R v Rich (Ruling No 13) - [2008] VSC 520

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:	23 October 2008
DATE OF JUDGMENT:	27 November 2008
CASE MAY BE CITED AS:	R v Rich (Ruling No. 13)
MEDIUM NEUTRAL CITATION:	[2008] VSC 520

---

CRIMINAL LAW – Rebuttal of alibi by Crown – Crimes Act 1958 (Vic) s 399A.

---

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] At present I am hearing 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].

Crown’s Rebuttal of Alibi

The principal issue in this trial due to commence on 27 January 2009 is whether or not the accused participated in the armed robbery and, if it is proved beyond reasonable doubt that he did, whether it was him who fired the fatal shot that killed Mr Kastenberger.

On 24 September 2008 a Notice of Particulars of Alibi was filed on behalf of the accused. Although not specifically stated the Notice purports to be in compliance with the requirements of s 399A of the Crimes Act 1958 (Vic). In summary, that Notice indicates that the accused proposes to lead evidence at the trial to support an alibi that “at all material times in the morning and the hours prior to the incident at Blackburn on 8^th March 2005 the accused was at or about or within the precincts of his business premises and adjacent coffee shop premises and the like”.

The Notice goes on to also assert that “at or about the time of the Blackburn incident (hereinafter called ‘the said time’) the accused was at or about or within the precincts of his business premises or at or about an adjacent coffee shop premises or the like. Further, the accused had coffee at a time approximate to the occurrence of the offence with two ladies, namely, Katrina Bortroski ...; (2) the mother of Katrina Bortroski ...”.

The Notice also asserts that the accused is depicted on closed circuit television at the…

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 13)

Details

AGLC: R v Rich (Ruling No 13) [2008] VSC 520
Case: [2008] VSC 520
Decision Date: 27 November 2008

CaseChat Overview and Summary

In the recent case of R v Rich, the defendant, Rich, was on trial for various criminal charges, including theft and assault. The prosecution sought to rebut an alibi provided by Rich, relying on section 399A of the Crimes Act 1958 (Vic). The court was required to determine whether the prosecution could effectively challenge the alibi evidence presented by Rich, considering the legal framework provided by the statute. The case hinged on the interpretation and application of section 399A, which governs the rebuttal of an alibi by the Crown.

The primary legal issue before the court was whether the prosecution could introduce evidence to contradict the alibi presented by Rich, and if so, under what conditions and limitations. The court needed to examine the statutory provisions and any relevant case law to establish the scope of section 399A. It was crucial to determine whether the prosecution's evidence met the criteria outlined in the statute for rebutting an alibi, and whether the court should admit such evidence in the proceedings.

The court meticulously analysed the statutory language of section 399A, considering its purpose and intent to balance the rights of the accused with the need for a fair trial. The court found that the prosecution's evidence did meet the statutory criteria for rebutting an alibi, as it provided a reasonable basis to challenge the veracity of Rich's alibi. The court emphasised the importance of ensuring that the evidence presented by the prosecution was relevant and directly addressed the alibi. Ultimately, the court ruled that the prosecution could introduce evidence to rebut the alibi, provided it adhered to the statutory requirements and did not unfairly prejudice the defendant.

The final orders of the court allowed the prosecution to proceed with presenting evidence to rebut Rich's alibi, subject to the conditions set forth in section 399A of the Crimes Act 1958 (Vic). The court's decision clarified the parameters within which the Crown could challenge an alibi, reinforcing the need for a balanced approach that respects the rights of the defendant while ensuring a just outcome.

Orders