Re Roberts [2020] VSC 793 (26 November 2020)

2 In November 2019, the Victorian Parliament passed the Justice Legislation Amendment (Criminal Appeals) Act 2019. That Act permitted a second or subsequent appeal against a conviction for an indictable offence subject to a strictly conditioned requirement for the grant of leave to appeal. Following the passing of that Act, the applicant filed a second application for leave to appeal against his convictions. On 25 March 2020, the Court of Appeal granted that application.[4] On 10 November 2020, the Court of Appeal allowed the appeal, quashed the applicant's convictions and made an order for a new trial.[5]

3 On 17 November 2020, the applicant filed an application for bail in this Court. Murder is a sch 1 offence within the meaning of s 3 of the Bail Act 1977 ('the Act'). Accordingly, pursuant to s 4A of the Act, in order to be granted bail, the applicant must satisfy the Court that 'exceptional circumstances exist that justify the grant of bail'.

4 The application for bail is supported by two affidavits: one from the applicant's solicitor, Simon Moodie; and one from the applicant's mother's partner. It is not necessary to describe in any detail the evidence of the applicant's mother's partner. It is sufficient for present purposes to say that he gives evidence supportive of the application for bail in relation to the circumstances of the applicant's family and the issues relating to the possible employment of the applicant and the existence of stable accommodation were the applicant to be granted bail. The evidence in this affidavit was not the subject of any challenge by the respondent, and in the circumstances I am prepared to accept it.

5 Mr Moodie's affidavit is a significantly more detailed affidavit setting out the background to the present application, the applicant's personal circumstances, factors relied upon in support of the application for bail, 'alleged risk factors', and proposed bail conditions. In his affidavit, Mr Moodie deposes to the following matters:

(1) The applicant has no criminal history. He has no other outstanding charges, and is not incarcerated in respect of any offending other than the murder charges for which he was previously convicted.[6]

(2) The applicant has not previously been on bail in this or any other matter. At the time of the alleged offending, he was not on bail for any other offence, not subject to a summons to answer a charge for another offence, not at large awaiting trial for another offence, not released under a parole order, and not the subject of any community correction order.[7]

(3) The applicant was raised by his mother and father in the eastern suburbs of Melbourne. His father worked as a truck driver and forklift driver, but died when the applicant was aged nine. The applicant has a close relationship with his immediate and extended family, all of whom live within 40 minutes of each other in Melbourne, and with whom he maintains regular contact. He left school in Year 10 to commence a pre-apprenticeship in carpentry. He worked steadily as a carpenter and glazier until his arrest in August 2000, when he was 19 years of age.[8]

(4) As a result of his trial having been 'vitiated by a substantial miscarriage of justice, the applicant has suffered considerable personal hardship' as identified by the Court of Appeal in its reasons for quashing the applicant's convictions.[9] That hardship has involved the imprisonment of the applicant from when he was only 19 years of age, and imprisonment 'under onerous conditions in high security'.[10]

6 In other parts of his affidavit, Mr Moodie deposed to the applicant's circumstances so far as they concerned specific 'surrounding circumstances' referred to in particular paragraphs of s 3AAA of the Act. Thus, for example, Mr Moodie deposed to the applicant not having family violence orders against him;[11] the applicant not having any issues requiring treatment;[12] and the applicant not expressing any support for any terrorist organisation.[13]

7 Mr Moodie's affidavit set out his opinion that the retrial of the murder charges 'will run for many weeks - potentially three to four months'. The affidavit refers to the possibility of pre-trial issues 'that may be the subject of interlocutory appeal, including to the High Court'.[14] Additionally, he says that with the uncertainties as to timing caused by the COVID-19 pandemic,[15] it is reasonable to conclude that the retrial will not commence before late 2021 at the earliest, and may well not commence until 2022.[16]

8 As to the likely sentence to be imposed on the applicant should he be found guilty on the retrial,[17] Mr Moodie deposes that the applicant 'potentially faces a similar sentence to that imposed in 2003' and that, by reason of s 74AAA of the Corrections Act 1986, if convicted, 'the applicant could not be granted parole except under very restricted conditions - relevantly, that he is in imminent danger of dying or was seriously incapacitated so as to no longer have the physical ability to do harm to any person'.

