R v Rich (Ruling No 12)
[2008] VSC 519
•27 November 2008
| 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: | 23 October 2008 | |
DATE OF JUDGMENT: | 27 November 2008 | |
CASE MAY BE CITED AS: | R v Rich (Ruling No. 12) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 519 | |
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CRIMINAL LAW – Evidence of motive – Relevance – Admissibility – 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 2008 and 31 October 2008 I have heard a variety of pre-trial issues and several Basha enquiries. The Crown case against the accused is that on 8 March 2005 at the Blackburn North Shopping Centre, he, assisted by Leonard Ryan and Sean Hogan, 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 Crown proposes to lead evidence of the intention of the accused to purchase a company, Precision Design Australia (PDA), during the period preceding the armed robbery and murder on 8 March 2005 as demonstrating a need by him for a large amount of money. Mr Desmond, on behalf of the accused, objects to the admissibility of that evidence on the grounds that the evidence is so vague as to lack relevance and probative value. Alternatively, Mr Desmond submits that I should exclude such evidence in the exercise of my discretion on the basis that the prejudice to the accused in leading such evidence would outweigh its limited probative value. He cites the decision of the House of Lords in R v Christie[2] in support of that submission.
[2][1914] AC 545. See also Tofilau v R (2007) 231 CLR 396.
As I understand the way in which the Crown wishes to rely on this evidence, it is said to go to Mr Rich’s motive to commit an armed robbery and therefore to assist in establishing his presence and participation in the events of 8 March 2005 at North Blackburn.
The Evidence
The principal Crown witness in this trial will be Leonard Ryan who was extensively cross‑examined during a Basha enquiry before me. During that hearing, Mr Ryan did not give evidence in chief in the usual manner but rather was shown his statements by the Crown prosecutor and swore that their contents were true and correct. Beginning with his police statement of 7 December 2006, in relation to the desire by the accused to acquire the company PDA, Mr Ryan gave the following description:
Within a month or two [of being released on parole] [Mr Rich] had come over to my apartment ... and he brought with him booklets and was saying that he had a unique opportunity to purchase a company cheaply. He explained that it was in liquidation and he had an opportunity to buy it cheap. The company was called Precision Design Australia (PDA). ... He told me that he was capable of restructuring the company ... and able to provide me with a fantastic job. He said that I would have a Mercedes and he would travel with me overseas for the business. He told me I would have a credit card and would be able to get my own apartment. Incredibly he then asked Mark DICKSON and I to supply him with $200,000 dollars. That was $100,000 each and we did not take him seriously.
Mr Ryan described a second discussion between him and the accused regarding PDA as follows:
[Mr Rich] came to visit me in hospital and was really annoyed with me. Mark [Dickson] was present when [Mr Rich] had a go at me for injuring myself and delaying the purchase of PDA.
Mr Ryan also described how in mid January 2005, during a trip to Sydney, the accused showed Mr Ryan’s family the “PDA booklets” and made several promises to Mr Ryan’s mother about Mr Ryan’s future. Then, in the context of a conversation in late February 2005 regarding the planned robbery at North Blackburn, Mr Ryan stated that the accused said “he couldn’t wait because of some deadline to do with PDA and he was insisting the job occur as soon as possible”.
When describing what occurred after the armed robbery at North Blackburn, Mr Ryan said in his statement:
... I remember putting $20,000 dollars in an unmarked envelope for Sean [Hogan]. ... I took 1 or 2 thousand dollars and he [Mr Rich] took the rest of the money. I remember saying to him “this is for the business PDA.”
Mr Ryan stated that he kept in touch with the accused and
it was about a week later when I was getting some money from him, [Mr Rich] told me it was not a good idea to buy PDA anymore. I asked him about the money and he told me he had to “wash it”.
In his submissions on behalf of the accused, Mr Desmond referred to the relevant evidence of Mr Ryan given during cross-examination on the Basha enquiry, which he argues differs from his statement:
Was there any particular conversation on this occasion, Mr Ryan, that you can identify or recall ... Apart from general chitchat, you know? - - - Yeah, we spoke about a couple of things, you know, basically about the future and, you know, armed robberies.
