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

v

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:

1. 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].

1. 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. 

1. 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.

1. 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 Mr York in his new Docklands apartment and they socialised at a bar nearby.  He described being told by the accused that the witness Brent James was the accused’s computer expert.  He also described a subsequent conversation which he believes was before the events of 8 March 2005 in which the accused told him, in effect, he had purchased three firearms.

1. In the “Summary of the Crown Opening” there is a reference to the association between the accused and Mr York and the fact of visits by the accused to Mr York’s Docklands apartment. 

1. The submission made on behalf of the accused is that given that the Crown concedes that they cannot introduce the evidence Mr York could give about being told by the accused that he had purchased firearms, there is nothing else relevant in the statement that could be led from him.

1. When called upon to more specifically identify the evidence the Crown wished to rely on, Mr Tinney SC informed me that the Crown’s intention was to lead to the evidence of the establishment of contact between the accused and Mr York leading to the meeting with Mr Ryan and the discussion about the quality of the relationship between Mr Ryan and the accused.  Mr Tinney also informed me that the Crown wished to lead the evidence of the visits by the accused to the Docklands area where Mr York lived because he suggested it “ties in” with the location of the Nissan Maxima vehicle in that area.  This is a vehicle which the Crown alleges was hired by the accused in Mr Ryan’s company on 7 March 2005 (the day before the armed robbery) from Hertz.  Mr Ryan gave evidence which, as I understand it, suggested that that vehicle was to be used as a “secondary” car after the armed robbery had been committed and that occurred.  As to the conversation which Mr York believes was before the events of 8 March 2005 in which the accused told him, in effect, he had purchased three firearms, the Crown wishes to lead evidence of the contact although not the conversation about the firearms.

1. In my opinion, the fact that Mr York met the accused sometime in late 2004 and that after several social meetings, he also met Leonard Ryan, is relevant evidence.  In particular the described closeness of the relationship between Mr Ryan and the accused is relevant and the fact that Mr Ryan will also give that evidence does not mean this evidence cannot be given.  It also seems to me that the visits by the accused to Mr York’s Docklands apartment have some relevance including the fact that he visited Mr York with Brent James whom the accused described as his computer expert.  Such evidence may have relevance to other issues concerning the technical arrangements in the office of the accused before and after 8 March 2005.

1. Other parts of the statement of Mr York which concern recommendations by the accused that Mr York invest in his business seem to me to be irrelevant and are not saved by being “part of the narrative”.  The expression of intent by the accused to buy a business in Queensland seems to relate to a business known as “Global Solutions” or “Solutions Global”.  As I understand the evidence I have heard on the Basha enquiry and the submissions of Mr Tinney, “... it doesn’t amount to a lot in terms of this particular case.”[2]  In those circumstances the evidence should not be led.

   [2]Transcript at 3334.

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