IN THE SUPREME COURT OF VICTORIA	Unrestricted	
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0324

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v 		
		
JASON JOSEPH ROBERTS		

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JUDGE:	KAYE JA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	5 August 2021	
DATE OF RULING:	9 August 2021	
CASE MAY BE CITED AS:	DPP v Roberts (Ruling No 1)	
MEDIUM NEUTRAL CITATION:	[2021] VSC 472	

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CRIMINAL LAW – Retrial – Application for permanent stay – Accused charged with two murder charges and ten armed robbery charges – Accused previously convicted on murder charges at first trial and sentenced to life imprisonment – Convictions set aside on appeal after accused served twenty years’ imprisonment – Retrial of murder charges – Armed robbery charges not prosecuted at first trial – Accused admits to armed robberies – Whether armed robbery charges should be permanently stayed – Whether indictment on armed robbery charges so oppressive as to constitute abuse of process – Application refused – Jago v District Court of New South Wales (1989) 168 CLR 23 applied, R v Renzella (1997) 2 VR 88 considered. 

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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr B Ihle QC with
Mr G Hayward and Ms S Lenthall	Ms A Hogan, Solicitor for Public Prosecutions	
			
For the Accused	Mr D Hallowes SC with Mr M McGrath	Stary Norton Halphen	

HIS HONOUR:
1	The accused man is charged on indictment with two charges of murder (charges 11 and 12) and ten charges of armed robbery (charges 1 to 10).  Subject to the disposition of a number of pre-trial issues, the trial in the proceeding is due to commence in February 2022.  The first of those issues is an application by the accused for a permanent stay of the ten charges of armed robbery.  
Background circumstances
2	The two charges of murder arise out of events that occurred in Cochranes Road, Moorabbin in the early hours of 16 August 1998.  In the preceding period of five months, a series of ten armed robberies had been perpetrated on commercial premises in the eastern and south eastern suburbs of Melbourne.  As a result, on the evening of 15 August 1998, two members of Victoria Police, Sergeant Gary Silk and Senior Constable Rodney Miller, were directed to perform surveillance duties in the vicinity of the Silky Emperor Chinese Restaurant that was located in Warrigal Road, Moorabbin, close to the intersection of Warrigal Road and Cochranes Road.  The two police officers were undertaking their duties as part of an operation that was code named ‘Hamada’ and that was conducted by the Armed Robbery Squad, supported by district personnel.  
3	Shortly after midnight on 16 August, Sergeant Silk and Senior Constable Miller intercepted a blue Hyundai vehicle close to the intersection of Cochranes Road and Warrigal Road.  The vehicle had been seen driving into the car park of the restaurant, and, after a short interval, to drive out of the car park.  Within a short time after the interception of the vehicle, Sergeant Silk was shot dead and Senior Constable Miller was fatally wounded by gunfire.  
4	Two years later, on 15 August 2000, the accused and Bandali Debs (‘Debs’) were each charged with the murders of Sergeant Silk and Senior Constable Miller.  Three months later, they were also charged with the ten armed robberies.  After a contested committal hearing in the latter part of 2001, both accused were committed for trial on the two murder charges and on all but one of the armed robbery charges.  
5	On 14 August 2002, the trial of the two murder charges commenced.  The prosecution did not present the accused on the armed robbery charges.  Nevertheless, evidence was adduced in relation to each of the armed robberies as being relevant to the proof of the identity of the offenders who had committed the murders of the two police officers.  On 31 December 2002, after a trial lasting four and a half months, the jury returned verdicts of guilty against both accused in relation to the two murder charges.  Debs was sentenced, in respect of each charge, to life imprisonment without a parole period.  The accused was sentenced to life imprisonment on each charge, with a non-parole period of 35 years.  Applications to the Court of Appeal for leave to appeal against conviction and sentence were subsequently dismissed.  An application for special leave to appeal to the High Court was refused.
