R v Rich (Ruling No. 2)
[2008] VSC 141
•2 May 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1535 of 2007
| QUEEN |
| v |
| HUGO ALISTAIR RICH |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 & 15 April 2008 | |
DATE OF RULING: | 2 May 2008 | |
CASE MAY BE CITED AS: | R v Rich (Ruling No. 2) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 141 | |
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CRIMINAL LAW – Application for stay of trial – Ability to instruct in one’s own defence – Right to a fair trial – Access to appropriate computer equipment – Requirements for a fair trial.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elston SC Mr M. Tinney | Office of Public Prosecutions |
| For Corrections | Mr P.J. Hanks QC Mr T. Mitchell | Corrections Victoria |
| For the Accused | Mr J. Desmond Mr R. Edney | Doogue & O’Bryan |
TABLE OF CONTENTS
Background......................................................................................................................................... 3
The Evidence....................................................................................................................................... 7
The Submissions.............................................................................................................................. 10
Charter of Human Rights and Responsibilities......................................................................... 11
The Right to a Fair Trial.................................................................................................................. 12
The Remedy Sought in this Case.................................................................................................. 14
The Effect of the Accused Being in Custody.............................................................................. 16
The Material to Be Analysed in Preparation for the Trial....................................................... 17
Other Particular IT Requirements................................................................................................ 22
Laptop Computer........................................................................................................................ 22
Audio and Video......................................................................................................................... 23
Scanner and Appropriate Software.......................................................................................... 25
Other Hardware.......................................................................................................................... 25
Other Software.................................................................................................................................. 26
Other Issues....................................................................................................................................... 26
Summary of Conclusions............................................................................................................... 27
HIS HONOUR:
The hearing of this matter has raised issues about a risk of unfairness to the accused Hugo Alistair Rich, a remand prisoner at the Metropolitan Remand Centre (“MRC”), in his forthcoming trial in this Court. His trial is listed to commence before me on 21 July 2008. Since I have been allocated as the trial judge, it is appropriate that these issues are raised with me. On one view this is an application, at least in prospect, by the accused for a temporary stay of his trial unless certain requirements which he has outlined in the course of the application are met. Using the term in a broader sense, the primary contradictor to the application was Corrections Victoria (“Corrections”) since the accused is in their custody. However, any remedy, such as a stay of the trial, principally concerns the Director of Public Prosecutions. Through senior and junior counsel, the Director also participated in the hearing and made submissions.
In Smith v Commissioner of Corrective Services,[1] Moffitt P of the New South Wales Court of Appeal outlined the powers of a trial judge in the criminal jurisdiction to ensure that the accused has a fair trial. The Court was concerned with an attempt by a prisoner at Long Bay Prison to obtain relief by way of declaration concerning the adequacy of the facilities at the prison to enable proper consultation with his lawyers. The appeals concerned the dismissal of his applications in the Common Law Division of the Court. In the course of his judgment, Moffitt P held:
In particular, the powers and discretions of the judge who presides at a criminal trial … are more ample. Thus, the judge who exercises criminal jurisdiction, prior to or at the trial, has the overriding duty to ensure that the accused has a fair trial. The practice and procedures of the criminal courts are designed to this end, but in many respects, both in the evidentiary and procedural field, the exercise of jurisdiction is not limited to according to an accused person strict and defined rights. The judge has some overriding powers which impose on him a discretion, and indeed a duty, to do that which is fair to the accused. To ensure that the trial is fair to the accused, it is necessary that he be given a fair and reasonable opportunity to consult with, and instruct, his legal advisers, and to obtain their legal advice in relation to the charges against him. It is to be expected that, when an accused is confined prior to the trial, the authorities responsible for his custody will accord him this opportunity without the need for intervention by the judge or magistrate. If, however, they fail to do so, or if the accused or his legal advisers consider they have so failed, there are ample opportunities for them to seek the intervention of the criminal courts in exercise of the various powers of those courts. If the Court intervenes and gives a direction as to what is to occur prior to the trial, there are ample sanctions, if those charged with the custody were minded to disregard or neglect to obey the directions.[2]
[1][1978] 1 NSWLR 317.
[2]Ibid at 320.
The accused’s requirements include access to particular computer hardware and software and the ability to “reconstitute” certain computer data which may contain information relevant to the issues in his trial. It is submitted on behalf of the accused that the requirements, which I will deal with in detail, are necessary for him to obtain a fair trial. Without them, it is submitted, he cannot prepare his trial or properly instruct his counsel and therefore, as things presently stand, his trial will necessarily be unfair.
Background
On Tuesday, 8 March 2005, two security guards were at the Blackburn North Shopping Centre to make a delivery of money to the Commonwealth Bank. The Crown alleges that there were several offenders involved. Two of those are said to have been the accused, Hugo Rich, and another person, Leonard Ryan. Both men were wearing disguises. During the course of the robbery, Erwin Kastenberger (one of the security guards) is alleged to have been hit to the head with a blunt object and shot at close range causing his death. A bag containing $162,000.00 was taken from the scene.
The accused was arrested in relation to other matters on 12 May 2005, and on 16 June 2005 he was charged with murder and armed robbery in relation to the events of 8 March 2005. He has remained in custody since being charged.
The committal commenced on 13 March 2007 in the Melbourne Magistrates’ Court and concluded on 2 July 2007. The accused represented himself throughout and the transcript records that the hearing lasted for 42 days. The committal transcript is 3,158 pages.
Prior to the committal commencing, on Friday, 2 March 2007, the accused applied to the Magistrate to adjourn the committal proceedings. His Honour dismissed the application for an adjournment and so the accused then made an application to this Court before Maxwell P.[3] His Honour dealt with the matter on the basis that it was an urgent application for interlocutory injunctive relief to restrain the Magistrate from commencing the committal pending the hearing and determination of an application by the accused under Order 56 of the Rules for judicial review of the Magistrate’s decision to refuse the adjournment. On 9 March 2007, his Honour delivered a judgment refusing the application for an injunction.
[3]See Rich v Magistrates’ Court of Victoria [2007] VSC 65.
