R v Rich (Ruling No 17)

[2008] VSC 537

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:	3 December 2008
CASE MAY BE CITED AS:	R v Rich (Ruling No. 17)
MEDIUM NEUTRAL CITATION:	[2008] VSC  537

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CRIMINAL LAW – Evidence – Probative value – Inability of the witness to recall details – Whether evidence admissible – Discretion – Whether prejudicial effect outweighs probative value.

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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]  Between 25 August 2008 and 31 October 2008, I have been hearing a number of pre‑trial issues. 

   [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 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.  The perpetrators of this offence used two stolen utility type vans.  One van (OIJ-090) had been driven to and from the scene by Mr Hogan and left by him at Greensborough.  A second stolen van (EWD-771) is alleged to have been used by Mr Ryan and the accused after the armed robbery to leave the scene and which they discarded in the Box Hill area.

1. On 24 September 2008 a Notice of Particulars of Alibi was filed on behalf of the accused.  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 8^th 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 also asserts 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 ...”.    It is also claimed in the Notice 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.

1. Thus, 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 to be called by the Crown in this case is the witness Brent James.  Mr James states that he has known the accused since 1986 and that after the release of the accused from prison in October 2004, Mr James was approached by Mr Rich the result of which was that Mr James spent time working for Mr Rich in an Information Technology capacity in the office premises of the accused at 530 Little Collins Street, Melbourne. 

1. In the course of his evidence before me on a Basha enquiry, Mr James gave evidence about being requested by the accused the obtain a vehicle for him.  He was asked questions about this matter because it had already been the subject of evidence by the witness when he gave evidence before the Office of the Chief Examiner, and counsel, appropriately, wished to know what Mr James’ current recollection was.

1. Mr James said that he was asked to obtain a van for the accused,[2] but he could not recall the day or the particulars of the conversation.  He was asked whether “relevant to 1 March 2005” he could identify when the conversation occurred and he said he could not do so.  He did recall that upon the enquiry being made by the accused as to whether he (Mr James) could obtain a van for him, Mr James told him that he would not do it.

   [2]Transcript commencing at 2056.

1. The principal objection to this evidence outlined on behalf of the accused by Mr Desmond is that the evidence is “discreditable”[3] because despite being given a significant chance to recall the conversation in more detail, Mr James failed to do so.  Conceding the relevance of the evidence, the basis on which Mr Desmond asks me to exclude the evidence is that the prejudicial effect of the evidence outweighs its probative value.[4]  The discretion to exclude evidence may be exercised when the evidence has little or no weight but may be “gravely” prejudicial to the accused.  The prejudice identified by Mr Desmond is the narrating of “…theft, thievery of cars”.[5]

   [3]Transcript at 3340.

   [4]See R v Christie [1914] AC 545; Driscoll v R (1977) 137 CLR 517.

   [5]Transcript at 3340.

1. In R v Sandford,[6] the New South Wales Court of Criminal Appeal was concerned with a case of a member of the police force convicted of heroin supply.   Part of the Crown evidence concerned the street value of the heroin which the applicant argued should have been excluded in the exercise of the trial judge’s discretion.  The Court of Criminal Appeal disagreed and in relation to that discretion, Hunt CJ at CL observed:

Despite an apparently unshakeable misconception to the contrary on the part of some members of the legal profession, the mere fact that evidence tendered by the Crown is of little weight by itself does not require its rejection under this head of judicial discretion.  Nor will evidence be excluded where the only prejudice which it causes is that it establishes (or tends to establish, or assists in establishing) the guilt of the accused.  The Christie discretion to exclude evidence is usually directed to evidence which, although not itself probative (or only slightly probative) of guilt, is also probative of some other matter which may wrongly be regarded by the jury as probative (or strongly probative) of guilt – for example, propensity.  I can see no prejudice of that type here.  This is not of the class of case where the sheer magnitude of the sum involved was likely to divert the jury from its proper task.[7]  

[6](1994) 72 A Crim R 160.

[7]Ibid at 178 (citations omitted).

1. In R v Swaffield,[8] the Court, referring to Driscoll said:

A more robust approach to exclusion was taken in later cases.  In Driscoll v The Queen, Gibbs J was able to say:

It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused.  The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused.[9]

[8](1998) 192 CLR 159.

[9]Ibid at 183.

1. The reality is that the witness Mr James can say that the accused asked him to obtain a van for him and he refused to co-operate in the request.  He infers that he was being asked to steal a vehicle for the accused but that is not part of the description he gives.  He does not, and apparently could not, attribute to the accused a phrase like, “Would you steal a van for me?”  Even if he could, in my opinion, such evidence is not “gravely prejudicial” in an impermissible way.  The defence of the accused is that he had no involvement in the offence.  This piece of evidence, taken with other evidence to be called in the case, might be regarded by the jury as probative of that issue.  The shortcomings of the evidence can, of course, be highlighted by Mr Desmond as he did during the course of the Basha enquiry but as Hunt CJ at CL said in Sandford, evidence of little weight is not “require[d]” to be excluded.  I also consider that this is evidence which the jury can consider on the central issue in the case of whether the accused participated in the armed robbery.

1. I will admit the evidence.

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