R v Rich (Ruling No. 20)
[2009] VSC 24
•6 February 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1535 of 2007
| THE QUEEN |
| v |
| HUGO ALISTAIR RICH |
---
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 | |
---
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.
---
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 Mr Rich described as an arbitrary cancellation of his telephone privileges as a prisoner at the Metropolitan Remand Centre (MRC). I dismissed the summons
.From my point of view, this was the first proceeding before me in which the requirements of the accused in connection with the preparation of his trial were litigated.[1][2007] VSC 477.
I was nominated as the trial judge in this matter at the beginning of 2008. The trial was originally intended to start on 31 March 2008. On 14 February 2008 counsel for the accused made an application for the trial to be adjourned until July, in order to give counsel the opportunity to apply for funding for representation from Victoria Legal Aid and to prepare for trial. I agreed to vacate the trial date of 31 March 2008, and the trial was then fixed for 21 July 2008. On 23 May 2008, Mr Desmond foreshadowed a further application to vacate the new trial date. I took the view that any such application should be made after the resolution of the application for a stay of the trial, which was currently before the Court. Following the refusal of that application for a stay on 23 June 2008, the application to vacate the new trial date was formally made on behalf of the accused. I indicated that I would favour the matter being adjourned to no later than 18 August 2008, at which time pre‑trial argument would be heard, to be followed by the trial proper. Submissions on the application were heard on 26 June 2008, at which time counsel for the accused submitted that he would not be ready to proceed to trial on 21 July 2008.[2] In a ruling on that date I ordered that the trial date of 21 July 2008 be vacated, and that the matter be listed for trial on 18 August 2008.[3]
[2]Transcript (26 June 2008) at 9.
[3]Ibid at 20.
Finally, on 25 August 2008 I began hearing pre-trial argument in this trial as well as conducting a number of Basha hearings in respect of witnesses where such a process was appropriate. Those hearings have occupied 48 sitting days thus far. I have to date delivered some 17 rulings.[4] Four remain to be dealt with. Two will be published with this ruling and the remainder before the trial starts.
[4]R v Rich (Ruling No. 1) [2008] VSC 119R; R v Rich (Ruling No. 2) [2008] VSC 141; R v Rich (Ruling No. 3) [2008] VSC 219R; R v Rich (Ruling No. 4) [2008] VSC 355R; R v Rich (Ruling No. 5) [2008] VSC 435R; R v Rich (Ruling No. 6) [2008] VSC 436R; R v Rich (Ruling No. 7) [2008] VSC 437R; R v Rich (Ruling No. 8) [2008] VSC 438R; R v Rich (Ruling No. 9) [2008] VSC 453R; R v Rich (Ruling No. 10) [2009] VSC 10R; R v Rich (Ruling No. 11) [2009] VSC 11R; R v Rich (Ruling No. 12) [2008] VSC 519R; R v Rich (Ruling No. 13) [2008] VSC 520R; R v Rich (Ruling No. 14) [2008] VSC 521R; R v Rich (Ruling No. 16) [2008] VSC 536R; R v Rich (Ruling No. 17) [2008] VSC 537R; R v Rich (Ruling No. 19) [2008] VSC 538R.
The two earlier rulings relevant to this application are Ruling No. 2 and Ruling No. 3. Ruling No. 2 was published on 2 May 2008 with a trial date then having been fixed for 21 July 2008.[5] The ruling dealt with an application for a stay of the trial, and part of the evidence on the hearing of that application concerned the “reconstitution” of certain computer hard drives secreted by the accused, which are the subject of this ruling. The application for a stay of the trial raised issues about a risk of unfairness to the accused unless certain requirements – including access to particular computer hardware and software and the ability to reconstitute the hard drives – were met. It was submitted on that application that if these requirements were not met, the accused would not be able to prepare his trial or properly instruct his counsel, and therefore his trial would necessarily be unfair. While counsel for the accused had originally sought to contend that the Charter of Human Rights and Responsibilities Act 2006 (“the Charter”) had application in the matter, it was later conceded that the Charter did not apply directly as a result of the provisions of s 49(2). I therefore did not resolve any questions raised under Division 4 of the Charter in that ruling.
[5]R v Rich (Ruling No. 2) [2008] VSC 141.
In ruling on the application for a stay, I was effectively asked to indicate whether I considered the items that the accused said he required were indispensable to a fair trial. If I was to take the view that some or all of the items were indispensable to a fair trial, then I was asked to indicate that until those items were made available to the accused, the trial could not proceed. At the end of the ruling I expressed 12 conclusions as to the steps I believed needed to be taken in order that the accused be in a position to adequately prepare his trial.