One aspect of the application was that the accused complained that he did not have adequate time and facilities to prepare his defence. In his affidavit in support of his application he swore that Corrections would not permit him to have what was required to prepare his defence so that counsel might ultimately be properly instructed. He said:
Without a proper resolution to these issues, it will not be possible for me to obtain a fair and impartial hearing for both the committal proceedings and potentially for my criminal trial.[4]
[4]See ibid at [24].
In his ruling on the adjournment application, the Magistrate had expressed the view that there had been obstructions of the accused in the form of limited access to materials and limited or no access to appropriate computer facilities. Further, there had been no access to materials that had already been prepared by the accused due to limitations on computer access and either limited or no access to some documentation. The Magistrate concluded that although there were difficulties and possibly deliberate obstruction by Corrections, that did not cause an impediment to a fair hearing of the committal.
In concluding that the learned Magistrate had acted “according to the highest principles of the criminal law” in the way he dealt with the submissions of the accused,[5] Maxwell P said:
Mr Rich has to accept, as every citizen in our legal system has to accept, that it is not possible to investigate every grievance and every complaint. For the reasons I have given, it is not possible or relevant on this application to investigate to a conclusion every grievance and every complaint he has against Corrections. I have formed the clear impression that Mr Rich has unrealistic expectations as to what constitutes a fair hearing. It does not involve being heard uncontradicted. It does not necessarily involve having your arguments upheld. Having a fair hearing means having a fair opportunity to present your arguments and to have those arguments considered by a person who approaches them with an open mind.[6]
[5]Ibid at [31].
[6]Ibid at [32].
However, his Honour went on to say:
… the irreducible minimum for someone in Mr Rich’s position is either to have a computer which enables him to read in electronic form material relating to the committal, including material prepared by him, or … to have access to that material in printed-out form.[7]
[7]Ibid at [44].
The committal proceeded and the accused was committed for trial.
On 19 October 2007, Mandie J, in this Court, dismissed an originating motion brought by the accused.[8] This was brought against the Secretary of the Department of Justice and three other individuals with responsibilities in relation to correctional services. By summons, the defendants sought an order pursuant to Order 23 of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”) that the proceeding be dismissed. Amongst the issues in the case was an order sought by the accused to compel the defendants to provide him with access to an “in-cell computer” and also with the hardware and software items identified.
[8]Rich v Secretary to the Department of Justice [2007] VSC 405.
As to that issue, his Honour said the following:
One thing is clear. The plaintiff has a fundamental right to a fair trial. That right is relevant to this proceeding in the sense that, if that right is found to be the only source of whatever arguable claim the plaintiff has to access to an in‑cell computer, then it is not for the civil courts to protect that right and the plaintiff cannot resort to the civil courts for protection thereof.[9]
[9]Ibid at [22].
His Honour went on to conclude that access to an “in‑cell computer” is not a prisoner privilege within the meaning of the Corrections Regulations 1998 and held that the originating motion did not disclose a cause of action so far as the “in‑cell computer” was concerned. His Honour observed:
In so far as the refusal to provide the plaintiff with an in‑cell computer infringes his common law right to a fair trial (and I do not decide whether it does), that is a matter for the trial Judge.[10]
[10]Ibid at [29].
On 14 February 2008, the trial was mentioned before me. One of the matters raised by Mr Desmond who appeared on behalf of the accused was that there was a “stand‑off” on the question of computers and that the accused was not being provided with unsupervised access to his computer.[11] The problem at that stage seemed to concern the defence obtaining access to “hard drives” but the matter was to be discussed between the defence and the Crown. It was on that date, due to counsel being recently briefed and the preparation required, that the trial was adjourned by me from 31 March 2008 until 21 July 2008.
[11]Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 14 February 2008) at 5.
On 5 March 2008, the matter was again mentioned. On this date, the computer issue arose and Mr Desmond submitted:
I can take Your Honour through the matters contained in the correspondence which essentially set out the requests that have been made to effectively the governor of the MRC and/or Corrections, the bare minimum as to what’s required for my client to (a) properly defend himself and (b) properly instruct myself and Mr Edney. A substantive issue seems to be the provision of a laptop computer so that electronic hard drive containing electronic copy of depositions and additional materials and additional relevant defence materials can be put on to the computer and have access to the computer which are, on my instructions, hyperlinked to facilitate cross‑referencing, Your Honour. My instructions are there would be approximately at this point in time some 20,000 pages of relevant materials, Your Honour. In this day and age such a voluminous brief with additional materials cannot be sensibly comprehended unless it’s in the electronic format, sir.[12]
[12]Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 5 March 2008) at 2-3.
The question of the laptop computer was further discussed, the issue concerning why there was a problem about the accused having one and whether the accused in the trial of R v Benbrika & Ors before Bongiorno J in this Court have access to such equipment. I gather they do not. I was told that unless these matters were attended to there would be a bail application.[13]
[13]Ibid at 8.
On 11 March 2008, the matter was again mentioned before me. The issues, including the computer issue, had not been able to be resolved and I expressed the view that I would need to have a full hearing with evidence on affidavit to make some determination about the matter. In my view that determination could only be on the question of what was necessary for the fair trial of the accused and whether, if those facilities were not provided, the trial would be further adjourned. On 13 March 2008, it was determined that I would have to conduct such a hearing and ultimately that was held on 14 and 15 April 2008. I observe at this point that I assume preparation of the trial has been continuing at least to the extent that there is a large amount of material for counsel and the solicitor to be reading and obtaining instructions about.
Prior to the hearing commencing on 14 April 2008, on Wednesday 9 April 2008 a view was held at the MRC. The view was attended by me and my associate as well representatives for the Crown, the accused and Corrections. It involved an overview of the MRC and a tour which included the “Cambridge Unit” where the accused is presently accommodated. It also included a view of the day room where the computer used by the accused is presently located. That room in fact contains several computers and it is true that, although we did not see such conditions, the environment for working would not be ideal with several other prisoners also in the room. However, as appears hereafter that problem is proposed to be remedied.