What’s the armed robbery context, what was spoken about? - - - Oh, they’re in the past, that’s not the way, there’s no money in them any more and it’s not the way forward and ... there’s other things that can be done to make money. ...
Did you respond to this or not? - - - I can remember liking the sound of it, because he always had a lot of ideas. Myself and Mick, among two people that were looking forward to him coming home, as it were, to pursue some of these business ideas.
Are you saying any particular business idea was identified in November, well, the first time you saw him or in November of 2004? ... Was there any particular business concept idea spoken of? - - - At some stage reference was made to a company.
What stage can you identify this occurring, and use Christmas as a point of reference, before or after, on the day? - - - Yeah, I can’t recall precisely.
Okay. Can you recall the duration of this particular conversation? - - - No, I can remember where it occurred. ... My place. ...
HIS HONOUR: What was the business concept? ... What was the concept? - - - The concept? The concept was to restructure this company and outsource its IT to India and it was just involving roofing designs, PDA was the name of the company.
MR DESMOND: It’s Rich saying these things that you’ve just said? - - - Correct, yes.
That he was interested? - - - Yes.
What did he say actually? - - - An opportunity came up. ... Because of his position. ... To acquire a company cheaply.
Okay. You are saying in this conversation he identified it as PDA? - - - Yes.
He identified what it did – was? - - - Yeah, he had booklets to show. ...
What did he say about it, other than he was interested in it, if anything? - - - He said the – it was in liquidation. ... I believe it had something to do with the firm he was working out of and the initial stages, he’d got the information or the mail on it.
Yeah. You mentioned something about, was it getting it cheaply? - - - Yes, yeah, he said he could - - -
Did he go into any more detail about that? - - - Price-wise?
Did he seem to be suggesting perhaps a value or something, cheaply? - - - Yeah, I think he said he could get it for $100,000, that sticks in my mind. ...[3]
This passage, Mr Desmond submits, is accurate, and it differs from what Mr Ryan says in his statement.
[3]Transcript at 2331-3.
In addition, Mr Ryan gave evidence as follows:
What do you say to a description of it perhaps being a unique opportunity to purchase a company cheaply? - - - Yes, that sounds right.
The opportunity might exist to acquire it cheaply? - - - That sounds right, yep.
Was there any mention of the company being restructured if Rich was able to be successful in getting involved in it, such that he was only one part of the operation, what do you say to that? - - - I remember there was discussion about what could be done to make the business viable.
Yeah? - - - And that could involve some participation from me also. ...
Was there any other conversation you held with Rich about PDA, other than the one you’ve identified? - - - There could have been several conversations that were held about - - -
No, ones you can recall such that I can ask you questions about. Are there other conversations where you could remember something particularly being said? - - - The one at my place really is ... The main one we’ve been talking about. And he did show some booklets to my mum up in Sydney.
Yes? - - - But I can’t remember speaking about, too much about the company then. ...
Is there anything about how it might be of some benefit to you or an opportunity for you in life, anything along those lines? - - - Yeah, definitely.
What’s said? - - - Basically I could jump on board with him and he’d be able to provide me with various things, a job, and we could travel and do sorts of things like that, go overseas. We’d have to go overseas for the business, to establish it, obviously.
Are you saying he’s conveying if everything’s works out and it all becomes successful? - - - Yes, it’s a win for everyone. ...
What about, “It might turn out to be a fantastic opportunity for you to leave the past behind”, issue with that? - - - I don’t remember him saying to leave the past behind, but definitely the mindset - - -
... Was it said or not? - - - I don’t recall that being said. ...
Okay. Is there anything else about the PDA issue you can tell us, as to how perhaps, you know, the opportunity and the extent of the opportunity it would be for you and how it would become, possibly could become an opportunity for you to get involved? Anything? - - - Oh, just the accountant, I suppose, that got involved. ...
