in the knowledge of who was present and who was not at each conversation. It is quite a simple thing, and also legally required because I will tell them to do it, that they separate out the speakers and do not use the material in relation to an absent person. I consider thus no vice has occurred because the jury will have received Mr Rapke's global address with those categorical differences in mind and will be further required to apply them in their consideration of the evidence."

His Honour provided the necessary instructions and there is no reason to suppose that the jury may not have understood or complied with them.

215 Again there is no substance in this complaint which is based upon the asserted failure of the judge to separate adequately the evidence admissible in the cases of the applicants throughout his charge.

216 There was, of course, a deal of evidence which was admissible against each of them and in respect of which no separation was required. Other evidence which could be used in the trial of a particular applicant only was appropriately identified by his Honour who was at pains to point out that the case against each of them had to be separately considered and only on the basis of the evidence admissible against the particular applicant. In this context the jury was instructed:

"Let me first direct you, as I have already directed you and I now repeat, there are in this trial two separate trials occurring at the one time. There is the trial of Mr Debs, and completely separately the trial of Mr Roberts. This is not a case of one in both in, or one out both out. You decide the case on the evidence which applies to the individual accused who you are considering: in the one case Mr Debs, and in the other case Mr Roberts.

As I have previously said to you, ladies and gentlemen, as a matter of convenience and practicality the trials are heard at the one time rather than all the witnesses having to be called twice and that is a matter of common sense and organisation, but do not let that distract you from the essential matter, which is, that there are two trials going on at the one time and they are separate trials. Indeed, in law there are four trials going on because you have two charges against Mr Debs and you have to consider each of those separately, and you have two charges against Mr Roberts and you consider each of those separately. In each case you have the murder of Sergeant Silk charged against Mr Debs, you have the murder of Senior Constable Miller charged against Mr Debs, you have the murder of Sergeant Silk charged against Mr Roberts and you have the murder of Senior Constable Miller charged against Mr Roberts. So there are four trials in fact and in law going on at the same time.

In particular, in relation to the fact that you have two different accused in different trials at the same time remember my direction of law that I gave to you previously, and I repeat: you can only decide the case in relation to an individual accused on the evidence admissible against him. That applies in particular to the listening devices and the telephone intercept evidence. You can only use that evidence for or against the individual who is present in the conversation.

There are numerous conversations in which Mr Debs was the speaker and Mr Roberts was absent. You can only use those in relation to Mr Debs. Equally, there are a number of conversations where Mr Roberts was present and Mr Debs was absent. You can only use those in relation to Mr Roberts, not against the missing person.

That is an important matter of law and I am quite sure you understand it also as a matter of fairness and common sense."

217 Instructions in similar terms had been given by his Honour at the commencement of the trial. The need to give separate consideration to the case of each applicant and to use the evidence, in particular the evidence of monitored conversations correctly, was emphasized on more than one occasion by the trial judge, the prosecutor and defence counsel. The possibility that this necessity had not been appropriately brought to the attention of the jury or that they may have failed to appreciate its implications can, I think, reasonably be rejected.

218 This ground raises the alternative assertion that, even if the trial judge ruled correctly in refusing a separate trial at the outset of the course of the proceedings, the failure to order separate trials created unfairness to the applicant. It rests upon the complaints in grounds 2, 3 and 18. As I am of the view that none of these grounds possesses substance, this ground also fails.

219 In support of these grounds which relate to the admission of the Hamada evidence, the following propositions were advanced:

• There were insufficient similarities between the robberies themselves or with respect to the characteristics and roles of the perpetrators for the inference to be drawn that the same offenders were involved in all of them. Yet, it was argued, the evidence relating to the robberies could possess no probative value whatever unless that was the case.
• The evidence linking either of the applicants with any of the Hamada robberies was extremely weak. Importantly, there was evidence of only one identification having been made of each of them and that could be seen to be of very doubtful worth.
• The Hamada evidence was introduced by the prosecution primarily in order to establish a motive for the shooting of the two deceased and to assist in the identification of the applicants as the occupants of the Hyundai vehicle present in Cochranes Road. However, its inherent weaknesses rendered it incapable of providing support for the prosecution's case on either of these bases.
• On the other hand, this body of evidence was highly prejudicial and potentially likely to divert the jury into reasoning improperly towards guilt, on the basis that the applicants were armed robbers with the propensity to involve themselves in serious criminal activity.

220 Accordingly, the argument has been advanced, the trial judge fell into error in admitting this evidence.

221 In response, counsel for the Crown argued for the admission of this evidence on four bases:

222 First, the evidence could be used as part of a circumstantial case to assist the jury, if they were satisfied beyond reasonable doubt that the Debs' Hyundai was at the scene, when considering who was in it. In other words, if they accepted that the applicants were responsible for the Hamada robberies, they were entitled to have regard to the fact that a car, with which they were both associated, was present on the night.

223 Second, the evidence could be used to explain the actions of the applicants in shooting the deceased, that is, to avoid detection and capture.

224 Third, the evidence could also be used to support the prosecution's contention that the applicants had a close and criminal relationship. This was supported by the listening device evidence and would serve to rebut assertions made by them in their interviews in which they attempted to distance themselves from each other.

225 Finally, the robbery evidence explained the presence of the police members in the vicinity of the Silky Emperor.

226 The admissibility of the Hamada evidence was the subject of extensive submissions on behalf of the prosecution and each of the applicants. All of the bases upon which the prosecution argued for its admission were explored and debated, and all of the concerns expressed by the applicants before us were argued before his Honour. The trial judge dealt with these matters in a substantial reserved ruling. He addressed, by reference to a number of authorities, the relevance of the existence of a motive to the proof of the identity of a perpetrator[24], the use of similar fact evidence as proof of identity,[25] and the principles and issues relating to the admission of similar fact evidence[26], including the potential problems posed by evidence of propensity and circular reasoning.

227 Against that background of principle, his Honour then considered the various submissions advanced before him. Acknowledging that there were variations in the proposed evidence of witnesses as to the methods employed and the descriptions of the perpetrators, he considered nevertheless that:

"the Hamada robberies thus show that which is referred to in the authorities I have cited: unusual features, striking similarities, underlying unity, system, and pattern. There are differences as I have stated and as learned defence counsel, and particularly Mr Hill, who made his submissions first and they were in this regard adopted by Mr Dane, emphasised. But of course each of the robberies was of different witnesses, and without making assumptions or looking to similarities rather than differences - and I have already said I agree with Mr Hill and Mr Dane that that must be avoided - it is apparent that the Hamada robberies constitute a very substantial body of evidence of similarity, pattern, unity and strength. There is no act or fact in any of them which is inconsistent with or negates that unity, consistency and cohesion."

He then decided that, contrary to the submissions of counsel, there was

"ample evidence of a direct sort implicating each accused in one robbery".

228 His Honour next posed for himself the question, bearing in mind that, in distinction to the occasions encompassed by the Hamada evidence, no robbery was committed at the Silky Emperor

"... what is the connection between the Hamada robbers and the persons who were intercepted in Cochranes Road?"

"Mr Hill has put that there is no direct evidence that an armed robbery was about to be committed on the Silky Emperor, thus distinguishing it from the Hamada robberies. I consider that there is evidence sufficient to establish that a robbery was imminent or being prepared for. That is by reason of the nature of the topography, the narrow needle-like entry with no other point of exit, the other environmental features of desolation, the closing time of the restaurant, all combined with the two guns and with one further critical factor, the dying declaration of Senior Constable Miller that there were two offenders."

"Acting on the evidence I have identified, and applying the high standard of the authorities I have cited, I am affirmatively satisfied that the evidence of the Hamada robberies justifies admission in the trial of the two accused on the two counts of murder. The evidence is relevant on a multifaceted basis: to prove the identity of the two accused; to prove association and relationship; to place the primary evidence in a realistic and intelligible setting; and to prove motive.

I have put the evidence in a linear form in order carefully to examine it and to avoid the dangers that Mr Dane and Mr Hill have so helpfully counselled upon me of avoiding the presumption of guilt as distinct from the presumption of innocence and of avoiding circularity. Of course, as a matter of law, it is the combined effect and force of the material which is to be looked at, rather hermetically and in isolation, but I have done it in isolation in order to avoid errors of logic or of proof."

229 Whilst, as I have earlier intimated, I am of the view that undue emphasis was placed upon the Hamada evidence in the circumstances of this trial, I do not consider that its admission was erroneous. It possessed a sufficient degree of cogency, bearing in mind what was said in the joint judgment in Pfennig:

"Because propensity evidence may well have a prejudicial effect which is disproportionate to the probative force of that evidence, it is necessary to maintain an insistence on that evidence having a high level or degree of cogency in the circumstances of the particular case. In this context, the reference to prejudicial effect is a reference to the undue impact, adverse to an accused, that the evidence may have on the mind of the jury over and above the impact that it might be expected to have if consideration were confined to its probative force."[27]

The trial judge was careful to avoid circular or otherwise impermissible reasoning concerning it and to take full account of its potential prejudicial impact.[28]

230 Any possible doubt as to the proper use of the Hamada evidence that may conceivably have existed in the minds of jurors must be regarded as removed by the following instruction that was given to them in re-direction by his Honour:

"This is a further direction of law and being a direction of law this binds you.

You will recall that I gave you directions of law concerning the Hamada evidence. I told you, and I repeat, that you can only act on the Hamada robberies, 10 or 8 or whatever number, if any, you find the individual accused or both of them did, if you are satisfied of those matters beyond reasonable doubt. That is because, as I told you previously, the Hamada robberies each are crimes. So for you to act on them you have to be satisfied beyond reasonable doubt that the individual accused, or both of them, performed the robberies you are considering.

There are three steps in the prosecution case on Hamada.

First, the prosecution says that there is a clear identification of each accused in one robbery. There is the identification of Mr Debs by Ms Chadwick in the first robbery at Bevics, and there is an identification of Mr Roberts by Ms Coffman in the second robbery at Sportsmart.

The prosecution says that the second step is that in the later robberies there is an unmistakable pattern, a striking similarity about the other robberies just like those first two, which establishes that the persons who did the first two did the later ones also

The third step is the prosecution says that the circumstances behind the Silky Emperor - the geography behind there, and the timing, just after midnight on the Saturday night - establish that the car lurking behind the Silky Emperor at that time and place contained the Hamada robbers.

So they are the steps the prosecution argues to you.

To act on the Hamada robberies, however many, if any, you are satisfied that the individual accused, or both, committed as proof of identification, or as motive in the charges of murder, or as association or relationship between the two accused, you must be satisfied that the individual accused, or both, was an Hamada robber; and also you must be satisfied that he or they were in the car behind the Silky Emperor. If he or they werent in the car behind the Silky Emperor, Hamada is irrelevant and you must put it completely aside.

Next, in considering the Hamada evidence remember that there are two separate trials for murder going on here, the trial of Mr Debs and the trial of Mr Roberts. When you are considering the Hamada evidence in respect of each Hamada robbery you need to be satisfied that the individual accused you are considering was there committing that robbery, be it the larger robber or the smaller robber, and that there had not been a change of personnel in respect of that person, the larger one or the smaller one. That is, the individual person needs to be proved to be the same each time in the Hamadas you are considering.

Finally on Hamada, you will recall I gave you directions about how you must not use the Hamada evidence if you find an individual accused, or both, the Hamada robber. I told you, and I repeat, that you must not conclude that if an accused is found by you to be an Hamada robber, that that means that the person has a general bad character or propensity to commit such crimes and therefore is likely to be guilty of the other robberies. I add this and I should have said it then also: you must not conclude that if an accused is found by you to be an Hamada robber, that that person has a general bad character or propensity to commit murder.

Hamada has a specific relevance to the charges of murder: as proof of who was behind the Silky Emperor in the car, and in proof of motive, as well as, the prosecution says, association between and relationship between the two accused. Otherwise it is irrelevant.

If you found that an individual or both accused committed a number but not all the Hamada robberies, that would have two consequences, depending upon the facts you found. If you found an individual or both accused were not the Hamada robbers in one or more robberies, you would consider: how does that affect whether there was the striking pattern or underlying unity that the prosecution says in the Hamada robberies? Further: could those other robbers be the ones behind the Silky Emperor or with the motive to kill the police rather than be arrested?

If you are satisfied beyond reasonable doubt of the Hamada robberies in the way I have defined you may act on that evidence in the way I have stated. If you are not satisfied beyond reasonable doubt put them completely aside.

Finally, if you were satisfied beyond reasonable doubt that either or both accused were the Hamada robbers as I have defined, that of itself would not be enough to convict them of murder, because they are charged here with the two murders, not the Hamada robberies. You need to look at the other evidence - the scientific evidence, the listening devices, the lie by Mr Debs or the lies by Mr Roberts - to convict of murder.

The point of the Hamada robberies is this: It is not sufficient to convict them of murder if they are the Hamada robbers. What the prosecution says is, it is important evidence for you to consider because it assists you in concluding they were behind the Silky Emperor for Hamada no. 11, and it assists you in concluding they had a motive to kill police rather than be apprehended and searched. That is how Hamada is put.

As you appreciate, of course, the prosecution says that you have a significant body of evidence, the scientific evidence, putting OJI in Cochranes Road on that Saturday night/Sunday morning, and you have got the listening devices as well, as you know.

Both accused say, 'I wasn't there.'"

231 There could, of course, be no serious dispute that the admission of the Hamada evidence was capable of creating significant prejudice against the applicants, particularly if not carefully handled. A finding by the jury that the applicants were involved in any of the robberies carried in each of their cases the inference of propensity to engage in serious criminal conduct. However, the evidence did possess relevance in each of the ways advanced by the Crown and it was clearly capable, if accepted, of providing circumstantial support for the other and far more powerfully incriminating evidence against each of the applicants. Any potential prejudicial impact that it possessed was appropriately addressed by the trial judge in his instructions.

232 The contention has been advanced in support of these grounds that the judge did not direct the jury that, in order to rely upon the evidence of the Hamada robberies for any of the purposes for which it was admitted, they would need to be satisfied that there was a striking similarity between the circumstances of those robberies and those relating to the Silky Emperor. In other words, the argument proceeded, accepting that the jury may have found that there was a marked similarity between the ten offences of armed robbery, they then needed to consider whether there was such an underlying unity, stamp or system between them and the circumstances at the Silky Emperor to warrant the conclusion that the persons responsible for the Hamada robberies were also in the motor car and about to commit another robbery at that location.

233 This line of reasoning is misconceived. There was, of course, no robbery of the Silky Emperor with which the evidence relating to the Hamada robberies could be usefully compared. The most that could be said in this regard was that the premises shared sufficient common features with those at which earlier robberies were committed that the restaurant was placed under police surveillance as a potential target. The fact that, in the police view, it shared those features was, I would suggest, apparent from their presence in the first place and can be easily seen from the description set out earlier.

234 I have already described the uses to which the evidence of the Hamada robberies could be properly put and, specifically, that the implication of one or both of the applicants in them could provide only circumstantial support for their presence in Cochranes Road on the night of the shootings. As I understand the position, whilst reliance was placed by the prosecution upon the Hamada robberies for the purposes earlier set out, it was never contended, nor could it have been, that involvement in them of itself led to the conclusion that they were behind the Silky Emperor on that night.

235 This complaint also lacks force. None of the uses to which the Hamada evidence could be properly put by the jury was dependent upon a finding by them that the particular applicant was a party to all of the robberies. Of course, the value of the Hamada evidence in this respect would be significantly greater according to the number of robberies for which they regarded the particular applicant as responsible, and, if the number was sufficiently small, the probative value of his involvement might well become minimal.

