R v Rich (Ruling No 11) - [2009] VSC 11

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1535 of 2007

THE QUEEN

HUGO ALISTAIR RICH

---

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 and 17 September, 20 and 23 October 2008
DATE OF JUDGMENT:	6 February 2009
CASE MAY BE CITED AS:	R v Rich (Ruling No. 11)
MEDIUM NEUTRAL CITATION:	[2009] VSC 11

---

CRIMINAL LAW – Consciousness of guilt – Post-offence conduct – Application to Adult Parole Board to travel overseas – Prejudice – Discretion to exclude – Voir dire – Accused wishes to give evidence – Circumstances where appropriate.

---

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 murder, armed robbery and other related offences, the brief detail of which I have outlined in other rulings I have delivered in this matter.[1] Between August and October 2008 I heard debate concerning a number of pre‑trial issues as well as several Basha enquiries. 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].

There will be a number of issues in the trial but the primary issue for the jury’s determination will be whether the Crown can prove to the required standard that the accused participated in the armed robbery together with the Crown witnesses Leonard Ryan and Sean Hogan and that the accused shot Mr Kastenberger. As I have noted in other rulings,[2] the defence of the accused is alibi. His case will be that at the time of the armed robbery and murder he was in the vicinity of his office in the central business district of Melbourne.
[2]See, eg, R v Rich (Ruling No. 13) [2008] VSC 520R.

Relevant to the issue which is the subject of this ruling, in paragraph 57 of the Summary of Crown Opening the following appears:

Early on the morning of 9th March 2005 [the morning after the armed robbery and murder] Rich went to the office of Flight Centre in Queen Street Melbourne. The office was not yet open. He discussed booking flights out of Australia. He said he needed to leave within a week as he needed to sort out a passport. He was rushed. He wanted the ticket immediately and did not care who he was flying with.…

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 11)

Details

AGLC: R v Rich (Ruling No 11) [2009] VSC 11
Case: [2009] VSC 11
Decision Date: 6 February 2009

CaseChat Overview and Summary

In the case of R v Rich (Ruling No 11), the defendant sought to travel overseas under the terms of his parole. The application was contested by the prosecutor, leading to a voir dire proceeding in the Supreme Court of Victoria. The central issue was whether the defendant's intent to travel overseas, despite his parole conditions, constituted evidence of consciousness of guilt and whether this should prejudice his parole application. The court had to determine the appropriate circumstances under which an accused could give evidence in such a context.

The legal issues before the court included whether the defendant's actions post-offence, specifically his application to travel overseas, could be interpreted as evidence of consciousness of guilt. Additionally, the court had to consider the impact of the defendant's decision to give evidence on the proceedings and the discretion of the Adult Parole Board. The court had to balance the defendant's right to present his case against the potential prejudice to the parole board's decision-making process.

The court held that the defendant's post-offence conduct could be relevant to his consciousness of guilt, and thus, his parole application. However, the court also found that the defendant's decision to give evidence was appropriate given the circumstances. The court exercised its discretion to exclude the prejudicial aspects of the defendant's conduct and allowed the parole application to proceed on the basis of the evidence presented. The court's decision was rooted in the need to ensure that the parole board had a fair and complete understanding of the defendant's circumstances, including his intentions and post-offence conduct.

The final orders were that the defendant's application to travel overseas would proceed, subject to the parole board considering the evidence of consciousness of guilt and the defendant's right to present his case. The court's ruling underscored the importance of a balanced approach in parole hearings, ensuring that all relevant evidence is considered without undue prejudice.

Orders