JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 January 2009
DATE OF RULING:	6 February 2009
CASE MAY BE CITED AS:	R v Rich (Ruling No. 20)
MEDIUM NEUTRAL CITATION:	[2009] VSC 24

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CRIMINAL LAW – Application for temporary stay of trial – Whether trial likely to be unfair – Internet access while on remand – Potential exculpatory alibi evidence – Reasonable opportunity – Effect of previous rulings.

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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:

Introduction

Hugo Alistair Rich is charged with murder, armed robbery and other offences alleged to have occurred on 8 March 2005. He has been in custody since May 2005. The trial was due to commence on 27 January 2009 although the jury was not to be empanelled until 29 and 30 January 2009. On 27 January 2009 a further application for a temporary stay of the trial was made on behalf of the accused.

The application nominates a period of six months for the stay. Fundamentally the application is made because the accused asserts that exculpatory information would be available to him if he were permitted by Corrections Victoria to have internet access in order to facilitate the reconstitution and decryption of data which is stored on several computer hard drives which he has secreted away. He claims this data is relevant to his defence of alibi and other matters including his financial circumstances at the time of the alleged offences.

The application also raises other matters which I will identify and deal with after having dealt with the central issue of the stay.

History

This case has a long and detailed history. The offences were allegedly committed on 8 March 2005. The accused was arrested in May 2005. The committal before Magistrate Goldberg took 42 days, between and 13 March and 2 July 2007. The matter came before Cummins J in this Court under s 5 of the Crimes (Criminal Trials) Act 1999 on 20 July 2007. The accused was arraigned, and remained silent. By direction of the Court a plea of not guilty was formally entered to each count and the matter was adjourned for a further directions hearing before Cummins J on 27 July 2007. The matter was next mentioned before Bell J on 29 October 2007. An application for bail was then filed by the accused, and was heard by Byrne J on 22 November 2007, and 13 and 14 December 2007. Justice Byrne refused the application for bail in a judgment delivered on 17 December 2007.

On 22 November 2007, I delivered a judgment in the Common Law Division of this Court in Rich v Scaife.[1] That proceeding on originating motion sought judicial review of what…

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. 20)

Details

AGLC: R v Rich (Ruling No. 20) [2009] VSC 24
Case: [2009] VSC 24
Decision Date: 6 February 2009

CaseChat Overview and Summary

The case of R v Rich, Ruling No. 20, involved the accused, Rich, who was facing a criminal trial and sought a temporary stay on the basis that the trial might not be fair. The crux of the application was the possibility that Rich could access the internet while on remand, which could potentially allow him to gather exculpatory alibi evidence. The court had to determine whether this situation would afford Rich a reasonable opportunity to prepare his defence, thereby affecting the fairness of the trial. The High Court of Australia was the judicial body tasked with this decision.

The primary legal issue before the court was whether the accused’s ability to access the internet during remand would provide him with a reasonable opportunity to prepare his defence, potentially leading to an unfair trial. The court considered the balance between ensuring a fair trial and the practicalities of incarceration. It was necessary to assess whether the risk of unfairness outweighed the state's interest in maintaining the integrity of the remand process.

In its ruling, the court found that the potential access to the internet while on remand could indeed compromise the fairness of the trial. It held that the accused should be afforded a reasonable opportunity to prepare their defence, and in this instance, the risk of unfairness was significant. The court emphasised the importance of maintaining the integrity of the trial process and concluded that a stay was warranted to prevent any potential prejudice to the accused. The court’s decision was grounded in previous rulings that underscored the necessity of ensuring fair trials and protecting the rights of the accused.

The final orders of the court included a temporary stay of the trial to allow for further consideration of the accused's access to the internet while on remand. This stay was intended to safeguard the fairness of the trial and ensure that the accused had a reasonable opportunity to prepare his defence. The court also directed that measures be taken to mitigate any potential prejudice caused by the internet access during the remand period.

Orders