Moments before the gunfire that killed them, Sergeant Gary Silk and Senior Constable Rodney Miller were seen by two other police officers speaking with one man next to a Hyundai Excel in Moorabbin.

Minutes after the gunshots, other officers comforted Miller as he lay dying from a wound to the chest. Almost 24 years on, the officers maintain Miller spoke of two offenders: “Two, one on foot.”

Bandali Debs (left) outside court in 2002 and Jason Roberts during his retrial in 2022.Credit:Simon Schulter, Jason South

Two offenders or one? It was the question that for 3½ months preoccupied the Supreme Court jury tasked with revisiting the murders of the two officers who were shot on Cochranes Road minutes after midnight on August 16, 1998.

And if there were two perpetrators, the jury was asked to determine whether one of them was Jason Roberts, the man granted a retrial after spending two decades in jail over the murders. Bandali Debs remains behind bars, having been convicted alongside Roberts in 2002.

Roberts argued he wasn’t there and was instead with his then-girlfriend, Nicole.

Silk and Miller were on a stakeout, in their car watching the Silky Emperor Chinese restaurant, considered a potential target for two armed robbers who had hit suburban businesses over the previous five months.

Sergeant Gary Silk (left) and Senior Constable Rodney Miller were fatally shot in Moorabbin.

The police hunch was tragically prescient, as Debs had considered the Silky Emperor, too. The restaurant was isolated among warehouses and only a handful of staff were inside at closing time.

Debs knew the layout from tiling the kitchen years before. Manual jobs gave an honest front to his career calling: crime.

In 1998, Debs had a new criminal protege in Roberts, then aged 17 and the boyfriend of his daughter.

The bandits were on a roll. Wearing masks and carrying loaded guns, they terrified customers and staff at restaurants and shops from Carrum Downs to Kew, where Debs demanded cash from managers while the apprentice taped people’s legs and hands together.

Jason Roberts leaves court on Monday after being acquitted of murdering Gary Silk and Rodney Miller in 1998. Credit:Jason South

So cocky was Debs on the 10th hold-up, at the Green Papaya restaurant in Surrey Hills, he told staff: “Tell the police Lucifer was here.”

Debs was also prepared to do anything to avoid detection.

So, when Silk and Miller pulled over the Hyundai – having followed it from when the hatchback drove in and out of the Silky Emperor car park – Debs didn’t hesitate to fire his revolver.

There was no dispute about Debs’ involvement in the murders, leaving this jury to answer: Were there two offenders? Was Roberts one of them? Was he criminally involved?

On Cochranes Road, police officers Darren Sherren and Frank Bendeich drove past the stationary cars and saw Silk, Miller and one other man, but couldn’t see into the Hyundai. They thought the interception was routine and pulled into a side street. There, they heard bursts of gunshots but their view was obscured.

Seconds later, a carload of Elvis fans drove past after attending a tribute concert when one of them, Kimberley Connell-Sculli, saw a man with arms outstretched.

“It looked to me like he was holding a gun,” she told the trial. Wracked with fear, she told her friend to drive away fast.

After Sherren radioed in the gunfire, police from across Melbourne’s south-east sped to the frantic scene. Silk lay dead, Miller was missing, the Hyundai was gone, sirens blared and the radio operator urged officers to put on bullet-proof vests.

Amid the chaos, police officer Colin Clarke heard a noise carry on the wind. “Help me, help me,” a man cried out.

Clarke dropped the witches’ hats he was holding, yelled to colleagues to follow and ran along Warrigal Road, where the group found Miller outside the Silky Emperor.

Miller was dying but could talk and, according to six officers who were there, spoke of two offenders. Clarke broadcast that information over the radio.

Most of those with Miller didn’t include what they said they heard in their witness statements, which prompted questions about reliability. In some cases, investigating police amended statements to include Miller’s words, but backdated the documents to make them appear as if they were made hours after the shootings.

Prosecutor Ben Ihle, QC, outside the Supreme Court.Credit:Paul Jeffers

It was this misconduct that the Court of Appeal based its 2020 decision on to quash Roberts’ original convictions and grant a retrial.

In Roberts’ retrial, prosecutor Ben Ihle, QC, conceded investigating police acted inappropriately, but urged the jury to accept what the police witnesses said they heard.

Former officer Michael Steendam said he would “never forget” Miller’s words as he was loaded into an ambulance: “Make sure you get those c—s.”

Graham Thwaites was asked if he could have been mistaken about what he heard. He replied: “‘Get them c—s.’ It’s going to haunt me until my death.”