6	Between August 2016 and November 2019, the accused lodged three petitions for mercy with the Attorney-General, seeking to have his case referred to the Court of Appeal.  The first petition was accompanied by an affidavit sworn by the accused dated 1 June 2016.  In the affidavit, he admitted involvement in the commission of armed robberies in company with Debs, but said that he was not present with Debs at the scene of the murders of Sergeant Silk and Senior Constable Miller.  
7	Subsequently, the accused, pursuant to the Justice Legislation Amendment (Criminal Appeals) Act 2019, filed a second application for leave to appeal against his convictions.  On 25 March 2020, the Court of Appeal granted that application.  On 10 November 2020, the Court allowed the appeal, quashed the accused’s convictions and made an order for a new trial.  
8	The present indictment was filed on 19 March 2021.  As I have noted, the first ten charges allege the commission by the accused of the armed robberies which have been designated the ‘Hamada armed robberies’.  
The Hamada armed robberies
9	The Hamada robberies were committed over a four month period between March and July 1998, either on a weekend or on a public holiday.  Each of the premises, that were the subject of the armed robberies, was described (in the first trial) as an ‘easy’ suburban target.  The robberies were committed late at night near the closing time of the business.  All of the businesses were located on or near main roads, which allowed for easy reconnaissance, access and escape.  Each of the ten robberies were carried out by two men.  In nine of the robberies, both of the offenders were observed to be armed with handguns;  in one of them only one handgun was observed.  In each of the armed robberies, the victims were herded together and forced to lie face down, and in a number of them their hands and feet were secured with tape.  In most of the robberies, the two offenders wore matching disguises.  In nearly all of the armed robberies, one of the offenders was described by the victims to be noticeably taller and heavier in build than the other offender.  The taller offender was also described as being substantially older than the shorter offender.  
10	In the first trial, the evidence as to the commission of the Hamada robberies was held to be admissible on a number of bases.  In particular, it demonstrated a close association between the accused and Debs.  It provided a motive for them to use extreme measures in order to avoid detection when they were observed near the Silky Emperor Restaurant.  The evidence was used in combination with other evidence to identify the accused and Debs as the persons in the Hyundai vehicle.  Finally, the evidence provided a contextual setting to the events that took place on the evening in question.  
11	In respect of the forthcoming trial, the prosecution has given to the accused a notice pursuant to s 97(1)(a) of the Evidence Act 2008.  The notice states that the prosecution seeks to rely on the Hamada robberies as evidence of the tendency of the accused, in the period between March and August 1998, to:
(a)	carry out armed robberies;
(i)	at times and locations which required at least two offenders;  and
(ii)	in a manner involving and requiring both offenders to be armed;  and
(b)	carry out those armed robberies with Debs;  and
(c)	be armed, himself, with a handgun during those armed robberies.
12	By its opening, the prosecution intends to put to the jury that the evidence of the Hamada robberies is relevant for three purposes:
(1)	To prove that the Silky Emperor Restaurant was intended to be the eleventh target for the armed robberies.
(2)	To prove there was a tendency on the part of both the accused and Debs to set out to commit, and to commit, armed robberies together — each being armed with a firearm, and in a manner that required the participation of two offenders.  Thus, it will be submitted that it is highly improbable that Debs would have set out to rob the Silky Emperor Restaurant without the accused.
(3)	To establish that when the accused and Debs were intercepted by police in Cochranes Road, they each had a powerful motive to avoid being detected as the Hamada armed robbers and to avoid being arrested for those robberies by Sergeant Silk and Senior Constable Miller.  
13	In the defence response to the prosecution opening, the accused has admitted that he committed the ten armed robberies, that constituted the Hamada robberies, in company with Debs, in each of which they were both armed and wore masks.  Specifically, the defence has taken no issue with the contents of the prosecution opening in which the circumstances of each of the ten Hamada robberies are described in some detail.  
