R v Rich (Ruling No 18)
[2009] VSC 38
•17 February 2009
| 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 & 30 October 2008 | |
DATE OF RULING: | 17 February 2009 | |
CASE MAY BE CITED AS: | R v Rich (Ruling No. 18) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 38 | |
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CRIMINAL LAW – Murder and armed robbery – Admissibility of evidence – “Co‑conspirators” rule – “Utterance in furtherance of the common purpose” – Reasonable evidence of participation – Principle in Tripodi v R and Ahern v R.
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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:
Hugo Alistair Rich is charged with murder, armed robbery and other related offences concerning events which occurred at about 12:45 pm on 8 March 2005 at a shopping centre in Blackburn North. In the course of that incident approximately $162,000 was taken from two Chubb security guards and one of those guards, Erwin Kastenberger, was fatally shot.
The Crown case against the accused is that there were three offenders involved in the armed robbery at North Blackburn on 8 March 2005 – Leonard Ryan, Sean Hogan and the accused, who is said to have been the one to kill the deceased man Erwin Kastenberger. The principal issue in this trial is whether the accused was the third offender.
Mr Ryan and Mr Hogan are both witnesses in the trial. The evidence to be led by the Crown is expected to reveal that there were express arrangements between the accused and Leonard Ryan. Mr Ryan in turn recruited Mr Hogan, whose role was to keep the relevant area of the shopping centre under surveillance and to then notify Mr Ryan who was with the accused that the security guards were approaching. When that information was conveyed, the accused and Mr Ryan commenced their confrontation of the guards and Mr Hogan left the scene.
Whilst the evidence indicates considerable familiarity and a pre‑existing friendship between Mr Ryan and the accused, there was no relationship at all between the accused and Mr Hogan. No evidence will be led from Mr Hogan which directly identifies the accused man as the third offender. With one brief exception on 8 March 2005 itself, Mr Hogan had no direct contact with the accused.
Mr Hogan was arrested on 26 May 2007. In the course of being interviewed he described a brief contact with the third offender (whom the Crown says was the accused) on 8 March 2005, when that person passed Mr Hogan a radio scanner. In addition to that, Mr Hogan is expected to give evidence about his role in the armed robbery and the places he attended afterwards, as well as relating conversations with Mr Ryan during which Mr Ryan refers to the third offender in the armed robbery and murder as “Ollie” (being a reference to the accused’s former identity of Olaf Dietrich) or “Hugo”. The Crown submits that this evidence can be described as an “utterance in furtherance of the common purpose”,[1] and is therefore admissible pursuant to judgments of the High Court of Australia in Tripodi v R[2] and Ahern v R.[3]
[1]Transcript at 3263.
[2](1961) 104 CLR 1.
[3](1988) 165 CLR 87.
The Evidence of Mr Hogan
There are three aspects of the evidence of Mr Hogan which counsel for the accused submits should be excluded.
The first aspect of the impugned evidence relates to a plan to conduct the armed robbery a week earlier on 1 March 2005. The Crown is expected to lead evidence from Mr Hogan that this plan was aborted because, according to what Mr Ryan told Mr Hogan, the third person failed to appear at the appointed meeting place. Mr Hogan will say he was told by Mr Ryan that the person who failed to appear was “Ollie”.
When the armed robbery did occur on 8 March 2005, Mr Hogan’s share from the proceeds is alleged to have been $20,000. According to Mr Ryan, that sum of money was inadvertently left under the seat of a hire car which, by the evening of the 8 March 2005, was in the possession of the accused. Mr Ryan and Mr Hogan travelled to the vicinity of where the accused worked and later the accused’s home in Newport. Mr Hogan was told by Mr Ryan that the purpose of the trip was to attempt to locate the hire car and thereby obtain Mr Hogan’s share of the proceeds of the armed robbery. Mr Ryan had told Mr Hogan that he had left a note for the accused on his van saying that he (Mr Ryan) needed to speak to the accused before he (the accused) returned the hire car. Mr Hogan will say that he and Mr Ryan drove over the Westgate Bridge “to Hugo’s house”, in Maddox Street, Newport, and that he’d never been there before. He is then expected to describe what occurred when they got there. In his statement, Mr Hogan describes seeing “Hugo’s van” at the premises and some time later he was told by Mr Ryan that “Hugo had got the note and the money was taken care of.” This is the second limb of the evidence on which I am to rule.
