IN THE SUPREME COURT OF VICTORIA	Unrestricted	
AT MELBOURNE
Criminal Division
S ECR 2020 0324

DIRECTOR OF PUBLIC PROSECUTIONS	Crown	
		
v  		
		
JASON JOSEPH ROBERTS	Accused	

---

JUDGE:	KAYE JA 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	20 June 2022	
DATE OF RULING:	21 June 2022	
CASE MAY BE CITED AS:	DPP v Roberts (Ruling No 14)	
MEDIUM NEUTRAL CITATION:	[2022] VSC 344	

---

CRIMINAL LAW – Murder (two charges) – Hearsay – Evidence of previous consistent statement – Whether evidence ‘fresh’ in accused’s memory – Whether evidence of previous statement made by accused to police about the circumstances of the murders relayed to him by Bandali Debs admissible – Statement made fifteen years after murders – Evidence Act 2008 ss 66, 108.

---

APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr B Ihle QC with 
Mr G Hayward	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 prosecution case is closed.  The defence proposes to call Detective Senior Sergeant Ron Iddles to give evidence on behalf of the accused.  An issue has arisen as to one aspect of the evidence which is intended to be adduced from Mr Iddles.  That evidence is of an account given by the accused man to Iddles in 2013, in which the accused told Iddles that, on the morning of 16 August 1998, Bandali Debs had described to him the circumstances in which he had shot and killed Sergeant Silk and Senior Constable Miller.
2	After hearing argument, I gave a brief ruling upholding the admissibility of the proposed evidence.  The following are my reasons for that decision.
3	The accused has given evidence in the trial.  In the course of that evidence, he stated that on the morning of 16 August 1998, Debs spoke to him and gave him a detailed account of the circumstances in which Sergeant Silk and Senior Constable Miller were killed by him.  That evidence is relevant to the issues in the present trial.  The prosecution has tendered recordings of a number of conversations engaged in by the accused man after the murder of the two police members, in which he demonstrated a knowledge of the circumstances in which Sergeant Silk and Senior Constable Miller were killed.  The prosecution relies on that evidence as an implied admission by the accused that he was present at the scene of the murders and that he was implicated in the murder of each of the two policemen.
4	Mr Iddles interviewed the accused in 2013 and took a statement from him on 13 March 2013.  In that statement, the accused gave a detailed account of what he had been told by Debs concerning the events that had occurred in Cochranes Road.  The defence propose to adduce that evidence from Mr Iddles as evidence of a previous consistent statement by the accused. 
5	In that respect, it is noted that the prosecution has adduced evidence that the accused, when interviewed by the police, stated that he did not know anything about those events.  Specifically, in a statement that he made to police on 28 December 1998 (Exhibit BU), the accused said that he did not know anything about the murders of the two police officers, that he had no knowledge about any person who may have been involved in the murders, and to his knowledge Nicole Debs’ Hyundai vehicle was not involved in the shooting.  Subsequently, when interviewed by police on 25 July 2000, the accused said that after the police had inspected Nicole’s Hyundai, he asked Debs about the murders, and Debs replied ‘bugger if he knows’.  The accused further told police that he did not ever discuss the matter with Debs again.
6	The question of the admissibility of the evidence in question raises two issues, namely, first, whether the evidence by Mr Iddles, being hearsay, would be admissible pursuant to s 66 of the Evidence Act 2008, and, secondly, if so, whether the evidence is of a previous consistent statement by the accused that may be admitted pursuant to s 108(2)(a) of the Evidence Act.
Submissions
7	In respect of the first issue, senior counsel for the accused has acknowledged that the defence could not rely on the evidence as proof of the actual events that did occur in Cochranes Road.  That is, it is not intended that the evidence be used to establish the truth of the contents of the description given by Debs to the accused.  Accordingly, the evidence sought to be adduced from Mr Iddles constitutes first hand (and not second hand) hearsay, namely, evidence of the fact that the accused man gave to Mr Iddles such an account, of what he was told by Debs.  
8	Counsel submitted that the evidence is admissible as evidence of a previous consistent statement under s 108(3)(a) of the Evidence Act, as the prosecution has already tendered in evidence the two interviews that the accused had with the police in which he had made to them an inconsistent statement, namely, that he did not know anything about what had occurred in Cochranes Road.  It was submitted that the evidence of the account, given by the accused to Iddles, is thus relevant, because it demonstrates that the accused has not, in more recent times, concocted that part of his evidence after he had been granted a retrial by the Court of Appeal in late 2020.  It was submitted that the evidence, as to the account that the accused gave to Iddles, is thus important in an evaluation of the credibility of the evidence given by the accused. 