236 The trial judge did not specify the number of robberies in which the jury was required to find that the applicants were involved before the evidence could be used; however, he did make it clear that there had to be "a number". On various occasions he referred to:

"eight-nine ... ten ... six"

"whether you are looking at ten or nine, whatever you find ..."

"you may say ... nine... or seven ... whatever multiple number you decide ..."

"... you can only act on the hamada robbers 10 or 8 or whatever number."

At no point did he suggest, directly or indirectly, that any number greater than one would suffice, as submitted in this Court. However, the trial judge was conscious of the possibility that the jury might not be persuaded of the guilt of the applicants of all of them. He gave ten separate warnings in his directions with regard to the Hamada robberies that the evidence of any of the offences could only be used if the jury were satisfied beyond reasonable doubt of the guilt of the particular applicant of the relevant offence. This direction was repeated five times in his instructions on similar fact evidence.

"You may be satisfied that the accused persons did 10 Hamada robberies, or you may be satisfied that they did nine or eight. That is for you to decide. Obviously there have to be a number of them for you to act on them. But you have yourselves to decide: Has the prosecution proved beyond reasonable doubt that the accused were the Hamada robbers in the number of robberies that you decide justifies the conclusion that the accused are guilty of sufficient robberies to be used in your reasoning to say they were behind the Silky Emperor and they had a motive to kill the deceased."

238 As his Honour indicated, the existence of such a motive in the case of a specific applicant was not dependent upon proof of his involvement in all of the robberies, as the same motive could be possessed by a person who was implicated in some of them. Nor, of course, would the presence of a motive be necessarily entirely discounted because some other person or persons may have possessed the same motive as a perpetrator of some of the robberies, although the significance attributable to it could be substantially diminished, or even effectively removed in some circumstances, if that were the case. Similarly, to be employed as a piece of circumstantial evidence supporting the other evidence of the presence of a particular applicant in Cochranes Road, it was not necessary that the individual was responsible for all the Hamada robberies.

239 I do not consider that the judge fell into error in putting the matter before them in the fashion that he did. The reasoning upon which it rested was valid and would have been quite clear to any reasonable jury.

240 The applicants argue that the trial judge fell into error in not instructing the jury that the Crown needed to establish, beyond reasonable doubt, the existence of the motive upon which it sought to rely in proof of guilt before they could properly have regard to it.

241 They further contended that unless, in the particular circumstances of the case, the presence of a motive to kill the deceased was established at the criminal standard, the shootings had to be regarded as motiveless, a feature which operated in their favour. Why this would be the case was never made clear either before his Honour or in this court. The failure of the prosecution to establish the presence of a motive at whatever standard was regarded as applicable would not carry with it the positive finding that the applicant concerned possessed no motive at all for engaging in the conduct alleged against him. It would simply mean that the prosecution would be unable to put the presence of an identifiable motive before the jury as a circumstance to be taken into account, among others, when considering the question of guilt.

242 This was not a case in which the jury could have regard to the absence of a motive as a factor impacting upon the probability of the guilt of an applicant but one in which, if they were not satisfied beyond reasonable doubt of his involvement in at least a substantial number of the Hamada robberies, the evidence was, for practical purposes, silent. If anything was to be said by the trial judge on this aspect, and I am not to be taken that further instruction may have been desirable, at most, it could have been a direction to the effect that, if the jury were not satisfied of the applicant's involvement in the Hamada robberies, the prosecution had been unable to advance any motive for his involvement in the killings; a proposition which, in the circumstances, must be regarded as self-evident.

243 I do not need to explore the question whether circumstances may exist in which the presence of a motive will need to be established by the prosecution. If such a case arose, then, presumably, the prosecution would need to satisfy the criminal standard of proof before regard could be had to it. Generally, the prosecution is not required to establish the presence of a motive to engage in the prohibited behaviour. In some situations, as here, if they choose to do so, it is ordinarily due to the presence of a concern that, in the absence of some rational explanation of why an accused may have acted in the fashion attributed to him or her, the jury may regard the allegation made against the individual as extraordinary. As Menzies, J. stated in Plomp:

"It hardly needs to be stated that to prove motive for a crime and no more could never be sufficient evidence upon which to convict anyone and it is to this that it seems to me some of the authorities cited are really directed, but, in a case like this, proof of such matters as I have just indicated does bear upon the probability that the applicant killed the deceased.

In Mutual Life Insurance Co of New York v Moss ... Griffith CJ said - 'Evidence of motive is of itself, of course, in the nature of circumstantial evidence as to the main question in issue. In considering the conduct of a man, regard is had by Judges and juries to the ordinary conduct of human affairs. When a man does an extraordinary or a wicked thing, there is probably some cause inducing or impelling him to do so, and the more heinous the act is the more important becomes the question of motive. When, therefore, the question for consideration is whether such an act is intentional or not, it is of the highest importance to consider whether the person in question, in the circumstances in which he was placed, had any inducement to form such an intention. On charges of murder sometimes the question is whether or not the accused caused the death, and sometimes whether, if he caused it, he did so intentionally or accidentally. The existence of a motive may tend to show either that the person in question did the act simpliciter, or that he did it intentionally. Such evidence is given on the subsidiary question of probability; and in cases depending on circumstantial evidence the question of probability may be most important' ... The statement that 'the existence of a motive may tend to show that the person in question did the act simpliciter' is in my opinion sound law because it is sound sense. Similarly, in R v Ball ...Lord Atkinson said - 'Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to show he entertained feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased's life. Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his 'malice aforethought', inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not' ... It would be just as unrealistic to treat the presence of a motive for doing an act which, if it occurred at all, was done by the accused as irrelevant to determining whether he did it as to treat the absence of a motive as irrelevant to that determination; yet the absence of a motive is commonly relied upon as a circumstance tending in favour of accidental death as against suicide or in favour of a person accused of a crime. On the positive side in divorce proceedings proof of inclination is often used to establish that advantage has been taken of the opportunity to commit adultery." (Footnotes omitted.)[29]

244 Without attempting to embark on an investigation of all possible scenarios that could arise in a criminal trial, I would suggest that the presence of a motive as opposed to the necessary criminal intention to engage in prohibited conduct would rarely, if ever, constitute an element of an offence, and seldom would the presence of a motive assume such significance as a circumstance tending towards proof of guilt that it would have to be established beyond reasonable doubt before regard could be had to this consideration. The present case would not fall within that category. In common with the situation considered by Tadgell, J.A. in Koeleman,

"the Crown case did not depend for its success on proof of any motive on the part of the applicant to kill."[30]

The establishment of a motive in the circumstances of this case could not be described as an indispensable intermediate fact in proof of guilt.

245 If the jury in the present case was satisfied that such an explanation may have existed, they still needed to determine whether they were satisfied beyond reasonable doubt that the applicant acted in the fashion alleged. The motive that they found could possibly be attributed to him could be taken into account in this process but, as was made clear to them more than once in the trial, it could only ever constitute one of the circumstances to which they would need to direct attention.

246 There is, of course, another factor to be taken into account when considering the adequacy of his Honour's instructions on this aspect, namely, that the jury were directed that they had to be satisfied beyond reasonable doubt of involvement of an applicant in any specific Hamada robbery before regard could be had to it. If the jury were so satisfied, the motive arises without further proof. The question might then be asked rhetorically: what is it that there possibly had to be established beyond reasonable doubt, to which no adequate answer could be supplied.

247 I do not consider that the trial judge fell into error in his instructions on this matter.

249 Although there are examples of situations in which one or more counts of murder have been joined in a single presentment with counts relating to other offences about which evidence was to be given in the trial, to my understanding the inclusion of separate counts to encompass those offences has never been required. Indeed, the joinder of such additional counts was regarded as inappropriate and rarely permitted until relatively recently. In 1990, Beach, J., reflecting the generally accepted approach, expressed the view that

"it is highly undesirable to include any other count on a presentment that contains one or more counts of murder and that course should only be permitted in exceptional circumstances."[31]

250 There is no need in the present matter to canvass at length the possible rationales for the adoption of this stance, but they include a desirability (unfortunately sometimes forgotten by those drafting presentments) that the number of counts which the jury will need to consider, and about which the trial judge will be required to provide instructions, be kept to the minimum necessary in the circumstances, and concerns about the introduction of undue complexity, prejudice and the potential diversion of jury deliberations into what might be, in the context of the specific case peripheral areas that may result. There was no circumstance in the present matter, either as a matter of law or arising from the factual situation or issues, that can be seen to have necessitated, or, on balance, rendered desirable, the joinder of counts relating to the Hamada robberies.

251 The arguments advanced in support of the applicants' contention that the robberies should have been the subject of separate counts rest on two propositions.

252 First, it was pointed out that the judge directed the jury that they did not have to be satisfied that the applicants were guilty of all the armed robberies. Accordingly, the basis upon which they reasoned to conviction in the separate cases could not be ascertained. This resulted in an absence of transparency in the trial process. This complaint is without foundation as the position was, for practical purposes, identical to that encountered in many criminal trials where the precise findings of juries in relation to parts of the evidence before them, if indeed any findings have been made, cannot be identified. Neither the presence of a motive nor the possibility of circumstantial support for the evidence placing Debs or Roberts in Cochranes Road was dependent upon the particular applicant having been involved in all of the robberies. The presence of separate counts would not alter that position on the reasonable assumption that the jury complied with his Honour's instructions.

253 Second, contrary to the concession made by counsel at the trial, it was argued that the applicant Roberts suffered from a "real" psychological and forensic disadvantage in the circumstances. Why this might have been so, was never clearly articulated before us was not raised as a possibility at the trial and I fail to see how, in the context of the trial, disadvantage might have arisen.

255 It is important, when addressing the various grounds relating to the evidence of the identification of the two applicants as the Hamada robbers, to refer again to the context within which the evidence and the instructions given by the trial judge with respect to it must be considered.

256 Debs was personally identified as a participant in only one of the ten robberies about which evidence was adduced (the robbery at the premises of Bevics), and by only one witness. Roberts was also identified by a single witness and as a participant in one robbery (the robbery at Sportsmart). Each of them was described by one other victim in the respective robberies as being similar in appearance to one of the perpetrators. The prosecution then contended that there were sufficient common features linking both the robberies and the offenders that the jury could be satisfied beyond reasonable doubt that the same two men were responsible for all of them. The separate identifications of Debs and Roberts as a perpetrator of one each of the robberies was, accordingly, crucial in their separate cases, if the Hamada robberies were to possess any relevance at all. Not surprisingly, a deal of attention was directed by their respective counsel to that aspect.

257 In the case of Debs, the evidence was given by Tracey Lee Chadwick, the assistant manager at Bevic Auto Parts. I propose to set out the summary of the evidence of this witness provided to the jury by the trial judge in his charge both as to her evidence-in-chief and cross-examination in order to place his Honour's instructions of law against the appropriate background. He reminded them that Ms Chadwick stated that[32]:

"She was in Bevics with the manager on duty, Mr Ken Pullin, and out the back in the warehouse was Mr Allen Kishere. Just before the robbery took place she said that Mr Pullin was polishing a display car that they had in the shop and she walked over to talk to him. She said this, 'I was pushed in the back from behind. I didn't know who did it. I swore and I looked at Ken. He was just looking at that stage and he put his hands up and said, 'We'll do whatever you want'. I then looked around. A gentleman with a hat and glasses was just standing there next to me that I didn't know.' question, 'Are you able to estimate the height of the man?' answer , 'About six foot something.' 'then I looked and there was a gun. It was pointed directly at the side of my head. It was big. It was a revolver. It was dark and light brown. We were asked, 'Where's the money?' Ken started walking. Somehow he ended up in front of me and I was being led by the right arm by the robber heading towards the office. Before that I looked out the corner of my eye and there was another person there fully covered in balaclava and glasses. He was just about my height. I'm five foot something, I don't know. He was shorter than the other man. He had a gun but it was a small gun. The tall man asked where the safe was. Ken said we didn't have a safe. The tall man said, 'Why not? '' She said, 'We got to the office, Ken got the money out of the filing cabinet and handed it to the taller man. Ken was asked for more money so he said there was more money out the front at the tills. I remained in the office. Ken and the taller man went out to the tills. I was told to lie on the floor by the larger man. Then Allen Kishere and the shorter offender came back in from the warehouse. The taller chap told the shorter one to tie us up. I was lying face down in the office. We were tied up and then we were asked for more money at that time. We were taped up, hands behind our backs and legs together. The taller man asked for more money. Ken said there was more money in the change box. We were just lying there. We were told not to move or do anything and then there was just silence when the man left.' question, 'Who did the taping?' answer , 'The smaller offender.'

'The last thing before the men left the store was the larger man said, 'Don't move or do anything stupid.' We were tied with our hands behind our backs, hands on top of each other and our legs tied together around our ankles. Ken eventually broke the tape after the men left and rang the police on the phone.' question, 'What was the demeanour of these two men throughout the robbery?' answer , 'Very calm and controlled.' question , 'Was there any sense of hurry?' answer , 'No. All the demands for the money came from the taller man.'

Shortly after that when Ken rang the police arrived. Four days later on the 13th of March 1998 she created a FACE Image, that computer generated system that you know about, of the taller man. Question , 'What do you say of that as a likeness to the man?' she said, 'It's not very good.' she said, 'You've only got a small amount of things to pick from to create it and then the artist does the rest with shading and it just didn't come out. I was trying to create sharp looking cheekbones and, like, a sculptured type of look.' question, 'What was it about the face you were intending to create?' answer, 'Just very sculptured, drawn, very sucked in and squarish.'

As to the smaller man, 'I never saw his face, he had a balaclava on. I believe by his body language that I had seen him before. I thought the smaller man was quite young, the taller chap was middle aged.'

Well, you have got the FACE Image of the larger man, Exhibit 41, and the smaller man, Exhibit 42.

She said of the larger man he was tall, surly, stocky. She said of the smaller man he was skinny and an athletic type.

Then on the 21st of September 2000, which is, as you know, 30 months later, she went to the St Kilda Road Police Station and Exhibit 12, the video of the 12 men, in which as you know Mr Debs was no. 8, was played to her. She said that when she looked at that video no. 8 gave her a funny feeling in the stomach. She then asked it to be played again. When she saw it a second time she said, 'No. 8 gives me the hair on the back of the neck, stomach doing somersaults kind of feeling.' she was then taken out of the room. She said when she was out of the room she was making a statement to Sergeant Beanland and during the course of the statement she was thinking and she said, 'Can I go back in and see it for a third time?' she went back in and saw the video for the third time and she said this, 'After seeing it a third time I said 'The taller man was definitely no. 8'', which is Mr Debs."

258 His summary of the cross-examination of the witness was equally substantial and, as far as I have been able to ascertain, drew attention to all of the bases upon which the evidence of the witness had been challenged. It reads:

"In cross-examination she was asked this by Mr Dane, 'You had quite a harrowing experience on that afternoon?' answer, 'Yes.' question, 'It was quite a terrifying event?' answer , 'Yes.' question, 'It was a horrific experience when the gun was placed to your head?' answer, 'Yes.' Question, 'There was an element of surprise to the episode?' answer, 'Yes.' question, 'We are talking only a few minutes from beginning to end?' answer, 'Probably about five minutes from start to finish.'

She said of the larger man that he was six foot something and she's not good with heights. She said that the larger man was a bit taller than Ken, that is Ken Pullin. She didn't see the larger man in comparison with Allen Kishere, she didn't see them together.

