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

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:

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].

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.

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…

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 17)

Details

AGLC: R v Rich (Ruling No 17) [2008] VSC 537
Case: [2008] VSC 537
Decision Date: 3 December 2008

CaseChat Overview and Summary

The ruling before the court involved a case where the prosecution sought to introduce evidence that was contentious due to the witness's inability to recall specific details. The case, R v Rich (Ruling No 17), was adjudicated by the Supreme Court. The defendant, Rich, faced criminal charges, and the admissibility of certain evidence was central to the case.

The legal issues that the court had to address centred on the admissibility of evidence that was potentially prejudicial but also had probative value. The court was tasked with determining whether the probative value of this evidence outweighed its prejudicial effect. This involved a careful balancing of the principles of evidence law, particularly those relating to the discretion of the trial judge to exclude evidence that might unfairly prejudice the defendant.

In its reasoning, the court considered the nature and quality of the evidence in question, as well as the potential impact on the fairness of the trial. It was noted that while the evidence might assist in establishing certain facts relevant to the case, the witness's inability to recall specific details could lead to confusion and prejudice. The court held that in this instance, the prejudicial effect indeed outweighed the probative value of the evidence, and therefore, it was inadmissible. The court exercised its discretion to exclude the evidence to ensure a fair trial.

The final orders of the court were that the contested evidence was not to be presented to the jury. This decision was based on the court's finding that the probative value of the evidence was substantially outweighed by the risk of prejudice. This ruling highlights the importance of the trial judge's discretion in balancing the interests of justice with the admissibility of potentially prejudicial evidence.

Orders