R v Rich (Ruling No 14)
[2008] VSC 521
•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, 27 October 2008 | |
DATE OF RULING: | 27 November 2008 | |
CASE MAY BE CITED AS: | R v Rich (Ruling No. 14) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 521 | |
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CRIMINAL LAW – History of the accused – Long period of imprisonment – Friendship formed in custody – Prejudicial effect of evidence – Relevance – Discretion to exclude – Interim ruling.
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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].
As is apparent from other rulings which I have delivered in this matter, the principal Crown witness is Leonard Frank Ryan. Mr Ryan’s evidence will be that he participated in the armed robbery with the accused on 8 March 2005 at North Blackburn and that the accused was the person who fired the shot which caused the death of Mr Erwin Kastenberger. Part of the information provided by Mr Ryan in his statement of 7 December 2006 includes a history of his relationship with the accused. The second paragraph of the statement reads:
I first met Hugo Rich whom I know as Olly in the Melbourne Remand Centre (MRC) in 1993. I was arrested on 2 April 1993 and within a few months I ended up at MRC. I knew who he was as he had a reputation around the prison. He was the guy to go to with legal problems. At this time I was spending my time in “education”. This is where they have law and stuff on CD ROMS which prisoners can research. I spent a lot of time there and after a period of several months Olly approached me and asked me to go and get my record of interview so he could read it. He had a laugh and I remember he said I was just like him when he was a kid. After that he basically took me under his wing. There was a period where I had a trial and was convicted. I appealed and the conviction was quashed in August 1995. I was re-tried and I was convicted a second time. Olly had assisted me with my bail application and his partner had assisted my girlfriend Joanne with accommodation in Melbourne. He was someone whom I respected and looked up to. I spent between 18 months and two years with Olly inside on two separate occasions at the Melbourne Remand Centre.
Mr Ryan went on to describe that he was released from custody on 27 November 1997 and returned to Melbourne from New South Wales. He described visiting the accused on a number of occasions at Port Phillip Prison, keeping in touch with him and doing odd jobs and errands for him during that time. He described Mr Rich’s partner, Ms Sandra Blackney, assisting him with accommodation. His statement then reads:
In October or November 2004 I got a message from Olly’s daughter Rachael Dietrich that I should go around and see Sandra. I knew that Olly was out and I was excited to meet up with him. We met up and I can remember having a big hug and a pat on the back ... Sandra was there at this time. He immediately started talking about these big ideas and doing legitimate business together. He told me that armed robberies were in the past and that we would never have to go back to gaol again. That those days were over and it was not the way forward any more.
Recognising the sensitivity of the evidence the Crown raised the issue as to how much of this evidence can be put before the jury, the most contentious aspect of it being the fact that from 1993 until October 2004 the accused was in custody and that it was custody that he formed his friendship with the witness Leonard Ryan. It is important to note, although it is not contended by the Crown that the jury should be told this, that the accused was in custody during that period for offences which included armed robbery, theft and making a threat to kill.
Mr Tinney SC, who appears on behalf of the Director of Public Prosecutions, submits that it is “almost an impossibility for this trial to be conducted without that fact [ie the accused’s placement in prison] emerging. Perhaps the most significant reason for that is the importance of the relationship between Mr Ryan and Mr Rich.”[2]
[2]Transcript at 3150.
Mr Tinney complains that unless the fact of Mr Rich and Mr Ryan being in custody together is before the jury questions will not be able to be asked of Mr Ryan about the nature of his association with the accused. Mr Tinney particularly complains that the true nature of the relationship, including the level of trust that existed between them, will be unable to be given its proper factual basis. In developing that submission Mr Tinney submits that there is “an air of unreality” to the evidence unless the “actual true relationship” is spelt out even “in the broadest terms”.[3] He accepts that any indication to the jury that the accused was in custody continuously from 1993 until October 2004 would have a significant effect on the jury and would, understandably, immediately lead them to conclude that a sentence which involved that much time actually served by the accused must have been for a very serious offence.
[3]Transcript at 3156.
Mr Tinney also refers to the fact that the evidence given by Mr Ryan which suggests that Mr Ryan took the major role in the preparation for the armed robbery on 8 March 2005 with the accused leaving the planning of it to him. Mr Tinney submits that such evidence will have an air of implausibility about it unless the full detail of their relationship is “filled in”. He posed the rhetorical question: “If it isn’t filled in, why on earth is that level of trust being employed by another person?”[4]
[4]Transcript at 3171.