She said this, 'The shorter offender I didn't take too much notice of because to me he wasn't a threat. The larger offender, I tried to keep my eye on him, because I didn't know what was going to happen'.

She said that when the police came half an hour after the men left on that Labour Day evening that the larger man had blonde or mousey hair and she answered this to Mr Dane's question about that, 'It's my interpretation of mousey, we went through that at the committal and we established at the committal it was light brown.' question from Mr Dane about what she said to the police half an hour later, 'You said the hair length was collar length, you described him as six foot with a square cut jaw and stubble, is that right?' answer, 'Yes.'

Then she spoke to the police again on the 14th of January 2000 and Mr Dane put to her that, 'On that occasion in January 2000 you said the first offender was 6'2' tall and was thick set with collar length shaggy light brown hair?', and she agreed with that.

In relation to the FACE Image, Exhibit 41, of the larger man she said that the colouring of the complexion was similar, that she had said to the artist, 'Pale complexion, thin in the face, aged in his 30s', that the first offender had a 'deep strong voice'.

Mr Dane then took her to an incident three months after this Labour Day robbery and he said, 'In about June 1998 you ran out the back of the store when someone came in?', which she agreed with. Mr Dane put to her, 'That gave you the funny feeling that you have spoken about, the hair on the back of your neck and the butterflies or something?' answer from Ms Chadwick, 'No, I just took off. I'd only been back on a part-time basis and I was only there for two hours.' she said, 'I didn't know' - this is three months later when she ran out - 'I didn't know if I'd actually seen the man but I was in a panic'. She went on, 'I panicked about lots of people at that stage.' she went on, 'Everyone I saw was the man. I just looked and I ran.' that man, as you know, is in D13, that is a photograph of the man that she looked at and ran from three months later, the 26th of June 1998.

Then Mr Dane cross-examined her in relation to Exhibit 12, the video that she viewed on three occasions on 21st of September 2000. Question from Mr Dane, 'The first time that you saw it you had an uncomfortable feeling?' answer, 'Yes.' question, 'The second time you said, 'Eight definitely gives me that hair on the back of the neck, stomach sort of doing somersaults sort of feeling'?' answer, 'Yes.' question from Mr Dane, 'That's the feeling you got from the man who came into the store three months later?' answer, 'No, not as bad.' Mr Dane, 'And the third time you saw the video at the police station on 21st of September 2000 you said, 'That's definitely him'?' answer, she said, 'Yes, that's right.' Mr Dane put, 'In the video the person no. 8', question 'being seated, you didn't know what height that person was in no. 8?' answer, 'No.' question, 'In the video no. 8 didn't have black glasses on with a black cap, so you couldn't ---?' she said, 'That's correct.' question , 'And you didn't have the brown hair or colour hair that we have in the FACE Image, Exhibit 41?' answer, 'No.' question , 'He hasn't got any of the body movement that you saw on that day?' answer , 'No.' question from Mr Dane, 'What was it that enabled you to say no. 8 was definitely the person?' answer, 'I had a good look at the person in the shop' - meaning at the time of the robbery on Labour Day - 'side on, side on to me, so I could see the whole side of his face. I could see through the glasses at the side, just of the whole face and, you know, the picture I did have. He was directly side on to me a couple of times.' question from Mr Dane, 'You'd never seen this man before March of 1998?' answer, 'No.'

She went on with the man, she saw him on both profiles, from the left and the right when they were in the office. She said that she thought she had the man under observation for probably over a minute, just under two minutes, something like that.

She had glasses on and Mr Dane asked her about that and she said, 'I only wear glasses for driving, or if I have a headache it makes it easier. I didn't have glasses on then', meaning on Labour Day. She said on that Monday afternoon the light was okay.

Question from Mr Dane, 'So there is no one feature that you will be able to say, 'I carry that feature with me from March 1998', it is just a global image that you carry?' answer , 'I carry the whole thing. The one thing that has always stuck in, you know, the sharpness and the hollow.' question, 'So there is hollow, are you saying, below the cheekbones, there was a hollow in the cheeks?' answer, 'Yes.' question, 'But you made no mention of the hollow in the jawline in anything you've said to the police before?' answer , 'Well, I'm sure I did say it on the actual night', meaning on Labour Day night, but she agreed that was not in the statement.

Then in relation to the arrest of the accused Mr Dane asked this, 'Have you seen any footage of the accused in this case at all, television footage?' answer, 'Not on the television, no.' question, 'You saw them though when they were first arrested, you saw that on the telly?' answer , 'Yes.'"

259 No complaint is made in the present proceeding with respect to the admission of the evidence of identification by this witness, nor, indeed, was any advanced before the trial judge. I will address the grounds related to the trial judge's instructions concerning it, a little later.

260 The evidence of personal identification against Roberts was given by a victim of the robbery of the Sportsmart store at Noble Park. That evidence was summarized by the judge as follows[33]:

"Olivia Coffman, a sales assistant, said that she was a sales assistant in Sportsmart in Ian Street, Noble Park, in March of 1998. Sportsmart was open on Sunday 29 March 1998 from 11 a.m. to 5 p.m. There were no stores in the immediate vicinity open.

Shortly before closing time in order to move her car from the back to the front so she didn't get booked she left the store. That was about ten to five. The store was closing at five. There was one female customer in the store with her little child and she then came back to the store.

When she came back into the store something occurred. She said that before she left the store she noticed that someone had come into the store who was male. He came in through the front entrance. Question of Ms Coffman by Mr Rapke, 'What was it that attracted your attention to him?' Answer, 'I'd noticed him before, I couldn't say when, but I knew the face.' she went out and moved the car so she didn't get booked and walked in at closing time. She said this, 'When I came in I saw a gentleman fairly close to the front door, just behind the register, herding everybody around the register. He walked around behind me and brought me into the group. He had a gun. He moved us all to the back of the store. There were three other staff and one customer and a child all being herded at gunpoint. They were herded upstairs into a storage area, the man behind with the gun.' she said they were all together in a group and then she thought another person came out from a side door. Question, 'Had you seen that man before?' Answer, 'Yes, it was the same one who had walked in earlier', when she was going out to move her car. Question, 'What was it about him that led you to believe you had seen him before?' Answer, 'I just recognised he came from somewhere, I couldn't say where.' Question, 'How old do you put him?' Answer, 'Around 19. He was a bit taller than myself, maybe 5'5', 5'6', I'm not sure.' Question, 'Colour of the hair?' Answer, 'Black. He had a white T-shirt and some sort of pants, I couldn't say what colour. Both men had stockings over their faces. Both men had guns.'

On the first occasion when she was going out to shift the car and she saw the young man coming in the front of the store, he didn't have anything on his face at that stage. When she saw him upstairs in the storeroom again, having been herded up there by the other man, he was wearing a stocking over his face. Question, 'Was the stocking he was wearing over his face such that it prevented you in any way seeing his face?' Answer, 'I could still recognise the face.'

Of the larger man she said, 'The larger man was a fair bit older than the first one. He had to be over 30. He was taller than the first man. I couldn't say exactly how tall, maybe over 170 centimetres. His hair was darker but I couldn't say much darker. The younger one was slimmer. The older one was stockier. The older one was giving the orders. I didn't look too much at the guns, they were handguns. We were told to get down on the floor by the older man. Then the older man escorted the manager of the store downstairs to find the safe.' she said, 'A number of minutes later they came back upstairs, the manager and the older man, and he was told to get on the floor with the rest of us and we were all taped up.' question, 'Who did the taping?' Answer, 'Both I think, I'm not sure. I couldn't see a hell of a lot at this point.' her hands were taped behind her back and her feet were taped together at the ankles with grey duct tape. Question, 'Were all of you who were on the floor taped?' Answer, 'Except for the youngest, the child with the customer', this is the three year old. She said she was actually taped in between her mother's arms. 'her mother was sitting up and the child was taped to her.'

Question, 'Who was in charge of the two?' Answer, 'The older one.' she said, 'We were told to stay on the floor for 10 minutes after they left.'

She said that she saw the men earlier on the opposite side of the road in a laneway opposite, at which stage they were not wearing disguises on their faces and they were walking towards Sportsmart. She said of the younger one, 'He had his hair tied back in a ponytail with an undercut underneath. He had a fairly long face and prominent eyebrows. The eyebrows were thick, heavy set'.

The day after the robbery she did a FACE Image, Exhibit 45, which you have in evidence before you. She said of that FACE Image done the next day of the younger man, 'I always said from the start I didn't have much confidence in actually either drawing or putting together an image of the person because you don't have the person there to do it with. But I always said if a photo was put in front of me I would be able to recognise it'. She said she didn't look at the older person at all, he was much more aggressive and she didn't want to draw attention to herself.

Of the FACE Image of the younger man who she did look at, she said she was not completely satisfied with the FACE Image. She said, 'The style of the haircut of the younger man was shaved underneath and tied back, what is called an undercut'.

Question, 'Where do you think you had seen the younger man before?' Answer, 'Possibly in the store before, I couldn't recall exactly.'

Then 19 months later on 28 October 1999 at her work she was shown a photo folder, Exhibit 46, with 12 photographs of men, and of that she picked out no. 7 as the younger of the two offenders. No. 7 as you know is Mr Roberts.

Then in September 2000 she was shown a video of 12 men, that's the one that has Mr Debs as no. 8. She said she couldn't say one way or the other whether the older man was in that video or not."

261 Understandably, this witness was extensively cross-examined by counsel appearing for Roberts on a range of matters directed to demonstrating the possible unreliability of her identification of his client. Again, I will set out the summary provided to the jury by the trial judge:

"In cross-examination by Mr Hill she said that when she came back from shifting her car from the front to the back she was quite terrified for her own safety and apprehensive once she realised there was an armed robbery going on.

She agreed that in her statement she made that night to the police she said that, 'As the male and Dean', that's Mr Allan, the manager, 'began to walk back downstairs from upstairs a second male appeared', in other words, much later than what she said in evidence here, which was that she saw him much earlier. She said this, 'I know that's the sequence but from day one I don't think I have ever been happy with my first statement. I have never made a statement before, I didn't know what I was doing. I was just answering questions and I was led by the police officer and I was very flustered at the time.' question from Mr Hill, 'It's obvious, isn't it, that if you are lying face down on the floor when the second male appears', meaning upstairs in the storeroom, 'you would not be in a very good position to observe the second male, that's obvious, isn't it?' Answer, 'Whichever position I was in I very clearly remember almost having not to laugh at the fact I could still see and recognise the face through the stocking. That is what I clearly remember. Whether I remember whether I was on the floor or whether I was standing up, I don't remember that now, but I do remember thinking to myself that if it wasn't such a serious situation I would almost have laughed, because if anybody that I recognised that I knew, any face I knew had a stocking over it, I would still recognise the face and that is what I remember.'

She agreed that she told you that the younger offender had a white T-shirt and Mr Hill said, 'If two other witnesses say he had black clothing', which they said later on to you, 'that's completely different from what you are saying, isn't it?' Ms Coffman said, 'Obviously, yes. I recognise the face, I wasn't necessarily paying too much attention to the clothing.' question from Mr Hill, 'That has never happened to you in the past, that you have thought, 'I have met that person before' and it has became quite plain later that you haven't?' Answer, 'I haven't actually, I'm fairly good with faces. I might recall somebody and not know where I know them from, but I don't mistake people really.' question from Mr Hill, 'What is your memory as to the colour of the short sleeved shirt?' Answer, 'I wouldn't say very good at all.' Question, 'What memory do you now have?' Answer, 'The face.'

She agreed that seeing two men in the laneway opposite was just a glance for a second or two and that she hadn't put that in her police statement. She said with the police statement, 'I just wanted to go home.'

As to the younger man who entered the store, question from Mr Hill, 'At that time there was no particular reason for you to look carefully at the person?' Answer, 'I noticed him because I recognised the person.' Question, 'When had you last seen the person?' Answer, 'Well, other than out the front in the alley, other than that I couldn't say actually where I had seen him from.' Question, 'Can you say when you had seen him?' Answer, 'No.' Question, 'Can you say how many times you had seen him?' Answer, 'No.' Question, 'So it was just a feeling you had?' Answer, 'No, it was recognition.' Question, 'A belief that you had seen this person before?' Answer, 'A knowledge that I had seen that person before.' Question, 'A knowledge?' Answer, 'Yes.' question, 'Was there anything distinctive about the person that you had seen previously that caused you to remember?' Answer, 'There was no real reason why I would have remembered that I can recall.' question, 'How long was he under observation when you walked past that first time?' Answer, 'It would be a number of seconds. For how long I couldn't say.' Question, 'So it would have been a view of someone entering the store and walking past?' Answer, 'Yes.' Question, 'Without paying particular attention to him?' Answer, 'Other than the fact that I recognised the face.' Question, 'Would you admit the possibility that the person you had a memory of seeing in the past and this person are not one in the same person, that they are two different people?' Answer, 'No.' question from Mr Hill, 'So the distinguishing features for you of this person were the undercut hairstyle?' Answer, 'Yes.' Question, 'A long face?' Answer, 'Yes.' Question, 'And the bushy eyebrows?' Answer, 'Yes.' Question, '19 months later you were shown by the police 12 photographs', that's the photo folder, Exhibit 46. Question from Mr Hill, 'Where was that?' Answer, 'At Sportsmart, Moorabbin.' Question, 'Anyone else there?' Answer, 'No.' Question, 'You would have looked carefully at the 12 photographs displayed?' Answer, 'Yes.' Question, 'Do you say they show bushy or prominent eyebrows?' Mr Hill was taking her through the things she said stuck out from the robber. Answer, 'Slightly on no. 1', referring to the photoboard. Question, 'About undercut hairstyles?' Answer, 'No. 10 might have an undercut, I really can't tell from the shot.' question, 'Eyebrows?' Answer, 'Fairly heavy on no. 4?' 'yes.' Mr Hill said, 'I wonder if you could miss the next two', so they are skipped over the one of Mr Roberts at that stage and went on. Then going to the later ones, 'There is one undercut hairstyle, isn't there, photograph no. 7?', and he got to it. Answer, 'The hair's been cut at the top but shaved.' question, 'So having gone through that exercise, when looking at 12 photographs of 12 men, in fairness there is only one with an undercut hairstyle, isn't there, possibly one other?' Answer, 'But that wasn't the main focus I was looking at when I was looking at photos for recollection.' well, Mr Hill didn't ask her what was the main focus.

He then moved on to the FACE Image which was made on 30 March 1998. Question, 'You didn't get it quite right?' Answer, 'No, I'm not saying I didn't get it right, I didn't like it, there is a difference.' question, 'On what you have done you put a resemblance factor of 65 per cent?' Answer, 'That's what I said, but I didn't like it.'"

262 I have included these lengthy extracts rather than provide my own summary of the evidence of the witnesses because I consider that to do so would assist the development of an understanding of both the nature of and challenges made to the evidence and also because it provides, in part, the context and a possible explanation for the approaches adopted by the trial judge with respect to it.

263 Before this Court, the argument was presented that the trial judge fell into error in admitting the evidence of Ms Coffman on the foundation it was subject to a number of defects, and had to be regarded as too dangerous and unreliable for any weight to be attributed to it. The specific assertions upon which reliance was placed in support of this claim were:

(a) Although the witness gave evidence that she recognized the second perpetrator from somewhere and had "possibly" seen him in the store, her evidence was "extremely thin".

(b) Her identification of the person was based upon limited observations made under very difficult conditions.