9	It was further submitted that the evidence is also admissible under s 108(3)(b) of the Evidence Act, because it was suggested to the accused, in cross-examination, that he had fabricated his evidence that he knew about the circumstances of the murder of Sergeant Silk and Senior Constable Miller because Debs told him about them.  
10	Counsel submitted, that in both those respects, the evidence is of particular significance in the case.  If it were admissible, it would demonstrate that the accused had not concocted or fabricated his evidence — that Debs had told him about the circumstances of the murders — after hearing Debs give evidence in the present trial.  In particular, the fact that the accused gave to Iddles an account of what he was told by Debs, in which Debs said that he had shot both police members while he was outside the Hyundai, is of particular importance in view of the expert evidence relied on by the prosecution, which supports the conclusion that Debs first fired a shot at Senior Constable Miller from within the Hyundai.
11	Counsel further submitted that the evidence is admissible under s 66(2) of the Evidence Act, because at the time that the accused spoke to Iddles, the occurrence of the asserted fact in question (that is, the relevant conversation between Debs and the accused) was fresh in the accused’s memory.  Referring to the criteria specified in s 66(2A), counsel submitted that, notwithstanding that the accused spoke to Mr Iddles some fifteen years after he had spoken to Debs, nevertheless, in view of the nature of the conversation that the accused had with Debs, it should be concluded that the conversation was still fresh in his memory.  He submitted that a conversation in which the father of his girlfriend told him that he (the father) had shot and killed two policemen, is something that, even several years later, would remain fresh in the memory.
12	In response, senior counsel for the prosecution submitted that the evidence is not admissible as an exception to the hearsay rule under s 66 of the Evidence Act.  In particular, counsel submitted that, in view of the effluxion of fifteen years between the events in question and the date upon which the accused spoke with Iddles, it could not be concluded that, at that time, the occurrence of the fact asserted by the accused to Iddles — that is, what Debs had told him about the events in Cochranes Road — was fresh in his memory.  In addition, in the intervening period the accused had gained a compendious knowledge of the information contained in the police brief, and he had been involved in a number of conversations with different people concerning the case, including his lawyers, other police, and potential witnesses.  Accordingly, it was submitted, any ‘freshness’ of the conversation, in the memory of the accused, would have been significantly undermined by the circumstances which had occurred in the intervening years.
13	Counsel further submitted that those considerations are also relevant to the question whether leave should be granted to the accused to adduce the evidence as a previous consistent statement made by him pursuant to s 108 of the Evidence Act.  It was submitted that the passage of time, and the occurrence of those intervening events, had necessarily undermined the capacity of the evidence to offset the previous inconsistent statements made by the accused to police in 1998 and July 2000.
Analysis
14	Section 66(2)(b)(i) of the Evidence Act provides that, as an exception to the hearsay rule, evidence of a previous representation may be admissible if, when the representation was made, the occurrence of the ‘asserted fact’ was fresh in the memory of the person who made the representation. 
15	 Section 66(2A) was inserted in s 66(2) of the Evidence Act in response to the decision of the High Court in Graham v The Queen.  In that case, the Court had held that, in order that the occurrence of the asserted fact be ‘fresh’ in the memory of the person making the representation for the purposes of s 66(1), the particular occurrence must have been ‘recent’ or ‘immediate’, and that ordinarily the requisite temporal relationship would be ‘measured in hours or days, not … in years’.
16	Since its introduction, the decisions on s 66(2A) have mainly concerned cases involving sexual offending.  In R v XY, Whealy J, in a passage cited by the High Court in R v Bauer, stated the relevant principles as follows:
For present purposes, however, it may be seen that the present legislation makes it clear that the context of the phrase ‘fresh in the memory’ no longer is to be taken as an indication that it means ‘recent’ or ‘immediate’.  The expression ‘fresh in the memory’ is now to be interpreted more widely than did the High Court in Graham’s case.  No longer is the ‘core meaning’ of the phrase to be interpreted as ‘essentially confined to an examination of the temporal relationship between the occurrence of the asserted fact, and the time of making of the representation’.  That temporal relationship remains a relevant consideration but it is by no means determinative of the question.  Importantly, the court now must take into account ‘the nature of the event concerned’.  In Graham’s case, that was not seen as a particularly important matter.  It now takes its place as an important consideration in the factors to be considered.
17	More recently, in Barrow (a pseudonym) v The Queen, the Court of Appeal, having discussed a number of the authorities, including the passage just quoted from XY, stated the relevant principles in the following terms:
The foregoing review of the authorities makes it clear that, since the introduction of s 66(2A), while the period of time between the occurrence of an incident and the making of a representation about it is relevant, nevertheless it is not necessarily determinative of the question whether, at the time the representation was made, the occurrence of that incident was fresh in the memory of the person who made the representation.  In particular, as the High Court emphasised in Bauer, in cases such as those involving a representation about previous sexual offending, the nature of the sexual abuse complained of may be such that it might have remained fresh in the memory of a complainant for many years.  Ordinarily, human memory of mundane events tends to diminish over the passage of time.  On the other hand, a person’s memory of a traumatic, terrifying or unusual event might remain vivid in the recollection for much longer.
As the authorities make clear, in each case, the question, whether the matters that are the subject of the complaint were relevantly ‘fresh in the memory’ of the particular complainant, depends upon the evidence in the particular case.
18	Applying those principles, it is clear that, at the time at which the accused has said that Debs described to him the events that had occurred in Cochranes Road, that information would necessarily have had a significant impact upon the accused’s life.  The confession that Debs, the father of his girlfriend, made to him, that on the previous evening he had murdered two policemen while using the accused’s girlfriend’s vehicle, would necessarily have been a most extraordinary event in the life of the then seventeen year old youth.
19	 Over and above that, the accused had, by that time, developed a most unusual relationship with Debs, and together they had committed ten serious armed robberies and been involved in other criminal offending.  The fact, that Debs had murdered two policemen while conducting surveillance of a possible site of an eleventh armed robbery, must necessarily have been of significant concern to the accused, who could only have realised that, by reason of his involvement in the armed robberies with Debs, he could become implicated in the murder of the two police members. 
20	Plainly, that concern did not diminish in the ensuing two years.  In that period, the death of the two policemen was a quite frequent topic of conversation in which the accused engaged in the recorded conversations that have been tendered in evidence.  The accused was then arrested and charged with the murder of the two police members.  In the following two years he underwent a committal proceeding, and a four month criminal trial, at the conclusion of which he was convicted and sentenced to life imprisonment in February 2003.  His subsequent appeal was heard over a period of four days in August 2004, and judgment was delivered on 6 April 2005.  On any view, the outcome of the trial and the appeal had an immense effect on the accused’s life.
21	The matters raised by the prosecution, in response, do have some force.  The length of the period in question — fifteen years — militates against a conclusion that, at the time at which the accused spoke to Detective Iddles, the conversation which he had had with Debs was still fresh in his memory.  In addition, during the intervening period, the accused had discussed those events on a number of occasions, including with family, lawyers and Debs. 
22	Nevertheless, notwithstanding those matters, in view of the nature of the events related by Debs to the accused, and the significant impact that they subsequently had on the accused’s life, I am persuaded that, for the purposes of s 66(2) of the Evidence Act, the ‘occurrence of the asserted fact’ (namely, the conversation or conversations in which Debs related to the accused what had occurred in Cochranes Road), was then fresh in the memory of the accused.  Accordingly, the evidence, if relevant, would be admissible as an exception to the hearsay rule pursuant to s 66.
23	The question, then, is whether the evidence, of the statement made by the accused to Detective Iddles, is relevant to an issue in the trial.  As I have noted, it is submitted on behalf of the accused, that the evidence is admissible as evidence of a previous consistent statement of the accused, pursuant to s 108(3)(a) of the Evidence Act.
24	That subsection is in the following terms:
