The Jason Roberts case: A second or subsequent appeal process to correct miscarriages of justice?

Abstract

The first re-trial under the second or subsequent appeal provisions introduced into the Criminal Procedure Act 2009 (Vic) has recently concluded, resulting in the acquittal of Jason Roberts for the 1998 murders of two Victoria Police officers. This article traces the various stages in Roberts’ efforts to have his conviction overturned, raising questions about the efficacy of the different mechanisms available for redressing miscarriages of justice. Ultimately, while the second or subsequent appeal process can be considered a success for Roberts, significant barriers remain for other wrongfully convicted persons whose circumstances do not receive the attention of a powerful commission of inquiry such as IBAC.

On 11 July 2022, following a re-trial of almost four months, Jason Roberts was found not guilty of the 1998 murders of Victoria Police officers Sergeant Gary Silk and Senior Constable Rodney Miller. As the first re-trial to be ordered and conducted under the second or subsequent appeal provisions adopted in Victoria in late 2019, it was a watershed moment for the Victorian criminal justice system. The second or subsequent appeal reforms came about in part due to Roberts’ continued post-conviction activism. Originally convicted of the murders in 2002 with co-accused Bandali Debs, Roberts’ journey to this re-trial has been long and arduous. It has included extraordinary revelations of police misconduct in the course of the investigation, unusual interventions by a senior serving police officer, the involvement of the Independent Broad-based Anti-corruption Commission (IBAC), multiple petitions for mercy, and a new appeal process. This article traces the background to the Roberts case and examines the panoply of mechanisms that operated to ultimately redress this miscarriage of justice. What emerges from this analysis is that the resistance and successive barriers faced by Roberts were substantial. These include the opaque and political petition of mercy process, the challenges in uncovering evidence of a miscarriage of justice, particularly where alleged police misconduct is involved, as well as the limited scope and availability of government inquiries such as those undertaken by IBAC. While the second or subsequent appeal has opened a more direct and transparent pathway for convicted persons to seek exoneration, the post-conviction review landscape remains both piecemeal and labyrinthine.

Background to the case

In the early hours of 16 August 1998, Officers Silk and Miller were engaged in surveillance of the Silky Emperor Restaurant in the Melbourne suburb of Moorabbin, as part of a special operation codenamed Operation Hamada. This investigation was tasked with solving a series of armed robberies which targeted premises with minimal security and ready cash. The suspects worked as a pair – one older, the other younger – and committed their crimes while armed and disguised, attacking businesses around closing time and leaving their victims bound hand and foot. ¹

Exactly what occurred the evening that Silk and Miller were shot has been subject to significant debate over the past 20 years. What is known is that Silk and Miller noticed a car exiting the Silky Emperor carpark and decided to follow, illuminating the portable flashing blue light they carried with them to require the vehicle to pull over. ² Miller and Silk approached the vehicle and asked the driver to step out. In the ensuing moments, both officers were shot. Miller stumbled away from the scene, while Silk was shot again, fatally. ³ A dying Miller was able to provide a description of events to the first responders. Multiple officers gave statements that his dying declaration referred to two offenders, evidence which became crucial to the following investigation – carried out by the specially established Lorimer Taskforce – and subsequent criminal trial. ⁴ Miller also referred to a dark Hyundai hatchback, which ultimately led the police to Debs and Roberts. ⁵ Both men were convicted of the murders of Silk and Miller after an 87-day trial in 2002. They were sentenced to life imprisonment for each of the murders. Roberts was given a minimum term of imprisonment of 35 years, while Debs was sentenced to life without the chance of parole. ⁶ Debs and Roberts unsuccessfully appealed their sentences and convictions to the Victorian Court of Appeal, ⁷ and in 2005 they sought special leave to appeal to the High Court of Australia. ⁸ This was refused. At this stage, the strict legal avenues for appeal had been exhausted.

However, Roberts refused to give up. His legal team reportedly approached Victoria Police as early as 2009 to request that Roberts’ involvement in the murders be re-examined. ⁹ In 2012, Roberts’ defence reached out to the Office of Public Prosecutions, which put them in contact with Detective Sergeant Ron Iddles. ¹⁰ Over the course of 2013, Iddles conducted a secret review, Operation Rainmaker, the findings of which potentially cast doubt on Roberts’ presence at the Silky Emperor on the night of Silk and Miller’s deaths. ¹¹ While Roberts had elected not to give evidence at his original trial, ¹² his account subsequently was that he had been involved in the armed robberies with Debs, but had remained at Debs’ house on the night of 16 August 1998 with his then girlfriend, Debs’ daughter, Nicole. ¹³ Roberts claimed that Debs had gone alone to the Silky Emperor and told him what had occurred when he returned home later that night. Roberts said he then assisted Debs in covering up the murders. ¹⁴ The findings of Operation Rainmaker ultimately prompted Roberts’ defence to lodge a petition for mercy.