(c) Her description of his clothing conflicted with that of two other witnesses.

(d) The photoboard identification, upon which her evidence rested, was not made until 19 months after the events.

(e) The use of the form of identification by photoboard was unsatisfactory in any event, and involved a degree of unfairness to the applicant.

(f) The composition of the photoboard created unfairness in that the style of haircut of the applicant in the photograph shown to the witness rendered him conspicuous.

264 The trial judge dealt with all of these matters in a reserved ruling:

"Turning to the second accused, Mr Roberts, at the second robbery, the Sportsmart at Noble Park on 29 March 1998, Ms Coffman identified the second accused as a robber. Mr Hill has criticised the identification both itself and as to its sequelae, particularly the photo board identification, and I have paid careful attention to Mr Hill's criticisms of it. However, it is apparent, in reading the evidence of Ms Coffman, being her statements (D.3141 and D.3144) and her committal evidence, that she had observed Mr Roberts twice earlier, had seen him previously, that he came in with a stocking over his head as to which she said, "If it wasn't so serious, I would have laughed", so hopeless was the stocking as a disguise (this was when, the prosecution says, the offenders were learning their criminal craft) - and on 27 October 1999 Ms Coffman made a clear identification of the second accused as a robber. She said in the committal at 456 "I could see straight through the stocking that was over his head." In relation to the subsequent identification by the photo board on 27 October 1999, she examined the photo board and identified No. 7, who was Mr Roberts, as the smaller robber. Ms Coffman said photograph No.7 "just jumped out at me" and that "the person in this photograph had the same long features, the undercut hair style and apart from that he was just very familiar to me" (D.3145). Ms Coffman also said that the robber had an undercut hair style and a ponytail (not evident in the photo No.7). Mr Roberts had had a ponytail but at a different time from when he had an undercut hair style. Mr Hill has criticised that, saying that as Ms McLeish acknowledged below, the only undercut hairstyle was that of No. 7. Accordingly, I called for the photo board here, to look at it myself - not, of course, to seek to ascertain whether No. 7 looked like the second accused, but rather to look at the provenance of the board, namely its fairness, and to see whether the photographs on it were a fair, categorical type of photograph. There were 12 photographs on the board, all in black and white. Photograph 7 was of the second accused, Mr Roberts. It appeared to me that a number of other photographs were very similar to his: 11, 12, 6 and 10 in particular; and there was nothing in the photo board which involved any unfairness, and certainly nothing like that which occurred in Blick [2000] NSWCCA 61; (2000) 111 A.Crim R. 326.

Accordingly, having looked at the evidence in relation to Ms Coffman at Sportsmart, it appears to me that there is evidence on which the prosecution, bearing in mind the strictness of care in relation to identification evidence, is entitled to rely upon as identifying Mr Roberts as the second robber in that second robbery."

265 I do not consider that error has been shown with respect to this ruling. It follows that the complaint made on behalf of Debs that he was prejudiced by the admission of the identification by Ms Coffman must also be rejected.

266 As earlier mentioned, if the Hamada evidence was to be used at all by the jury it could only be on the basis (inter alia) of the acceptance by them of the relevant identification. The judge in that situation was required to provide careful instructions to ensure that the well recognised dangers inherent in the acceptance of evidence of visual identification were avoided. He addressed this aspect in his charge; introducing the topic in the passage:

"The law in its experience has found that perfectly honest, decent and confident witnesses can be mistaken in matters of identification. The question with identification is not simply whether the witness is honest or confident, the question is also: Is the witness accurate and reliable? Honest and confident witnesses can be inaccurate and unreliable. The law has found that witnesses who are honest, decent and confident can be mistaken. Therefore scrutinise identification evidence very carefully before you act on it. I am not saying to you do not act on it: what I am saying to you is scrutinise it very carefully before you do act on it.

In relation to identification, ask yourselves the questions which your common sense and combined experience of life will tell you to ask: How long was the observation for? Was it of a person who had been seen previously by the observer or not? What was the lighting like? Was there a lot of movement? Was the observer able to see the person still? If there was movement, did the type of movement assist in attracting the attention of the observer? Was the observation of the whole of a person or of part of a person? Was the person who was observed disguised? If so, how much did that interfere with the observation? Was the observer looking carefully or not looking carefully, or in a state of fear or panic? All those, and all the other matters that your common sense and experience of life tell you, you will take into account, remembering my direction of law to you that with identification the question is not just: is the person honest? The question is: are they accurate and reliable?"

267 As a general introduction designed to draw the jury's attention to the nature of the problem and some of the matters which may impact upon the reliability of evidence of visual identification, his Honour's statements were conventional and appropriate. Of course, the matter could not be left there and he was required to address the particular evidence given in the trial.

268 With respect to the specific matters possibly affecting the evidence of Ms Chadwick, he said only:

"In relation to Ms Chadwick you will take into account that the video that she observed was observed by her 30 months later, on the 21st of September 2000, and of course the video, although partly a moving video, was two dimensional."

Dealing with that given by Ms Coffman, he provided little more assistance:

"In the case of Ms Coffman you will take into account that the photoboard she looked at, she looked at 19 months later, and of course again it is two dimensional and this time is not even a moving thing like a video but is a photograph. And you will take into account whether you consider the photoboard - remember Mr Roberts was no. 7 - was a fair photoboard, or whether, as Mr Hill put to you, no. 7 said, "Please pick me" because it was different to the others, particularly with the undercut hairstyle. So you look at all those matters in looking at the question of identification."

269 The instructions set out in these two passages were given almost immediately before a short break in the proceeding. On resumption, his Honour began to address the evidence given in the trial, commencing with that of Ms Chadwick which he described as "critical" to the Crown assertions with respect to the Hamada robberies. After completing his treatment of the evidence relating to the Bevic's robbery, he turned immediately to that of Ms Coffman and the Sportsmart robbery.

270 Counsel for both applicants in this Court submitted that the instructions given by the trial judge were inadequate and that, importantly, he failed to direct the jury in accordance with the requirements set out by the High Court in Domican where it was stated that:

"...the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.

Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence." (Footnotes omitted.)[34]

271 There is force in this assertion. His Honour was obliged to provide a clear and strong warning concerning the two or three features to which he directly adverted in his instructions as each of them possessed importance in the assessment of the reliability of the identification made by the respective witness. However, as the summaries set out earlier, and, in particular, the challenges that can be seen to have been made in counsel's cross-examinations of the witnesses, demonstrate, they were by no means the only factors to which the jury had to have regard and concerning which it was his duty to instruct them, employing the full authority of his office.

272 Why then did not his Honour undertake the task when providing his instructions of law, of drawing directly to the jury's attention the specific potential weaknesses in the evidence of the two witnesses, relating those possible bases of unreliability to his general instruction and warning on this subject? He was an extremely experienced trial judge who, as the matters already canvassed demonstrate, approached his responsibilities with great care. On this aspect, as his general and specific directions and his summaries of the evidence indicate, his Honour was well aware of the need for careful instructions on the issue of identification.

273 The answer, it seems to me, is to be found in the degree of attention which had already been given in the trial to the identification issue. All of the possible weakness of the evidence of both Ms Chadwick and Ms Coffman had been explored. Their purported observations were compared with those made, and some not made, by other witnesses in the particular robberies, as well as the evidence given by various witnesses with respect to the other eight offences. There were almost 50 witnesses called on this aspect of the case, with a number of them being subjected to detailed cross-examination. It would seem reasonable to assume that his Honour formed the view that, in the circumstances, there was no need to emphasize what he perceived as obvious to all present by traversing the issues at that point, and particularly when he proposed to ensure, by the provision of an extensive summary of each of the relevant witnesses, that the jury would be aware of, and take into account, all of the matters potentially impacting on the reliability of the evidence.

274 When considering the reasonability of this view, the approach adopted by counsel for the respective applicants must also be borne in mind. Both were represented by senior counsel with extensive experience in the criminal courts. Exceptions to his Honour's charge were taken by them in the course of which specific reference was made to the judgment in Domican, but raising different points.[35] Neither counsel contended, in his exceptions, that the judge fell into error in the manner asserted on behalf of the applicants in this Court. Domican was not overlooked by anyone in the proceeding, and it would appear that none considered that the dangers with which the Court was there concerned were, as a practical proposition, likely to arise in the trial. Senior counsel for Debs referred to this authority on four separate occasions. With respect to the evidence of Ms Chadwick specifically, he said:

"Your Honour has touched upon - we say we would like it more powerfully expressed, but we can't say that Your Honour hasn't gone to the matters that we have addressed as to Ms Chadwick, but as to the duration, and how often that you presented it, how Your Honour expressed it, we are telling you we are unhappy about that, but we can't take exception to it, and it may form part of a more global submission, but the words came from Your Honour."

275 Counsel for Roberts took no exception to his Honour's directions concerning the identification of his client by Ms Coffman.

276 The court in Domican was concerned to restate and develop further the framework within which a trial judge must operate if the risk of wrongful convictions occasioned by the acceptance by juries of unreliable evidence of visual identification is to be avoided; a risk that has long been recognized. Accordingly, for many years, a trial judge has been required to provide proper warnings concerning such possible sources of unreliability with particular emphasis being placed upon those that would not necessarily be apparent to an ordinary member of the community. The necessary instruction must be directed to the circumstances of the case and the evidence itself. In the present cases, in addition to a variety of what could be described as commonplace considerations, there were some matters which were regarded as possessing particular significance from the perspective of both the judge and counsel. They related to the identification process itself and the lengthy period between the event and the making of the identification. Each of those factors were addressed with only the faintest of complaints from one of the counsel. There is, in my opinion, no reason to suppose that, if either perceived the existence of any such risk, they would, as they did on many occasions, have made the appropriate submissions.

277 Nevertheless, it is apparent that his Honour did not undertake the exercise laid down by the High Court and, in that respect, the charge must be regarded as deficient.

278 The question which then arises is whether this deficiency may possibly have impacted adversely upon the respective applicant's chances of acquittal.

279 In my opinion, the answer is - No. First, by reason of the matters just canvassed. As a practical proposition, the jury must have been well aware of the potential weaknesses in the evidence of the respective witnesses and to have taken them into account.

280 Second, setting to one side the evidence relating to the Hamada robberies, the case mounted against each of the applicants was overwhelming. The identification of a particular applicant as one of the Hamada robbers (whether he was found to be involved in all, some or one of them) could not lead by any direct path to a finding of guilt of involvement in the killing of the two deceased. It was, of course, of no value whatever unless the jury found that the Debs car was present in Cochranes Road on that night with, of course, all that that finding carried with it. Involvement in the Hamada robberies could provide support for the evidence adduced to establish its presence, but that support was of a circumstantial character, and the Crown case on this aspect was very strong in any event. Almost never in criminal trials in my experience has the prosecution been able to adduce such a combination of circumstantial evidence and powerful self-incriminatory statements. To demonstrate this proposition it is not necessary to do more than draw attention to the various extracts set out in this judgment, including the repeated utterances by Deb, one of which was made in the presence of an apparently approving Roberts, that it may become necessary to kill other police members in order to derail the investigation.

281 The next issue arising under this group of grounds relates to a different aspect of the identification evidence before the jury.

282 There was evidence before the jury from a victim of the Bevics robbery, Kenneth Pullin, to the effect that of the persons shown to him in a video recording, Debs most closely resembled the larger in build of the robbers. Evidence of similarity in appearance between Roberts, as shown on the photoboard previously mentioned, and the smaller of the perpetrators of the Sportsmart robbery was given by a victim of that offence, Vanessa Angus.

283 Each of the applicants has contended that evidence of similarity of appearance is subject to the same risk of perceived reliability as evidence of direct visual identification and should be treated in the same fashion. Therefore, it was argued, the jury should have been given a Domican instruction and warning, emphasizing the danger of relying upon such evidence and, in particular, its use as providing support for otherwise unsatisfactory identifications.

284 No exception was taken by counsel for either applicant at the trial regarding this aspect of the identification evidence.

285 McHugh, J. in Festa considered the nature of what was termed "circumstantial identification evidence". He stated that:

"[It] is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance - usually, but not always, weak - that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence.

When circumstantial identification evidence has no element of positive identification, it usually does not have the potential unreliability of positive-identification evidence. A judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence. But the circumstances of a particular case may require a warning. When a witness claims that the facial features of the accused are similar to those of the perpetrator, it would usually be appropriate to give the standard warnings given in cases of positive-identification evidence. But the warnings that must be given to juries concerning positive-identification evidence do not apply to most forms of circumstantial identification evidence_._ "(Footnotes omitted.)[36]

286 Summarizing the evidence of Pullin and Angus on this aspect, in his charge to the jury, the trial judge said:

"Thirty months later on the 21st of September 2000 at the St Kilda Road Police Station Mr Pullin looked at the video, Exhibit 12. He said this, 'I asked for no. 5 and no. 8 to be shown again, and then I asked if they could stop the video so I could actually go up and put a clipboard or some paper over the eyes of the person to re-enact the features that I saw in the robbery.'

He then selected no. 8. He said this, 'The jawline and the cheeks and the sunken high cheekbones were most similar to the larger man.' Mr Pullin did not select no. 8 as the robber, all he did was he selected no. 8 as the most similar to the larger man in that video. The reason he went up to no. 8 and put the clipboard over it was because the larger man had dark glasses and a peaked baseball cap on in the Labour Day robbery.

He said the smaller man had a balaclava but just eyeholes and he couldn't see any distinguishing facial features or anything. In relation to the smaller man, he said that he was considerably shorter, probably six inches shorter, up to six inches shorter than the first man. The first man was about six foot, the second man who came in was much thinner, smaller, he was very athletic. 'he was a young athletic person, he was like a jackrabbit'. He said, 'The first offender would have been 40ish and the other one, just by his actions, he looked young, you know, 17 or 18 by his actions'.

...

Mr Pullin was asked this by Mr Dane, 'What height are you?' Answer, 'I'm six foot. The larger man would have been my size, maybe an inch taller at the most.' he said, 'The larger man was no shorter than six foot tall. He had an olive complexion. He wasn't fair. He was clean shaven. He had a cap on his head and dark glasses. The glasses covered from the bridge of the nose upwards, from the top half of his cheek upwards'.

Then the FACE Image of Ms Chadwick, made a couple of days later on 13th of March 1998, was played to him. He said of that FACE Image, 'I didn't have an opportunity to have a good look at the person's hair.' so he couldn't comment on the colour of the hair. He said however this, 'The upper part of the man's cheek is not as prominent as in this FACE Image.' Question, 'What about the nose?' Answer, 'I didn't pay a lot of attention to the nose but it is similar.' Question, 'The mouth?' Answer, 'I don't recall.' Question, 'The jawline?' Answer, 'The jawline was at the depressions of the cheek, cheeks, it was, the face was a little wider, the cheeks were sunken and the jaws a little sharper. The chin wasn't as rounded as that, it was sharper than on the FACE Image.' Question, 'Skin tone?' Answer, 'It was what I would consider a fair complexion. That picture is too fair in colour.' of the larger man he said, 'I consider him to be well-built and muscular, he was broad shouldered. He didn't have a belly. He was a fitter person than myself. He was medium/solid.'

He took Mr Pullin through the couple of frights that he got in the three months later, I won't take you through all of that, ladies and gentlemen.