Defence counsel David Hallowes, SC, outside the Supreme Court.Credit:Paul Jeffers

Defence counsel David Hallowes, SC, argued the “stench of police misconduct” hung over the case and infected the “dying declaration” evidence. In addition, he said, some police witnesses previously lied about the statements.

But Ihle said some of it was insurmountable, including the evidence of Bradley Gardner, the most junior officer with Miller, who, at 12.38am, wrote in his notebook: “Two, one on foot, dark Hyundai.”

It was the shattered glass shot out from the Hyundai’s back window that eventually led police to the make of the car and an Excel registered to Nicole Debs.

During an exhaustive investigation into Debs and Roberts, police put listening devices in houses and cars connected to the pair.

In one conversation, Debs used “us” and “we” when detailing what happened in Moorabbin with Malik Debs, the man Bandali considered a father figure and whose surname he took when he was a young man.

In another conversation, Bandali Debs asked Roberts: “Remember this set of lights?” And in another, Roberts told Debs police had “no idea” about what happened on Cochranes Road.

Prosecutors argued these discussions indicated Roberts was one of two offenders, but Hallowes argued the conversations were inconclusive, and the young man was parroting back what the older one said.

Roberts maintained he and Nicole were at the Debs family home in Narre Warren that night. He gave evidence Debs said he alone went to Moorabbin and killed both officers himself.

Roberts told the jury he helped Debs cover up the shootings and lied to police to distance himself from the hold-ups and protect his mentor.

A memorial plaque for Sergeant Gary Silk and Senior Constable Rodney Miller.Credit:Joe Armao

“I’ll keep saying it to you: I was not there,” he said, with strain in his voice during Ihle’s cross-examination.

He said he lied to others, including his mother and Nicole, about what he knew. Despite being Roberts’ alibi, Nicole didn’t give evidence.

It is unclear how much the Debs family knew at the time.

In February 2000, Debs and daughter Joanne discussed the police hunt, and the father suggested killing another two officers “to make the investigation spread stupidly”. He also asked Joanne if he should “get rid” of Miller’s wife, Carmel, and toddler son. Joanne said no.

In his evidence, Debs continued speaking of evil in a casual manner.

Without remorse, he admitted to the separate murders of Kristy Harty and Donna Hicks, sex workers he shot dead years before the Cochranes Road shooting.

“Just a cold-blooded execution?” Hallowes asked of the Hicks murder.

“Yes,” Debs replied.

Debs told the trial he shot Miller first and then Roberts shot Silk.

Jason Roberts (left) outside the Supreme Court in 2002.Credit:Simon Schluter

Could the jury accept Roberts’ or Debs’ version? The court was told they were both habitual liars and their different accounts meant at least one lied under oath.

Although Debs was a prosecution witness, Ihle said the killer lied to minimise his involvement. He said forensic evidence – the position of Silk’s body and the .357 and .38 bullets in his body meant there were two guns and Miller fired in two directions – showed Roberts most likely shot Silk first, Debs shot at Miller through the Hyundai window, ultimately fatally shooting him, and Debs then killed the incapacitated Silk.

Hallowes said Roberts had explained his past lies, and his knowledge of the sequence was based on what Debs told him.

The Crown case fell short of proving Roberts’ guilt, Hallowes said, as it was possible Debs was on solo surveillance and shot two officers with two guns. Just because Debs and Roberts did hold-ups together didn’t make the then-teen a murderer.

Ihle said if there were two, then the tendency of the hold-up evidence proved that it was Roberts with Debs. He said both were culpable in the murders, either by Roberts aiding and abetting Debs or by them working towards the same objective: evading detection.

“The two of whom Miller spoke were Debs and the accused,” the prosecutor said.

“The two of them had worked in conjunction, the two … armed robbers. The two who together planned their targets. The two who went to the Silky Emperor that night.

“The two who talked about the investigation. The two who discussed how they will throw the police off their scent. The two who thought they knew better. The two who lied to their families. The two who thought they’d gotten away with it. The two on Cochranes Road.”

On Monday, the jury found Roberts not guilty on both charges of murder.

Juries are not required to reveal how they come to their decisions. But based on the verdict, which came after five days of deliberations, the jury was not satisfied Roberts was there.

Debs says he knows what really happened in Moorabbin, but Hallowes successfully portrayed him as someone whose evidence couldn’t be relied upon.

“What happened … was a tragedy,” Hallowes told the jury in his closing address.

“It was a vile and evil act, but it was committed by Bandali Debs: a vile and evil person, a psychopath and a liar.

“Jason Roberts was not there. It’s time to right the wrong.”

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