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Roberts V the Queen [2021] VSCA 28 SUPREME COURT OF VICTORIA COURT OF APPEAL S EAPCR 2020 0249 JASON JOSEPH ROBERTS Appellant v THE QUEEN Respondent --- JUDGES: MAXWELL P, NIALL and EMERTON JJA WHERE HELD: MELBOURNE DATE OF HEARING: 22 January 2021 DATE OF JUDGMENT: 26 February 2021 MEDIUM NEUTRAL CITATION: [2021] VSCA 28 JUDGMENT APPEALED FROM: [2020] VSC 793 (Beach JA) --- CRIMINAL LAW – Appeal – Bail – Murder – Miscarriage of justice – Retrial ordered after convictions quashed – Application for bail pending retrial – Bail refused – Appeal from refusal of bail – Whether exceptional circumstances exist that justify the grant of bail – Appellant in custody for 20 years before convictions quashed – Whether period of custody constitutes pre-trial delay – Reliance on injustice of corrupted trial and resulting hardship of incarceration – Whether continued incarceration unjust – Whether judge misconstrued applicable provisions – Whether refusal of bail unreasonable – No specific error – Refusal of bail reasonably open – Appeal dismissed – Bail Act 1977 ss 1B, 3AAA, 4A, 4E. WORDS AND PHRASES – ‘exceptional circumstances exist that justify the grant of bail’. --- APPEARANCES: Counsel Solicitors For the Appellant Mr P Matthews Stary Norton Halphen and Mr P Smallwood For the Respondent Mr B Ihle SC Ms A Hogan, Solicitor for with Mr G Hayward Public Prosecutions COURT OF APPEAL 459 Lonsdale Street, Melbourne, VIC 3000 MAXWELL P NIALL JA EMERTON JA: Summary 1 On 15 August 2000, the appellant was arrested and charged with murdering two police officers. On 31 December 2002, he was convicted of both charges of murder. On 24 February 2003, he was sentenced to life imprisonment, with a non- parole period of 35 years. Successive applications for leave to appeal to the Court of Appeal and the High Court failed. 2 In 2019, the appellant commenced fresh proceedings in this Court under pt 6.4 of the Criminal Procedure Act 2009, seeking leave to appeal on the ground that his trial had been vitiated by non-disclosure of relevant evidence. On 10 November 2020, the appeal against conviction was allowed. The Court quashed the murder convictions and ordered a retrial on both charges.1 3 The appellant then applied for bail pending the retrial. Because the appellant is charged with murder, the judge was obliged to refuse the application unless satisfied that ‘exceptional circumstances exist that justify the grant of bail’.2 The judge was not so satisfied and the application for bail was refused.3 4 The appellant now appeals from the decision refusing him bail. The decision to grant or refuse bail being discretionary, the appellant accepts that appellate intervention would only be warranted if he could show that the judge had made a specific error or else that it was not reasonably open to the judge in the circumstances of the case to refuse the application. 5 As to specific error, the appellant submits that the judge misconstrued the applicable provisions and, as a result, gave undue prominence to the seriousness of 1 Roberts v The Queen [2020] VSCA 277 (‘Roberts’). 2 Bail Act 1977 s 4A(1A) (‘Bail Act’). 3 Re Roberts [2020] VSC 793 (‘Reasons’). Roberts v The Queen 1 THE COURT the charges, the strength of the prosecution case and the likely sentence the appellant would face if convicted. By so doing, it was said, the judge effectively made it impossible for the appellant to obtain a grant of bail. 6 As to the complaint of unreasonableness, the appellant submitted that the only conclusion reasonably open was that these were exceptional circumstances which justified a grant of bail. Specific reliance was placed on: the ‘delay’ of more than 20 years between the appellant’s arrest and his likely retrial; the ‘considerable personal hardship’ which he has endured while in custody; the absence of any factors indicating that the appellant presents an unacceptable risk in any of the ways contemplated by the Bail Act; the fact that his convictions were quashed because police misconduct had ‘so corrupted the fairness of [his] trial as to poison it to its root’; and the existence of strong community support for the appellant, and the availability of a substantial surety. 7 For reasons which follow, the appeal must be dismissed. First, there was no specific error. His Honour’s construction and application of the relevant provisions was entirely orthodox, and consistent with the applicable authorities. Secondly, as to unreasonableness, the judge took into account all of the matters relied on by the appellant and it was, in our view, well open to his Honour to conclude that there did not exist ‘exceptional circumstances that justify the grant of bail’. 