Then Mr Hill in cross-examination asked Mr Pullin about the smaller man. He agreed that he said in his statement to the police that he did not get a look at the second male. Mr Pullin said he meant by that, that he didn't see the second offender as having any distinguishing features. He said the policeman didn't do a very good job of taking his statement. He was in an emotional state and that's what he meant; but he agreed with Mr Hill that he didn't in that statement on that Labour Day night make any description of the second offender as to his appearance

He agreed that he only had a fleeting glimpse of the smaller offender. He said that it would have been five to six seconds, something like that, that he saw the smaller offender and he only heard him speak two words.

...

Next, Vanessa Angus, a woman of home duties, said that she on that Sunday had gone into Sportsmart at Noble Park to occupy her free time. She got there at 4 p.m. with her little girl and she was still there when the robbery took place, having browsed around.

'The larger man', she said, 'said , 'Open the till'. He had a stocking over his head with a gun. He was stocky. He was in his 30s.' she, Ms Angus, was carrying her little child at that stage when they were herded up the stairs. She said, 'The other man had a stocking and a gun and it was a revolver. He was younger. He had dark features, undercut.' question, 'An undercut hairstyle?' Answer, 'Yes.' Question, 'Height and build?' Answer, 'Fairly slim but I can't say as to the height.' the older person told the younger one to tape everyone up. She had Tayla, her little three year old with her, and she said this, 'My hands were taped together, my wrists were taped over the top of her', Tayla, 'so she was face down on me.' Ms Angus' ankles were also taped. She was taped by the older man. She said, 'I said to the younger man, 'Don't hurt her', and he', the younger man, 'said, 'No, we won't'.' question, 'How do you describe the manner of the two men?' Answer, 'Fairly calm, I think, professional. Fairly professional, yes.' she said the younger one was told what to do by the older one. She said the younger had a gold, some sort of gold band to tie his hair back. He had dark eyebrows.

In December 2000 she looked at the video of the 12 people and she didn't recognise anybody. She was asked to look at the photo folder. She said, 'I wasn't sure when I picked out no. 7 and 9, more likely 7 because of the eyebrows and the similar features, more the shape of his face and his eyebrows. He had thick eyebrows, dark. That was similar to the young person. It was the hairstyle, hair colouring, just darker features.' that photo folder is number 48, the exhibit before you.

So you appreciate that she just talks about similarity, she doesn't identify the young man himself.

In cross-examination by Mr Dane she said, 'The larger man was 6'2', skinny, mid-30s, slight growth, short light brown or mousy hair. Looked dirty. No accent.'

In cross-examination by Mr Hill she said that the ponytail was tied at the collar, and she said that she had previously said it was about six inches past the collar. She said, 'I remember it as being shorter', but she did agree that's what she had previously said.

Question from Mr Hill, 'It was the eyebrows and the hairstyle that stuck in your mind the most?' Answer, 'Yes.' Next, Vanessa Angus, a woman of home duties, said that she on that Sunday had gone into Sportsmart at Noble Park to occupy her free time. She got there at 4 p.m. with her little girl and she was still there when the robbery took place, having browsed around.

'The larger man', she said, 'said , 'Open the till'. He had a stocking over his head with a gun. He was stocky. He was in his 30s.' she, Ms Angus, was carrying her little child at that stage when they were herded up the stairs. She said, 'The other man had a stocking and a gun and it was a revolver. He was younger. He had dark features, undercut.' question, 'An undercut hairstyle?' Answer, 'Yes.' Question, 'Height and build?' Answer, 'Fairly slim but I can't say as to the height.' the older person told the younger one to tape everyone up. She had Tayla, her little three year old with her, and she said this, 'My hands were taped together, my wrists were taped over the top of her', Tayla, 'so she was face down on me.' Ms Angus' ankles were also taped. She was taped by the older man. She said, 'I said to the younger man, 'Don't hurt her', and he', the younger man, 'said, 'No, we won't'.' question, 'How do you describe the manner of the two men?' Answer, 'Fairly calm, I think, professional. Fairly professional, yes.' she said the younger one was told what to do by the older one. She said the younger had a gold, some sort of gold band to tie his hair back. He had dark eyebrows.

In December 2000 she looked at the video of the 12 people and she didn't recognise anybody. She was asked to look at the photo folder. She said, 'I wasn't sure when I picked out no. 7 and 9, more likely 7 because of the eyebrows and the similar features, more the shape of his face and his eyebrows. He had thick eyebrows, dark. That was similar to the young person. It was the hairstyle, hair colouring, just darker features.' that photo folder is number 48, the exhibit before you.

So you appreciate that she just talks about similarity, she doesn't identify the young man himself.

In cross-examination by Mr Dane she said, 'The larger man was 6'2', skinny, mid-30s, slight growth, short light brown or mousy hair. Looked dirty. No accent.'

In cross-examination by Mr Hill she said that the ponytail was tied at the collar, and she said that she had previously said it was about six inches past the collar. She said, 'I remember it as being shorter', but she did agree that's what she had previously said.

Question from Mr Hill, 'It was the eyebrows and the hairstyle that stuck in your mind the most?' Answer, 'Yes.'

287 No specific instruction with respect to the evidence of similarity was given by the trial judge in the present case. Nor does it seem that it was regarded as called for by any of those present. The evidence of neither of these witnesses contained any element of positive identification, nor was there any claim made by either of any such similarity of appearance that a warning was required. It is to be noted, however, that his Honour, in the extracts set out above, did draw the limitations of their evidence to the attention of the jury. Those limitations were the subject of attention at different stages in the trial. There is no reason to suspect that the jury, if they regarded the Hamada evidence as possessing significance in their deliberations, may not have taken proper account of them.

288 For substantially the same reasons, it was not incumbent upon the trial judge to have provided any further instructions in the circumstances concerning the similarities and dissimilarities between the various descriptions of the robbers and the modi operandi employed in the various robberies. As he stated in a ruling on this aspect:

"As well as the identification evidence I have referred to respectively as to the Bevic and Sportsmart robberies, there is a powerful body of system which the prosecution seeks to rely upon, in particular the interrelationship of the two robbers in the various robberies. On the other hand, the defence is fully entitled to rely upon the evidential differences, some substantial, in description of the robbers and of the modes of robbery. These are properly matters for the jury to decide, governed by the instructions of law I shall give them as to identification evidence."

289 Finally, with regard to the grounds directed to "identification" evidence, I turn to the contention that the judge erred in his directions to the jury concerning the "circumstantial" identification of the gun located at the home of Debs' mother as having been used by one of the two offenders in the Bevics robbery.

290 Again, no exception was taken to his directions by counsel at the trial to this effect. His Honour summarized the evidence of the two witnesses who described the weapon associated with Debs as similar to that used in the robbery in his charge; reminding them of the arguments presented by counsel in relation to it. He specifically drew the attention of the jury to the fact that no one had purported to identify it as the same gun. I do not consider that he was required to do more in the circumstances.

291 When regard is had to these factors, the possibility that either of the applicants was deprived of a chance of acquittal that was reasonably open to him as a consequence of a deficiency in the charge concerning any of the matters encompassed by these grounds seems to me to be remote.

292 In his final address the prosecutor introduced the recorded conversations to which substantial reference has been made in this judgment in the following passage:

"That brings us to the very last body of evidence that we want to speak to you about. It is undoubtedly, I am sure you will agree, an important body of evidence and in its own right is a very interesting body of evidence, it is the electronic material, the recorded conversations over the telephone and in the various homes and cars which were the subject of scrutiny by the Victorian Police officers.

You know that the monitoring of these conversations began in November of 1999, that occurred a few months after a review of call charge records established a link which interested the police and it led to a closer examination of the two accused and their association with each other.

Warrants for telephone intercepts and listening devices were legally obtained and various devices were obtained and installed pursuant to those warrants. You have heard that telephones, including mobile phone services with which each of the accused was associated, telephones in homes, and as well as a public phone box in New South Wales, were the subject of telephone interception. Listening devices were placed in various houses and cars with which each of the accused had some connection. So you can see that the coverage was extensive, although one could not claim that every conversation in which the accused engaged during that phase of the investigation was captured on tape.

...

One would have to conclude when one looks at this body of material, the LD and TI material, that Mr Debs is a more loquacious, more talkative person than Mr Roberts. Apart from having more likely than not different personalities, one possible explanation for why Mr Debs spoke more freely, or seems to have spoken more freely than Mr Roberts about some of these matters may lie in the fact that it seems that almost everyone in the Debs' household knew of his involvement in the murders.

...

On the other hand, in the Roberts' household you don't have this compelling suggestion that other members of his home, his mother and his brothers, knew anything about his criminal activities with Mr Debs.

Despite that, however, what Mr Roberts says is equally compelling and inculpatory, and therefore damning, as what Mr Debs says".

293 He drew the attention of the jury to the absence of any challenge whatever by counsel appearing for Debs to the accuracy of any of the transcripts of the recorded conversations involving his client. He then stated that it was apparent from the nature and number of matters raised by counsel for Roberts in the course of the trial that he, too, accepted that the "vast majority" of them were correct.

294 There was, I should mention, a substantial dispute concerning what had been said by Roberts in one particular conversation.[37] The prosecution contended that, in an almost inaudible utterance, he remarked to Debs "I kill D's". Professor Andrew Butcher from Flinders University was called by the defence. Unsurprisingly, he expressed the view, at which I would anticipate most people would arrive without the benefit of any form of expertise, that it was difficult to decipher what was said. It could have been, he said, "I'll ...", "I'll kill ..." or "I kill ...". He said that he could not hear "D's". I have, of course, listened to the conversation several times and have my own view of it, but, because it would not be proper to deal with the matter on that basis, and because it is not possible to know what, if anything, the jury made of the conversation, I set it to one side as part of the narrative. If they accepted, as they well may have, the Crown claim concerning the utterance, it could have been viewed as significant. On the other hand, they may have considered that they could not hear what was said or be sufficiently confident about the precise words used for any reliance to be placed upon this evidence.

295 There was also some dispute concerning one of the conversations referred to earlier[38] as to whether it was Debs or Roberts, who said "no one was there but us". Detective Sergeant Thomas attributed the expression to Roberts. Professor Butcher said that he considered that it was uttered by Debs. He agreed, however, that Thomas was in a better position to determine this question.

296 I should mention at this point that counsel for Roberts addressed the jury at some length on various issues which, he submitted, were presented by the tape-recordings. He referred to the difficulties inherent in drawing an inference of acceptance of a fact from silence, the dangers posed by reliance upon transcripts, the potential prejudice that could be attracted by what he described as "appalling" language, the possibility that a recorded statement of a speaker may not have been heard or may have been misunderstood by the person addressed, and the risks posed by reliance upon incomplete or ambiguous statements.

297 Counsel for Debs also addressed on this matter. He submitted that the recordings could not be relied upon as the conversations were not conducted until about 18 months after the shootings, that there had been intensive media coverage in the interim which would have supplied a deal of information to his client concerning a subject of general interest, and that there were substantial portions which were inaudible. He argued with respect to the clearly expressed and repeated threats by Debs against other police members:

"We say that the police assessed these recordings as the rantings of a man who disliked police. You might think less of Ben for having a dislike of police, but he is not on trial for that, he is on trial for murder. We ask you to use the same detachment as the senior police officers used when they heard these utterances. Just the talk of a silly man. This assessment was made in April, well into the time he had made these threats. You have got the dates and where the threats occur, and then the arrest in July."

298 Having listened to those utterances, I find it almost inconceivable that any reasonable jury would accept the reasonable possibility that his various statements may have been nothing more than the outpourings of a "silly man". The fact that he would contemplate performing such horrendous acts and discuss this possibility with members of his family and Roberts in the calculating and serious fashion evident in the recordings is powerfully incriminating. As the prosecutor put to the jury, a temporal and causal correlation can be seen between the making of these statements and the happening of events which raised Debs' level of apprehension concerning the direction in which the investigation appeared to be proceeding.

299 It was argued before us that each of the uses of the various statements required the provision of further instruction by the trial judge to the jury. With regard to the use to which the listening devices material could be put and the care with which its context and content should be approached, the trial judge provided clear and adequate directions. Prior to the recordings being played, the jury was provided with a volume of transcripts. His Honour then said:

"Before we commence playing them, however, let me give you these directions of law, ladies and gentlemen. The first is, I am sure you know this one off by heart, the transcripts are not the evidence, it is the sounds you hear on the tapes which are the evidence. You know that and that has already been stated to you. I simply remind you of it to ensure that you take care with the evidence, which is the sounds. The transcripts are not the evidence.

Next, as I previously directed you, and I remind you again, there are two separate trials going on here, as you know, the trial of Mr Debs and separately the trial of Mr Roberts. With a number of these tapes there is one accused speaking in the absence of the other accused, one accused might be speaking to his family but the other accused isn't there. Where one accused is speaking on the tapes and the other accused is not present, you can only use the evidence of the speaker in relation to that speaker. You can't use it in relation to the absent accused. I have already explained that principle of law and of fairness to you, you will recall that direction and I remind you of it. Obviously, of course, if both the accused are speaking together, which happens on plenty of tapes, then you can use that evidence in relation to both of them; but if one is speaking and the other one is absent, you can only use that speaker's statements in relation to him, not to the absent accused. "

He reminded them that they were to hear only a small portion of the material on more than 2500 tape recordings and to avoid being influenced by the crudity of the language employed in many of the conversations. His Honour further instructed the jury:

"The final direction is this: at the conclusion of all the evidence there will be arguments put to you about the meaning of various things each accused said. You will hear what was said. There may be a dispute about what is on a tape. Indeed you heard Detective Sergeant Thomas say a minute ago that if in his opinion he wasn't sure what was being said he put 'inaudible'. You can listen to it and you might, because you are the judges of the facts, say, 'Yes, that is inaudible' or, 'No, I conclude something was said and I can hear it'. You are the judges of the facts. Detective Sergeant Thomas is not the judge of the facts, you are, so you decide what you hear. The first question is: what is it that you hear? The second question is: what does it mean? What is it referring to? What are they talking about? If one accused is talking: what is he talking about? At the conclusion of all the evidence there will be arguments put to you about the meaning of various things each accused said. The prosecution says that at various times each accused was in fact referring to the shootings at Cochranes Road and at other times to one of the Hamada robberies or another of the Hamada robberies. No doubt the defences will say that you could not be satisfied that the accused were referring to those things. When today and tomorrow you are listening to the tapes bear in mind the fact that you, the jury, have in the last couple of months here in court heard evidence yourselves about the Cochranes Road shootings and the Hamada robberies. Bear in mind that you must not unconsciously project your knowledge as jurors of the evidence you have just heard in court to the speakers on the tapes. It is the knowledge of the speakers that matters; it is their knowledge that matters. What were they talking about? That is the question. You judge that from the conversations themselves which you will hear on the tapes, and from the evidence, from the events at Cochranes Road and the Hamada robberies. So bear that in mind, ladies and gentlemen, as you are hearing these tapes. "

His instructions with respect to all of these matters were both appropriate and adequate.

300 During the trial, counsel for Debs made a number of allegations of impropriety, corruption and criminal conduct against three witnesses: the forensic scientist Peter Ross, Detective Senior Constable Tyler and Detective Inspector Collins as well as a member of unnamed police members which were repeated in his final address.

301 The prosecutor, in his address, made reference to them, equating them to the advancement of a false alibi and indicated that they bore upon the guilt of this applicant.