The Evidence
The evidence before me was comprised of both affidavits and some witnesses giving evidence. On behalf of the accused, affidavits were filed by him and by his solicitor. The accused gave evidence. Briefly summarising that material, much of the affidavit sworn by the accused was argumentative about the legal entitlement of Corrections to restrict him in the manner he claimed. However, he did describe that the lack of “functionality” in the computer he had access to prevented him from addressing a number of specific tasks.[14] He went on to depose that the “… facilities and resources [which he has requested] are required for review, analysis, productivity and presentation purposes”.[15] He then proceeded to describe his need to access the data at his office and home.
[14]Affidavit of Mr Hugo Alistair Rich, sworn 3 March 2008, at [59]ff.
[15]Ibid at [61].
In the course of his evidence before me, the accused explained how there were a number of items of hardware and software which he required for particular purposes. During that evidence, however, he did not refer to any particular difficulties concerning the preparation of his case or make any reference to being obstructed in instructing his counsel. Certainly he had measures in mind that would assist his counsel to become familiar with the material more quickly,[16] but the emphasis of his evidence was not that he was in some way impeded in either the preparation of his case or his ability to instruct counsel.
[16]Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 14-15 April 2008) at 39.
Mr Bill Doogue, the solicitor for the accused, made two affidavits. In the first, sworn on 18 March 2008, he outlined his instructions as to the work the accused proposed to do. Those instructions involve a complex series of steps which he says requires the computer hardware and software the accused identifies. According to Mr Doogue, “unfettered daily access” by the accused and his lawyers to the materials is required.[17] In particularising the obstacle to proper preparation, Mr Doogue referred to the need to “reconstitute the hard drives” and the need for an “in-cell” laptop computer which can be brought to court each day during the trial.[18] In Mr Doogue’s second affidavit of 11 April 2008 he refers to what he describes as the limitations of functionality on the equipment his client is using. Mr Doogue deposes that he cannot be instructed properly and that although his client has indicated that he can possibly provide alibi material, Mr Rich is prevented from doing so by technological issues.[19] I will refer to more of the detail of the evidence of the accused and his solicitor subsequently.
[17]Affidavit of Mr Bill Doogue, sworn 18 March 2008, at [8].
[18]Ibid at [11].
[19]Affidavit of Mr Bill Doogue, sworn 11 April 2008, at [26].
On behalf of Corrections affidavits were filed and evidence was given by two of their witnesses. Mr Peter Hutchinson is currently the Acting Operations Manager of the Security and Emergency Services Group, having been employed in correctional services for over 22 years. Mr Hutchinson deposed that his responsibilities include “the monitoring, controlling and assessing of what systems are appropriate to be on prisoners’ computers” having regard to the good order, management and security of the prison. He referred to a previous search of Mr Rich’s cell at Port Phillip Prison in May 2003, which revealed various contraband items that had enabled Mr Rich to use his in-cell computer to access the internet. As prisoners are not permitted to have internet access, Mr Rich’s in-cell computer was removed. Mr Hutchinson deposed in his affidavit to the potential risks posed by the various items now sought by Mr Rich to the good order, management and security of the MRC. Those potential risks included that a USB external hard drive could be used to circulate significant quantities of unauthorised material around the prison. Further, wireless devices may interfere with prison security equipment. Also, colour printers and scanners have the potential to be used to create a security pass to assist in an escape from prison, and for similar types of forgery. Similarly, a tablet could be used to forge signatures on computer‑created documents. Finally, a microphone could be used to record and manipulate conversations with prison staff members.
Mr Hutchinson also expressed concerns about the accused’s request to bring three encrypted, fragmented hard drives into the MRC. According to Mr Hutchinson, the MRC does not have the resources to supervise Mr Rich while he reconstitutes the hard drives. Instead, Mr Hutchinson put forward an alternative process for this reconstitution, which involves placing the accused in the “Exford Unit”.
The General Manager of the Melbourne Remand Centre, Mr Alan Scaife, also filed an affidavit. In it he outlined what was involved in conducting the MRC and identified the rules in the form of the Director’s Instructions, the Commissioner’s Requirements and the Sentence Management Manual.[20] Mr Scaife deposed that he had taken advice from Mr Hutchison in assessing the requests of the accused and he observes that he is unaware of any other remand prisoner in Victoria facing similar charges who has requested such a range of equipment.[21] Mr Scaife expressed his agreement with the process by which Mr Hutchison proposes to have the hard disk drives “reconstituted”.
[20]Affidavit of Mr Alan Clive Scaife, sworn 4 April 2008, at [11].
[21]Ibid at [16].
Mr Hutchison and Mr Nicholas Paul Selisky, who is the Operations Manager at the MRC, both gave evidence. Mr Hutchinson said that Corrections was “willing to help [Mr Rich] or assist him in any way possible to reconstitute those hard discs”,[22] but went on to identify what he said were the security risks. Mr Hutchinson was then taken through the items that the accused had referred to in his evidence and gave various responses which I need not now repeat. Some of this evidence I refer to below. In cross‑examination, Mr Hutchinson was referred to paragraph 1.16 of Director’s Instruction No. 4.14 which reads:
In any circumstances, where the Prison General Manager determines that the security and good order of the prison is not jeopardized, the General Manager may make written application on behalf of the prisoner to the Director, Statewide Services, for the prisoner to be allowed to retain non‑compliant software and hardware equipment in his/her cell.
[22]Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 14-15 April 2008) at 75.
Mr Hutchinson ultimately agreed that in particular circumstances exceptions could be made under that paragraph.[23]
[23]See, eg, ibid at 89.
Mr Selisky is also the case manager for the accused. Included in his evidence was an explanation of two options to enable the accused to do the work he needed to do to reconstitute the hard disk drives. One option was to effectively sequester the disks and permit the accused to work in that area until 6:00 pm each day, or second, to sequester the accused and the disks to enable that to occur.[24]
[24]Ibid at 104.