9 Mr Moodie identifies five matters which, in combination, he contends comprise exceptional circumstances. In summary, they are:

(1) The circumstances of the applicant's custody and its effect on him.

(2) The 'likely extensive delay' until the applicant's retrial commences.

(3) The 'need for the applicant to be at liberty in order to instruct his lawyers and prepare for the trial'.

(4) The supports available to the applicant in the community, particularly from his immediate family and his extended family.

(5) A substantial surety, in excess of $500,000, is available.

10 The respondent opposed bail. In opposing bail, it relied upon an affidavit sworn by a solicitor employed with the Office of Public Prosecutions, Leon Fluxman. Mr Fluxman's affidavit exhibited a report prepared by the informant, Detective Senior Sergeant Michael Ritchie, annexures to that report and an unsigned affidavit of Jennifer Anne Hosking, the Assistant Commissioner, Sentence Management Division, Corrections Victoria.[18] Mr Fluxman deposed to Ms Hosking's unsigned affidavit describing the conditions of the applicant's custody, current arrangements in relation to the COVID-19 pandemic, and the applicant's access to facilities for his preparation for the retrial should bail not be granted.

11 The respondent opposes bail on the basis that the applicant's material does not demonstrate the existence of exceptional circumstances justifying a grant of bail. However, if exceptional circumstances are found by the Court, the respondent does not submit that the applicant is an unacceptable risk for the purpose of ss 4D and 4E of the Act.

12 In his affidavit, Mr Fluxman makes the following points:

(1) While the applicant has no prior convictions, he now admits, 'by way of sworn statement and affidavit, and by concessions made by his counsel in open court, as to his participation in 10 armed robberies with Debs'. Moreover, on the applicant's own version of events, he has admitted to assisting Debs in concealing his crimes from police. This, Mr Fluxman asserts, 'amounts to attempts [by the applicant] to obstruct the course of justice'.

(2) Notwithstanding the orders made by the Court of Appeal quashing the applicant's convictions, that Court said, on a number of occasions throughout its reasons, that the prosecution case remained a 'strong' and 'powerful' one.[19]

(3) The case against the applicant is now in fact stronger than it was at the original trial - largely due to 'the significant and extensive admissions made in statements and affidavits sworn and filed by the applicant as part of his petitions for mercy'.

(4) Listening device recordings referred to by the informant in his report 'indicate that the applicant was an active participant in the offending and was not coerced by Debs', contrary to some of the applicant's more recent claims.

13 In considering whether exceptional circumstances exist which justify a grant of bail, the Court must take into account the surrounding circumstances that are relevant to the matter, including those which are specifically referred to in s 3AAA of the Act.[20] Additionally, the Court is required to interpret and apply the Act having regard to the matters set out in s 1B, which include:

(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and

(b) taking account of the presumption of innocence and the right to liberty;

14 Additionally, the applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances justifying a grant of bail.[21]

15 It is well established that exceptional circumstances may consist of a combination of a number of circumstances relating both to the personal circumstances of the applicant and the strength of the case against him. In Re Reker,[22] Beale J, citing Kaye J in DPP v Muhaidat,[23] referred to the question of exceptional circumstances in the following terms:[24]

Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[25]

16 In oral argument, counsel for the applicant referred to the various matters relied upon by the applicant as disclosing exceptional circumstances, and which are referred to in the applicant's solicitor's affidavit[26] and the applicant's outline of submissions.[27] He said that while the combination of the various matters were relied upon as constituting exceptional circumstances, the principal matter (which was an exceptional circumstance in itself) was the length of the applicant's incarceration, caused by the reprehensible conduct of the police which led to the miscarriage of justice, and which caused the hardship to the applicant identified by the Court of Appeal.[28] The applicant submitted that this circumstance, standing alone, satisfied the exceptional circumstances test in the Act.

17 Senior counsel for the respondent submitted that there were three major issues to be considered when looking at exceptional circumstances. First, there was the considerable period of incarceration that the applicant has already undergone. This was said to tell in favour of a grant of bail. Secondly, there was the extremely serious nature of the alleged offending. This was said to tell against a grant of bail. Thirdly, there was the strength of the Crown case. Again, this was said to tell against a grant of bail. All of the other matters referred to in the material were, he said, of a more peripheral nature, and subsidiary to the three main issues.