The last piece of evidence for consideration concerns circumstances also occurring on the evening of 8 March 2005 when Mr Ryan and Mr Hogan were driving in a hired motor vehicle, having left the premises of the accused as described above. They drove to the city and then headed to Greensborough and then Box Hill so that the vans which had been used in the armed robbery that day could be burnt. On the Eastern Freeway the vehicle they were in activated a speed camera and Mr Ryan told Mr Hogan that he (Mr Ryan) would have to let “Hugo Rich know that because the car’s been hired in his name”.
The Principle
Primarily the principle to be applied in this situation is first described by the High Court in Ahern:
[W]hen two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others:Tripodi. Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime.
The implied authority on the part of one conspirator to act or speak on behalf of another will only arise if the latter is part of the combination. Evidence of the acts or declarations of the former may, however, be led to prove that very fact.[4]
[4](1988) 165 CLR 87 at 94-5 (emphases added).
Where a conspiracy is not alleged but it is claimed that several people have committed a crime pursuant to some prior agreement, the principle also applies to substantive offences. Tripodi is a case which is at the basis of the rule as spelt out in Ahern. In that case the High Court noted the differences between the use of such evidence in a conspiracy case as opposed to where substantive offences had been charged:
But when a substantive crime, not a conspiracy, is charged in the indictment it is the ingredients of the substantive crime that must be proved, not combination for a common purpose. When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case.[5]
[5](1961) 104 CLR 1 at 6-7.
Reasonable Evidence
In Masters,[6] the NSW Court of Criminal Appeal considered what the prerequisite “reasonable evidence” of participation meant:
In order to establish that the particular accused participated in that conspiracy, there must first be reasonable evidence of that participation – that is, evidence independent of those acts and statements of other persons – which is admissible in the ordinary way against that accused. Once the judge has decided that there is such reasonable evidence in the case against that accused ... the acts and statements by other persons in the conspiracy will become admissible against that accused not only as establishing the existence of the conspiracy but also, if they were done or made in furtherance of the conspiracy, as establishing his participation in it.[7]
[6]Masters, Richards & Wunderlich (1992) 59 A Crim R 445 (“Masters”).
[7]Ibid at 454.
In Smith, Ashford & Schevella,[8] the Victorian Court of Criminal Appeal considered whether “reasonable evidence” and “a prima facie case” were distinguishable, and concluded that:
The so-called “co-conspirators’ rule” has long been clear. It is that acts or declarations done or made by one conspirator in furtherance of the common purpose may be received in evidence against an accused co-conspirator (as an exception to the hearsay rule) provided that there is “reasonable evidence” apart from the acts and declarations referred to that the accused was also a participant. The High Court doubted whether there was any difference between “reasonable evidence” and “a prima facie case” but thought that “reasonable evidence” which was the expression used in Tripodi’s case was to be preferred, as it implies an element of discretion.[9]
[8](1990) 50 A Crim R 434.
[9]Ibid at 442 (citations omitted).
Mere Narrative
In addition to the need that there be reasonable evidence of the combination, it is also necessary for the admission of such evidence of acts or words that they be in furtherance of the common purpose, as opposed to mere narrative. As the High Court noted in Tripodi:
From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise.[10]
[10](1961) 104 CLR 1 at 7.
It is to be noted that acts and declarations are admissible against another where they occurred after the principle object of the conspiracy has taken place if those acts and declarations were in furtherance of the common design. Warnings about a plan going awry or protecting the proceeds of a crime would fall within that category.[11]
[11]See R v Su [1997] 1 VR 1 at 43.
