| ting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1535 of 2007
| THE QUEEN |
| v |
| 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…
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- R v Rich (Ruling No. 10) [2009] VSC 10
- Case
- [2009] VSC 10
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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