302 In these circumstances, the submission has been presented, the trial judge was under an obligation to direct the jury that, before the contentions of counsel (who must be taken to have acted on instructions from his client) could be used as evidence of the applicant's guilt, they had to exclude beyond reasonable doubt all other reasonable hypotheses as to which false allegations might have been made. Before us, the only such hypothesis to which it was indicated that the trial judge should have adverted, was set out in the applicant's written submissions, namely,

"in order (and out of desperation) to bolster what he perceived to be a weak defence and in order thereby to escape the unjust allegation made by the Crown and avoid his wrongful conviction."

I have no doubt that the provision of any such instruction would have been the subject of complaint by counsel at the trial and a fruitful source of appeal grounds.

303 There was no exception taken to this aspect of the trial judge's charge, nor was any further direction sought relating to the applicant's counsel's submissions on this basis.

304 Only a moment's thought is required to appreciate that the evidence of the forensic investigations was extremely important in this case. That evidence, if accepted, placed the Debs car in Cochranes Road at the time of the shooting, a shot being fired from within the vehicle, and another being fired at it, as well as providing a background to the evidence concerning the secrecy of a replacement windscreen, the conversations involving one or both of the applicants, and the contention that they concocted a story about the circumstances under which the windscreen was broken. If the forensic evidence was accepted, the case against each applicant became very powerful indeed and, in combination with their own utterances and conduct, can be reasonably regarded as overwhelming.

305 The prosecutor responded to the claims advanced by counsel concerning that evidence by submitting that they should be rejected as highly implausible and raised at a late stage for the purpose of bolstering a desperate defence where, in his submission, there was none. The only difference in substance between this position and the instruction which it is now claimed should have been provided by the trial judge is that his Honour, it is said, should have stated that the jury needed to consider the possibility that, because the applicant realized that the acceptance of the forensic evidence by the jury would have rendered his defence very weak, in desperation he made false allegations to avoid a wrongful conviction. Little imagination is required to appreciate why counsel would not have wanted to pursue that line in the circumstances.

306 This was not a case in which the prosecution invited the jury to engage in some form of impermissible reasoning, or in which the jury may have done so and, therefore, requiring the provision of an Edwards[39] direction, but one in which once the claims made by counsel concerning the evidence on behalf of the applicant were rejected, the evidence stood in stark relief.

308 Another complaint made before this Court, that was not made in the course of the trial, related to his Honour's instructions concerning the conversations between the applicants in which they expressed an intense interest in the course of the investigation and other issues that were affecting the police more generally at that time. It is said that his Honour should have provided a specific Edwards direction on this evidence. However, the trial judge did address this subject in the portion of his redirection dealing with the concept of consciousness of guilt. He had earlier instructed them about the use of lies as evidencing consciousness of guilt when dealing with the versions given by the applicants about the cause of the damage to the back windscreen of the Debs Hyundai. However, he had not dealt with some other aspects and the jury was re-called for further instruction concerning them. His Honour reminded the jury of his earlier general instructions of law and the context in which they were given. He then said:

"Why I brought you back is that Mr Rapke went further than just the lies about how the rear window broke, if they are lies, and he relied upon another body of evidence which he says also shows a consciousness of guilt of murder. The body of evidence in summary is this: First, Mr Debs saying repeatedly, 'Another two CPs have to go down', and the variations on that, and that Mr Thomas is going to have to be killed, Detective Sergeant Thomas. The prosecution says those statements by Mr Debs - in the absence of Mr Roberts, so they can't be used against him - show a consciousness of guilt of the crimes charged of murder. The prosecution says those statements are such that you may infer from them that he said what he said because he was conscious of being guilty of murder.

Again, to use the material in the way that the prosecution invites you, you would need to be satisfied that the reason Mr Debs said those things was a realisation by him of his guilt of murder and fear of the truth, not some other reason. In this case there is no dispute that he said these things. Mr Dane put to you: it is just hot air, it is just stupid talk, he was under pressure, he was mouthing off, and that is all it was.

So that is how each side puts those points. The prosecution says you would not say that and mean it unless you were guilty of the murders. The defence says he was just mouthing off, do not take it literally. That is how it is put.

The further area the prosecution relies upon is what the prosecution says is the incessant and abnormal interest by both accused in the progress of the police investigation. The prosecution says that in the LDs you have got an incessant and abnormal interest by both accused in the progress of the police investigation and as part of that the opportunistic expression of hope that someone else is going to get on the end of these charges, whenever any problem crops up with the investigation they are glad if it is deflected or delayed, and the prosecution says that all of those discussions, including the opportunistic hope that someone else is going to be charged, again reveal a consciousness of guilt of these crimes of murder.

So again, to use that body of material you would need to be satisfied that each individual said it and that when he said it, he said it because of a realisation by him of his guilt of murder and fear of the truth. The defence says to that, 'Look, these two men were being pressured by the police and they were mouthing off because they were under pressure by the police, and they were not speaking because they are evincing any consciousness of any crime of murder'. That is how the two sides put all of that.

As part of that, when Mr Roberts said to the police, 'I didn't discuss this with Ben', the prosecution again says that is a lie and it is a deliberate material lie said because he was conscious of guilt of murder and fear of the truth. You would have to be satisfied, as I have said, that that is so, and not that he said it for some other reason, such as he simply got it wrong, made a mistake, was feeling stupid, or didn't want to be wrongly pursued by the police. They are how each side puts those.

So the bottom line, ladies and gentlemen, is this: That the prosecution relies upon more than just the lies about how the rear window broke as consciousness by each individual accused who is doing the speaking of his guilt of murder. As I have said, I had not previously covered that area with you, such as , 'Another two CPs have to go down', 'I will kill Detective Sergeant Thomas', Mr Debs speaking, all the incessant and abnormal interest in the police investigation by both; and because I had not covered that I thought I should give you some directions of law, namely that for you to act on them you would need to be satisfied that what the prosecution says is right and that these things were not said for some other reason, such as they are just hot air or they are under pressure and they are mouthing off. So you understand how each side puts that, ladies and gentlemen."

309 Those instructions were, considered in the framework of the trial, adequate to enable the jury to approach their task properly and to avoid the use of impermissible reasoning towards guilt.

310 In his final address, the prosecutor sought to rely upon certain statements made by Debs in the presence of Roberts, and from which Roberts did not demur, as evidence against the latter, asserting that his silence in the circumstances constituted adoptive admissions of the truth of Debs' utterances.

311 The basis of admissibility of evidence of this kind was the subject of attention by the Court of Criminal Appeal in Salahattin[40] when it was said:

"... an allegation is not admissible in evidence against an accused person unless the circumstances are such as to leave it open to the jury to conclude that the accused, 'having heard the statement and having had the opportunity of explaining or denying it, and the occasion being one explanation or denial, has by his silence, his conduct or demeanour or by the character of any observations or explanations be thought fit to make, substantially admitted the truth of the whole or some part of the allegation made in his presence': see R. v. Smith per Hawkins, J. - or that he has so conducted himself as to show consciousness of guilt - see R. v. Thomas."[41] (Footnotes omitted.)

312 The principle has been accepted and applied in a number of cases over the years and its existence is not a matter of controversy. Nevertheless, because the inference that an admission has been made is claimed to arise from the absence of a response to the stated fact or allegation, rather than the giving of some positive sign of its adoption, the notion is one that the courts recognize must be approached cautiously.

313 Salahatten raised the issue in a very different context to that under consideration here. The accused in that case was found in a motel room with two other men. There was a parcel on the bed which each of the other men admitted in his presence contained heroin. One of them stated that the heroin had been purchased for $2,500 and the other said that all three were involved, using Salahatten's money to buy it. The accused himself said nothing in the face of these utterances. The Court rejected his complaint about the admission of this evidence in the circumstances; the view being adopted that the conversations were such that it was:

"reasonable to expect that if the statements made were untrue they would be met with an immediate denial."[42]

314 In the present matter, the statements, that the prosecution claimed were adopted in this fashion, were made in the course of private conversations between the two men, although sometimes in the presence of another participant. Whilst it is true, as the applicant's counsel has pointed out, that his client made no immediate verbal response on some occasions to specific utterances made by Debs, to approach the issue on that limited foundation would be to ignore the context, content, overall tenor of the relevant conversation, and the easily discernible fashion in which the two men interacted and communicated. As earlier mentioned, at the request of counsel I have listened to the entirety of the recorded material put before the jury; to some of the conversations several times. There is not the slightest suggestion in any of them that Roberts was anything other than a willing participant. There was nothing to indicate that he may have failed to respond by reason of fear or embarrassment, or to please Debs, or for any other discernible reason than that a response was not called for in the circumstances. Further, I have not been able to identify a single instance, although there may well be some, in which it could be stated that adoption could be inferred only from a failure to respond to a statement made. The contrast between the circumstances of the present case and that in cases like Salahatten is stark. I am satisfied that it was open to the jury to infer, from the matters to which I have referred and the contributions made by him in the various conversations, that he adopted the truth of the assertions of Debs.

315 A deal of attention was given by the trial judge to the use of the listening devices material. It would, I consider, have been clear to them as it would have been to a normally intelligent person, that they were not to act on the basis of statements made in the absence of the person concerned, and only in respect of those made in his presence where it would be clearly seen that he had adopted them as true. I also consider that it was almost certainly for this reason that counsel for Roberts, who paid a substantial attention to the tape-recording evidence, adducing expert evidence concerning parts of it, did not voice any objection to his Honour's directions on this basis.

316 Under these grounds, counsel for both applicants also drew attention to the invitation of the prosecutor to the jury to conclude, from accounts given by their clients concerning the cause of the damage to the windscreen of the Debs Hyundai, that they had mutually concocted a lie which was admissible against each of them. In his final address, the prosecutor put his argument as follows:

"You are entitled to conclude that they have jointly concocted the lie and have agreed to advance it as an innocent explanation for the broken screen and the damage to the car. That mutual concoction of evidence and mutual concoction of a lie is evidence against both of them and may be used by you in determining this case."

317 That statements made separately by two accused persons can be used in this manner as the Privy Council was made clear in Khan[43]:

"... a statement is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. Not only therefore can the statements of each appellant be used against each appellant individually, as the learned judge directed, but they can without any breach of the hearsay rule be used, not for the purpose of establishing the truth of the assertions contained therein, but for the purpose of asking the jury to hold the assertions false and to draw inferences from their falsity.

The statements were relevant as tending to show that the makers were acting in concert and that such action indicated a common guilt. This is a factor to be taken into account in conjunction with the circumstantial evidence to which reference has been made in determining the guilt or innocence of the accused persons."[44]

318 The argument advanced on behalf of Roberts on this aspect was that there existed a real risk that the jury may have believed that they were entitled to have regard to statements made by Debs, in his police interview, when considering whether Roberts had demonstrated a consciousness of guilt by concocting a false story with him. As the relevant passages from the monitored conversations between the two men and their individual statements and conduct demonstrate, the inference of concoction of a false story with respect to the damage to the car windscreen did not depend only upon reliance on statements made by Debs in his interview, although it could have been regarded by the jury as supported by them. However, it clearly was an inference that was open on the evidence. With regard to the proper uses to which the police interviews of the two men could be put, the jury was appropriately instructed. No issue can be seen to arise at that level.

319 At the conclusion of the prosecutor's final address, counsel for each of the applicants applied for the discharge of the jury. They claimed that the cases against their respective clients had been particularized by the prosecutor in a fashion that differed significantly from the manner in which it was formulated by him when he opened the case before them. This, the argument proceeded, resulted in unfairness, with the jury being requested to determine the cases on the basis of their acceptance of a specific factual scenario that had not been the subject of attention in the course of the trial.

321 As his Honour stated in his ruling on the discharge application, it is apparent that there were, from the outset of the trial, a number of elements which were integral to the Crown case against each of the applicants; namely, that both were present at the scene, that they aided and abetted each other, that each discharged a firearm and that one of the deceased was shot by two weapons. All of these claims were the subject of attention in the course of the trial. There was a considerable amount of forensic evidence adduced concerning an investigation into what had taken place, and conversations were put before the jury which, the Crown contended from the outset, to some extent filled in the gaps. Whilst at the completion of the presentation of all of the evidence, the respective roles ascribed to the applicants were specified with much greater precision than at the commencement of the proceeding, that is neither uncommon in a criminal trial, nor is it necessarily the cause of any potential injustice. Often, it is not until late in a trial that the full picture can emerge before a jury or the significance of the evidence be comprehended fully. This was not a case in which the prosecution can be seen to have depended in any substantial respect on the case opened to the jury, nor is it one in which the defence were ultimately confronted with a scenario which they had not had the expectation they would need to address or a reasonable opportunity to do so. Whether or not the jury accepted the scenario advanced by the prosecutor was a matter which they had to determine, applying the instructions to be given by the trial judge. It was certainly not required that they adopt the Crown version of events in order to return a verdict of guilty in each case.

322 I do not consider that the trial judge fell into error in so deciding.

"As I said to you, the defence does not have to prove they were not there. The prosecution has to prove, and prove beyond reasonable doubt, they were there, and that is what I am going to concentrate on from now on, ladies and gentlemen.

You cannot commit murder if you were not there. The question is: has the prosecution proved beyond reasonable doubt that the individual accused you are considering was there and either did the killing or was helping in the killing?

I said to you previously the prosecution does not have to prove beyond reasonable doubt precisely who did what or precisely in what sequence proceedings occurred; but what the prosecution does have to prove beyond reasonable doubt in each individual case is that the accused you are considering was there at Cochranes Road and that he was either the shooter which caused the death or was helping in the shooting which caused the death.

...

So the first way, plainly, that the prosecution can prove an accused person is guilty of murder is to prove he was there and was the killer. But there is another way the prosecution can prove a person guilty of murder, if they were there and they were not the actual person who fired the fatal shot, and I will now move on to the second way in which you can find the accused you are considering guilty of murder even though that accused was not the actual killer. Even though that accused did not fire the fatal shot which killed the deceased officer.

There are two ways the prosecution says an accused person who is not the actual killer but was there is guilty of murder. The first way is aiding and abetting. That is a big mouthful, ladies and gentlemen, and I will walk you through it, but the central concept of aiding and betting is the word "helping". That you were there intentionally helping.

...

The prosecution must prove that the accused who is not the killer helped the killer in any one of three ways:

1. 1. By intentionally helping the killer kill the deceased person or inflict really serious injury which resulted in death.
2. 2. By intentionally encouraging the killer by words or by presence and behaviour to do the killing or to inflict really serious injury which resulted in death.
3. 3. By intentionally conveying to the killer by words or by presence and behaviour an assent to and concurrence in the killing or the infliction of really serious injury which resulted in death.

...

Here, as you appreciate, both accused say, 'I wasn't there'. Also, in Mr Roberts' case through Mr Hill, his barrister, Mr Hill has also said you should be satisfied there was only one killer there anyway. Not only was Mr Roberts not there, there was only one killer there. So there are two elements there that Mr Hill has put before you. Of course, you have to find that the person who was not the killer was there. Then you have to find that he knew that murder was being committed, and then you have to find that he helped and helped intentionally the killer by any one of those three ways.

The prosecution here says there is no better way of helping and showing you are helping than joining in the firefight. By joining in, shooting your pistol at the poor victims, there is no better way of demonstrating your help to the actual killer. You are both shooting at someone, accused no. 1 kills him, accused no. 2 shoots him and does not kill him, you are both guilty of murder, because accused no. 2, although not the killer, is there, knows what is happening, and helps by the most eloquent demonstration of help, joining in the shooting. That is how the prosecution puts aiding and abetting."

"Finally, ladies and gentlemen, there is another way in which the prosecution says that the accused who was there and was not the killer is also guilty of murder. That other way is by common purpose, which have I set out there.