Submissions
14	In support of the application for a stay of the armed robbery charges, senior counsel for the accused submitted that the indictment of the accused on those charges  is so unfairly and unjustifiably oppressive that it would constitute an abuse of the Court’s process.  Counsel noted that the Director of Public Prosecutions was in a position to proceed with the armed robbery charges in 2002, or at any time in the following years, but made a decision not to do so.  In that respect, counsel noted that at the first trial, the prosecution took the position that in order that the jury be entitled to take into account the evidence relating to the Hamada robberies, it must be satisfied beyond reasonable doubt that the accused was guilty of those offences.  Thus, he submitted, the prosecution clearly considered that it had sufficient evidence upon which it could have sought the conviction of the accused on the armed robbery charges.  Counsel submitted that, in those circumstances, if it was in the public interest that the accused be prosecuted on those charges, that public interest is of no greater weight than it was during the years in which the prosecution refrained from charging the accused with the armed robberies.  
15	Counsel submitted that if, on the retrial, the accused, were found not guilty of murder, he would be liable to be sentenced on ten serious armed robbery charges, in respect of which he has spent little time in custody that would qualify as pre-sentence detention under s 18 of the Sentencing Act 1991, notwithstanding that he has been in custody for twenty years since he was first charged with the ten armed robberies.  On the other hand, if the accused were convicted of the two charges of murder, his sentence would not be diminished if he did not, at the same time, fall to be sentenced in respect of the ten armed robbery charges.  In those circumstances, it was submitted, it would be so unfairly oppressive for the accused to now face trial on the armed robbery charges, that a permanent stay of those charges should be granted.
16	In response, senior counsel for the prosecution commenced by referring to the established principle that a court should only grant a permanent stay of criminal proceedings in rare or exceptional circumstances, and in particular where the continuation of the proceedings would either involve an unacceptable injustice or unfairness, or would be so unfair and oppressive as to constitute an abuse of the process of the Court.  Counsel noted that the courts recognise that it is the function of the prosecution to determine the charges which should be brought against a particular accused person, and there is a legitimate public interest in the prosecution of serious criminal offences such as those with which the accused has been charged. 
17	Counsel for the prosecution noted that, in the present case, the accused does not rely on any particular forensic disadvantage  arising from the laying of the armed robbery charges against him.  Further, it was submitted, the institution of those charges does not involve any unfair oppression to the accused.  In the first trial, the prosecution did not give any assurance to the accused that he would never be charged with the Hamada armed robberies.  The decision by the prosecution, at that time, not to prosecute the accused did not amount to a promise or representation that there would be no prosecution of the charges in the future.  In the present case, it was submitted, all that has occurred is that the Director has exercised her discretion in light of the circumstances, which have changed quite significantly since the time of the first trial.
18	In that respect, counsel noted that, in the affidavit sworn by the accused in support of his first petition for mercy (and relied on in his two subsequent petitions and in the successful appeal to the Court of Appeal), the accused expressly stated that he would ‘like to take ownership’ of the crimes that he did commit, being the armed robberies, and that he was willing to plead guilty to those offences.  In those circumstances, it was submitted, the accused has accepted, by a sworn admission, his guilt in respect of the Hamada armed robberies, and expressed his willingness to plead guilty to those charges.  It is appropriate that his admitted guilt in respect of the armed robberies be recorded, and that he be brought to justice for them in order to vindicate the sentencing purposes of general deterrence and denunciation.  Accordingly, it was submitted, the institution of the charges could not be characterised as being so unfair as to bring the administration of justice into disrepute.  
19	In response to the submission, made on behalf of the accused, that the prosecution was in a position to bring the armed robbery charges at or following the time in which he was originally convicted of the murder charges, counsel for the prosecution noted that at the first trial the prosecution took the position that, in order to be able to rely on the Hamada robberies, the jury must be satisfied beyond reasonable doubt that the accused was guilty of at least some of them.  At that time, the accused strenuously denied that he had been involved in the commission of  the armed robberies.  Counsel submitted that, in view of the fact that the accused has now, on oath, accepted his guilt of those charges, and professed a willingness to plead guilty to them, it is in the public interest that charges be brought against him in respect of them.  In particular, if the accused were acquitted of the two murder charges, it would be appropriate that his criminal guilt in respect of the ten armed robbery charges be a matter of record.  
