A retrial is happening in a police murder case 20 years after the conviction. Two lawyers explain the case

The retrial of Jason Roberts, accused of killing two Melbourne policemen in 1998, is expected to begin this week in Melbourne.

The retrial marks a significant milestone in Victoria’s criminal justice system – it’s the first to occur since Victoria passed a new law in 2019 allowing defendants in criminal cases to seek an additional appeal in their cases under specific circumstances.

What is the Roberts case about?

In the early hours of August 16 1998, Victoria police officers Sergeant Gary Silk and Senior Constable Rodney Miller were fatally shot while engaged in a surveillance operation. They were part of a team investigating a series of armed robberies in Melbourne’s eastern and south-eastern suburbs.

Silk died almost immediately, while Miller was still conscious when the first responders arrived. Multiple officers gave evidence that Miller’s dying declaration mentioned two offenders – crucial to the criminal investigation and proceedings that followed — and a dark blue Hyundai hatchback.

Two men were eventually charged and convicted of the murders: Bandali Debs and Jason Roberts, who was 17 at the time of the killings. They were sentenced to life in prison.

Debs and Roberts unsuccessfully appealed their convictions and were later refused an application for special leave to appeal. At the time, this meant their legal avenues for appeal had been exhausted.

Between 2016 and 2019, Roberts lodged three petitions for mercy with the attorney-general of Victoria. Each of these was accompanied by sworn statements in which he confessed to being involved in armed robberies with Debs, but denied any connection to the deaths of Silk and Miller.

The first petition for mercy was refused, while the second and third were overtaken by legal reforms which provided a new, albeit limited, possibility of appeal.

In 2015, allegations also arose about police misconduct in the investigation of the killings. This led the state’s Independent Broad-based Anti-corruption Commission (IBAC) to establish Operation Gloucester to look into these issues.

In 2017, the investigation uncovered a second statement by one of the first responders at the murder scene. Significantly, this newly discovered statement – made within four hours of the killings – was inconsistent with evidence given at trial that Miller had mentioned two offenders.

In 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. This related primarily to the manipulation and altering of witness statements by police and the failure to disclose this to Roberts’ defence team.

Read more: IBAC vs ICAC: what are these anti-corruption commissions and how do they compare?

The Court of Appeal held that this serious misconduct tainted Roberts’ original trial and quashed his conviction in November 2020.

Police have reportedly contacted 400 witnesses as prosecutors have prepared for the retrial. The central issue in the retrial is likely to be whether the prosecution can establish beyond a reasonable doubt that Roberts was present at the scene on the night of the shootings.

Roberts and his then-girlfriend (Debs’ daughter) claim he was with her that night and had an alibi.

How do the new appeal provisions work?

Until recently, a person convicted of a crime in Victoria was only entitled to a single appeal. If that appeal failed, there was no further legal avenue available to challenge a conviction, even if fresh evidence was discovered. The only option was for the convicted person to lodge a petition for mercy with the attorney-general who, in turn, could refer the case to the Court of Appeal.

This fundamentally changed in November 2019, when legislation was passed allowing a convicted person, in very limited circumstances, to launch a further appeal before the Court of Appeal, effectively bypassing the more political petition process.

The new law seeks to strike a difficult balance between two competing imperatives.

On the one hand, the principle of finality recognises it is essential for criminal proceedings to be brought to a conclusion and that convictions are not perpetually challenged. Challenges like this can be devastating for the victims of crimes and their families.

On the other hand, it is also important there be a transparent judicial pathway to correct miscarriages of justice, regardless of when they might be uncovered.

The new appeal provisions in Victoria have a high threshold for review to guard against unmeritorious or frivolous appeals. To be granted leave to appeal, the applicant must demonstrate there is “fresh and compelling evidence” in the case. A new appeal will be denied if the evidence could have been found with a reasonable amount of diligence, or if it isn’t reliable or substantial enough.

The Court of Appeal also retains discretion to determine whether it is in the interests of justice to allow further legal challenges.

Once another legal challenge is granted, the applicant must then satisfy the Court of Appeal that a substantial miscarriage has, in fact, occurred. This means there is very little prospect convictions will be quashed without basis or on minor legal technicalities.

The retrial of Roberts, more than 20 years after the killings, will no doubt cause anguish for the families of the victims. However, unless we are prepared to tolerate possible miscarriages of justice going uncorrected, we must allow cases to be reviewed under these very narrow circumstances.