It was nearly 22 years ago that Sergeant Gary Silk and Senior Constable Rod Miller left their unmarked police car to chat with the driver of a Hyundai sedan in Cochranes Road, Moorabbin.
It was part of a Melbourne-wide investigation, code-named Hamada, to sit near likely armed robbery targets in the hope of grabbing two gunmen who had pulled 10 stick-ups on suburban restaurants. Each robbery was carried out by an older man and a younger apprentice, both armed with handguns.
Silk and Miller, from the Elwood Regional Support Group, were assigned to watch the Silky Emperor restaurant in nearby Warrigal Road. The sedate Hyundai was hardly considered the getaway car of choice for bandits and perhaps that is why they didn’t call in the registration number. After all it was just a routine check.
There were no witnesses when the police were fatally shot with two handguns. The fact there were two guns used, the robberies were conducted by two men and Miller desperately fired shots in two directions led investigators to search for two gunmen.
As he lay dying Miller allegedly said there were two offenders, a statement immediately radioed to D24. “CHELTENHAM 206: He’s been shot twice, once in the chest, once in the stomach. He said there’s two offenders, there’s two on foot. There’s two on foot, at this stage no idea of direction of travel from here.”
Five first responders say Miller said two offenders while others at the scene didn’t hear the reference.
A taskforce codenamed Lorimer was set up, largely consisting of armed robbery and homicide detectives. The two-year investigation led to the arrests of Bandali Debs, 47, and his daughter’s boyfriend Jason Roberts, 19.
At their trial both denied they were the killers or the robbers. The jury didn’t believe them. In 2003 Debs was sentenced to life with no minimum and has since been convicted over two more murders. Roberts was sentenced to life with a minimum of 35 years.
In 2016 mandatory life sentences for all police killers became law, meaning Roberts was ultimately re-sentenced by Parliament. If he doesn’t win the appeal he is likely to die in jail.
Roberts pushed for his case to be reviewed. He now says while he was Debs’ partner in all the 1998 robberies and helped cover up the police murders he was not in the Hyundai in Cochranes Road.
Debs, he contends, acted alone. In late 2013 veteran homicide investigator Ron Iddles produced a report declaring a miscarriage of justice.
In July 2017 Attorney General Martin Pakula refused to send the case to the Court of Appeal saying there was no new compelling evidence.
It looked as if the case was finally closed. That is until a statement turned up, made by Glenn Pullin, one of the first police to arrive at Cochranes Road.
In that statement, taken hours after the shooting, Pullin (badly shaken and later diagnosed with PTSD) made no mention that Miller said there were two offenders.
But in his statement, altered ten months later and submitted to court as original, Pullin says he did hear Miller say there were two.
Now this is a different ball game altogether. If police fabricated evidence to “prove” there was a second offender (which had to be Roberts) the conviction is unsound.
Rightly it was sent to the Court of Appeal that found in March there was sufficient concern to review the case.
The court said Roberts’ case relied on claims evidence and testimony gathered by IBAC established, “An officer or officers of Victoria Police fabricated evidence relating to [dying] statements made by Senior Constable Miller.”
This relates largely, but not exclusively, to the Pullin statements over what he heard Miller say. But what if that assertion is wrong? What if the evidence before IBAC (and the trial) was not fabricated?
What if IBAC found the altered statements submitted to court from Pullin contained no fake facts? What if he did hear Miller say two offenders?
The call to D24 that Miller said two offenders came directly from Pullin repeating to a third officer, Colin Clarke, the dying policeman’s words.
Should not the Court of Appeal be provided with the IBAC report to come to its own conclusions?
The IBAC investigation (code named Gloucester) was not a probe into the guilt or innocence of Roberts. It was into the procedures used by investigators and those conclusions will not be pretty, finding police used improper methods to gather evidence and failed to disclose statements weren’t originals.
So why were the initial statements shoddy? Let’s go back to the night for a moment. It was chaotic. One senior officer, more interested in his career than justice, walked up to the coroner near Gary Silk’s body to say, “I want it recorded that I opposed this operation.” A veteran armed robbery squad detective who overheard the conversation briefly considered punching him in the face.
Back at the Moorabbin police station near dawn there wasn’t enough computers to take statements, police from the scene were in shock, some were crying, and others were sleeping on desks. Then the word came through Rod had died.
Later attempts to review and alter statements were to tidy up loose ends. The trouble was they tried to hide the loose ends completely.
There was no conspiracy to railroad Roberts as he didn’t become a suspect until five months after Pullin’s statement was altered. Five police heard Miller’s dying declaration (backed by the D24 tape), notes taken at the time referred to two offenders and there was no fake evidence.
Police statements were altered and upgraded (in itself not unlawful), the originals destroyed (which is) meaning defence lawyers at the first trial were robbed of the legitimate tactic of casting doubt on the first responders’ declarations.
While Miller did declare two offenders that doesn’t alter the fact the defence should have been told original statements were reviewed, clarified and altered.
In approving the right to appeal the Court of Appeal found, “It may be inferred that if the changes to the [Pullin] statement had been known to have been made 10 months after the first statement, then the course of cross-examination may have been radically different. “
At the appeal Robert’s barrister Peter Matthews said at the initial trial there had been a “deliberate manipulation of the evidence”, that was so contrary to the spirit of justice Roberts should be freed without retrial.
In the case of Cardinal George Pell the High Court released him because it found the jury should have acquitted. In the Roberts appeal this is clearly not the case. The argument is if the defence had a chance to damage Pullin’s credibility then a jury could have acquitted.
Another issue for the Court of Appeal is if you let the conviction stand you are rewarding sloppy, improper and possibly illegal police practices.
If the appeal is allowed police and the Office of Public Prosecutions are geared for a retrial and are confident of a conviction.
They argue that Roberts’ admission he was Debs’ armed robbery partner in the 10 stick-ups means he would have been there for the one they were to commit at The Silky Emperor, and he was in the Hyundai.
Debs liked to have a junior robbery partner.
Between 1991 and 1994 he committed 28 armed robberies with a second young partner. They only stopped when they were nearly caught on October 9, 1994, during a stick-up in Patterson Lakes.
The Lorimer Taskforce found Debs and Roberts, “Were constantly involved in criminal activity together, such as thefts, burglaries and armed robberies. The evidence shows that the accused spent many nights together stealing.”
The D24 tape is not the only independent audio indicating there were two offenders. This is from Debs’ own mouth in a bugged conversation discussing the murders.
“Those were the ones [Silk/Miller] that were sittin’ there, when we drove in just to quickly look [at the restaurant], they seen us so they drove behind us, and drove down the street to stop us, they stopped us. Then it’s not good . . . . Cause we heard it on this, we heard it on that [police radio], they said oh one is gone [Silk] we can’t find the other one [Miller]. After we left they come in 30 or 40 seconds. Thirty or 40 seconds they were there, that means they had a few [police] cars in the area.”
It all happened nearly 22 years ago but it is far from over.
John Silvester is a Walkley-award winning crime writer and columnist. A co-author of the best-selling books that formed the basis of the hit Australian TV series Underbelly, Silvester is also a regular guest on 3AW with his “Sly of the Underworld” segment.