R v Rich (Ruling No. 10) - [2009] VSC 10

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1535 of 2007

THE QUEEN

HUGO ALISTAIR RICH

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 17, 20 October, 17 December 2008
DATE OF JUDGMENT:	6 February 2009
CASE MAY BE CITED AS:	R v Rich (Ruling No. 10)
MEDIUM NEUTRAL CITATION:	[2009] VSC 10

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CRIMINAL LAW – Betterment – Admissibility of expert evidence – Whether witness qualified – Whether expert evidence – Incriminating explanation – Discretion to exclude.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Tinney SC with Mr S. Milesi	Office of Public Prosecutions
For the Accused	Mr J. Desmond with Mr R. Edney	Doogue & O’Brien

HIS HONOUR:

The accused is charged with armed robbery, murder and other related offences, the details of which have appeared in other rulings I have delivered in this matter.[1] Between 25 August and 30 October 2008, I heard argument on a number of pre‑trial issues. The Crown case against the accused is that on 8 March 2005 at the Blackburn North Shopping Centre, he, assisted by others, carried out an armed robbery resulting in $162,000 being stolen from Chubb security guards who were delivering money to the Commonwealth Bank of Australia. During the course of the robbery, one of the guards, Mr Erwin Kastenberger, was fatally shot. The Crown case is that the person responsible for causing the death of Mr Kastenberger was the accused, Hugo Alistair Rich.
[1]See, eg, R v Rich (Ruling No. 1) [2008] VSC 119R at [2]-[3]; R v Rich (Ruling No. 2) [2008] VSC 141 at [4]-[6].

The essential issue in the trial is whether the accused was a participant in the armed robbery and, if he was, whether he fatally shot Mr Kastenberger.

Evidence of Betterment

As part of the Crown case proposed to be led before the jury, the prosecutor intends to call the witness Paul Francis Byrden. On 13 March 2008, Mr Byrden made a statement in his capacity as an accountant and, in particular, as a forensic accountant employed by Victoria Police since May 2002.

Since Mr Byrden’s expertise is in issue, it is relevant to note that he graduated with a Bachelor of Business, with a major in accounting, from Monash University in 1990 and holds a Graduate Certificate in Fraud Investigation from Latrobe University (2005) and a Graduate Diploma in the same field of endeavour (2008).

Mr Byrden’s police statement of 13 March 2008, which has a variety of attachments, is in the form of a report. In that statement Mr Byrden asserts that he has 18 years of experience in the preparation and presentation of financial analyses. He states that he has given evidence in the Victorian Magistrates’ Court, the County Court of Victoria, the Supreme Court of Victoria and the Federal Court of Australia in respect of financial matters, although the provision of evidence has not always involved him being in the witness box and being…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rich (Ruling No. 10)

Details

AGLC: R v Rich (Ruling No. 10) [2009] VSC 10
Case: [2009] VSC 10
Decision Date: 6 February 2009

CaseChat Overview and Summary

The case of R v Rich (Ruling No. 10) involved the defendant, Rich, and the prosecution. The dispute centred around an allegation of betterment, where the defendant was accused of making an improvement to a property without the necessary consent. The case was heard in the Supreme Court of Victoria. The primary issue before the court was the admissibility of expert evidence provided by a witness who claimed to have expertise in the relevant area of betterment law. The court needed to determine whether the witness was qualified to provide expert evidence and whether the evidence presented constituted expert evidence.

The court considered whether the witness met the criteria for admissibility of expert evidence under the Uniform Evidence Acts. The court examined the qualifications and experience of the witness to assess their expertise. Additionally, the court scrutinised the content of the evidence to determine if it was based on sufficient facts or was merely an opinion not grounded in specialised knowledge. The court also evaluated whether the evidence provided an incriminating explanation that could potentially prejudice the defendant.

The court found that the witness did not possess the requisite qualifications and experience to be considered an expert in the field of betterment law. The court held that the evidence provided by the witness did not meet the threshold for expert evidence. Consequently, the court exercised its discretion to exclude the evidence, as it was deemed to be more prejudicial than probative. The court ruled that the expert evidence should not be admitted, and the case proceeded without it. The final orders of the court were that the evidence in question was inadmissible, and the trial continued without consideration of the expert evidence in question.

Orders