20	Counsel for the prosecution further contended that if the accused were found not guilty of the two murder charges, and fell only to be sentenced for the Hamada armed robbery charges, then the entire period in respect of which he has been in custody, since 15 August 2000, ‘must’ be reckoned as time served pursuant to s 18 of the Sentencing Act.  In particular, counsel submitted that notwithstanding that, at least since the date of his conviction on the murder charges, the accused had not been in custody in respect of the armed robbery charges, nevertheless s 18(6) has the effect that, if the accused were now acquitted of the murder charges, the time that he spent in custody since his original conviction on those charges must be reckoned as pre-sentence detention in respect of the armed robbery charges.  Alternatively, he submitted, in those circumstances, in sentencing the accused, the Court would be required to take into account the principle of totality as discussed in cases such as R v Renzella, which, he submitted, would have significant force in the circumstances of the present case.  
Legal principles
21	It is recognised that, in an exceptional case, the courts have an inherent power to stay the trial of a criminal proceeding.  Ordinarily, that power may be exercised in order to prevent an abuse of the court’s process, or where the prosecution of a criminal proceeding would result in a trial which is fundamentally unfair by reference to accepted standards of justice.  In the latter case, in order to justify the grant of a stay, the relevant unfairness must be of such a nature that it cannot be cured by the adoption of appropriate trial procedures or by sufficient directions given by the judge to the jury.
22	In the present case, it is not put on behalf of the accused that the trial of the charges relating to the Hamada armed robberies would be unfair in such a way.  Nor is it contended that the inclusion of the armed robbery charges in the same  indictment as the murder charges would be contrary to cl 5(1) of Schedule 1 of the Criminal Procedure Act 2009, or would, in some way, prejudice the fair trial of the murder charges.  Rather, it is accepted on behalf of the accused that the evidence of the Hamada robberies would be relevant and admissible in the trial of the two murder charges.  As mentioned, the accused accepts and admits his involvement in the armed robberies in the manner described in the prosecution opening.
23	Instead, it is put on behalf of the accused that the trial of the armed robbery charges would be unfairly and unjustifiably oppressive, because the decision of the Director not to present him on the armed robbery charges in 2002, or in the following years, but to do so now, would have the effect that the period of twenty years, spent by the accused in custody in respect of the murder convictions, might not be taken into account as pre-sentence detention in respect of the sentences to be imposed on him in respect of the armed robbery charges.
24	The content of the concept of an abuse of process is not confined to a fixed set of specific categories.  Thus, in Jago v District Court (NSW), in discussing the power of the court to stay a proceeding in the case of unreasonable delay, Deane J stated:
The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one.  Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court’s process.  Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples.  Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed.
25	In considering whether to grant a stay, either on the grounds of unfairness or abuse of process, it is important to bear in mind three connected principles.  First, a stay is a remedy of last resort, and is only granted in exceptional circumstances.  Secondly, it is recognised that the entitlement of a party to a stay must be balanced against the significant public interest of the community in having those persons who are charged with criminal offences brought to trial.  Thirdly, and as an allied consideration, the decision to institute a criminal prosecution lies solely within the discretion of the prosecuting authority, and in the present case the discretion of the Director of Public Prosecutions.  Accordingly, in considering an application for a stay in a criminal proceeding, the court must be careful not to usurp the proper role of the prosecution in determining which cases should proceed to trial.
26	In R v Ferguson, McMurdo P, Keane and Muir JJA stated the relevant principles in the following terms:
There are two broad reasons why the jurisdiction to stay proceedings upon indictment is described in the authorities as one which should be exercised only in exceptional circumstances.  The first is that it is, as Byrne J said in R v Smith, ‘no part of the function of the judicial arm of the government to decide whether a citizen should be prosecuted or whether a prosecution is inappropriate’.  Whether or not a criminal prosecution should be brought by the Crown is a decision for the executive arm of government. 