(3)	The credibility rule does not apply to evidence of a prior consistent statement of a witness if —
(a)	evidence of a prior inconsistent statement of the witness has been admitted;  or
(b)	it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion —
and the court gives leave to adduce the evidence of the prior consistent statement.
25	In order that the previous consistent statement be admissible under that provision, it is not necessary that the previous inconsistent statement has been tendered for the purposes of impugning the credibility of the accused.  The fact that the prosecution adduced the evidence, of the previous inconsistent statement, for another purpose — in this case, as evidence of incriminating conduct by the accused — does not preclude the admissibility of the evidence of the previous consistent statement by him under s 108(3)(a) of the Act.  Further, it is not in issue that the accused was cross-examined on the basis that he had fabricated his evidence that he learned from Debs of the circumstances in which Sergeant Silk and Senior Constable Miller had been killed.  The critical issue, in the present case, is whether leave should be given to the accused to adduce the evidence of the previous consistent statement made by him to Detective Iddles.
26	In Leung v The Queen, O’Keefe J identified some of the factors which should be taken into account in determining whether leave, in such a case, should be granted:
Questions of the time when the statement was made, the likelihood of an accurate memory in relation to the statement, the importance of the evidence, whether its admission would be unfair to a party, the surrounding circumstances, and other matters touching on the probative value and reliability of the evidence, will be relevant to the exercise of the discretions conferred by ss 108, 135 and 192.  However, provided that the conditions prescribed in s 108(3) are met and the evidence is relevant, then it would be prima facie admissible.
27	If the evidence were admitted, ultimately the probative value of that evidence would be a matter for the jury.  The conversation, that the accused had with Detective Iddles, took place some fifteen years after he had made the previous inconsistent statements to police in December 1998 and July 2000.  On the other hand, the accused spoke to Detective Iddles before the two IBAC hearings in 2015 and 2019 respectively, and before the hearing and determination of his second application for leave to appeal, and his appeal to the Court of Appeal, in 2020.
28	In that context, the previous consistent statement made by the accused to Detective Iddles, in 2013, does have the capacity to offset, at least to some degree, the effect of the previous inconsistent statements that he made to police in December 1998 and July 2000.  Those previous statements related to an issue that is of some importance in the case, because they contradict, and are inconsistent with, the explanation given by the accused for comments that he made, in the recorded conversations, in which he then manifested a knowledge of the events that had taken place in Cochranes Road in the early hours of 16 August 1998.  In that way, the previous consistent statement, sought to be adduced, relates to an issue of some importance in the ultimate determination by the jury of the two charges against the accused man.
29	In addition, the evidence of the previous statement made by the accused to Detective Iddles, if admitted, would foreclose any suggestion, whether by the prosecution, or in the minds of the jury, that the accused had fabricated that evidence after hearing the testimony given by Debs in the present trial.
30	For the reasons that I have earlier discussed, the representation, which the accused related to Detective Iddles, and in which Debs told him about what had occurred in Cochranes Road, was the kind of representation which would have remained imprinted in the memory of the accused man for many years.  As such, it is feasible that the accused could have retained an accurate memory of the contents of the conversation that he told Iddles that he had with Debs.
31	Each of those matters weigh in favour of granting leave to the accused to call evidence from Detective Iddles as to the previous consistent statement that the accused made to him in 2013.  The prosecution has not pointed to any relevant unfairness which would redound to its disadvantage in the trial if the evidence were admitted.  The charges against the accused are particularly serious.  As discussed, the evidence is relevant to an important issue in the trial, and is otherwise admissible.  Taking those matters into account, it is appropriate to give leave to the accused to adduce the evidence in question.  
32	Accordingly, I rule that the defence be given leave to adduce evidence from Detective Iddles that, when he spoke to the accused man in 2013, the accused told him that Debs had described to him what had occurred in Cochranes Road in the early hours of 16 August 1998, in circumstances in which the accused man had not been present at the scene of that event.
---