The Submissions
Mr Edney, on behalf of the accused, began by submitting that the brief was very complex. He said the accused “was entitled” to instruct in the best way that he could and there should be no distinction between him and a person facing a similarly serious trial who was not in custody. The extensive software and hardware that the accused requires “is relevant” to the proper preparation of his defence, he submitted.[25] Without much of this material, Mr Edney said that there was inadequate functionality and he put it that it was only with proper functionality that the accused will be able to provide proper instructions in the matter. Subject to some considerations I will set out below, I find that a very difficult proposition to accept. There is, in my opinion, a large amount of information which the accused has accumulated from reading the brief, analysing it on his current computer and conducting the committal about which he should be able to provide relevant instructions. However, Mr Edney submitted that it was not possible to pretend counsel were properly instructed when they were not. When I asked Mr Edney to identify the precise manner in which his client was hampered in his preparation and ability to instruct counsel,[26] he principally referred to the need to reconstitute certain hard drives. I deal with that particular issue below at paragraph 57 and following.
[25]Ibid at 8.
[26]Ibid at 12.
Mr Hanks QC, on behalf of Corrections, stressed that arrangements can be made for the material that the accused was concerned about having access to on hard drives to be provided subject to security considerations. Mr Hanks submitted that those security considerations have to be balanced with the interests of the accused. He submitted that there were means of meeting the needs of the accused during the course of the trial. Mr Hanks referred to a proposal that the accused be moved to a larger cell and given 24 hour access to a computer. It is the position of Corrections that the present arrangements will permit the accused to do the things he needs to do for the preparation of his trial.
Mr Elston SC, for the Crown, submitted, in effect, that the situation was able to be managed and that much of the work in analysing the material was part of the role of counsel since they will be running the trial. In essence, the Crown’s position was that the material filed on behalf of Corrections demonstrated that the case could be prepared and conducted properly and that a fair trial could be held under the present arrangements.
Charter of Human Rights and Responsibilities
In this matter solicitors for the accused had originally sought to contend that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”) had application in this matter. Subsequently both Corrections and the Crown made submissions that the Charter does not apply in these proceedings based on the judgment of King J in R v Williams.[27] Counsel for the accused in their written reply conceded that the Charter does not apply directly as a result of the provisions of s 49(2).
[27][2007] 16 VR 1268.
However, that was not quite the end of the matter so far as the accused was concerned. In the written submissions (though not pursued in oral submissions) it was asserted that the Charter applied to Corrections Victoria and has done so since 1 January 2008. It was put that Corrections are acting unlawfully by preventing the accused from properly preparing his trial and instructing his legal representatives, and reliance was placed on s 38.
The concluding submission was that the Charter applied to the accused to the extent that it makes unlawful conduct of public authorities which is incompatible with a human right or failing to give proper consideration to a relevant human right.
I am considering the question of whether or not a temporary stay should be granted in the criminal proceedings brought by the Crown against the accused. The accused has conceded that the Charter does not apply on those issues. I have already made clear that Corrections, although a participant in the proceedings, is not a party against whom I would propose to make any orders and I therefore do not propose to resolve any questions raised under Division 4 of the Charter.
The Right to a Fair Trial
In Dietrich v The Queen,[28] Mason CJ and McHugh J described the right of an accused to receive a fair trial. That right, they said, was a fundamental element of the criminal justice system and the inherent jurisdiction of courts extends to a power to stay proceedings in order “to prevent an abuse of process or the prosecution of a criminal proceeding … which will result in a trial which is unfair”.[29] Their Honours noted that there had been no judicial attempt to list exhaustively the attributes of a fair trial but various international instruments enshrine rights such as the right to have adequate time and facilities for the preparation of the defence. The Court referred particularly to the International Covenant on Civil and Political Rights to which instrument Australia is a party. Article 14(3)(b) of that instrument declares that everyone shall be entitled to “… have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”.
[28](1992) 177 CLR 292 (hereinafter “Dietrich”).
[29]Ibid at 300, quoting Barton v The Queen (1980) 147 CLR 75 at 95-6.
In Dietrich, the High Court was, of course, considering whether or not the applicant had been deprived of a fair trial by virtue of his lack of counsel. The Court concluded that failing to adjourn or postpone the trial until legal representation was available rendered the trial unfair.
In the course of her judgment in Dietrich, Gaudron J observed:
A trial is not necessarily unfair because it is less than perfect, but it is unfair if it involves a risk of the accused being improperly convicted. If the only trial that can be had is one that involves a risk of that kind, there can be no trial at all.[30]
[30]Ibid at 365.
In Jago v District Court of NSW,[31] where the High Court was concerned with the consequences of delay in the criminal trial process, Deane J said:
The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience.[32]
[31](1989) 168 CLR 23.
[32]Ibid at 57.
His Honour went on to discuss circumstances which might arise where an accused person was denied a proper opportunity of preparing his defence. By way of example, he referred hypothetically to the accused being given particulars by the Crown that were so inadequate or misleading as to have that effect or where evidence which might assist in the preparation of the defence is concealed. A measure which might be applied to this case is whether, if the facilities or some of them, set out in the requirements of the accused, are not provided would that “… so unfairly and permanently prejudice [his] ability … to defend himself that no subsequent trial could be a fair one”?[33]
[33]Ibid.
There is no exhaustive list of attributes of a fair trial. The duty of a trial judge is to ensure a fair trial and it is a continuing duty both prior to the trial and during its running. At this stage of the case, the accused is represented by two competent and experienced counsel and a similarly competent and experienced solicitor. Save for the issue of the data to be reconstituted, there is no question raised with me about the accused not being properly informed of the allegations against him or the evidence which is to be led. The accused himself has been actively involved in his own case by representing himself and his evidence before me tended to demonstrate that he had a clear picture of the case he had to meet.
The Remedy Sought in this Case
It is important to be clear about what is sought at this stage of the proceedings. The commencement date for the trial of the accused is a little less than three months away. What is sought is a temporary stay of this trial until certain problems have been remedied. This arises because it is generally said that the restrictions on the access of the accused to particular items of computer equipment (both hardware and software) means that he cannot process the significant amount of material that requires his attention. In addition it is said that there is encrypted computer data of his which he cannot presently access because of these restrictions. The submission being made is that the conditions under which the accused is being held at the MRC are such that he cannot properly prepare his trial and therefore cannot adequately instruct his counsel.