It is at this point that the second reason for describing the jurisdiction to grant a stay as ‘exceptional’ comes into focus.  This is that the jurisdiction falls to be exercised only on the footing that the other tools available to the judiciary to ensure that an accused is not tried unfairly can be seen to be ineffective.  The exceptional jurisdiction permanently to stay proceedings is truly residual in character in the sense that it falls to be exercised only in those cases where the other legal safeguards of the right of the accused to a fair trial are not apt to secure that right or in the other circumstances mentioned by Fitzgerald P in Johannsen & Chambers which, as we have said, are not presently relevant.
Analysis and conclusion
27	In accordance with those principles, the starting point, in considering the present application, is that the offences, that are the subject of each of the armed robbery charges, were serious criminal offences.  At the time of the offending, the maximum sentence for each charge was 25 years’ imprisonment.
28	As described in the prosecution opening, the offences were committed in circumstances of particular seriousness.  They were carried out by two offenders acting in coordination with each other.  At the time of the offences, both offenders were masked and were armed with firearms.  On at least two occasions (which are the subject of charges 1 and 9), the firearms were observed to be loaded.  The offences were each premeditated.  The premises in which the offences were committed were pre-selected and targeted.  Debs and the accused had selected businesses which dealt in sums of cash, which were remote from other traffic, which had readily identifiable points of entry and exit, and which would be likely to be isolated at the time of closing.  The targets that were selected for the commission of the armed robberies were vulnerable.  In committing the armed robberies, Debs and the accused engaged in particularly intimidating conduct, including making threats to the occupants of the premises.  On one occasion (that is the subject of charge 1), a firearm was held to the head of a victim.  In each armed robbery, the occupants were forced to lie face down on the floor, their hands were tied behind their back, and their feet were secured with tape or cord.  In seven of the armed robberies, Debs or the accused searched the victims and stole personal items from them, including wallets and jewellery.  
29	In the absence of  strong exceptional circumstances, it is in the public interest that the accused, as one of the persons who were responsible for the commission of such serious offences, be charged and brought to justice in respect of them.  In the present case, the accused, in his response to the prosecution opening, has admitted his guilt to each of the armed robberies that are the subject of the charges in the indictment.  That public interest is not, in my view, diminished by the consideration that the prosecution did not deem it necessary to bring the charges for armed robbery against the accused until after the conclusion of his recent appeal.  As senior counsel for the prosecution noted, at the original trial, the accused put in issue the allegation that he had been criminally involved in any of the ten armed robberies.  More recently, he has, on oath, admitted his guilt to each of those charges.  In those circumstances, the fact that the prosecution did not originally present the accused on the ten armed robbery charges, but that it has now chosen to do so, does not diminish or detract from the public interest in the prosecution of those charges.  The fact that the prosecution previously refrained from prosecuting those charges, but has now chosen to do so, could not, of itself, be sufficient to constitute an abuse of process.  The question which arises is whether, notwithstanding the gravity of that offending, in the present circumstances, the prosecution of the charges against the accused would be so unfair and unjust to the accused as to constitute an abuse of the process of the Court.  
30	Essentially, the unfair oppression, relied on by the accused, is based on a contingency.  The issue of unfairness to the accused, that is relied on in this application, would only arise if the accused were acquitted of the two murder charges that are included in the indictment.
31	If the accused is convicted of those two charges of murder, it is accepted that the sentence imposed on him overall would not be materially affected by any sentence imposed in respect of each of the ten armed robbery charges, and certainly not in such a manner as to constitute oppression or unfairness to the accused.  Rather, it is submitted, in those circumstances, the accused would be accorded his ‘just deserts’ by reason of the sentences to be imposed on him in respect of the two murder charges.  
