R v Rich (Ruling No 13)
[2008] VSC 520
•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. 13) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 520 | |
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CRIMINAL LAW – Rebuttal of alibi by Crown – Crimes Act 1958 (Vic) s 399A.
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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] 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 8th 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 relevant time and that if that closed circuit television product were available it would depict him “in the approximate presence of other persons” who may also be able to support the alibi of the accused.
The Notice further claims that at about 2.30 pm the accused was approached by Leonard Ryan at or about 530 Little Collins Street, Melbourne, and that at about 3.00 pm or within minutes shortly thereafter the accused attended car hire premises in or about Hoppers Crossing. The Notice concludes with the assertion that the accused returned to his work premises thereafter and then went home.
The Crown proposes to lead evidence to rebut the alibi and indeed to establish an intention on the part of the accused to create a false alibi. As appears from other rulings in this matter, the principal witness in this case is Leonard Frank Ryan. Mr Ryan is the witness who claims to have been with the accused in the course of the armed robbery at North Blackburn on 8 March 2005. He and the accused were, he asserts, assisted from a distance by Sean Hogan. Mr Ryan has made a detailed statement in relation to the matter and give evidence before me during the course of a Basha enquiry.
In relation to this particular aspect of the evidence Mr Ryan refers to an intention on the part of the accused to create a false alibi. Mr Ryan’s statement made on 7 December 2006 includes the following:
Olly [the accused] had a camera and recording system installed in the office. He wired it in order to know if police came into the office. He also intended to reconstruct the day of 8 March 2005 and use the footage as his alibi. It was something to do with changing the date through the computer BIOS. One day I walked in to the office unannounced and he said I had ruined it, as I had been recorded on the footage he had been intending to use to reconstruct the day.
Olly told me that he had been in the office early on 8 March and turned on the computers using his password. He has software on his computer that would identify keystrokes and this would indicate who was the user creating files and documents at any particular time and date. This all related to his false alibi to indicate he was in the office on the day of the robbery and not with me committing the crime in Blackburn.
The witness Mark Dickson who is an associate of Mr Ryan and who had originally endeavoured to provide Mr Ryan with an alibi for 8 March 2005 which he later acknowledged was false, has said the following in a statement provided by him on 14 December 2006:
Since I have been arrested I have spoken with both Lenny and Hugo about our court case. Hugo told me that he had hit the security guard over the head with the butt of his gun and the gun had inadvertently gone off. This would have been when we were in Cambridge Unit at the MRC. ...
Hugo told me of his plan where he was going to get Brent James to re-set the computer’s BIOS clock, with the date and time changed from 8 March. He was attempting to reconstruct the day with the date and time which showed that he could not have been at Blackburn during the armed robbery.
The other portion of the material is reflected in evidence that the witness Brent James gave before the Office of the Chief Examiner on 12 January 2006. In that evidence Mr James said there was a discussion between him and the accused about the use of video equipment after 8 March 2005. As to that conversation Mr James said:
Hugo asked me if there was any way you could manufacture a day on this particular set up that he had, whether he could reconstruct a day, and I said, “It’s very difficult because things are time stamped. You would have to power down the system, re-set the BIOS clock in the actual machine itself to make it think that it was that day you wanted it to be, you know.”
Mr James went on to describe his belief that the accused had actually attempted to do it but said, “However, he ended up recording the wrong 12 hours. He, I think, recorded from 7 pm until seven in the morning instead of the other way around.” He explained later in his evidence that the accused had asked him to view the particular day that he had made and there was no movement and James pointed out to him that he had recorded the night time rather than the day time. James says that the date stamped on that particular recording was 8 March 2005.
On behalf of the accused, the complaint made about this evidence is that there is an internal inconsistency in any analysis of it. As I followed the submission, Mr Desmond put it that one witness, Mr Ryan, was suggesting that the clock on the video should be turned back to accommodate the false alibi whereas the other witness, Mr James, was suggesting that a false video is created and the date 8 March 2005 is attached to it.
It is trite to note that the fact that an alibi has been the subject of notice pursuant to s 399A of the Crimes Act 1958 (Vic) does not mean that there is any shift of onus in relation to the trial. The prosecution is required to disprove the alibi in order for the accused to be convicted. As was noted by Gibbs CJ, Murphy and Aickin JJ in Killick v R:[2]
Although an alibi is not uncommonly referred to as a defence, no onus of proving an alibi rests on the accused; the prosecution must negative an alibi if one is put forward, as it must negative a claim that the accused acted in self‑defence or as the result of provocation.
[2](1981) 147 CLR 565 at 569-70.
In support of the submissions made on behalf of the Crown in relation to this application I was referred to the judgment of the Court of Appeal in R v Kai Sing Billy Chan.[3] In that case the applicant had been found guilty of armed robbery and intentionally causing serious injury and had appealed from that conviction. In the course of the application it was submitted on behalf of the applicant that the trial judge had erred in admitting the evidence of a conversation between the applicant and his wife which tended to impugn his alibi by revealing that he had said he was away from his home from 10:30 pm. The conversation had been recorded by way of listening device and was at odds with the account the applicant had given in a witness statement he had made before he had become a suspect and with what he had said in answer to questions in his record of interview. A notice of alibi had been served on behalf of the applicant before the trial saying that he was at home on the evening of the offences.
[3](Unreported, 12 March 1998).
In admitting the evidence impugning the alibi the trial judge referred to the judgment of the High Court in Killick v R to which I have just referred and the fact that the evidence which refuted the alibi or affected its weight and cogency was admissible as part of the Crown’s case. As Kenny JA said in the course of the judgment:
The evidence was relevant because it tended to refute that the applicant, having been to a barbeque that evening and having returned home, had remained home for the rest of the night. The circumstances in which the admission was made, whether by prompting by his wife or not, and the significance of those circumstances were properly for the jury.[4]
[4]Ibid at 5.
Her Honour went on to note that the evidence was admissible for the limited purpose of rebutting the alibi or diminishing its weight and was not to be used as evidence of consciousness of guilt, it being noted that the trial judge had directed the jury that it could not be used for that purpose.
Brooking JA said:
In the present case, the jury should have been permitted to consider the accused man’s conversation with his wife both as undermining the alibi put forward in his witness statement and record of interview – they were allowed to do this – and as raising the question whether he had shown consciousness of guilt by putting forward an alibi which he knew to be false; this they are not allowed to do.[5]
[5]Ibid at 16.
For present purposes it is sufficient to note that the evidence proposed to be led by the Crown is relevant for the purpose of refuting an alibi and that that is a legitimate part of the Crown case in this matter. To the extent that counsel on behalf of the accused can demonstrate an inconsistency between the evidence of Mr Ryan, Mr Dickson and Mr James is a matter to be litigated before the jury and is quintessentially a matter for them. I will admit the evidence.
I would add as a post script to the ruling that at the outset of the debate concerning this matter Mr Tinney SC on behalf of the Crown complained about the form of the Notice of Alibi. I have proceeded in this ruling on the basis that leave would be granted to the accused to rely on an alibi notwithstanding his failure to comply with the time limits imposed pursuant to s 399A of the Crimes Act 1958 (Vic). However, that matter of leave is not yet finally resolved so it is important that the accused comply with the section in order to pursue the application for leave.
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