I am effectively asked to indicate whether I consider the items that the accused says he requires to be indispensable to a fair trial. If I take that view on some or all of the items then I am asked to indicate that until those matters are rectified (and it goes without saying that such rectification needs to be in a timely manner) the trial cannot start.
During the course of an earlier submission I was informed by Mr Desmond that if the orders or directions sought were not complied with by Corrections then there would be a bail application and if that failed there would then be an application for stay of the trial.[34] I was also told that if that failed, instructions would then be withdrawn from counsel. Putting aside the appropriateness or otherwise of making such a submission, I stressed that I do propose to make determinations about some aspects of the material before me with particular reference to what I consider is necessary as a matter of fairness to the accused to conduct his trial. Having made that determination, and assuming that the facilities I refer to have been accommodated by those who have it in their power to do so, then the trial will commence on 21 July 2008. If those matters have not been accommodated to my satisfaction, then it will not.
[34]See Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 13 March 2008) at 3.
Fairness is, I consider, a dynamic concept and, as Spigelman CJ said in a speech at Bond University in 2003:[35]
The principle of a fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is continually adapted to new and changing circumstances.
[35]“The Truth Can Cost Too Much: The Principle of a Fair Trial” (25 October 2003).
What might have been regarded as fair in an earlier age when technology was much less advanced, might now not be so regarded. Thus the concept of “equality of arms”, which I take to refer to the importance of the equality of both sides in the opportunity to present their case, no doubt has a different meaning in this age of computer technology.
The fundamental facilities required for a person in the position of the accused are those which will enable him to have access to the evidentiary material to be led against him at his trial in all its forms, coupled with the time and facilities to give proper instructions about that material. It also involves him having timely access to any material which he considers as exculpatory so that it can be provided to his lawyers accompanied by all the necessary narrative and explanation from him. Further, with respect, I agree with and adopt the observation of Maxwell P concerning what his Honour termed the “irreducible minimum”.[36]
[36]See [11] above.
As I have already observed, the accused appears to me to have a detailed understanding of the case against him and I find it hard to accept that he is not capable of giving detailed and meaningful instructions to his legal team. That is not to say that he has had the opportunity to consider all the material that might be relevant to his trial. However, from the evidence I have heard from the accused he has already done a great deal of analytical work on the brief in relation to some 237 witnesses.[37] Indeed, he has asserted that he has done this work five times because of what he described as the “impediments of Corrections”.[38] He has also prepared what he described as a “deconstruction matrix” which I understand to be an impressive analysis of those he perceives to be the principal Crown witnesses.[39] The ability he has to do this work is very convenient and helpful, but in my opinion, it is not at the heart of the issue. In addition to his own talents the accused has a solicitor and leading and junior counsel retained. The analysis of the relevant material must also surely be done by them, albeit with his assistance. They must also control the manner in which the case for the accused is presented in court. That is, of course, subject to his instructions and the assistance that he can give.
[37]Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 14-15 April 2008) at 40.
[38]Ibid at 41.
[39]Ibid at 43.
The Effect of the Accused Being in Custody
The accused has been in custody since his arrest in mid-2005. So far as the fact of the accused being in custody is concerned, Mr Edney submitted:
… there shouldn’t be a distinction made because he is in custody that he should not be able to prepare and present the best possible defence available to him.[40]
[40]Ibid at 7.
It is difficult to accept that submission without qualification. The accused being in custody necessarily means that there are significant restrictions on him. That, in turn, must necessarily affect his lawyers and no doubt makes the preparation of the trial more difficult, but does not necessarily make such a trial unfair. This is not a novel problem – there are a large number of people in custody awaiting trial and no doubt in several of those cases the trials are complex. It would of course be much easier in each case if the accused was on bail and at the disposal of his or her lawyers when it was required, but that is simply not the situation. I therefore do not accept that an accused in custody is entitled to be placed in exactly the same position as an accused at liberty in order for that person to have a fair trial. Such an approach would not be practical. However, I do agree that an accused in custody must not be placed in a position where his or her ability to defend him or herself by participating in the preparation of a trial through the giving of instructions after having primary access to the relevant material is compromised.
So far as custody is concerned I respectfully agree with the remarks of Bongiorno J in R v Benbrika & Ors where his Honour said:
It is not for this Court (at least not on this application) to order any specific alteration of the terms of the accuseds’ detention. That is a matter for the Executive Government … It is sufficient if the Court makes clear the specific matters about the accuseds’ incarceration and travel arrangements which have combined to make the continued incarceration of the accused at HMP Barwon and their travelling arrangements intolerable and their trial unfair.[41]
[41]R v Benbrika & Ors (Ruling No. 20) [2008] VSC 80 at [93].
Of course in that case, the trial had commenced. In this case it has not. Thus, for the purpose of avoiding unfairness and given that the trial date is still slightly less than three months away, it is sufficient for me to indicate which of the requirements that have been raised in argument on behalf of the accused would be necessary to ensure that his trial is fair.
I turn then to deal with the specific requirements in issue before me which I consider are necessary for to me to refer to.
The Material to Be Analysed in Preparation for the Trial
I am told there is a complexity about this trial due to the volume of material. The second affidavit of Mr Doogue indicates that the volume of material which requires analysis is substantial. Mr Doogue deposes that he is continuing to negotiate with Victoria Legal Aid (“VLA”) as to his remuneration for the work that is required to be done by him. He deposes that he will do the work despite the fact that the negotiations with VLA have not been concluded.[42] Ordinarily, it might be said that much of the work that is required to be done is work which must be done by solicitors and counsel. Whilst that is also true in this case, the reality of the well‑informed client with both legal and technological ability is a resource which should not be simply discarded.
[42]Affidavit of Mr Bill Doogue, sworn 11 April 2008, at [7]ff.