Meaning of “Independent”
On the issue of reasonable evidence in R v White; R v Piggin,[12] the Court of Appeal held that in order for hearsay evidence of an alleged conspirator to be admissible against a person who is alleged to be a co‑conspirator, what must be established, among other things, is that “there is reasonable, or prima facie, evidence, independent of those acts or statements, that the person in question was also a participant in a conspiracy of the type alleged.”[13] Later in Kalajdic & Italiano v R,[14] the Court repeated that the determination of the issue of whether there was reasonable evidence of the combination apart from the co-offender’s acts and declarations was a matter for the judge alone. In that case the trial judge had left the issue to be determined by the jury telling them there was no direct evidence of any such agreement and its existence depended on inference. The Court referred to R v Pektas,[15] where the Court observed:
The High Court has provided a new method of dealing with this question and has said that once the trial judge has come to the view that there is reasonable evidence of the participation of an accused in an unlawful conspiracy independent of the acts and declarations of alleged co‑conspirators done or made in furtherance of the conspiracy, then those acts and declarations may be used against him as additional evidence of his participation.
Before the evidence may be employed for this purpose, however, three prerequisites must be satisfied ... The third prerequisite involves the concept of “reasonable evidence”. I understand this expression to refer to evidence, independent of the acts and declarations of alleged co-conspirators, which at minimum is capable of supporting a finding that the accused was a participant in the unlawful enterprise, that is, it is required that a prima facie case be made out independently of those acts and declarations.
However, the term prima facie case was not employed as the court was concerned with the possibility that a strict (or mechanical) application of a test of this type might, in some circumstances, result in unfairness being suffered by an accused. Accordingly it was considered desirable to use language which incorporated the notion of judicial discretion. The trial judge would be able in appropriate circumstances to exclude such a use of the evidence although all of the prerequisites were otherwise satisfied. I consider that this discretion might be called into play for example where the evidence to which the trial judge has had regard in deciding whether a prima facie case of participation has been made out is itself the subject of dispute.[16]
[12](2003) 7 VR 442.
[13]Ibid at 464.
[14][2005] VSCA 160.
[15][1989] VR 239.
[16][1989] VR 239 at 270.
In Punevski v R, the Court of Criminal Appeal of Western Australia held:
The evidence that may be considered by the trial judge in deciding whether the accused was a participant in the combination must be “independent” evidence. In this context, independent evidence means no more than evidence admissible in the ordinary way against the accused and, by that definition, excludes evidence of the acts (insofar as they imply a hearsay assertion) and hearsay declarations of the alleged co-offenders.
The standard of proof at this point (as to the accused’s participation in the conspiracy or combination) is the prima facie standard. There must be reasonable evidence in the sense of evidence on which a tribunal of fact could lawfully and properly reach the conclusion that the accused was a participant in the preconcert.[17]
[17][2000] WASCA 71 at [41]-[42] (citations omitted).
In the course of argument, counsel for the accused appeared to be suggesting that the “reasonable evidence” test being a prerequisite for the entitlement to use the evidence of the acts and declarations of the accomplice as evidence of the truth of what is asserted required that in this case all of Mr Ryan’s evidence implicating the accused should be excluded from consideration. The submission was that none of Mr Ryan’s evidence should be considered on the issue of whether there is reasonable evidence of the participation of the accused in the arrangements independent of the impugned utterances.
I do not agree with that proposition. The independence required is evidence independent of the acts and declarations of the alleged co-conspirator or accomplice. I did not understand Mr Desmond to be submitting that if the whole of the evidence, including Mr Ryan’s direct account of the arrangement for the commission of the offence of armed robbery that he reached with the accused, were available to be considered for this purpose, there would not be “reasonable evidence” of the combination of Mr Ryan, Mr Hogan and the accused. What he did point to was the ambiguity between this evidence expected to be led from Mr Hogan and the evidence of Mr Ryan on the Basha enquiry that he did not reveal the identity of the third offender to Mr Hogan. That is a factual issue for the jury to consider and, in my opinion, does not affect the admissibility of the evidence.
Timing of the Ruling
I have already referred to Ahern, where the High Court made it clear that it is the duty and function of the trial judge to decide if there is reasonable evidence of the participation of the accused in the conspiracy (or pre-concert) before the acts and declarations of others can be used against him or her.[18] In Masters that procedure was discussed by the New South Wales of Criminal Appeal:
In our opinion, it will not always be necessary for the trial judge to rule formally upon the existence of “reasonable evidence”, just as it is not always necessary for a formal ruling to be made that there is a case to answer. Often, it will be obvious to everyone that such evidence has been established. Even in such a case, however, it would usually be prudent for the trial judge to discuss with counsel, before they address the jury, just how the jury will be directed in relation to the evidence of acts or statements of co‑conspirators.