Three petitions for mercy

Roberts’ team lodged three petitions for mercy with the Victorian Attorney-General between August 2016 and November 2019. ¹⁵ In each of these, Roberts admitted his involvement in the robberies, but asserted that Debs committed the killings alone. ¹⁶ Lodging a petition for mercy with the Attorney-General was, until recently in Victoria, the only post-appeal pathway available to a convicted person seeking exoneration. In turn, the Attorney-General could refer the whole case to the Court of Appeal for a re-hearing, or a particular aspect of the case to the judges of the Trial Division of the Supreme Court for opinion. ¹⁷ The limitations of this process as a mechanism for redress are well known and include the fact that decisions around petitions for mercy are entirely discretionary and the process is secretive. ¹⁸ Beyond this, because a petition for mercy under section 327 of the Criminal Procedure Act 2009 (Vic) is decided by the Attorney-General, albeit in their capacity as a member of the executive, the decision is susceptible to media pressure and prevailing political influences. ¹⁹ In addition, the process is arguably inefficient. In most cases, although the Attorney-General retains the prerogative power of mercy, they conduct an initial review of the material and, if they decide that there is an issue for determination, they then exercise their statutory power to refer the matter to the courts, resulting in double handling of the case. ²⁰ For the petitioner, the process is also marred with uncertainty. There is no required timeframe within which the Attorney-General must reach a decision and, once they do, there is no requirement to provide reasons. ²¹

In some respects, Roberts’ experience reflects the uncertain and potentially politicised nature of this mechanism. Roberts’ first petition was denied in March 2017 by then Attorney-General, Martin Pakula. The circumstances surrounding this denial were questioned by the media, ²² and the Legislative Council adopted a motion for the production of all documents upon which the determination had been made. ²³ A letter from Pakula read before the Legislative Council acknowledged that the advice from the Department of Justice had initially been that the matter ought to be referred to the Court of Appeal, but that the position had changed after the Chief Commissioner of the Victoria Police was invited to make a submission. ²⁴ This perhaps reflects broader evidence that petitions are less likely to be referred to the court if they reflect poorly on the prosecution or other state agencies. ²⁵ A number of documents were produced in response to the Legislative Council’s motion, although executive privilege was claimed over the majority. ²⁶ Pakula’s letter further emphasised the discretionary nature of the prerogative for mercy and that the principle of finality warranted it being exercised only rarely. ²⁷

The second petition, which relied partly on the first, was lodged after media reports revealed that Nicole Debs had given a recorded interview to police in 2013, during which she claimed that Roberts had been with her on the night of the murders. ²⁸ It also followed the discovery in late 2017 of a second statement made by one of the first responders within hours of the murders, the substance of which was materially inconsistent with evidence given at trial to the effect that Miller had mentioned two offenders. ²⁹ In August 2018, the Attorney-General sought advice from former Justice Teague on the second petition. Rather than return the whole matter to the Court of Appeal, the Attorney-General opted to refer a particular point out of the second petition to the judges of the trial division of Supreme Court under s 327(1)(b) of the Criminal Procedure Act 2009 (Vic). Specifically, the Attorney-General sought an opinion solely on the credibility of the evidence of Roberts’ whereabouts on the night of the murders. ³⁰ This course of action was described as ‘a cautious approach to referral that is sensitive to the interests of victims’. ³¹ The ensuing proceedings were ultimately superseded by the outcome of a parallel investigation by IBAC into alleged misconduct of officers within the Lorimer Taskforce. ³² Roberts lodged a third petition in November 2019, seeking a full referral to the Court of Appeal in light of the IBAC inquiry. ³³ No further action was taken in relation to this petition due to the introduction of the new second or subsequent appeal mechanism.

A two-stage IBAC investigation

It is difficult to overstate the significance of the IBAC investigation to the ultimate outcome in the Roberts case. This is not, however, a new phenomenon. Various government inquiries have previously contributed to the exoneration of wrongfully convicted persons in Australia. ³⁴ Chief among those is the Royal Commission of Inquiry established in 1986 to review the convictions of Lindy and Michael Chamberlain. ³⁵ Inquiry bodies tend to enjoy significant powers to investigate and to compel the giving of evidence and the production of documents. These powers may allow for the discovery of evidence that would otherwise be beyond the reach of convicted persons. Miscarriages of justice are indeed difficult to uncover, ³⁶ a challenge that may be compounded in cases, such as Roberts’, that involve undisclosed misconduct by police. Even where such conduct is suspected, it can be difficult to ensure an effective investigation of such matters. In Victoria, complaints about police conduct can be made to the police directly, whether at an individual station or to the Police Conduct Unit, or to IBAC. This is seen as a mixed civilian oversight model, with some practitioners and researchers raising serious concerns about its effectiveness. ³⁷

