R v Rich (Ruling No 16) - [2008] VSC 536

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 October 2008
DATE OF RULING:	5 December 2008
CASE MAY BE CITED AS:	R v Rich (Ruling No. 16)
MEDIUM NEUTRAL CITATION:	[2008] VSC 536

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CRIMINAL LAW – Evidence – Relevance – Part of the narrative – Admissibility.

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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 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 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.

One of the witnesses sought to be called by the Crown is Jonathan Andrew York. According to his police statement made on 14 October 2005, Mr York met the accused in late 2004. During a meeting at the Flower Hotel in Port Melbourne on about the third occasion they met there, the accused introduced Mr York to a friend of his known as “Lenny” who, the Crown says, was Leonard Ryan. In his statement, Mr York said:

Hugo introduced me to him as his very, very close friend, more like a son he said. Lenny said they were very close and he considers Hugo a father to him. They told me they helped each other and owed each other a lot.

Mr York went on to describe the accused requesting him to invest in his business known as HR Concepts. He described the manner in which he contacted the accused and the fact that he moved from Port Melbourne to the “Docklands” area. He was aware that the accused had purchased a Mercedes van and also had discussions with the accused about the latter purchasing a computer business in Queensland. From time to time, the accused visited…

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 16)

Details

AGLC: R v Rich (Ruling No 16) [2008] VSC 536
Case: [2008] VSC 536
Decision Date: 5 December 2008

CaseChat Overview and Summary

The parties involved in the case were the Crown and Rich. Rich was on trial for a criminal offence, and the court had to consider whether certain evidence was relevant and admissible. The case was heard in a higher court, which was tasked with reviewing the decision of a lower court. The lower court had excluded certain evidence on the grounds that it was not part of the narrative of the case.

The legal issues before the court were whether the excluded evidence was relevant and admissible. The court had to determine if the evidence was part of the narrative of the case and if it had probative value in establishing a fact in issue. The court also had to consider if the prejudicial effect of the evidence outweighed its probative value.

The court held that the excluded evidence was relevant and admissible. It found that the evidence was part of the narrative of the case and had probative value in establishing a fact in issue. The court also found that the prejudicial effect of the evidence did not outweigh its probative value. The court held that the lower court had erred in excluding the evidence and remitted the case back to the lower court for reconsideration.

The court did not make any final orders in this ruling. Instead, it remitted the case back to the lower court for reconsideration in light of its findings. The lower court was required to consider the excluded evidence and determine whether it should be admitted into evidence. The case was not finalised, and further proceedings were necessary to determine the outcome of the trial.

Orders