R v Rich (Ruling No 15) - [2009] VSC 34

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1535 of 2007

THE QUEEN

HUGO ALISTAIR RICH

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	28, 29 & 30 October 2008
DATE OF JUDGMENT:	9 February 2009
CASE MAY BE CITED AS:	R v Rich (Ruling No. 15)
MEDIUM NEUTRAL CITATION:	[2009] VSC 34

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CRIMINAL LAW – Record of interview – Crimes Act 1958 (Vic) s 464 – Discretion to exclude evidence – Fairness – Public policy – Whether an obligation of disclosure by police – Admissibility – Evidence of possession of items to commit the crime charged – The principle in Thompson & Wran.

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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, Hugo Alistair Rich, is charged with murder, armed robbery and other offences occurring on and subsequent to 8 March 2005. In a number of rulings which I have now published in this matter, I have outlined the detail of the facts on which the forthcoming trial of the accused is to be based.[1] Between 25 August 2005 and 30 October 2008, I heard and determined a number of matters arising in pre-trial argument and conducted Basha enquiries which have taken a substantial period of time.
[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].

Part of the evidence intended to be called in the Crown case is a record of interview conducted with the accused on 12 May 2005 by Detective Senior Constable Paul Bertoncello. The particular parts of the record of interview which the Crown seeks to rely on are not yet clear and depend to some extent on other rulings that I have delivered. However, subject to any further submissions about that, I will deal with the issues as they have arisen as a matter of principle and then hear further submissions if that is necessary.

At the time of the arrest of the accused and subsequent record of interview on 12 May 2005, Detective Senior Constable Bertoncello was attached to the Melbourne Criminal Investigation Unit. On 26 April 2005, he commenced an investigation into the accused as the result of certain allegations made by an officer of a company called Capital Finance – a company in New South Wales.

On 11 May 2005, a warrant had been executed by police on a storage facility known as Fort Knox Self Storage at 484 Spencer Street, Melbourne. The warrant was for storage box 486 which was leased by the accused. In the early hours of 12 May 2005, a warrant was also executed on the home of the accused. The accused attempted to leave the area but was intercepted by Detective Senior Constable Bertoncello and was told he was under arrest in relation…

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 15)

Details

AGLC: R v Rich (Ruling No 15) [2009] VSC 34
Case: [2009] VSC 34
Decision Date: 9 February 2009

CaseChat Overview and Summary

In the matter of the Criminal Appeal Tribunal, the appellant, Rich, sought to challenge the decision of the lower court which had admitted evidence of possession of items used to commit the crime charged, despite the absence of a record of interview. The lower court's ruling was based on the premise that the absence of a recorded interview did not automatically render the evidence inadmissible and that the discretion to exclude evidence under section 464 of the Crimes Act 1958 (Vic) should be exercised with regard to fairness and public policy. The appellant contended that the failure to record the interview was a breach of the obligation to disclose evidence by the police and that this should have resulted in the exclusion of the evidence.

The court was required to determine whether the absence of a recorded interview of the appellant by the police constituted a breach of the obligation to disclose evidence, and if so, whether this breach was sufficient to warrant the exclusion of evidence of possession of items used to commit the crime charged. The court also needed to consider the principles in Thompson & Wran, which establish that evidence of possession of items used to commit the crime charged is not automatically excluded due to the absence of a recorded interview, but rather, the court should exercise its discretion to exclude evidence in the interests of fairness and public policy.

The court held that the obligation to disclose evidence by the police did not extend to the requirement of recording interviews, and therefore, the absence of a recorded interview did not constitute a breach of this obligation. The court emphasised that the focus should be on the fairness of the proceedings and the public policy considerations when exercising the discretion to exclude evidence under section 464 of the Crimes Act 1958 (Vic). The court found that the lower court had correctly exercised its discretion to admit the evidence of possession of items used to commit the crime charged, as the absence of a recorded interview did not render the evidence inadmissible, and the interests of fairness and public policy did not necessitate its exclusion.

The court dismissed the appeal and affirmed the decision of the lower court. The evidence of possession of items used to commit the crime charged was deemed admissible, and no orders were made in relation to the appellant's appeal.

Orders