In the case of Roberts, the IBAC investigation was crucial to his second appeal, the evidence it revealed both contributing to the creation of this right and benefitting his appeal and defence at the re-trial. However, this outcome may well be a rarity. For a start, most complaints about police misconduct are investigated by the police themselves. ³⁸ This runs counter to the position throughout the literature that independent oversight of police is crucial to effectively holding the institution and its members accountable. ³⁹ Indeed, data collected by the Police Accountability Project indicate that less than 10 per cent of complaints investigated by police are found to have been substantiated. ⁴⁰ Certainly, internal oversight approaches have been criticised as ineffective, partial and/or lacking robustness. ⁴¹ Although IBAC offers an external form of oversight, it is ‘primarily an anti-corruption body’ responsible for the entire Victorian public sector. ⁴² In practice, this means that IBAC only investigates a very small proportion of allegations of police misconduct, leaving the vast majority to be reviewed by Victoria Police. ⁴³

While research is sparse on the current regime for police oversight in Victoria, the broader literature highlights the challenges of achieving meaningful reform to police accountability mechanisms. ⁴⁴ Such challenges are perhaps in evidence in the current longstanding process to overhaul the Victorian police oversight regime. In 2016, an unlawful raid on a woman's home triggered a review of the legislation which governs IBAC. ⁴⁵ The Committee inquiry published its findings in September 2018, making 69 recommendations ‘to improve the transparency, impartiality, effectiveness and efficiency of the system’. ⁴⁶ These included a recommendation that IBAC establish an adequately resourced, dedicated Police Corruption and Misconduct Division. ⁴⁷ The Victorian government launched a systemic review into police oversight in 2021, and reforms were expected to be legislated in 2022. ⁴⁸ It has therefore not as yet implemented the recommendations of the inquiry, but it is worth noting that Recommendation 1 is that IBAC should retain its role in police oversight. ⁴⁹

As it stands, IBAC’s investigative powers are extensive. The Commission enjoys general powers to summon ⁵⁰ and examine witnesses under oath. ⁵¹ It is an offence for a summoned witness to fail to appear at an examination, ⁵² refuse to answer a question ⁵³ or to produce a document. ⁵⁴ Significantly, the Commission may require police to answer questions and produce documents. ⁵⁵ It may enter police premises and seize material ⁵⁶ and, importantly, the Crown is not entitled to assert any claim of privilege in relation to police personnel in response to the exercise of these powers. ⁵⁷ In Roberts’ case, IBAC acquired police records relating to multiple operations, including the Lorimer Taskforce, obtained police diaries and daybooks, and examined, privately or publicly, dozens of witnesses, among whom were various current and former police officers. ⁵⁸

Roberts’ fortunes certainly turned when IBAC proceeded to examine the practices of the Lorimer Taskforce in the course of its investigation of the Silk and Miller murders. In early 2015, a reported ‘confession’ was made to Iddles – then Secretary of the Police Association Victoria – about the existence of a second statement by one of the first responders, raising concerns about improper evidentiary and disclosure practices. ⁵⁹ After further investigation, Iddles made a complaint to IBAC, leading to the establishment of Operation Gloucester in August that year. ⁶⁰ However, the investigation was closed in 2016 due to the absence of conclusive evidence. ⁶¹ In late November 2017, the emergence of the second statement prompted the re-opening of the investigation. ⁶²

In July 2020, IBAC published its Special Report on Operation Gloucester, which identified a pattern of improper practices employed by Victoria Police while investigating Debs and Roberts. ⁶³ This related primarily to the manipulation and altering of witness statements and the failure to disclose relevant statements (or their existence) to the prosecution, Roberts’ defence team and the court. ⁶⁴ These findings gave Roberts previously inaccessible evidence to challenge his conviction. By then, the Victorian Parliament had adopted legislation reforming the criminal appeals process to allow a second or subsequent appeal in limited circumstances.