32	That proposition may be correct in the sense that, if the accused were convicted on the two murder charges, his total effective sentence might not be significantly affected by the sentences imposed in respect of the armed robbery charges.  Nevertheless, in view of the serious nature of the armed robbery charges that are alleged in the case, it is in the public interest that the persons who were responsible for those offences be charged and brought to justice in respect of them.  In a number of recent cases, it has been recognised that the prosecution of charges against an accused person, who is already serving a sentence of life imprisonment without parole in respect of other charges, is a matter of public interest.  In such a case, the prosecution of the additional charges is considered to be appropriate in order to uphold the rule of law, and to ensure that the principles of denunciation, general deterrence and public protection are appropriately vindicated.  In the present case, I am not persuaded that the prosecution of the armed robbery charges would in some way be redundant or otiose if, ultimately, the accused were convicted of the two murder charges.
33	The particular unfair oppression, that is contended for on behalf of the accused, would only come under consideration if the accused were acquitted of the two murder charges, and convicted on the ten armed robbery charges.  In such circumstances, it is, at the least, questionable whether a large proportion of the period, in which the accused was in prison serving his sentence in respect of the convictions on the murder charges, would constitute pre-sentence detention under s 18 of the Sentencing Act.  Counsel for the accused is correct in maintaining that, in such circumstances, the time that the accused has spent in custody — at least between the date on which the armed robbery charges were, in effect, discontinued, and the date on which the Court of Appeal quashed his convictions for murder — would not qualify as pre-sentence detention under s 18(1) of the Sentencing Act, because, during that period, the accused was not ‘held in custody in relation to … proceedings for the offence[s]’ of armed robbery. 
34	 Counsel for the prosecution submitted that that period would, nevertheless, constitute pre-sentence detention pursuant to s 18(6) of the Act.  It is premature and inappropriate to resolve that question.  However, I have some doubts as to whether that proposition, advanced on behalf of the prosecution, is correct.  In particular, it would involve a quite strained construction of the phrase ‘… series of offences’ in that subsection.  I do note, however, that senior counsel for the prosecution, in the course of submissions, confirmed that, if the accused were acquitted of the murder charges, and convicted on the armed robbery charges, he would submit, on the plea, that the accused should be sentenced on the basis that the period of imprisonment served in respect of the murder charges should be treated as pre-sentence detention under s 18(6) of the Act. 
35	As I have stated, without expressing a concluded view on that question, I have some reservations as whether that submission is correct.  Accordingly, at this point, it is appropriate to proceed on the basis that, if the accused were acquitted of the murder charges, and convicted on the armed robbery charges, it is reasonably possible that a large proportion of the period, in which he has been in custody since the filing of the original presentment, would not qualify as pre-sentence detention under s 18 of the Sentencing Act.
36	In such an event, if the accused were acquitted of the two murder charges, the question would arise as to the appropriate manner in which the time, spent by the accused in custody in respect of the murder charges, should be taken into account in determination of the sentences to be imposed in respect of the armed robbery charges, in accordance with the principles outlined by the Court of Appeal in Renzella.  Again, it would not be appropriate to express a view, at this point, with respect to that hypothetical question.  Nevertheless, in order to determine the present application, it is necessary to give some consideration to the question whether and how, in such an event, the period of approximately twenty years, already spent by the accused in custody, would be taken into account in determining the sentences to be imposed on him in respect of the armed robbery charges.
37	It is well established that such ‘dead time’, already spent by an accused person in custody, is not necessarily taken into account on sentence on a strict mathematical basis.  Nevertheless, in the present case, the prosecution has acknowledged that if the accused were acquitted of the charge of murder, the period of approximately twenty years, that he has already spent in custody on the murder charges, should be taken into account in determining the sentences to be imposed on the armed robbery charges, as if that period were pre-sentence detention.  As I have indicated, it would not be appropriate for me to commit to an acceptance of that proposition.  However, it is clear that, in such an event, it would be necessary to take into account a number of considerations, which would include the following:
(1)	The period of dead time in the present case is particularly long — and quite probably unprecedented.  
