R v Rich (Ruling No 19) - [2008] VSC 538

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1535 of 2007

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by HUGO ALISTAIR RICH

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 18 December 2008
DATE OF RULING:	23 December 2008
CASE MAY BE CITED AS:	R v Rich (Ruling No. 19)
MEDIUM NEUTRAL CITATION:	[2008] VSC 538

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CRIMINAL LAW – Murder – Armed robbery – Application for bail – Exceptional circumstances – Supervised access to internet sought for purpose of preparing defence case – Supervised access to internet not required for a fair trial – Application refused.

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APPEARANCES:

Counsel

Solicitors

For the Applicant

Mr J. Desmond with

Mr R. Edney

Doogue & O’Brien

For the Crown

Mr M. Tinney SC with
Mr S. Milesi

Office of Public Prosecutions

HIS HONOUR:

On 30 October 2008, a Notice of Intention to make application for bail was filed in this Court. The application sets out the grounds on which the accused applies for bail as follows:

(a)non performance of the accused’s computer whilst in Court;
(b)inability to work on the police exhibit computer/hard drives;
(c)inability to secure internet access to retrieve encrypted material;
(d)significant impediments to the accused’s ability to fully prepare his defence and instruct his lawyers;
(e)the resultant real risk of the accused not receiving a fair trial and/or a real and substantial risk of a miscarriage of justice.

The application also recites the willingness of the accused to adhere to strict conditions including a curfew, the wearing of an electronic bracelet, reporting conditions and the like. The ground in paragraph (a) above was not the subject of any argument on behalf of the accused.

The “linchpin”[1] of the application as identified by Mr Desmond on behalf the accused concerns the requirement that the accused expresses that he needs to have access to the internet in order to prepare his defence by using it to retrieve data which will support his defence of alibi.
[1]Transcript at 3613.

The application is supported by an affidavit sworn by the accused on 30 October 2008. I will return to the content of that affidavit shortly.

The accused is charged with murder, armed robbery and other offences. It is alleged that on 8 March 2005 he, Leonard Ryan and Sean Hogan were involved in an armed robbery which occurred at a Blackburn North shopping centre when two Chubb Security guards were delivering money to a nearby Commonwealth Bank of Australia. The participants in the robbery were substantially disguised. Leonard Ryan agrees that he was one of the participants and he says, as a witness for the Crown, that the accused, Hugo Rich, was the other. During the course of the robbery it is alleged that Mr Rich approached the deceased man, Erwin Kastenberger, and fatally shot him. A bag containing $162,000 was taken from the guards and Mr Ryan and the accused exited the scene.

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 19)

Details

AGLC: R v Rich (Ruling No 19) [2008] VSC 538
Case: [2008] VSC 538
Decision Date: 23 December 2008

CaseChat Overview and Summary

The case of R v Rich (Ruling No 19) involved an application for bail by the defendant, who was facing charges of murder and armed robbery. The application was heard by the Supreme Court of Victoria, which had to decide on whether to grant the defendant bail, including supervised internet access for the purpose of preparing their defence. The court was required to determine if such access was necessary for a fair trial and if there were exceptional circumstances justifying it.

The primary legal issues before the court were whether the defendant's right to a fair trial necessitated supervised internet access and if there were exceptional circumstances that warranted this access. The court examined whether the defendant's access to the internet was essential for the preparation of a robust defence, considering the nature and complexity of the charges. Furthermore, the court assessed if the risk of flight or interference with witnesses could be sufficiently mitigated by other bail conditions, thereby making the internet access unnecessary.

The court held that supervised internet access was not a prerequisite for a fair trial in this case. The court reasoned that the defence could adequately prepare without such access, given the other resources and assistance available to the defendant. Additionally, the court found that the exceptional circumstances required for granting internet access were not present, as the risks of flight or interference could be managed through alternative bail conditions. Consequently, the court refused the application for bail, including supervised internet access.

The court's decision was definitive, with no further orders or conditions being imposed beyond the refusal of the application. The defendant was not granted bail, and the conditions of supervised internet access were not approved, leaving the defendant to prepare their defence under the existing bail conditions.

Orders