There’s a particular accountant you are talking about, is there? - - - It’s a bloke we met in gaol years ago. ...
What do you say to the suggestion Michelle [the accountant] had never had any involvement with PDA? - - - ... I can only go off what Hugo has said to me, that is I believe he had a meeting. ...
Anything else, I’m giving you a full opportunity to tell us anything about how you might become involved in this PDA company or acquisition? - - - No, I didn’t deal with it other than hearing some things from him about how it was going.
Okay? - - - Yes, I believe it fell through or something like that.[4]
[4]Transcript at 2334-9.
Mr Desmond submitted that Mr Ryan was given a fair opportunity to give evidence that he was going to “go in a sort of $100,000 split with Dickson from the proceeds of the robbery or anything like that”.[5]
[5]Transcript at 3120.
Mr Desmond then referred to the following evidence:
How much were you anticipating to gross as the leader? - - - After expenses, half, but - - -
... You understood you’d get, what, 100,000? - - - Whatever it was, it wasn’t really known. It was understood that that was to be provided for the purchase of a business, namely PDA, and - - -[6]
[6]Transcript at 2573.
Mr Desmond submitted that this is an attempt by Mr Ryan to
sheet his belief, accurate or not, we say inaccurate and a lie, but it is an attempt by him to sheet an understanding to Rich as opposed to directly saying, “This was an agreement” or, “This was said by Rich to me or by me to Rich”.[7]
[7]Transcript at 3121.
Referring back to that passage:
PDA was long gone, you know that? - - - No, I don’t know that at all. It wasn’t - - -
It went into liquidation months earlier, it was off the agenda? - - - I can only go off what Hugo had told me at the time and looking back, you know, who knows what was the truth.
... That PDA conversation is not one you had with Rich on that day [ie 8 March 2005] or the immediate days leading up to it or even after it? - - - It was leading up to, it was on that day, and there was a conversation about it later on after the robbery also.
Well, that’s just a lie, witness. See, I asked you questions the other day about “tell us all your PDA conversations” and you give us one? - - - No, I remember clearly Hugo telling me - - -
You say that now. You had your chance a few days ago is what I’m putting to you and you told us there was one clear conversation you could recall and identify. Have you since recovered a memory, have you? - - - No, I’m not sure if that’s how it went the other day. I’m just telling you that I remember that there was a conversation about PDA because it was decided to cancel the purchase of it because it wasn’t a good time, and I agreed with Hugo’s observations.
But when are you saying this agreement or conversation is? - - - That particular one? ... Some time after I came back from Sydney. ...[8]
[8]Transcript at 2573-4.
However, when re-examined during the Basha enquiry, Mr Ryan gave evidence as follows:
... you were being asked about the obtaining of the firearms, they being obtained, and the fact there were no bullets leading up to 1 March and you were asked this question, ... “He”, referring to Hogan, “he gets back to you, ‘I have made my enquiries, this is the result’.” And your answer, “No-one had any luck.” Then the question, “Is that the end of bullet scenario, is there anything else? You then determine to do it without bullets, is that where we are at?” You said, “Well there’s some things that happened that cause us to move forward without that, yes.” Do you remember giving that evidence?- - - Yes, I do.
Can I ask you what you were referring to when you said, “There were some things that happened that cause us to move forward without that” bullet?- - - The deadline with PDA, there was a time-line with it, I believe, that made it have to occur, the robbery.
Who informed you as to the deadline?- - - Hugo did.[9]
Then,
Could I ask you what other conversations you were referring to that caused you to assume on 8 March that the gun was not or the guns were not loaded?- - - Again, the PDA related stuff of having to press ahead because of deadline, that sort of stuff is, pushed it going.[10]
[9]Transcript at 2811.
[10]Ibid at 2816.
As Mr Tinney SC submitted, in the course of direct discussions relating to the proceeds of the armed robbery there is reference to the same purchase and the shift away from the fact of that purchase.