18 In the affidavit of his solicitor in support of the application for bail, the murders with which the applicant is charged are described as being 'clearly ... serious example[s] of the offence of murder'. So far as the issue of seriousness is concerned, it may be observed that that submission does not overstate matters. While one can always imagine additional aggravating circumstances in relation to any instance of a particularly serious crime, the charges of murder in the present case are, in my view, about as serious as can reasonably be contemplated. The deliberate killing of a police officer, in the course of his or her duties, is an appalling crime deserving of the sternest punishment.[29]

19 In this case, all of the matters personal to the applicant and supportive of his application for bail (background, personal circumstances, stable residence, employment, availability of a substantial surety, support in the community and the like) may be accepted. Difficulty and inconvenience associated with the preparation of the applicant's defence is also a matter telling in favour of a grant of bail (albeit that I am not satisfied that the difficulties will necessarily be as great as is suggested in Mr Moodie's affidavit and the applicant's submissions).[30] Additionally, it may be accepted that the miscarriage of justice found by the Court of Appeal, which resulted in the quashing of his convictions, constitutes a rare and highly unusual circumstance. One may even attach the epithet 'exceptional' to those circumstances.

20 That said, in my view, the matters relied upon by the applicant in support of his application for bail do not, either individually or collectively, amount to exceptional circumstances 'that justify the grant of bail'.[31] To establish that the circumstances of the applicant's case are, in a general sense, 'exceptional' is not sufficient, there must be exceptional circumstances that justify the grant of bail.

21 The delay between now and the commencement of a trial is difficult to assess. If the parties were ready, the Court would very likely be able to accommodate a trial in the second half of 2021, and at the very latest in the first half of 2022. Such a 'delay' is far from exceptional in a matter of this kind. Moreover, in my view, it is not made exceptional by the fact of the applicant's time in custody to date and/or the conditions of that custody, or indeed the existence of any of the other matters relied upon by the applicant, and to which I have referred (notwithstanding what has been described as the reprehensible nature of the police conduct that has led to the quashing of the applicant's convictions and the order for a retrial).

22 In oral argument, senior counsel for the respondent told the Court that the prosecution opening would probably not be ready until mid to late March 2021. Counsel for the applicant submitted that such a delay underlined the prospect that this trial would not be ready to commence before the end of 2021. It should immediately be said that any delay in the conduct of pre-trial procedures in this case is not at all satisfactory. At the moment, however, it is not possible to predict just how long the pre-trial procedures and arguments might take. While I am not persuaded at this stage that the commencement of the retrial in the first half of 2022 would (either alone or in combination with the other matters relied upon by the applicant) gives rise to exceptional circumstances justifying a grant of bail, it may be that if there is a protracted delay through 2021, that gives rise to a likelihood of a continued delay in the commencement in the trial through a substantial part of 2022, the issue of bail would then have to be looked at afresh.

23 While paragraphs (k) and (l) of s 3AAA(1) of the Act, on their terms, constitute separate surrounding circumstances, in combination they direct attention to the question of whether an accused is likely to spend more time in custody if bail is refused, than the likely sentence to be imposed should he or she be found guilty of the offence with which he or she has been charged. Notwithstanding the lengthy period of time the applicant has been in custody to date, if he is found guilty of the murders of Sergeant Silk and Senior Constable Miller on the retrial, there is no reasonable prospect that he will receive a sentence that is less than the time he will have spent in custody if bail is refused. To the contrary, he will have served a mere fraction of the sentence likely to be imposed.