You do not get to common purpose, ladies and gentlemen, if you find accused no. 2 was aiding and abetting the killer. If you find that accused no. 2 was aiding and abetting the killer you do not get to common purpose; but if you are considering common purpose, you would then consider these elements that the prosecution must prove beyond reasonable doubt.

To prove an accused guilty of murder by common purpose the prosecution must prove beyond reasonable doubt that the deceased was murdered; that the accused person was present at the scene; that the accused person was party to an intended crime, being the intended armed robbery of the Silky Emperor, which was called off, and contemplated that shooting might be done in the course of that crime, including when leaving or escaping from the scene; and that the accused person in fact foresaw the possibility of the deceased person being killed or really seriously injured.

I will go back through that again step-by-step. This is common purpose. To prove an accused person guilty of murder by common purpose the prosecution must prove beyond reasonable doubt that the deceased was murdered; that the accused person was present at the scene; that the accused person was party to an intended crime, an armed robbery, and contemplated that shooting might be done in the course of that crime, including when leaving or escaping from the scene. Just pausing there on element D, going back through it, that the accused person was party to an intended crime: that intended crime was the proposed robbery on the Silky Emperor. You have to be satisfied that there was an intended crime of an armed robbery on the Silky Emperor. The prosecution says that was the intended crime, it was called off because the accused sussed out that there were police around, so they pulled out and they were quietly driving away hoping not to be pulled over. So that the accused was party to an intended crime, an armed robbery, and contemplated that shooting might be done in the course of that crime, including when leaving or escaping from the scene.

The prosecution says here you had two armed robbers, and you know they have loaded guns because they were shortly used just around the corner in Cochranes Road. The prosecution further says an essential part of the crime is to get away, there is not much use having a successful crime and then being caught on the premises, part of the crime is escape and not being apprehended. So the prosecution has to prove that the accused person was party to an intended crime, an armed robbery, and contemplated that shooting might be done in the course of that crime, including when leaving or escaping from the scene.

Fourth, that the accused person in fact foresaw the possibility of the deceased person being killed or really seriously injured. Not the probability, the possibility of the deceased being killed or really seriously injury. D simply means that the accused person foresaw that the deceased might be killed or really seriously injured. In other words, when they are leaving if they were apprehended, there might happen a shooting which involved death or really serious injury. In other words, if the accused under common purpose contemplated that a gun could be used in circumstances of attempted interception or apprehension, and in which the deceased were killed or really seriously injured. That is common purpose."

325 Those instructions, which were set out in a sheet provided to the jury, were expressed in simple terms, accorded with legal principle and were capable of application by them.

326 On behalf of the applicant Debs, it has been argued that it was necessarily implicit in his Honour's directions regarding the concept of aiding and abetting that, if the jury found that Debs had shot Silk after he had already been killed by Roberts that Debs was guilty of murder. This, it was argued, was clearly wrong.

327 The Director submitted in response that this complaint and, for that matter, all of the grounds relating to his Honour's instructions concerning aiding and abetting and common purpose are artificial in the extreme. They rest upon no defence advanced in the trial, apart from arguments directed to the prosecution scenario the acceptance of which was not essential to the outcome in any event. The artificiality, it was contended, is even more apparent when it is appreciated that the arguments assume the presence of each of the accused at the scene and that each of them fired shots. I agree.

328 Given that both were present and firing their weapons, as the Director argued before us, the evidence of commitment to the criminal enterprise was very powerful. If Silk was still alive at the time that Debs first fired, Debs would clearly be an aider and abettor. If Debs killed Silk then he would certainly have aided Roberts. If Silk had already died, then Debs in a graphic fashion could be seen to have demonstrated his existing commitment to the enterprise, particularly if they concluded, as they were entitled to do, that he also fired at Miller.

329 The complaints with respect to his Honour's instructions regarding the possible attribution of responsibility to the applicants on the basis of common purpose rest upon different but equally unstable ground. Under this heading, it was argued that, accepting that they had driven to the vicinity of the Silky Emperor in order to commit an armed robbery, there was no doubt that that enterprise had been "called off' before they were intercepted in Cochranes Road. In that situation, they could no longer be said to be pursuing a common purpose of a kind encompassed by the concept.

330 Although, and for somewhat different purposes, the expression "called off" has been interpreted as referring to a communicated withdrawal from an activity or the taking of some unequivocal step evidencing the fact that the accused is no longer a participant in it, there is no justification in principle for concluding that two armed men who, detecting the presence of police, decide not to proceed further and to make their escape from the location of their planned offence could not be said to be pursuing a common criminal purpose. Here, the Crown case was that the applicants drove to the Silky Emperor intent upon committing an armed robbery. They had handguns and ammunition in their possession. The jury were entitled to form the view that both accepted the possibility that these weapons would be used, either in the robbery or in order to avoid apprehension. To confine the notion of criminal enterprise in the fashion for which the applicants have contended before us would be, I think, to introduce a degree of unreality that would divide a piece of criminal activity into arbitrary compartments and exclude the making of a successful escape after the crime was committed, or perforce of police intervention abandoned, as part of the enterprise.

332 At the conclusion of his Honour's charge, the exception (inter alia) was taken that:

"MR HILL: We say that in respect to two witnesses to whom we put prior inconsistent statements and proved them, Linda Lee, through Senior Constable, I think Sergeant Beanland, and Gunawardana from the Green Papaya, and which we tendered Exhibit R1, being the statement from the committal, that Your Honour should have given the jury a direction as to how they treat prior inconsistent statements.

HIS HONOUR: I didn't give them that direction, I thought they had enough law, and I certainly technically should have. I thought the absence of direction would help Mr Roberts, I wasn't doing it for that reason, but it was in fact I thought they had had enough law, but I take your point."

333 Ms Lee, the owner of the Jade Kew Chinese Restaurant, stated in evidence-in-chief that the taller of the armed robbers was about six feet in height and that his companion was "slightly over five feet". However, she agreed in cross-examination that she had told a policeman in 2000 that the smaller offender was "maybe five foot eleven'.

334 Mr Gunawandana, who was, at the time of the robbery, a food and beverage attendant at the Green Papaya, referred to a "tall guy" and a "short guy" in his evidence-in-chief. In cross-examination, he was taken to a questionnaire that he completed in January 2000 in which he stated that both offenders were tall and solid, and both were more than five foot eight inches tall. Initially, he said that this was true, but then denied that he had made that statement in relation to both of them. When challenged about this answer by reference to his evidence at the committal hearing by Mr Dane for Debs, he responded that he could not remember what he said at that time. The relevant question and answer were then tendered.

335 In each case, the witness concerned had made a prior inconsistent statement which could well have impacted upon the jury's assessment of the reliability of the evidence given by that person. It would be reasonable to assume that, attributing to them a modicum of common sense, the members of any jury would have had regard to such variations in assessing the credibility and reliability of the versions given by the respective witnesses in evidence. In so far as inconsistency of the version can be seen to impact upon the credibility or reliability of a witness, it can hardly matter whether the inconsistent statements are made in or out of court. The real risk to a fair trial by the introduction of a prior inconsistent statement in the absence of an instruction by the trial judge is that the out of court statement may be treated by the jury as evidence of the facts asserted, and it is to that danger that the standard instruction is usually directed.

336 Whilst his Honour did not provide that standard instruction, I fail to see how its absence could have, in any significant respect, disadvantaged the applicants.

337 This ground raises a compendious complaint that the failure of the trial judge to address properly the matters encompassed by earlier grounds and the manner in which he did instruct the jury concerning "some of the significant 'planks'" of the applicant's defence impermissibly undermined his defence.

338 The written submissions before the court adopt a series of submissions to this effect made by counsel appearing for Debs at the trial and no further argument was advanced with respect to them. In broad terms, at the conclusion of the judge's charge, counsel complained about his Honour's manner of delivery, including his juxtaposition of various arguments and his reference to making "no comment" about them at different stages, the accuracy of his presentation of the evidence of Dr Robertson as to the possible period of time that Silk may have lived after being shot, and his Honour's treatment of an exchange between counsel and the witness Ross in connection to a subsequent demonstration in the courtyard of the court building using an Hyundai vehicle.

339 There is no need to deal with these complaints seriatim. It is, I consider, sufficient to state that, having read the relevant passages in the transcript to which they relate and the entirety of his Honour's charge, none of them possess substance. Some could, in the context of the trial, be reasonably described as trivial, and all appear to reflect the heightened sensitivity and tension that almost invariably is experienced by all engaged towards the end of a long and demanding criminal trial.

340 There is simply no substance in this ground. The matters raised by Roberts in his defence were relatively straightforward and appropriately addressed by the trial judge in his directions to the jury. The possibility that the jury may not have appreciated what was advanced on his behalf or the evidentiary bases upon which the various hypotheses presented in his defence rested, can, in my opinion, be discounted.

341 Accepting that there was evidence before the jury that was capable of supporting the scenario described by the prosecution in his final address, it was contended that the evidence also supported the following possibilities:

"(a) at some stage whilst Silk & Miller were following the Hyundai car out of the car park, along Warrigal Road and into Cochranes Road (Debs and Roberts having noticed Silk and Miller whilst in the car park), Debs and Roberts planned that, if the occupants of the car containing Silk and Miller were police officers and did intercept them, then Debs would courteously and calmly attempt to talk their way out of their then 'predicament', but if that attempt failed, then they would assault the two police officers before escaping from the scene of the intersection (by driving away very quickly); and

(b) the sole harm contemplated by Debs as being sustained by either Silk or Miller or both was less than 'serious injury'; and

(c) whilst executing their plan, Roberts alone formed the intention to kill Silk and deliberately did so; and

(d) Silk was already dead when Debs subsequently twice shot Silk.

With respect to the assault referred to above, the nature/scope of the assault was that loaded firearms would be brandished in order to either ward off the two pursuers or force them into submission so that their guns could be taken from them so that they might then be incapacitated in some way (e.g., with and by tape).

With respect to the harm referred to above, the presentation of a loaded weapon so as to avoid apprehension thereby exposes the victims to an appreciable risk of the requisite injury for the purpose of the offence of manslaughter by unlawful and dangerous act."

342 This view of the situation was not advanced in the course of the trial and specifically his Honour was not requested to instruct the jury on this basis. It rests in relation to some vital aspects upon no evidence at all. Fundamental to the acceptance of this possibility is speculation as to discussions in which the applicants could have engaged with regard to their intention and course of conduct if intercepted by the police. It is to be noted that there is absolutely nothing in their subsequent conversations that conveys event he slightest hint that any such discussions took place or that the deaths of the two witnesses may have been occasioned in that manner. As far as Debs is concerned, there is nothing other than the forensic evidence and that of his actions and statements upon which the jury could act in coming to a view as to his intentions at the time. If they accepted that he fired at both Miller and Silk, it would be almost inconceivable that they would accept the reasonable possibility that he contemplated causing less than serious injury to either of them. Finally, of course, it would involve the jury concluding that he was not aiding and abetting Roberts at the time that he fired at Silk.

343 It is evidence that no such direction was required in the present case.

344 It follows from what I have said in relation to the various matters raised by these applications that there was no aggravation of errors which can be seen to have caused this trial to miscarry. Nor am I of the opinion that the verdicts against the applicants can be properly described as unsafe or unsatisfactory.

345 Accordingly, I have concluded that both applications for leave to appeal should be dismissed.

The Application for Leave to Appeal against Sentence

346 Each of the applicants also seeks leave to appeal against the sentence imposed upon him on the following grounds:

"1. The sentence was manifestly excessive under all the circumstances.

1. 2. [The sentencing judge] did not set a minimum."

"1. The individual sentences of life imprisonment and the maximum term of 35 years' imprisonment are manifestly excessive.

1. 2. The learned sentencing judge gave insufficient weight to the applicant's youth."

347 The findings of the sentencing judge (which, I should add, have not been the subject of criticism) concerning the circumstances and roles played by the applicants were set out by him in his sentencing remarks as follows:

"You, Mr Roberts, without any warning, with your .38 calibre handgun grievously shot Sergeant Silk at close range in the chest. You intended to kill him. As the prosecutor has said, Sergeant Silk had nothing more lethal in his hands than a pen. His police revolver was in its holster and the covering flap of the holster was buttoned down. He fell to the ground where you shot him. Senior Constable Miller, who was then between the two vehicles, drew his police revolver and shot at you, Mr Roberts, in defence of Sergeant Silk. You, Mr Debs, immediately fired at Senior Constable Miller through the hatch window of your vehicle which you had reentered to obtain your .357 magnum handgun. Your fired repeatedly at Senior Constable Miller, one shot mortally wounding him. In great pain, Senior Constable Miller managed to struggle away from the scene to seek help and for your apprehension. In order to avoid the risk of being shot or identified, you did not pursue him. Instead, you, Mr Debs, went up to the helpless and immobile Sergeant Silk who was lying on the grassy verge, shot him in the pelvis and then shot him in the head, the last shot killing him instantly. You executed him - to ensure he could not identify either of you. Then you both returned to your car and drove away."

The Application for Leave to Appeal against Sentence by Debs

348 In support of his application for leave to appeal against sentence imposed upon him, the applicant Debs has submitted through his counsel that, although terms of imprisonment for life without parole have been imposed for the crime of murder, this occurs very infrequently and is an appropriate disposition in only the most extreme situations. The present case could not be properly regarded as falling into that category as the murders in the present matter were not premeditated and almost certainly were committed in a rapidly escalating situation in which the applicant acted without careful deliberation. The circumstances could be distinguished on a number of bases from those in which no minimum terms have been fixed. Reference was made in this context to the cases of Lowe[45], Coulston[46], Camilleri[47], DJH[48] and Dupas[49], all of which could reasonably be described as exceptional for one reason or another. No complaint was made that the head sentence of life imprisonment was inappropriate but it was submitted that there was nothing in the nature of the offences or the applicant's past history that justified the failure to set a non-parole period in his case.

349 The applicant Debs was 45 years of age at the time of the killings with some prior convictions to which the learned sentencing judge attributed little significance in the circumstances. He was found by his Honour to be of "ordinary intelligence at best" but not suffering from any psychiatric illness or psychological disorder. However, and understandably, his Honour came to the view that the applicant, who demonstrated remarkable callousness and a total lack of remorse for his actions, possessed a "highly dangerous predisposition" with little, if any, prospects for his eventual rehabilitation.

350 When considering whether the learned sentencing judge fell into error in deciding not to fix a non-parole period in his case, it is required by s. 11(1) of the Sentencing Act 1991[50] to have regard to the "nature" [51] of the offences committed by him. His Honour made the finding that he "repeatedly fired at Miller" and that he "executed" Silk. These actions were taken to avoid apprehension for serious criminal offences. On any view of the circumstances, his conduct constituted extremely serious examples of the crime of murder. In this context, the role being performed by the two police members at the time that their lives were taken from them must also be taken into account. They were on duty in the middle of the night, playing their part in an endeavour to apprehend armed criminals who had been preying upon vulnerable people and businesses in this city and who, it was thought, may well be active during that weekend.

351 I suspect that we, as a community, seldom give thought to the dangers to which the men and women who protect us in this way are regularly exposed. Perhaps that just reflects the general sense of safety that we are fortunately able to experience in this community and to which they contribute so valuably. What is clear beyond any dispute is that the community, through its courts, must make perfectly plain that violent actions directed against them will not be tolerated. The principle of general deterrence assumes great significance as a sentencing consideration in such cases. This was recognized by the learned sentencing judge and I have not detected any error in his approach to this aspect.