Mark Ewan Dickson is an associate of Mr Ryan’s and participated in discussions with Mr Ryan and the accused prior to 8 March 2005 about, among other things, PDA. Mr Dickson also gave evidence during the Basha enquiry and swore as to the truth of his police statements. They included a statement concerning the armed robbery of 8 March 2005. On that day, Mr Dickson had gone to Ballarat and later provided to police a false alibi for Mr Ryan, saying that Mr Ryan had been with him in Ballarat. As to the issue of PDA, Mr Dickson described in his statement a meeting that occurred at his residence with Mr Ryan and the accused where the company Precision Design Australia was referred to and the accused was wanting Mr Ryan and Mr Dickson to buy into the company for $200,000.
With respect to Mr Dickson’s evidence on the Basha hearing, Mr Desmond referred to the following:
Now I don’t need a specific date I am talking about the detail of the information. Is there any particular conversation about any particular business idea or businesses getting off the ground and chitchat and business and stock market that you can identify? - - - Yes.
What is it? Precision Design Australia, PDA? - - - Yes.
When do you identify any such conversation was held that you were present for concerning PDA? - - - The one I recall was in a flat, in our flat.
When approximately relevant to 8 March? - - - Yeah, I think it could have been late January, February, something like that.
Who was present in that conversation? - - - Leonard Ryan.
What was the purport, or what was actually said, the substance of what was said, anything to do with PDA? - - - He was looking at a company that had gone into administration or was in administration ... Right yes, well, he mentioned that he was buying this company that had designed a number of buildings or structures and was in receivership or administration and he could get it for about $200,000.
Is it just the one conversation? - - - When I was there, yes.
And you think it might have been did you say late January or early February or something? - - - Yes. ...
If I was to suggest to you if there was any such conversation at that point in time it was along the lines of PDA is a dead issue? - - - What do you mean by dead issue?
It is not happening, it is not going forward as opposed to earlier on or in late 2004 when perhaps Rich may have been looking at it, it had since become a dead issue, gone nowhere? - - - No, he was very keen on it.
Submissions
Mr Desmond submitted that this evidence regarding the proposed purchase of PDA is so vague and imprecise that it is irrelevant. He submitted that there is nothing in the evidence that indicates that the motivation for committing the armed robbery was to secure funds to purchase PDA. At its highest, Mr Desmond argued that the evidence might point to Mr Ryan’s limited view of an understanding he had with Mr Rich, but the evidence does not support any direct statement by Mr Rich to Mr Ryan that this was his motive for committing the armed robbery. In my opinion such a conclusion may be open to be inferred on the evidence given by Mr Ryan to which I have referred in paragraph [13] above.
Mr Desmond agreed that there is nothing inherently prejudicial with respect to the PDA evidence. He agreed during the course of argument that it is part of the narrative, but submitted that it is sought to be elevated beyond its status because of its imprecise nature.
Mr Tinney SC, on behalf of the Crown, agreed that this evidence forms part of the narrative of the events, but submitted that the evidence has further probative value and points to the evidence to be given by Mr Ryan that the timetable for the armed robbery was compelled by the need for money to purchase this company. He also refers to the evidence given by Mr Ryan about utterances made by the accused after the robbery about the use of the funds for the business, being PDA. Mr Tinney submitted that there is no basis for the evidence to be excluded. With respect, I agree.
Conclusion
I do not see any reason to exclude this evidence. The evidence supports a conclusion that the accused wished to obtain a sum of about $200,000 to acquire a company. The evidence contained in Mr Ryan’s sworn statement indicates that the accused had expressed an intention to use the proceeds, or part of them, of the armed robbery for that purpose. In his evidence before me he was less precise about the conversations but his evidence taken as a whole continues to connect the purpose of the armed robbery to the acquisition of the company he was discussing. He is also said to have identified a deadline which affected when the robbery was to occur.
