Director of Public Prosecutions v Rider & Ong
[2021] VSC 678
•19 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0097
S ECR 2021 0052
| DPP | Crown |
| v | |
| Joshua RIDER & Aaron ONG | Accused |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 October 2021 |
DATE OF RULING: | 19 October 2021 |
CASE MAY BE CITED AS: | DPP v Rider & Ong |
MEDIUM NEUTRAL CITATION: | [2021] VSC 678 |
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PUBLIC INTEREST IMMUNITY – Murder – [REDACTED] – Confidential information – [REDACTED] – Claim for public interest immunity upheld – [REDACTED] .
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson QC | Director of Public Prosecutions |
| For the Accused Rider | Mr D Dann QC | Marcevski Lawyers |
| For the Accused Ong | Dr M Gumbleton | Theo Magazis and Associates |
| For the Chief Commissioner of Police | Ms S Flynn QC Ms A Haban-Beer | Victorian Government Solicitors Office |
HIS HONOUR:
BACKGROUND
Factual background
This is a ruling regarding a public interest immunity (PII) application by the Chief Commissioner of Victoria Police to withhold confidential information from Josh Rider and Aaron Ong who are charged with the murder of Paul Virgona on 9 November 2019. The introduction to the Summary of Prosecution Opening[1] (SOPO) says this:
1. In the early hours of Saturday 9 November 2019, 46 year-old Paul John VIRGONA was shot dead on the Eastern Freeway in Donvale as he drove his van from his home to his work.
2. It is the prosecution case that prior to the shooting, both Josh Rider and Aaron Ong (the accused), had waited outside Mr. Virgona’s Croydon home for over two hours. They then followed him as he left for work at about 2.00am.
3. The Accused, driving a dark grey coloured high performance stolen Mercedes C200, followed Mr. Virgona onto the Eastlink Freeway. After passing through the Melba Tunnel just east of the Mitcham Rd overpass, they drove alongside his van and fired multiple rounds from a semi-automatic hand-gun into Mr Virgona’s driver’s door, striking him multiple times below his waist. The van spun clockwise uncontrolled for a short period of time before coming to rest in the right hand lane of the Eastern freeway. Mr Virgona died seated at the wheel of his van, with his mobile telephone in his lap and the engine still running. The time was approximately 2.15am.
4. The Crown is unable to say which of the two accused fired the fatal shots. The Crown case is that pursuant to section 323(1)(c) [of the] Crimes Act 1958, each of the two accused were acting together in deliberately shooting Mr Virgona. This complicity can be inferred from the actions of the accused both before and after the fatal shots were fired.
[1]Summary of Prosecution Opening dated 15 June 2021.
The SOPO alleges that both Rider and Ong were members of the Mongols Outlaw Motorcycle Gang and that Virgona may have been shot as a result of mistaken identity:
[166] At the relevant time the Mongols OMCG were in conflict with the Finks OMCG. At the relevant time a Finks OMCG member was linked to an address in close proximity to the deceased’s home. This is relevant to the intended target of the shooting being a person other than Mr Virgona.
At a directions hearing on 31 August 2021,[2] the prosecution indicated that [166] of the SOPO was based on [231] of the statement[3] of Inspector Wayne Cheesman of the Echo Taskforce:
231. As a group, the Mongols OMCG have demonstrated an ability to use premeditated violence and have been involved in several violent conflicts with rival gangs throughout Australia. There are current tensions with the Finks OMCG. On 11 July 2019, a fully patched member of the Finks OMCG presented at the Casey Hospital suffering from a non-fatal gunshot wound. Victoria Police Echo Taskforce investigators believe members of the Mongols OMCG are responsible, although the crime remains unsolved. Possibly, in retaliation, on 01 August 2019, two fully patched members of the Finks OMCG ambushed the Vice President of the Mongols OMCG Melbourne chapter, shooting him several times. The two Finks OMCG members have been charged with attempted murder and a third Finks OMCG member has been charged as an accessory after the fact. That matter is before the courts. I am also aware that a Finks OMCG member is linked to an address in very close proximity to the deceased Paul VIRGONA’s address. Given the recent targeted shootings between the two gangs, it is possible in my opinion that the shooting of the deceased was a case of mistaken identity and the intended target was the Finks OMCG member linked to the nearby address.
[2]Transcript of Proceedings, DPP v Ong & Rider (Supreme Court of Victoria, Freeman JR, 31 August 21) 24.
[3]Statement of Inspector Wayne Cheesman dated 7 May 2020.
The prosecution also indicated at the Directions Hearing on 31 August 2021 that [166] of the SOPO was possibly supported by an undisclosed recording in the possession of the police.[4] [REDACTED].
[4]The existence of the recording had been disclosed to the prosecution by the informant in an email but the recording itself had not been disclosed to the prosecution.
The confidential information which is the subject of the Chief Commissioner’s PII claim comprises:
·[REDACTED],
·[REDACTED];
·[REDACTED]; and
·[REDACTED].
Legal background
The law which governs this application is the common law, not Part 3.10 of the Evidence Act 2008.[5] This is because the Chief Commissioner’s claim of PII was not made in response to a “disclosure requirement”, as that term is defined in s 131A of the Act. Rather, the Chief Commissioner, mindful of his obligations of disclosure under the common law, advised the parties and the court that he was in possession of relevant material which he was withholding pending the outcome of his PII claim.
[5]Although there is no significant difference between the two: Ryan v State of Victoria [2015] VSCA 353, [58].
It is trite law that in determining a PII claim one must weigh competing interests. There is the public interest (and the accused’s interest) in a fair trial. There is also the public interest [REDACTED].
[REDACTED].
SUBMISSIONS
Chief Commissioner
The Chief Commissioner relied on “open”[6] and confidential affidavits and submissions.[7] The open material did not disclose the head of PII on which the Chief Commissioner relies, [REDACTED].
[6]Open affidavit of Detective Leading Senior Constable Stephen Eppingstall, 20 September 2021; open written outline of submissions, 20 September 2021.
[7][REDACTED].
[REDACTED].
[REDACTED].
DPP
The DPP submitted that since the Chief Commissioner had determined that the confidential information was relevant to the murder trial, the information should only be withheld from the parties if the Court determines that the Chief Commissioner’s PII claim is valid. The DPP noted that at a Directions Hearing it was indicated by the Chief Commissioner that the confidential information includes material that may be inculpatory or exculpatory.[8]
[8]Transcript of Proceedings, DPP v Ong & Rider (Supreme Court of Victoria, Freeman JR, 31 August 21) 11.
Accused
Rider
Rider made a written submission to the effect that, being ignorant of the head of PII under which the Chief Commissioner makes his claim, he is not in a position to make submissions.
Ong
Ong made a submission that, although he is also in the dark as to the head of PII under which the Chief Commissioner makes his claim, he supports (sic) the Chief Commissioner’s claim. He does not seek access to the confidential information. It appears that Ong anticipates that disclosure of the information to the parties would do him more harm than good in answering the prosecution case.
ANALYSIS
Ong’s suspicion that disclosure of the confidential information may assist the prosecution more than him is well founded.
[REDACTED].
[REDACTED].
[REDACTED].
[REDACTED].
[REDACTED].
[REDACTED].
[REDACTED]. In my view, the balancing exercise favours non-disclosure of the confidential information the subject of the Chief Commissioner’s PII claim. And I so order.
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