When it is necessary for the trial judge to give a formal ruling upon the existence of “reasonable evidence”, he or she will have to be satisfied first that there is a prima facie case against the particular accused that he participated in the conspiracy, based upon evidence which is independent of the acts or statements of co-conspirators. That decision should be reached in the same way as is the decision that an accused has a case to answer. If there is such a prima facie case, the trial judge should nevertheless then exercise a discretion as to whether the application of the “co-conspirator” rule should be rejected because, by making the evidence of those acts or statements admissible against that accused, its application will operate unfairly against him.[19]
[18](1988) 165 CLR 87.
[19](1992) 59 A Crim R 450 at 459.
In Smith, Ashford & Schevella, the Victorian Court of Criminal Appeal noted as follows:
Next the High Court observed that the question is initially one of the admissibility of evidence of acts and declarations outside the presence of an individual accused. That is clearly a question for the trial judge as are all questions of the admissibility of evidence. All this has little to do, as the High Court observed, with the order in which evidence may be led. But at some convenient stage of the trial the judge will have to make up his mind whether the co-conspirators’ rule is to apply. This will depend upon whether the Crown has adduced sufficient admissible evidence against the individual accused to amount to “reasonable evidence” that the accused was a participant. In other words, the judge must make up his mind whether reasonable evidence of the accused’s participation has been adduced, a function which we would see as very similar to the function of a judge when ruling that an accused has a case to answer.[20]
[20](1990) 50 A Crim R 434 at 442 (citations omitted).
The observations of the Court in Smith, Ashford & Schevella leave the trial judge in the position I am in now in something of a dilemma. I am being asked to rule on the admissibility of the evidence as is clearly my role. At this stage there has been no evidence before the jury. Ideally, the evidence should not be heard by the jury unless it is clearly admissible.
I raised with Mr Milesi this issue about the existence of reasonable evidence and the timing of the resolution of this issue. In brief – and at this stage it is unnecessary to analyse it in detail – he referred to the entirety of the Crown case, being the combination of the evidence of those involved (Mr Ryan and Mr Hogan) with the other circumstantial evidence.
To follow the Masters approach, I would consider whether there would be “reasonable evidence” if the evidence falls as it has been opened by the Crown. I therefore propose to rule on the basis that the evidence can be anticipated to fall in accordance with what I have already heard and read. In addition, by the time the witness Mr Hogan is called, Mr Ryan’s evidence will have been given.
Conclusion
In my opinion the evidence expected to be led from Mr Hogan as to the reason for the armed robbery not proceeding on 1 March 2005 and the stated identity of Mr Ryan’s accomplice is in fact mere narrative. That is, that Mr Ryan has narrated to Mr Hogan why, on a previous occasion, the armed robbery did not proceed. That is a statement or account of some event that has already taken place. On that basis alone, I would not admit that evidence.
However, in my opinion the other two pieces of evidence – that which refers to the visit to the work and home premises of the accused and the reference to the speed camera – are not mere narrative. The first of them is concerned with ensuring that one of the central purposes of the armed robbery was achieved – the sharing of the funds taken. The second is ensuring that the accused, if later questioned by the police, has all the information he needed to be prepared to explain the use of the hire car which, it is alleged, was the secondary vehicle in the armed robbery.
Therefore, as to those two categories of evidence, I would admit them on the assumption that there is “reasonable evidence” of the participation of the accused in the pre-concert in relation to this offence. A consideration of whether there is such “reasonable evidence” would include Mr Ryan’s evidence. As at the time of this ruling, the jury have heard no evidence. If the evidence falls in accordance with the manner in which the Crown case has been opened and in accordance with both the direct evidence I have heard on the Basha enquiry and the circumstantial evidence foreshadowed, aspects of which I have been required to rule on, I would admit the evidence for the purpose for which the Crown wishes to use it. However, at least formally but possibly substantially, the matter may need to be further considered.
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