Central amongst the matters under consideration was the reconstitution of the computer hard drives. With respect to this, I concluded that unless the accused was given a reasonable opportunity to retrieve the data from the hard drives, there was a risk that the trial of the accused might be unfair. I had come to that conclusion because I was assured by the solicitor for the accused in an affidavit that the data is, at least potentially, relevant. I indicated, however, that my reaching this conclusion should not be taken to mean that I considered the data itself to be integral to a fair trial of the accused. My view at that point in time was that there was a risk of unfairness to the accused if he were to commence his trial without having a reasonable opportunity to retrieve the data and instruct his lawyers about it, whether on the question of his financial affairs or on the issue of alibi. Further developments, I stated, would have to be assessed on their merits.
A further directions hearing was listed for 19 May 2008, by which time I expected to receive affidavit material informing me of the progress of these arrangements. By this stage a further issue had arisen which I did not specifically deal with in Ruling No. 2, that is, access to the internet by the accused. The matter was listed for hearing before me on 23 May 2008. On that date the Court was informed by Mr Desmond that the accused was dispensing with the services of his lawyers for the purposes of the application before the Court. The hearing was conducted over two days, with evidence from the accused and from a witness expert in IT matters called on behalf of Corrections Victoria.
Ruling No. 3, which dealt with the application for internet access, was published on 23 June 2008.[6] In that ruling I concluded that there was no satisfactory explanation as to why, in the three years since the accused had been charged in relation to these matters, efforts had not been made to retrieve this data. Further, I concluded that there was no satisfactory explanation as to why, if the internet was an essential prerequisite to the reconstitution of the hard drives, that issue was not raised prior to April 2008 or during the proceedings relating to the stay application which was the subject of Ruling No. 2. Given the evidence of the IT expert called on behalf of Corrections Victoria that an offline solution was feasible, I concluded that I would not make orders which required that Corrections Victoria provide the accused with unfettered access to the internet, nor would I stay the further hearing of the trial until such facilities had been made available.
[6]R v Rich (Ruling No. 3) [2008] VSC 219R.
On 30 October 2008, a Notice of Intention to make application for bail was filed in this Court. One of the grounds on which the accused sought bail, which counsel for the accused described as the “linchpin” of the application,[7] was the inability to secure internet access in order to reconstitute the hard drives which contained encrypted data that would support his defence of alibi.
[7]Transcript at 3613.
On 23 December 2008, I delivered Ruling No. 19 in this matter, in which I refused the application for bail made by the accused.[8] In that ruling I concluded that whatever might be the truth about the existence of the material which the accused said he needed access to the internet to obtain, more than three years had passed since the need for access to this data would have been obvious. Assuming the data exists, the evidence indicated that there were at least two alternative means by which the data could be accessed, despite the accused being in custody. My opinion, therefore, was that the responsibility on the accused of demonstrating exceptional circumstances in support of the application for bail had not been discharged.
[8]R v Rich (Ruling No. 19) [2008] VSC 538R.
After I delivered my reasons on that date, Mr Desmond said “I can foreshadow there will be at least one pre‑trial application made on the 27th”, i.e., the date this trial was scheduled to commence before me.[9] No further detail of this preliminary application was offered.
[9]Transcript at 3709.
On 20 January 2009 a Notice provided by counsel for the accused to the Attorney‑General and the Victorian Equal Opportunity and Human Rights Commission of a question of law relating to the application of the Charter was forwarded to the Court. The Notice stated:
The accused is currently listed to stand trial on, inter alia, counts of murder and armed robbery on the 27th January 2009. Rich awaits his trial on remand at the Metropolitan Remand Centre. Corrections Victoria have denied Rich permission and/or access to various items of computer hardware and software and supervised internet access. In short the accused’s position is that by reason of the lack of these facilities:
a.He cannot properly prepare his defence;
b.He cannot properly instruct his lawyer;
c. Witnesses to be called against him by the Crown and possibly by him in his trial cannot be properly and fairly examined;
d.The Crown is securing witnesses for attendance and examining them and preparing witnesses and its case with full and unfettered use of modern day technology such as lap top computers with appropriate software and he is being prevented from obtained [sic] such conditions for himself in his defence preparation to cross examine such witnesses;
e.He is denied the free assistance of specialised communication tools insofar as he has communication difficulties by reason of:
i. The volume of relevant material to cover which must be computerised to make any meaningful attempt to properly peruse and prepare;
ii. The complexity of factual and legal issues creates communication difficulty that cannot be addressed with simple pen, ink and paper;
iii. He has symptoms of bilateral carpal tunnel and/or arthritis in his hands.
f.Corrections Victoria by its attitude is causing unreasonable delay in the accused’s ability to prepare his defence and instruct his lawyers.