Second appeal

In November 2019, legislation was adopted by the Victorian Parliament allowing a person convicted of a crime who had previously exhausted appellate avenues to launch a second or subsequent appeal. ⁶⁵ Until then, a person convicted of a crime in Victoria was only entitled to a single appeal, even in circumstances where fresh evidence may have come to light. The introduction of the reforms was prompted by the ongoing IBAC examination of the police conduct in Roberts’ case (as well as the separate inquiry relating to Lawyer X). ⁶⁶ The second or subsequent appeal essentially bypasses the petition process referred to earlier; in Pakula’s words during the second reading of the Bill, ‘it removes [the matter] from the political contest.’ ⁶⁷ It should also be noted that prosecution authorities have a similar avenue available to them to challenge an acquittal. ⁶⁸

The new provisions set a high bar for the review of cases. In order to obtain leave to bring a second or subsequent appeal, the applicant must establish that there is ‘fresh and compelling evidence’. ⁶⁹ The applicant must demonstrate, therefore, that they could not have obtained the evidence with the exercise of reasonable diligence. ⁷⁰ In addition, in determining whether the evidence is compelling, the court will test the quality of the evidence by reference to its reliability, substantiality and probative value. ⁷¹ Even if the material meets this test, the Court of Appeal has the discretion to refuse an application if it is not in the interests of justice to grant leave. ⁷² Once leave has been granted to bring a second or subsequent appeal, the appellant then must satisfy the Court of Appeal that a substantial miscarriage of justice has occurred. ⁷³ The process is therefore very onerous and designed to guard against frivolous appeals. ⁷⁴

Roberts’ application was the very first to be heard by the Court of Appeal under this new regime and it has defined the contours of its operation. The court recognised that the new appeal

manifests an intention that the finality of the criminal process yield in the face of fresh and compelling evidence which, taken with the evidence at trial, satisfies an appellate court that there has been a substantial miscarriage of justice. ⁷⁵

This reflects the inherent tension between two competing imperatives: finality and justice. Any challenge to a conviction comes with a significant toll on victims and their loved ones. There is therefore a need to ensure that convictions cannot be endlessly challenged. At the same time, demonstrable miscarriages of justice cannot be left standing, and the court’s approach acknowledges that in those hopefully rare cases, the need to correct errors trumps finality. ⁷⁶

A number of findings made by the Court of Appeal in the Roberts case were of particular significance. First, the court held that the requirement the evidence be ‘fresh’ ought to be interpreted in light of the police’s fundamental duty of disclosure. ⁷⁷ In Roberts’ case, evidence of the tampered statements was found to be fresh evidence on the ground that the failure to disclose this evidence deprived the defence of a forensic line of inquiry at trial. ⁷⁸ Secondly, the court held that where the evidence adduced in support of a leave application is ‘fresh and compelling’, it will generally be presumed to be in the interests of justice to hear the substantive appeal. ⁷⁹ Thirdly, the court determined that fundamental procedural departures could give rise to a substantial miscarriage of justice in and of themselves, regardless of their actual effect on the substantial outcome of the trial. ⁸⁰ In Roberts’ case, the court determined that the ‘undisclosed misconduct so corrupted the fairness of the appellant’s trial as to poison it to its root’. ⁸¹

The appeal allowed, the question remained whether Roberts should be acquitted or re-tried. In this respect, the court rejected the defence submission that an acquittal should be entered. ⁸² It found that the prosecution case remained strong and that the issue of Roberts’ guilt or innocence ought to be adjudicated by a jury. ⁸³ The denunciation of police conduct in this case, the court held, was achieved through the quashing of Roberts’ conviction and a ‘retrial [would] vindicate the integrity of the criminal justice system’. ⁸⁴ As a consequence, while the new appeal allowed the post-conviction review of the case on the basis of serious procedural misconduct, an acquittal was only possible after the issue of substantive guilt was determined by a jury. Any concern that the new appeal process might allow guilty persons to walk free on the basis of minor (or indeed significant) legal technicalities can therefore safely be allayed.

Conclusion

The miscarriage of justice that occurred in the Roberts case has arguably been redressed. It has taken almost 20 years, an internal police probe, three petitions for mercy, two IBAC investigations, the reforming of the Victorian criminal appeal processes, an application for leave to appeal and a substantial second appeal for Roberts’ original conviction to be quashed. At each stage, Roberts encountered significant resistance to his efforts. His fate was ultimately left in the hands of a jury at the re-trial, who found that the prosecution had not established beyond reasonable doubt that Roberts had been with Debs in Moorabbin on the night of the murders.

Roberts’ re-trial was no doubt confronting for the families of Silk and Miller. To have the matter re-litigated almost 25 years after their deaths would seem to undermine the principle of finality. At the same time, the case highlights the great difficulties convicted persons face when seeking exoneration, and the haphazard system that they must navigate. The second or subsequent appeal offers a welcome and transparent judicial pathway that allows an applicant to avoid the vagaries of the petition process. It does not, however, address the barriers that confront convicted persons such as Roberts when they attempt to uncover evidence of a miscarriage of justice, including as in this case, the undisclosed police misconduct that tainted the proceedings.