Much of the argument before me concerned the requirements of the accused which he says are necessary to properly prepare and instruct counsel. Those requirements are tempered by the fact that the accused is a remand prisoner and therefore requires the co‑operation of Corrections. The evidence before me indicates that Corrections has made a number of concessions from what might be described as their original position but I will deal only with the areas where there remains disagreement for the purpose of examining whether the lack of a particular facility is such as to interfere with the accused obtaining a fair trial. In this trial there is a relatively significant amount of material to be analysed. In his affidavit, Mr Doogue says that the brief, depositions, subpoenaed material, Form 8A documents, transcripts from other proceedings and other defence documents total some 20,000 pages.[43] The committal proceedings commenced on 13 March 2007 and concluded on 2 July 2007 with the accused unrepresented. The actual hearing lasted for 42 days. The committal transcript is 3,158 pages and the rest of the depositions account for a further 2,500 pages. In addition, there are various other documents including material from the Office of the Chief Examiner and some 2,900 hours of surveillance video and audio conversations. There is also the material contained on what might be described as the hard disk drives which require “reconstitution”, and one of the problems encountered by the accused on which he relies in the application before me was concerned with obtaining access to this particular material which he says is essential for his defence. I will endeavour to outline the manner in which this problem has arisen.
[43]Ibid at [5a].
In the application before me the accused gave evidence that when police raided his premises in connection with this matter they removed computers.[44] As I understood his evidence, due to a prior visit by police he had felt it necessary to remove the hard drives from his computers and put them in a safe place. The data from those drives was transferred to two hard drives and this collection of data was described during the course of the application as the “police exhibit computer”.
[44]See Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 14-15 April 2008) at 43ff.
In addition, he says there are three other computer drives which contain data relevant to his defence in the forthcoming trial. All computer drives are required to be reconstituted because the data has been encrypted.
In relation to what is referred to as the “police exhibit computer”, the accused claims that access is not possible at present because in attempting to access it in the past the registry file had demonstrated that it had been in some way corrupted or adversely affected. As I follow it, that has had an effect on the operating system on that drive as well as the drive itself as a piece of hardware. The accused said in his evidence that a “dialogue box” was displayed when access was attempted and demonstrated, according to him, that the problem was “inherently a registry problem”.[45] A new and modern operating system would fix the problem. The new and modern operating system he has in mind in giving that evidence is the program known as Windows Vista.
[45]Ibid at 61.
In evidence given on behalf of Corrections, through the expert witness Mr Hutchinson, the evidence of the accused was not contradicted. Mr Hutchinson however speculated that the accused would not have seen Windows Vista because it is not a program which is available within the prison system. Ultimately, he seemed to concede that if it could be demonstrated that Windows Vista was the most efficient and economic way to rectify the problem in this hard drive, then pursuant to a discretion which appears to exist in the prison rules, an exception could be made to permit access to that software.
What I am concerned with is the fact that the sworn evidence of the accused is that this material is relevant to his defence. The solicitor for the accused, Mr Doogue, has also sworn in his affidavit that this material is relevant to a number of issues “… relating to the accused’s financial status and business dealings at the relevant time and also address matters potentially going by way of proof of alibi [sic]”.[46] I note in passing that there is apparently no notice of alibi filed as is required by s 399A of the Crimes Act 1958 (Vic). That point was made by the learned senior prosecutor in the course of submissions but that omission would not necessarily result in alibi evidence not being permitted to be given on the trial. Mr Doogue has also sworn that the data on these hard drives is encrypted and can only be reconstituted by the accused because the necessary specialist knowledge is reposed in him and that an “outside” expert could not reconstitute them given the nature of the encryption.[47]
[46]Affidavit of Mr Bill Doogue, sworn 18 March 2008, at [5o].
[47]Ibid at [5p].
In the debate about the software that the accused says he requires to prepare his trial, his evidence was to the effect that Filemaker Pro 8.5 is a software program that is needed for the reconstitution of these hard drives because the existing files on the police exhibit computer and the three hard drives can only be read in the format of that program.[48] The evidence of Mr Hutchinson is that Filemaker Pro 8.5 is the same as a program called Access and that program has been provided.[49] This seems to be a non sequiter because if the data can only be read in the format of a particular program there is not much point in trying to use a different, though similar, program for that purpose.
[48]Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 14-15 April 2008) at 49.
[49]Ibid at 78.
Ultimately, I am left with the evidence of the accused and his solicitor which is not contradicted. That means that the accused is preparing for his trial without access to material with which he is familiar and which he and his solicitor claim is relevant to his defence. At this stage I am not willing to make an assessment of the degree of importance of the material but rely on the evidence given by both. I do not think such an assessment is necessary. The data is available – the question is how it is to be retrieved. The position of Corrections is that they will assist the accused in reconstituting the data where they can, but he needs to be in a secure area so that nothing which is on an encrypted data drive can get back into the mainstream of the prison.[50]
[50]Ibid at 80.
So far as how this work is to be done is concerned, I am not able to expertly assess the assertion of the accused that Windows Vista is the most effective way of accessing the hard drives he needs to access. At present, I am unable to see why arrangements could not be made for that software to be used as the accused requests. However this is to be done, I have come to the conclusion that unless the accused is given a reasonable opportunity to retrieve the data from these hard disk drives to which he has referred in his evidence so as to enable that data to be assessed by him, his solicitor and counsel in the course of preparing the defence, there is a risk that the trial of the accused might be unfair. I have come to this conclusion because I am assured by the solicitor for the accused in his affidavit that the material is, at least potentially, relevant. That, however, should not be taken to mean that I now accept that any trial conducted without reference to that material would necessarily be unfair. For example, if for some reason the data were permanently lost between now and the trial date it would not necessarily follow that the trial could not proceed. My view at this point in time is that there is at present a risk of unfairness to the accused if he were to commence his trial without having a reasonable opportunity to retrieve this data and instruct his lawyers about it. Further developments would have to be assessed on their merits.
Other Particular IT Requirements
Laptop Computer
The accused wishes to have a laptop computer and he wishes to have access to it 24 hours per day. In his evidence he said that he had a laptop computer before and went on at some length to explain that the differences between a laptop computer and a desktop computer were technologically insignificant. Corrections take the position that prisoners are not permitted to have laptop computers. The reasons for that are set out in Director’s Instruction No. 4.14 at paragraph 1.6. Those reasons include that such computers come with “wi‑fi” (wireless fidelity) and they can be moved from cell to cell without detection by staff. They are also valuable, tradeable and expensive.