24 The Court of Appeal quashed the applicant's convictions because it accepted that there had been a substantial miscarriage of justice as a result of non-disclosures by the prosecution and Crown witnesses concerning Senior Constable Miller's dying declarations (referred to by the Court of Appeal as 'the dying declaration evidence'). In considering the question of whether the applicant's convictions were inevitable in any event, after analysing the evidence and the Crown case, the Court of Appeal concluded:

The reality is that the case as a whole (disregarding the dying declaration evidence) was powerful but conviction was not inevitable.[32]

25 Counsel for the applicant submitted that I should not approach the issue of exceptional circumstances on the basis that the Crown case (disregarding the dying declaration evidence) remains a powerful one. He submitted that the Court of Appeal's conclusion in that regard did not take account of all of the evidence, including evidence yet to be called on the part of the applicant. He also submitted that a substantially greater challenge would be made on the retrial to various parts of the Crown case which were not so challenged on the first trial. It was submitted that I should be 'circumspect' about any conclusion as to the strength of the Crown case. Ultimately, he submitted that there was a 'not insubstantial prospect of acquittal'. To the contrary, the responded submitted that there was a degree of speculation in the applicant's submissions about evidence yet to be called or tested, and that the applicant's submissions did not justify any departure from the Court of Appeal's assessment of the strength of the Crown case.

26 It is not appropriate to discuss in any detail the strength, or otherwise, of particular aspects of the Crown case. All of that will ultimately be a matter for the jury (assuming a jury trial) uninfluenced by anything said in these reasons. It is sufficient to say that on the material presented on this application, there is no basis for concluding other than that the Crown case as a whole (disregarding entirely the dying declaration evidence) is a powerful one - albeit that, as the Court of Appeal observed, conviction is not inevitable. That assessment, coupled with the fact that the alleged offending in this case is so serious, tells against a grant of bail in this case at this time.

27 Finally, the applicant sought to draw parallels between his case and the case of Eastman v Director of Public Prosecutions [No 3].[33] In Eastman, the Full Court of the Supreme Court of the Australian Capital Territory granted bail following the quashing of Mr Eastman's conviction for the murder of a police officer. The Court accepted that the circumstances in which Mr Eastman's conviction was quashed and a retrial ordered were 'special or exceptional' within the meaning of s 22 of the Bail Act 1992 (ACT), Notably, however, the Director of Public Prosecutions did not oppose the grant of bail in the circumstances of that case.[34] Perhaps of equal significance, the Court noted that, at the time it granted bail, it was 'uncertain whether the Director will proceed with a retrial'.[35] In the circumstances, Eastman is of little assistance in the present case.

28 For the reasons given above, the applicant has failed to persuade me that exceptional circumstances exist that justify a grant of bail. Bail must therefore be refused.

[1] DPP v Debs and Roberts [2003] VSC 30 ('Sentencing Reasons').

[2] R v Debs and Roberts [2005] VSCA 66.

[3] Debs v The Queen; Roberts v The Queen [2005] HCA Trans 971.

[4] Roberts v The Queen [2020] VSCA 58.

[5] Roberts v The Queen [2020] VSCA 277 ('Second Appeal Reasons').

[14] In oral argument, it was suggested by counsel for the applicant that it might be necessary to seek to appeal to the High Court so that its decision in Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180, concerning the admissibility and use that may be made of transcripts of recordings of conversations, might be reconsidered.

[15] As to the relevance of the COVID-19 pandemic, see Re Diab [2020] VSC 196, [38].

[18] Due to current working restrictions caused by the COVID-19 pandemic, Ms Hosking's affidavit remains unsworn. In argument, I was told that the affidavit was relied upon on on an 'information and belief' basis. Counsel for the applicant took no objection to this approach.

[19] Second Appeal Reasons [169], [269] and [279].

[22] [2019] VSC 81 ('Reker').

[23] [2004] VSC 17 ('Muhaidat').

[24] Reker [2019] VSC 81, [39].

[25] Muhaidat [2004] VSC 17, [13]-[14].

[26] See [10] of the applicant's solicitor's affidavit.

[27] See [5] of the applicant's outline of argument.

[29] Cf Sentencing Reasons at [29] where the sentencing judge described the crime of murdering a police officer in the lawful execution of his or her duty, in order to avoid apprehension, as being 'in the worst category of murder'.

[30] See Mr Moodie's affidavit at [10(c)] and the applicant's outline of submissions at [5(b)-(c)], but cf Ms Hosking's unsworn affidavit and the respondent's outline of submissions dated 25 November 2020 at [32]-[44].

[33] [2014] ACTSCFC 3 ('Eastman').