In this case, the primary issue between the Crown and the accused is whether the Crown can prove beyond reasonable doubt that the accused participated in the armed robbery on 8 March 2005. If that is proved beyond reasonable doubt then the next issue to be resolved according to the same standard is whether the Crown can prove that the accused was the offender who caused the death of Mr Kastenberger. Thus, whilst the evidence, of course, discloses no motive to kill Mr Kastenberger, it discloses a motive to obtain money quickly for a particular purpose. In my opinion, therefore, this evidence is relevant and probative on an important issue in the trial to the extent that it tends to show that the accused had a motive to participate in and benefit from the armed robbery on 8 March 2005. As Gaudron, McHugh and Hayne JJ observed in De Gruchy:[11]
Motive, if proven, is a matter from which a jury might properly infer intention, if that is in issue, and, in every case is relevant to the question whether the accused committed the offence charged. As was observed by Lord Atkinson in R v Ball:
Evidence of motive necessarily goes to prove the fact of the homicide by the accused ... inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not.
So, too, absence of motive is equally relevant to the question whether the accused committed the offence charged and, as observed by Menzies J in Plomp v The Queen, “is commonly relied upon as a circumstance tending in favour of ... a person accused of a crime”.
[11](2002) 211 CLR 85 at 92-3.
The evidence in this case can be contrasted with the kind of evidence which was the subject of criticism in the Court of Appeal in R v Cummins.[12] In that case the applicant had been tried for armed robbery and evidence of his addiction to heroin had been admitted for the purpose of proving the applicant’s motive to commit an armed robbery. Ormiston JA observed:
Frequently motive arises directly and eloquently in cases of murder and other charges involving the causing of injury where the intent of the accused is clearly in question; in others where the identity of the assailant is raised. Motive is so frequently identified as arising out of personal jealousies, rivalries and other animosities that it is hard to apply every apparent “rule” in this area to cases where no personal element can be said to be present. Nevertheless a distinction cannot be made between offences involving personal injury and those involving property because not infrequently theft and other like offences are motivated by personal dislike. Moreover it is difficult to argue, except in cases of strict liability or where the offences are committed by persons so drink — or drug — affected as not to know why they have committed particular offences, that motive can ever be totally irrelevant. Most crimes are actuated by some motive, some purpose beyond the mere intent to carry them out. What significance that motive has is another matter, especially where intent is not in issue. In cases of uncertain identity, such as the present, can individual motive have much bearing on the outcome? As De Gruchy suggests, it may well be relevant in cases where intention is not disputed and, as a generality, one cannot disagree with that conclusion. A hatred or dislike of a particular bank or other institution, as well as personal envy, may sometimes explain a property offence, but that must be relatively uncommon. Most offences of that kind are actuated by a desire to obtain money, nothing more and nothing less, howsoever the miscreants are likely to spend it.
One may, nevertheless, assume that in the ordinary case proof of a motive will be relevant in the sense that, when taken with other relevant facts, it may render more probable than not that the offender has committed the act charged. Usually, however, where motive is explicitly sought to be established, one can see a connection with the alleged crime and its victim which makes it more likely that the accused has committed the crime, either because his or her intent to cause the victim harm can be seen to be the more probable or because he or she may more easily be identified as a likely perpetrator of the crime. In either case a specific animus or hostility, for good or bad reason, against the victim is usually seen as helping to establish the prosecution case. A motive of that kind to cause harm can thus be a powerful weapon in the prosecution armory, indeed sometimes so powerful that warning may need to be given against placing too much weight upon it.[13]
[12][2004] 10 VR 15.
[13]Ibid at 22-23 (emphases added).
This is a case where the identity of the assailant is raised and, when taken with other parts of the Crown case, this evidence may make it more likely that the accused committed the offences with which he is charged.
In addition, and unlike in R v Cummins, the evidence I am concerned to consider does not carry any particular prejudice capable of overwhelming is probative value and none was contended for. In R v Cummins, Ormiston JA concluded that the evidence was only marginally relevant and he had “no difficulty” in concluding that the prejudicial effect outweighed the “slight” probative value.[14]
[14]Ibid at 24.
I propose to admit the evidence.
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