In my opinion it would obviously be very convenient for the accused to have a laptop computer but that is not the test. The question is whether such a facility is integral to the fair trial of the accused or, put in other words, whether without a laptop computer his trial will be unfair such as to justify a stay.
I have already referred to the remarks of Maxwell P in Rich v Magistrates’ Court of Victoria.[51] In the course of his reasons, Maxwell P observed:
As I have just said, and repeat as strongly as I can, computer access by a person in Mr Rich’s position is meaningless if that computer and the software on it do not enable him to have access to the documents he needs to examine. That seems to me to be particularly important where the document he wishes to read is a document containing his own annotations in respect of witness statements.[52]
[51][2007] VSC 65.
[52]Ibid at [43].
With respect to his Honour, that rationale continues to apply and I agree that computer access per se is not the answer. It must enable the accused, within reason, to use those computer facilities for preparation and the giving of instructions in his trial.
I notice that in Rich v Secretary to the Department of Justice the remedy that the accused sought in that case was that he be given an “in‑cell” computer.[53] That application does not appear to request that the in‑cell computer be a laptop computer.
[53][2007] VSC 405.
The present position is now as follows. Corrections has provided the accused with a computer which they claim is unique in that the computer has had a hard disk fitted of substantial capacity. It is asserted by Corrections that the accused is able to download data which can go out to his legal representatives though that must be done under a level of supervision for security reasons. The proposal by Corrections now is that the accused may also have his computer with him in a different cell from the one he is presently occupying. It is proposed that he be moved to a disabled cell.[54] It is proposed that the cell be modified in order to ensure that all the materials and the computer which the accused presently uses can be accommodated.
[54]See the evidence of Nicholas Selisky: Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 14-15 April 2008) at 103ff.
In his evidence, Mr Selisky also proposed that having provided the accused with this computer, they will examine whether the central processing unit (CPU) of the computer can be transported to court each day during the trial in a camera case padded in foam.[55]
[55]Ibid at 104.
Whilst the use of a laptop computer is no doubt more convenient, it is my opinion that under the present arrangements as proposed by Corrections, the facilities are available to the accused to enable him to prepare his trial and instruct his counsel. He will have access to his computer 24 hours per day and it is proposed that, if necessary, that computer can be transported to court each day during the trial.
So long as the accused has access to the data that he requires, referred to above, it does appear to me that the present proposed facilities are adequate for the purpose.
Audio and Video
I am told by counsel for the accused that there are some 2,900 hours of audio and video material.[56] I accept this to be true but I am not clear as to the nature of all of it. At a mention of this matter on 5 March 2008, I was informed by Mr Milesi then appearing for the Crown that there is a significant amount of audiovisual material which the Crown has, but does not rely on. He agreed that the material should be provided to the defence but that the process would take a substantial portion of the time prior to the trial.[57] As at the date of this ruling I am unaware of the progress of that process.
[56]Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 14-15 April 2008) at 10.
[57]Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 5 March 2008) at 13.
In my opinion, however, the accused needs to have access to whatever equipment is required for him to adequately hear (and see) this material in order to give instructions and to assist in the preparation of his trial. In his affidavit Mr Hutchinson indicates a willingness to assist the accused to listen to voice files.[58] Ultimately, I can do no more than agree with Maxwell P in Rich v Magistrates’ Court of Victoria where his Honour said:
Then a complaint is made about telephone intercepts and the record of interview of one Hogan. Mr Rich says he does not have the media necessary to enable him to listen to those things. Ms Mortimer says that is not the case and he does have the media. Naturally I cannot determine the factual position, nor is it necessary for me to. Again I would say, as forcefully as I can, that it is no good Mr Rich having the telephone intercepts and the record of interview if the audio-visual equipment available to him does not enable him to listen to it. That is a matter which the magistrate can deal with, but it seems to me the minimum access that Mr Rich is entitled to involves having available at reasonable times the media necessary to listen to things like telephone intercepts and the record of interview.[59]
[58]Affidavit of Mr Peter Hutchinson, sworn 3 April 2008, at [34].
[59][2007] VSC 65 at [40] (emphasis added).
In his evidence, the accused has said that he requires a program called Pinnacle Studio Plus which is designed for presentation of such material. Whilst the presentation of the material may or may not assume an importance in the case I am not persuaded that this particular program being made available to the accused is fundamental to him being able to prepare his trial and instruct counsel. On the other hand, I note that the objection by Corrections to the software requested by the accused is not couched in security terms but rather based on the value judgement of Mr Hutchinson as to whether he considers it is necessary.[60] If this software can be easily provided without security issues and it has a role to play in the trial, I can see no reason why it should not be so provided.
[60]Affidavit of Mr Peter Hutchinson, sworn 3 April 2008, at [30].
Scanner and Appropriate Software
As I understand the way this issue was raised, the fundamental efficiency issue concerning the use of a scanner is that having access to a scanner means that in order to put data onto the computer being used by the accused, he does not have to type it but can simply scan it in and then convert the product of the scan to his own use. The reason why this is necessary sounds correct to me, being that scanning, as opposed to re‑typing, makes the data more reliable. The evidence of the accused is that there is about 7,400 pages of data to be added to his database which he then wishes to index.[61] On the other hand, the evidence of Mr Hutchinson is that Corrections has already assisted him by scanning data for him and having it brought back in pdf format.[62] That assistance is to continue.[63] The evidence is that there is no objection by Corrections in having others collecting documents, having them scanned outside the prison, and then returning them to the accused.[64]
[61]See Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 14-15 April 2008) at 58.
[62]See ibid at 78.
[63]See ibid at 80.
[64]See ibid at 106.
These documents are, I assume, what Mr Edney told me on behalf of the accused were the further additional materials and statements obtained, including things such as police notes.[65] I can understand that the accused wants to have this material on his computer database and it would appear that with some good will the target can be achieved under the present arrangements.
[65]See ibid at 10.