352 When regard is had to the matters to which his Honour adverted in his sentencing remarks, including the nature of the offences committed by the applicant, the applicant's total lack of remorse and his prospects of rehabilitation, I do not consider that this Court would be justified in finding that the sentencing judge fell into error in not fixing a non-parole period in his case.

The Application for Leave to Appeal against Sentence by Roberts

354 There are two grounds advanced in support of this application.

355 First, it is contended that both the individual sentences and the non-parole period of 35 years fixed by his Honour are manifestly excessive in the circumstances.

356 Under this heading, the attention of the Court was drawn to the applicant's youth at the time of the commission of the offences, the absence of any prior convictions or any evidence of the absence of premeditation on his part, and the expressed view of the sentencing judge that:

"The proper sentence for murder of a serving police officer in order to escape apprehension for serious criminal conduct is life imprisonment."

357 The first three matters were directly and appropriately addressed by his Honour. With regard to the last, he stated:

"The proper sentence for the murder of a police officer in the execution of the officer's duty, in order to escape apprehension for serious criminal conduct, is life imprisonment. Upholding the law requires it. Protection of the police, and protection of the community they serve, require it.

...

In your cases, the motive each of you had on the night you murdered the two officers, was a callous and self-centred one - to escape apprehension at any cost. That motive was not restrained by a moral sense in either of you, but rather was emancipated by a contempt you both held for police and for the law."

"You had a choice: apprehension or murder. You chose murder."

358 I do not interpret his Honour's remarks as indicating that a life sentence must inevitably follow upon a conviction for the murder of a police member without any regard being had to the actual circumstances of the offence or the offender involved; but he was certainly indicating such a sentence would normally be called for. This was so, he said:

"because the crime of murdering a police officer in the lawful execution of the officer's duty, in order to avoid apprehension for serious criminal conduct, is in the worst category of murder. A safe and functioning society depends upon its police force. An attack upon a serving police officer is an attack upon society itself. The nature and gravity of your offences are in that worst category."

Save that it is inappropriate to approach the sentencing task in a given case by reference to categories of murder[52], I certainly agree with the general view of the circumstances taken by his Honour and, in particular, the significance to be attributed to the killing of a police member in the execution of their duty for the purpose of avoiding lawful apprehension. I also agree that, notwithstanding the youth of the applicant, the head sentence of life imprisonment imposed upon him was required in the proper exercise of sentencing discretion in the present case.

359 Concerning the background and role of Roberts, his Honour further stated:

"Mr Roberts, you are now 22 years of age, having been born on 23 August 1980. You were one week short of 18 years of age at the time of the killings, and were eight days short of 20 years at the time of your final arrest. You were brought up in a family environment. In 1990 your father died suddenly when you were but a child. You continued to live with your mother and younger brother at Cranbourne until in 2000 you commenced living nearby with Ms Nicole Debs, Mr Debs' eldest daughter. You were educated to Year 10 level and thereafter worked. You suffer no psychiatric illness or psychological disorder. You are an intelligent person, just above average by psychometric testing (full scale of 105 on WAIS: Mr B. Healey's psychological report of 15 February 2003) and by my observation well above average.

Your counsel rightly and strongly relied upon your young age, at the time of the killings and still. Plainly, your young age is a central consideration on sentence. Your counsel rightly relied upon your lack of any convictions. Your counsel rightly relied upon your good conduct in court and your positive conduct in custody awaiting trial, and the length and burden of your incarceration and of not knowing your fate until today. In custody you have been appointed a peer educator, a responsible position and one which shows the custodial authorities have confidence in you. You have completed a number of improvement courses. A youth development worker gave positive evidence on your behalf.

I take all those matters into account, both generally and also particularly on the question of rehabilitation.

...

As for your presence and conduct at Cochranes Road, I am affirmatively satisfied that you were there, and acted murderously there, fully by your own free choice and decision. We all know young people who act foolishly through immaturity or through misguided thrall of an older more worldly person or through both. You were not such a youth at Cochranes Road. You were on the threshold of adulthood. You were more mature, worldly and hardened than your years. You were there after ten armed robberies. You were armed, yet again, with a lethal, loaded firearm. You were not caught by surprise. You had time to think. You knew exactly what you were doing. You got out of the car with a loaded gun. You fired the first shot."

360 His specific references to authorities bearing on the youth of an offender as an important factor in the determination of an appropriate sentence indicates that he was concerned to attribute appropriate weight to it . Against that background he stated:

"Despite your youth, the manifold elements of sentencing apply, Mr Roberts, and apply in full measure, to your murderous conduct. The Court, and the community, condemn your conduct. Next, you are to be punished in full measure for your conduct. You were almost 18 and acted with full knowledge and deliberation. Next, general deterrence is of especial application to your conduct, for the reasons I stated in sentencing Mr Debs. Next, specific deterrence is of real application to you. You must be deterred from further violence. Next, reformation is of significance with you. On the one hand, you have absolutely no remorse; on the other, you are young and have acted positively in custody. Your youth is of central relevance to the proper sentence to be imposed upon you, of itself, because of the matter of the extent your life expectancy at age 22, and because of chronological disparity with Mr Debs. But despite those considerations in your favour, I consider the elements of condemnation, punishment and general and special deterrence are of predominant significance in deriving the proper sentence to be imposed upon you. Conscious of its exceptional application to a young person, I conclude that the proper sentence to impose upon you, Mr Roberts, is life imprisonment."

361 It is evident that the learned sentencing judge had regard to all of the matters upon which reliance has been placed in this application.

362 I am unpersuaded that any specific error has been demonstrated to have been made by him and regard both the individual sentences and the non-parole period fixed as falling within the available range.

I certify that this and the preceding 147145 pages are a true copy of the reasons for judgment of Warren, C.J., Winneke, P. and Vincent, J.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 6 April 2005.

[1] cf. Sutton v. R. [1984] HCA 5; (1984) 152 C.L.R. 528 at 534 per Gibbs, C.J.

[2] cf. R. v. Tektonopoulos [1999] VSCA 93; [1999] 2 V.R. 412.

[3] cf. Sutton v. R., supra, at 547 per Brennan, J.; Perry v. R. [1982] HCA 75; (1982) 150 C.L.R. 580 at 604, 605 per Wilson, J.; Markby v. R. [1978] HCA 29; (1978) 140 C.L.R. 108 at 117 per Gibbs, A.C.J.

[4] cf. R. v. Pfennig [1995] HCA 7; (1995) 182 C.L.R. 461.

[5] [1989] HCA 50; (1989) 167 C.L.R. 590.

[6] His Honour, inter alia, referred to Sutton (supra), Perry (supra), Hoch v. R. [1988] HCA 50; (1988) 165 C.L.R. 292 at 300, Thompson v. R. [1989] HCA 30; (1989) 169 C.L.R. 1 at 16.

[7] In this context, I note what I said in R. v. Papamitrou [2004] VSCA 12; [2004] 7 V.R. 375 at [31]:

"It is obvious that evidence of this type carries with it a 'prejudice' to the accused. But the 'prejudice' of which s.398A speaks can rarely be a prejudice which flows from evidence which is strongly probative, which this evidence clearly was."

[8] The description of events set out in this narrative has been prepared from the Summary of Evidence provided to the Court, the passages in the trial transcript to which our attention has been drawn, the judge's charge, and the recordings and related transcripts of monitored conversations involving the applicants that were tendered in the trial.

[9] They had previously left their position in order to check a suspicious vehicle which, it transpired, was driven by a car thief who was in the vicinity looking for parked cars from which he could steal the contents.

[10] There were indications that he may have been taking notes when he was shot, as his pen was later found near his right foot and his notebook was missing.

[11] Recordings and related transcripts of a number of conversations involving one or both of the applicants were tendered in the trial. The passages to which reference is made in this judgment have all been separately checked against the recordings and transcripts with which we have been provided. As far as I am aware, and unless otherwise indicated, no challenge is made to the accuracy of any of them. There are other relevant passages to which reference has not been made which are to the like effect of those set out but, as I have indicated, only those concerning which no serious question of possible misunderstanding of the words or meaning can be seen to arise have been included.

[12] There was a fired bullet core in an upstairs office and various pieces of fired bullet fragments on the factory floor.

[13] Although the assertion was advanced in the course of the trial that some of the prosecution witnesses had conspired to fabricate or misrepresent evidence relating to the forensic investigations, there was for practical purposes little, if anything, to support this claim which can, I consider, be regarded as having been rejected by the jury.

[15] See the passages in the earlier conversation between Debs, Nicole and Roberts in [106] below.

[16] The prosecution used these passages in the trial as evidence of Debs' method of handling the police investigation.

[17] I should add, at this point, that as part of their investigative technique, the police had disseminated a certain amount of disinformation with a view to unsettling the two men whose activities and conversations they were, by that stage, monitoring.

[18] The Embona Taskforce was a crime unit set up to combat attacks on vulnerable targets.

[19] The Hamada robberies consisted of robberies committed at:

(1) Bevics Auto Shop in Carrum Downs on 9 March 1998.

(3) Treasure Restaurant in Nunawading on 19 April 1998.

(4) Kuali Indi Restaurant in Mentone on 22 May 1998.

(5) Jumbo Chinese Restaurant in Blackburn on 8 June 1998.

(6) Dick Smith Electronics in Mulgrave on 26 June 1998.

(7) Jade Kew Chinese Restaurant in Kew on 27 June 1998.

(10) Green Papaya Asian Restaurant in Surrey Hills on 18 July 1998.

[20] See [125] above.

[21] The Crown submitted that Roberts' familiarity with filament tape, its strength and other properties was probably attained during his employment with DMS Glass where he became familiar with its qualities and properties. It was, they contended, more than coincidental that within six weeks of his commencement of employment with that company, filament tape was used in one of the Hamada robberies, namely the Kuali-Indi. After that robbery, the tape was used on all save one occasion. The Crown conceded that the tape used in the robberies was not necessarily from DMS, as some of the widths of the tapes did not match that used at that company, but argued that the use of such tape had its genesis in Roberts familiarity with its properties gained through is work at DMS Glass.

[22] Crockett, J. addressed this possibility in R. v. Jones and Waghorn (1991) 55 A.Crim.R. 159 at 164:

"if there is not only substantial prejudice to an accused arising from a joint trial but that prejudice is of a kind not really amenable to nullification by judicial direction, then the claim for a separate trial is very much stronger. This conclusion is confirmed, I think, by the Full Court's reasons for the conclusion it reached in R. v. Gibb and McKenzie [1983] VicRp 78; [1983] 2 VR 155. But it does not follow that an application for severance in such a circumstance will succeed as a matter of course: see R. v. Ditroia and Tucci [1981] VicRp 28; [1981] VR 247."

[23] See R. v. Darby [1982] HCA 32; (1982) 148 CLR 668; R. v. Patsalis and Spathis [1999] NSWSC 649; (1999) 107 A.Crim.R. 432 and R. v. Alexander and McKenzie [2002] VSCA 183.

[24] In this regard he adverted to Plomp v. R. (1963) 100 C.L.R. 235; MLC Insurance Company of New York v. Moss [1906] HCA 70; (1906) 4 C.L.R. 311 at 317 per Griffiths, C.J.; R. v. Ball (1911) A.C. 47 at 68 per Lord Atkinson.

[25] His Honour referred to Sutton v. R. [1984] HCA 5; (1983-84) 152 C.L.R. 528; Pfennig v. R. [1995] HCA 7; (1994-95) 182 C.L.R. 461; R. v. Tektonopoulos [1999] VSCA 93; (1999) 2 V.R. 412 at 417 per Winneke, P., and Hoch v. R. (1985) 165 C.L.R. 202 per Mason, C.J., Wilson and Gaudron, JJ. at 294-5.

[26] He referred to Markby v. R. [1978] HCA 29; (1978) 140 C.L.R. 108; Pfennig; Sutton v. R. [1984] HCA 5; (1984) 152 C.L.R. 528; R. v. Cogley [1999] VSCA 123; (1999) 3 V.R. 366, R. v. Best (1998) 4 V.R. 603, DPP v. R. (1991) 2 A.C. 447, R. v. H. (1995) 2 A.C. 596 and Tektonopoulos in this context.

[27] Pfennig v. R. [1995] HCA 7; (1994-95) 182 C.L.R. 461 per Mason, C.J., Deane and Dawson, JJ. at 481.

[28] In Tektonopoulos, Winneke, P. stated that its potential prejudicial impact was a matter to which regard was required as part of the test of admissibility of evidence of propensity under s.388A of the Crimes Act (Vic.) and that there was therefore little room (if any) for consideration of that aspect in the exercise of the discretion referred to in R. v. Christie [1914] A.C. 545. Whilst I agree with this view, I doubt that, as a practical matter, there would be situations in which a different outcome would result, according to whether the potential prejudicial impact was taken into account in determining the question of admissibility, or, afterwards, in the exercise of discretion.

[29] Plomp v. The Queen [1963] HCA 44; (1963) 110 C.L.R. 234 at 248-250.

[30] R. v. Koeleman [2000] VSCA 141; (2000) 2 V.R. 20 at [26]- [28] where his Honour reviewed the state of the authorities on this question.

[31] R. v. Pollitt [1991] VicRp 22; [1991] 1 V.R. 299 at 302.

[32] I do not understand that there is any complaint concerning the accuracy or completeness of that description.

[33] Again, I do not understand that any challenge is made to this description.

[34] Domican v. R. [1992] HCA 13; (1991-92) 173 C.L.R. 555 per Mason, C.J., Deane, Dawson, Toohey, Gaudron and McHugh, JJ. at 561-2.

[35] They were related to a complaint that a Domican type instruction should have been given with respect to the evidence of "circumstantial identification" by other persons. I will address this aspect later.

[36] Festa v. R. [2001] HCA 72; (2001) 208 C.L.R. 593 at [56]- [57].

[39] Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193.

[40] R. v. Salahattin [1983] VicRp 49; [1983] 1 V.R. 521.

[41] Per McInerney and Murray, JJ. at 527.

[42] Wiedemann v. Walpole [1891] 2 Q.B. 534 per Bowen, L.J. at 539.

[43] Khan and Anor v. R. (1967) 1 A.C. 454.

[45] R. v. Lowe [1997] 2 V.R. 465.

[46] R. v. Coulston [1997] 2 V.R. 446.

[47] R. v. Camilleri [2001] VSCA 14; (2000-2001) 119 A.Crim.R. 106.

[48] R. v. DJH [1998] VSCA 98.

[49] R. v. Dupas [2001] VSCA 109.

[50] "(1) If a court sentences an offender to be imprisoned in respect of an offence for -

the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate."

1. [51] "In Victoria the courts have always, and rightly, acted upon the basis that although

s11 and its predecessors, s26 of the Penal Reform Act 1956, s534 of the Crimes Act 1958, s190 of what was originally called the Social Welfare Act 1970 and s17 of the Penalties and Sentences Act 1985, refer only 'to the nature of the offence', not to 'the nature of the offence or the circumstances of its commission', the phrase 'the nature of the offence' in the Victorian provision comprehends both the class or type of the offence and the circumstances in which it is committed. Compare Garlett v. R (1975) WAR 129." R. v. Lowe ]1997] 2 V.R. 465 per Winneke, P., Brooking, J.A. and Southwell, A.J.A. at 487.

[52] See R. v. Dumas [1988] VicRp 8; [1988] V.R. 65 per Young, C.J., Murray and McGarvie, JJ. at 71.