(2)	The first trial resulted in a miscarriage of justice, through no fault of the accused, but due to misconduct by a police investigator, and as a consequence of which he has spent that period of time in custody.  
(3)	If the armed robbery charges had been prosecuted in the first trial, or in a separate trial at about that time, and if the accused were now acquitted of the murder charges, then a large proportion of the time, which the accused has already spent in custody, would be credited to the sentences which would have been imposed on him in respect of the armed robbery charges.
(4)	There was a close relationship between the circumstances of the armed robberies and the murders which are the subject of the charges against the accused.  In particular, the murders were alleged to have been committed by the accused in connection with what was intended to be a further armed robbery.  
38	Without pre-empting or predicting the sentences which might be imposed on the accused if he were acquitted of the murder charges, it is inescapable that those factors would need to be given appropriate recognition and weight in determining the sentences to be imposed on him in respect of the armed robbery charges.  It would be necessary to give sufficient weight to those considerations as would be necessary to vindicate the sentencing principle of totality and to ensure that just and appropriate sentences are imposed on the accused in respect of the armed robbery charges.
39	In those circumstances, I am not persuaded that the prosecution of the ten armed robbery charges against the accused would be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court’s process.  In short, the offences, which are the subject of those charges, are particularly serious.  It is in the public interest that the accused, as one of the persons who were responsible for the commission of those offences, be brought to justice in respect of them.  The weight to be given to that purpose would not be materially diminished if, ultimately, the accused were convicted of the two charges of murder.  On the other hand, if the accused were acquitted of the two murder charges, in accordance with the principles I have discussed, it would be necessary to take into account the fact that the accused has already spent twenty years in custody in respect of the two murder charges, when determining the appropriate sentence to be imposed on him in respect of the armed robbery charges.  
40	I am fortified in that conclusion by an additional consideration that was referred to by counsel for the prosecution.  In March 2013, the accused made a detailed statement to Detective Sergeant Ron Iddles in support of steps taken on his behalf to set aside his convictions for murder.  In the statement, he set out, in some detail, his role in the commission of the armed robbery charges in company with Debs.  He subsequently swore an affidavit on 1 June 2016 with the assistance of his lawyers.  In the course of the affidavit, he referred to his involvement in the commission of armed robberies with Debs.  He concluded the affidavit as follows:
In closing, I would like to make it as clear as I possibly can that I did not shoot police officers Gary Silk and Rodney Miller nor was I present at the scene when Ben [Debs] did.  I would like to take ownership of the crimes I did commit, being the armed robberies and helping Ben after the fact in disposing evidence with him after he committed the murders.  I am willing to plead guilty to these offences.  I would like to sincerely apologise to everyone whose life I have affected.
41	Subsequently, the accused made three consecutive petitions for mercy.  He relied on the statement and the affidavit specifically in the first petition for mercy.  In the second petition, he cited reliance on the contents of the first petition, and in the third petition he cited reliance on the contents of the first and second petitions for mercy.  The accused also relied on that material in support of the second application for leave to appeal against conviction.
42	The question, whether prosecution of the armed robbery charges constitute an abuse of process, is not, of course, dependent upon the subjective views of the accused.  However, in view of the basis, upon which it is asserted that the charges are an abuse of the process, it is material that, in successive formal processes, that were directed to setting aside the original convictions on the charges of murder, the accused man expressly admitted his guilt in respect of the armed robberies, accepted responsibility for them, and, on oath, expressed his willingness to plead guilty to the commission of those offences.  In those circumstances, it would be difficult, if not incongruous, to maintain that the charges for those offences constitute an abuse of process.
Summary of conclusions
43	For the foregoing reasons, I am not persuaded that the prosecution of the ten armed robbery charges constitutes an abuse of the process of the Court.  Accordingly, the application by the accused for a permanent stay of those charges must be refused.  
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