Other Hardware
The accused, in his evidence, spent some time explaining the need for a colour printer. Essentially the reason why that is requested is because the accused has a system of colour coding which he has developed to “manage the depth and breadth of this case”.[66] In essence the objection to both a colour printer and a scanner is that the potential at least exists for such items to be used to “bypass security systems”.[67] The MRC has biometric technology which would be an immediate answer to that problem, although it is pointed out by Mr Hutchinson in his evidence that most Victorian prisoners do not have such technology. That means, he contends, that such hardware could be used to create passes or other counterfeit documents which might be used to bypass technology.
[66]See ibid at 67.
[67]See ibid at 75.
I am not at all sure that the resistance to such items by Corrections is justified solely on a security basis, but it does appear to me that such data could be downloaded from the computer of the accused and given to his legal advisers to be printed outside the prison.
Other Software
The accused has identified a variety of software which he requires for presentation purposes during the trial. These programs include Autodesk 3D Studio Max which he wishes to use, as he puts it, as “visual aid material from the crime scene”.[68] I am told that an issue in the case will be identification of the offender who killed Mr Kastenberger and that although notice has not yet been given, alibi will be part of the defence. It is therefore not immediately obvious to me why software would be necessary and it was not explained during the evidence. Even assuming that such material will achieve a relevance in the trial, I do not see why the preparation of such material must be done by the accused in a prison environment.
[68]See ibid at 56.
Further, portions of the explanatory evidence of the accused involved him describing the benefits of particular software for enhancing data such as photographs, audio and video. The software he referred to for this purpose included ShareWare CAD and Modelling Software.[69] Useful in all as this may be, I do not consider such facilities are necessary for the accused to have in the context of this debate. To the extent that they are useful I am unable to see why such software could not be utilised outside the MRC by others on behalf of the accused.
[69]See ibid at 51.
Other Issues
I do consider that if the accused is to have computer facilities of the kind that he presently has and with a substantial amount of data on that computer, then the data should be able to be protected and repaired or reinstated if necessary. The accused proposes that he use a program called Norton SystemWorks for such an eventuality.[70] Mr Hutchinson says that such programs permit a user to modify the configuration of the computer such as to create a security concern. The only observation I can make is that it would be most unfortunate if the data on the computer used by the accused were to be lost due to some technical problem which could have been remedied with such software or similar. However, the evidence from Mr Selisky is that prison officials have urged the accused to protect the data on his existing computer by the use of password protection and he at least implies that the accused has not done so.[71] Other prisoners have been seen using the computer.
[70]See ibid at 50.
[71]Ibid at 108.
The accused also seeks to utilise an external hard drive with his computer. The purpose of doing so is to enable him to arrange the data he has now, coupled no doubt with instructions, compiled as a database which can be given to the solicitor and his counsel. I see the benefit in him being able to do that. The evidence of Mr Hutchison is that Corrections has purchased a 750 gigabyte external USB hard disk drive for the use of the accused.[72] In later evidence, Mr Selisky confirmed that an external disk drive was permitted to be provided by the accused to his solicitor Mr Doogue and that no security issues were raised.[73] It seems to me therefore that there is no real issue about the use of this hardware.
[72]See ibid at 75.
[73]See ibid at 115.
Summary of Conclusions
I have come to the following conclusions.
First, in the manner in which these issues are being dealt with it is not appropriate to make any coercive orders in relation to Corrections in relation to the requirements of the accused.
Second, at this stage, I also do not propose to further adjourn the trial of the accused from the present date of 21 July 2008 by way of temporary stay. In my opinion, and subject to paragraphs 88-97 (below), under the arrangements as they stand or are proposed to be improved, the accused can obtain a fair trial. However, of course the matter remains under supervision and review.
Third, for the reasons I have articulated, the arrangements proposed by Corrections in relation to computer hardware as they now stand are sufficient to enable the accused to do the work necessary to assist in the preparation of his defence and the instruction of counsel.
Fourth, however, there is a risk of unfairness to the accused if he does not have a reasonable opportunity to reconstitute the hard disk drives to which I have earlier referred as soon as possible to enable him to have access to the data and to instruct his lawyers about it, whether on the question of his financial affairs or on the issue of alibi. This conclusion should not be regarded as meaning that I consider the data itself to be integral to a fair trial of the accused. However, in view of what I am told, he must have the opportunity to peruse it and instruct his lawyers about it.
Fifth, that data should be reconstituted in the most efficient and timely way possible and if that involves the use of the software programs Windows Vista and Filemaker Pro 8.5, then they should be used. I consider the reasons offered by Corrections in relation to that software do not deal with the issue concerning me.
Sixth, if the reconstitution of the data does not occur promptly, I would then reconsider my conclusion expressed in paragraph 87 (above).
Seventh, I consider that the accused should have (or continue to have) access to whatever software and hardware is necessary for him to examine all the audio and video evidence that either forms part of the Crown case or that he and his lawyers consider should be examined for the purpose of preparing the defence case.
Eighth, I consider that a means could be found without difficulty to provide access to the accused to a supervised colour printer and I would recommend that that be done. I refer Corrections to paragraph 1.16 of Director’s Instruction No. 4.14. However, if ultimately security concerns make that impossible, then given the manner in which the accused is preparing his case, it will be incumbent on Corrections to punctually facilitate the printing in colour of data which depends on colour coding for its meaning.
Ninth, I invite Corrections to cooperate, as I accept they have, in the conversion of hard copy data to electronic data to enable the accused to do the work he needs to do.
Tenth, subject to security considerations which I accept are relevant, I expect that the security and confidentiality of communications between the accused and his solicitor or counsel will be respected.
Eleventh, I expect not only the cooperation of Corrections but also the cooperation of the accused and his legal advisors in making the arrangements functional. This Court has to date tolerated a polarised debate about these matters and endeavoured to provide recommendations and directions which will assist to resolve the issues. This Court’s procedures and the need for relatively expeditious resolution of cases such as this must also be respected.
Finally, I will conduct a further directions hearing on Monday 19 May 2008 at 9:30 am. At that hearing I expect affidavit material to be filed on behalf of Corrections, the Crown if they consider it appropriate, and the accused, which will inform me as to the progress of these arrangements.
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