On the other hand, Mr Desmond of counsel on behalf of the accused submits that the fact that the accused and Mr Ryan were friends is not an issue and therefore the Crown in some respects does not need to prove that relationship in the face of a dispute about that matter.
Mr Desmond submits that “the Crown simply does not need this evidence on the Crown’s case. The Crown has a direct evidence case it relies upon and would secure a conviction upon, if it is to be believed, the evidence of Ryan”.[5] He submitted that it was not “a pressing need” as to why there needed to be “the exposure of the fact that it was a gaol relationship as opposed to ... a relationship of friends at a point in time”.[6]
[5]Transcript at 3190.
[6]Transcript at 3195.
Analysis
The nature of the relationship and its closeness is relevant and in particular has a contextual relevance when the evidence of the relationship between the accused and Mr Ryan comes to be tested in cross‑examination. The fact that the relationship came into existence when both men were in custody undergoing sentences is also relevant and may in fact explain the level of trust that existed on the Crown case between the accused and Mr Ryan. The real question in any respect is whether such evidence is necessary given the substantial prejudice which would be occasioned by the jury being aware that for some if not all of the period between 1993 and October 2004 the accused man was in custody.
The fact of the incarceration of the accused is obviously evidence of bad character. Evidence of bad character of the accused might be given in the course of the Crown case where for example the acts in question are obviously connected with an implication that the accused is of bad character because the offence was committed in prison.[7] This is not a situation anywhere near similar to that.
[7]See, eg, R v Evans and Gardiner(No. 1) [1976] VR 517.
Mr Tinney, in his submissions, referred me to several cases. He relied on a passage in the judgment of Menzies J in Wilson v R.[8] That was a case concerning the admissibility of statements made by the deceased who was the applicant’s wife expressing the opinion that the accused desired to kill her. The statements were admissible there because they were relevant to show the relationship between the deceased and the accused in order to explain the act charged as well as reflecting on the issue as to whether the deceased was murdered or died as the result of an accident. However, having heard the submissions, I am not clear as to how much of the true prison history of the relationship would be intended to be revealed by the Crown.
[8](1970) 123 CLR 334 at 344.
Menzies J observed, in that case:
It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence – which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue – to a set of artificial rules remote from reality and unsupported by reason. … To shut the jury off from any event throwing light upon the relationship between the husband and the wife would require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.[9]
[9]Ibid.
Dealing with those observations of Menzies J, the distinction between that case and this case is obvious. The evidence in that case went directly to several issues between the Crown and the accused. Importantly, it was the relationship between the accused and the deceased which was the subject of the evidence. In this case the evidence is no more than explanatory and whilst I accept that the evidence is relevant it does not have a direct bearing on the issues in the way that occurred in Wilson.
In R v Khai Sin Mong,[10] the Court of Appeal was concerned with issues of propensity evidence and uncharged acts of trafficking to establish a relationship between the applicant and the witness in the case known as “Y”. The evidence was also intended to show that the transaction which was the subject of the count had not happened in isolation and would rebut any defence that the witness “Y” had obtained the heroin which was the subject of Counts 2 and 3 from a different source.
[10][2002] VSCA 203.
The passage in the judgment of Callaway JA to which Mr Tinney referred was as follows:
It may be that relationship evidence is too readily admitted in criminal trials but I am not persuaded that this evidence failed the test in s 398A(2). It did provide a more realistic context in which to assess the allegation that the applicant supplied Y in February and May 1999. It was not different in that respect from an allegation of a sexual offence between an adult and a child some months before the offence charged in the presentment. It is true that the applicant conceded that he already knew Y, that an adult might concede that he already knew a child. Y’s position as an informer did not supply the context the Crown desired to prove and that proof would have been seriously weakened if X and Y had been restricted to saying that they met the applicant at his restaurant in August 1998. Given the warnings of which no complaint is made, it was just to admit the evidence notwithstanding its prejudicial effect in connection with Counts 2 and 3.[11]
[11]Ibid at [18].
Again, it seems to me that the purpose of admitting the evidence in that case varies from the purpose of admitting such evidence in this case. The object of the exercise in R v Khai Sin Mong was to provide “a more realistic context” to assess the allegation that the applicant committed the offence in February and May 1999.[12] In the case before me there is no question that the relationship between the accused and Mr Ryan can be identified by Mr Ryan as having endured for a period of time commencing in 1993 and that it was a close relationship. Indeed, all the features of the relationship are able to be identified by Mr Ryan in his evidence in chief without the need to refer to the fact that the relationship began in prison.
[12]Ibid at [16].