8 It is not in doubt that the circumstances giving rise to the quashing of the appellant’s convictions last November are quite exceptional. Fortunately, it is an extremely rare occurrence for convictions to be quashed on the ground that police Roberts v The Queen 2 THE COURT misconduct denied an accused person ‘a fair trial according to law’.4 The critical question, however, was whether those circumstances, and the fact that the appellant had spent more than 20 years in custody by virtue of those wrongful convictions, justified a grant of bail. The judge was not persuaded that they did and, in our respectful view, that conclusion is unimpeachable. 9 A review of bail decisions in ‘exceptional circumstances’ cases reveals certain types of circumstances which recur as justifications for bail in such cases: unreasonable delay before trial; unacceptable adverse impacts of continued pre-trial incarceration (whether on the accused person or on his/her dependants); and the likelihood that time spent on remand will exceed any term of imprisonment which would be imposed in the event of conviction. What these different kinds of circumstances appear to have in common is that they are capable of rendering continued pre-trial incarceration unjust, notwithstanding the statutory prohibition on bail which otherwise applies. 10 The informing principle seems to be clear: if continued incarceration before trial would be productive of injustice, then a grant of bail may be justified (subject always to the separate question of ‘unacceptable risk’). The bail decision maker is thus looking to the future, considering the likely consequences of the continued incarceration of the applicant for bail. Past events may be relevant to that consideration, as in the cases concerning pre-trial delay, but what justifies bail is the need to prevent or mitigate future injustice. 11 This analysis highlights the difficulty confronting the appellant, whose core argument rested on past injustice as enlivening his right to liberty. What was said to justify the grant of bail was the injustice constituted by the corruption of his trial, and the personal hardship which he is said to have experienced during the 20 years of custody which followed. According to the submission, the grant of bail should be responsive to and reflective of that past injustice and hardship. 4 Roberts [2020] VSCA 277, [257] (T Forrest and Osborn JJA, Taylor AJA). See Eastman v DPP [2014] ACTSCFC 3, [8] (Rares and Wigney JJ, Cowdroy AJ). Roberts v The Queen 3 THE COURT 12 In our view, it was well open to the judge to reject that submission. Those matters did not, as the appellant submitted, compel the conclusion that bail was justified. Understood by reference to the jurisprudence on ‘exceptional circumstances’, his Honour was not obliged to view the past events on which the appellant relies as making it unjust for his pre-trial incarceration to continue. 13 We note that the appellant has already pursued appropriate remedies for the injustice and hardship he has suffered. The remedy for the corruption of his trial was the one which he obtained in November 2020: the quashing of his convictions. And the personal hardship on which he relies was expressly accepted, and taken into account, by this Court in considering whether or not to order a retrial. The applicable provisions 14 The ‘exceptional circumstances’ test is set out in s 4A of the Bail Act, as follows: (1) This section applies if, under section 4AA(1) or (2), the step 1 — exceptional circumstances test applies to a decision of whether to grant bail. (1A) The bail decision maker must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. (2) The accused bears the burden of satisfying the bail decision maker as to the existence of exceptional circumstances. (3) In considering whether exceptional circumstances exist, the bail decision maker must take into account the surrounding circumstances. (4) If the bail decision maker is satisfied that exceptional circumstances exist that justify the grant of bail, the bail decision maker must then move to step 2—unacceptable risk test. 15 The ‘unacceptable risk’ test is set out in s 4E of the Bail Act, as follows: (1) A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that— (a) there is a risk that the accused would, if released on bail— (i) endanger the safety or welfare of any person; or (ii) commit an offence while on bail; or Roberts v The Queen 4 THE COURT (iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or (iv) fail to surrender into custody in accordance with the conditions of bail; and (b) the risk is an unacceptable risk. (2) The prosecutor bears the burden of satisfying the bail decision maker— (a) as to the existence of a risk of a kind mentioned in subsection (1)(a); and (b) that the risk is an unacceptable risk. (3) In considering whether a risk mentioned in subsection (1)(a) is an unacceptable risk, the bail decision maker must— (a) take into account the surrounding circumstances; and (b) consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
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