In R v Georgiev,[13] the Court of Appeal was concerned with an application for leave to appeal against conviction for murder where the Crown’s case against the applicant was that it was a revenge killing carried out by him in response to a previous drug related incident involving the deceased. The first ground of appeal was that the trial judge erred in admitting the evidence of the drug dealing by the applicant other than dealing at or about the time of the offence. The following passage in the judgment of Brooking and Phillips JJA is relied upon by the prosecutor in this case:
In our opinion, the submission is somewhat unrealistic. Discussion of the evidence before the jury was empanelled makes it plain the judge admitted the evidence because it related to the applicant’s motive (the killing as a “pay back” for the attack on Juricic). Of course it is well recognised, as counsel submitted, that evidence of the commission of other offences is highly prejudicial because of the antipathy it engenders, in many cases unjustly eroding the presumption of innocence. To hear the evidence of drug dealing was highly relevant; it was an integral part of the Crown case in so far as it established a motive and we see no error in its admission. That there should be a notional cut off at 1 January 1995 is purely arbitrary. What was relevant was the nature and extent of the applicant’s drug dealing before and at the time of the murder, and in particular that he appeared to be in an established business of drug dealing with Juricic. There is nothing in Ground 1.[14]
[13][2001] VSCA 18.
[14]Ibid at [6].
As at present advised, it does not appear to me that the evidence Mr Tinney contends should be permitted to be led shares the same importance described in Georgiev. In R v Mateiasevici,[15] again issues arose in relation to the giving of propensity evidence. This was a case where the accused was convicted of trafficking in heroin and part of the evidence included evidence of the search at the applicant’s premises in August 1998 where parts of a heroin purse were found. Counsel on behalf of the applicant submitted that the evidence was wrongly admitted saying it was propensity evidence the probative value of which did not relevantly outweigh its prejudicial effect so as to make it admissible.
[15][1999] 3 VR 185.
As Chernov JA noted in the course of his judgment:
Such evidence, however, is admissible under s 398A(2) of the Crimes Act 1958 if it relevant to a fact in issue and the Court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the applicant. In my view the 1998 evidence was relevant to the credibility of the applicant’s denial of knowledge of the heroin press found in his garage on 30 July 1997. That in turn, was relevant to the issue of his knowledge and possession of the heroin. Thus, the real question is whether it was just in all the circumstances to admit it despite its prejudicial effect.[16]
[16]Ibid at [22].
His Honour concluded:
In my view, the 1998 evidence was probative of the voracity or otherwise of the applicant’s denial on 30 July 1997 of knowledge of the heroin press and of the likelihood of it being coincidental that equipment of that type would be found at his premises on two occasions without him being effectively aware of it.[17]
[17]Ibid at [25].
Mr Tinney also relied on the judgment of the Court of Criminal Appeal in New South Wales in Chan.[18] Again, the Court was dealing with evidence which was relevant to understand the nature of the relationship in that particular case between the appellant and the particular witness in the case. That in turn went to demonstrate that the witness was regarded by the appellant as “a trusted and important offsider and one who could”, on behalf of the accused, “deal with various important drug dealings which were to take place in the future”.[19]
[18](2002) 131 A Crim R 66 at [40], [47].
[19]See ibid at [40].
Conclusion
In this case, the evidence sought to be introduced is purely contextual and does not go to the principal issue between the Crown and the accused as to whether or not the accused was the other offender in company with Mr Ryan and to a lesser extent with Mr Hogan. Such evidence does have some relevance to the strength of the relationship but I consider the prejudicial effect of leading it outweighs the presently identified probative value.
Although it is correct that I have observed Mr Ryan and other witnesses giving evidence on the Basha enquiry, ultimately the way in which the defence conducts itself when cross‑examining these witnesses remains to be seen. The only ruling that I feel equipped to make at this stage is that I will not permit the Crown, in the evidence in chief of the witnesses Mr Ryan, Mr Dickson or Mr James, to introduce the fact that for a substantial period of time between 1993 and October 2004 the accused had been in custody undergoing a sentence. In all other respects those witnesses will be able to describe their relationship with the accused, including as to its level of trust and closeness but without reference to the fact that those relationships were formed in prison. I note, however, that the situation in relation to this ruling could easily change depending on the manner in which these witnesses are cross‑examined and this ruling should not be taken as a ruling which applies a blanket rejection under any circumstances to the introduction of the venue and circumstances of these relationships being formed or continuing. Subject to the manner in which the witnesses are cross‑examined it may well be necessary for me to review this ruling and alter the outcome.
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