On 22 January 2009, the Court received a letter from the Chief Executive Officer of the Victorian Equal Opportunity and Human Rights Commission advising that the Commission would not be intervening in the proceedings under s 40 of the Charter. On 27 January 2009, the Court received a letter from the Victorian Government Solicitor’s Office similarly advising that the Attorney‑General did not intend to intervene in the proceedings under s 34 of the Charter.
On 27 January 2009, I was proposing that the trial be mentioned with a view to commencing to empanel a jury on Thursday and Friday, 29 and 30 January 2009. At 5:48 am on that date the Court received an email from counsel for the accused attaching some 113 pages of submissions in support of an application that this trial be stayed.
At this point, I need to make some observations about that occurrence. The document to which I have just referred was not an outline of submissions but rather detailed submissions, mostly concerning legal principle to which I shall refer below. Much of it concerned the issue of whether Corrections Victoria was in breach of its statutory and/or common law obligations to the accused as a prisoner. The submissions carried no evidentiary analysis and were not accompanied by sworn affidavits although two brief affidavits were later presented when the matter was before the Court to which I will shortly refer. This lengthy document was presented to the Court two days before a jury was due to be empanelled in this trial and where special arrangements had been made with the Juries Commissioner in relation to the size of the panel. The Director of Public Prosecutions, who would have expected to respond in detail, apparently received the submissions on the same morning as the Court.
Whatever the merits of this application, with which I will shortly deal, this Court should not have to conduct business in this Division in this manner. A central purpose of the Crimes (Criminal Trials) Act 1999 is to avoid conducting business in the criminal jurisdiction in this manner. In my opinion, apart from the clear obligation that counsel has to their client, they also have an obligation to the Court to enable the Court to conduct its business expeditiously. Had I been informed in December 2008 that such an application was to be made I would have given directions about the filing of material so that all concerned were well informed of the basis of the application and the relevant evidence and authorities. Instead, the Court was treated with flagrant disregard in a manner which brings no credit at all to the lawyers for the accused. A lengthy document was filed and, yet again, to avoid the consequences of not having identified any of the previous evidentiary material which was relevant to this application, the accused was once more called into the witness box to give evidence when I alerted counsel to the fact that some significant aspects of the relevant factual background were not before me by way of evidence.
As a consequence of this application, new arrangements for a jury panel of the appropriate size had to be made, and the next occasion on which such a panel would be able to be assembled was 9 and 10 February 2009, subject to the outcome of this ruling.
The Application
The submissions recite that this is an application for a temporary stay of the trial of the accused on the basis that the trial represents an abuse of process constituted by:
(I)manipulation/misuse of the process of the Court so as to deprive the accused of his rights provided by law. The said manipulation and/or misuse has arisen by reason of:
(a) Breach of the Charter of Human Rights and Responsibilities Act (Vic) 2006; and
(b)Breach of procedural and common law rights;
by:
·Corrections Victoria, the accused’s gaoler and a non party to these proceedings, have and continue to obstruct the right of unimpeded access to the court and its proceedings by not permitting internet access;
·Corrections Victoria have and continue to obstruct the right of unimpeded access to the court by refusing to provide unfettered access to business records and evidence of a conclusive alibi in the form of electronic documents stored on various hard drives;
(II)Adverse and overwhelmingly prejudicial media publicity: i.e. in both internet and print media now in the public arena (7 and 18 January 2009);
(III)Investigatory impropriety (“executive lawlessness”): i.e. perverting the natural course of justice and manufacturing evidence by ensuring witnesses are not called;
(IV)Prosecutorial manipulation: i.e. a refusal to call prosecution witnesses on the presentment and who do not favour the Crown case despite previously having given preliminary evidence;
As a consequence of the breaches identified in paragraph (I) (a) and (b) and the items listed in paragraphs (II) – (IV) herein both inclusive it is submitted fundamental defects going to the root of the trial with prejudicial and unfair consequences to the accused have arisen and deny elementary entitlements in respect to:
·equality before the law;
·assembling business records and conclusive CCTV images confirming existence of a full and proper defence;
·the full personal autonomy to be able to prepare and put his or her case and avail himself or herself with any such assistance as necessary;
·access information about the law which is in the public domain;
·documents associated with the proceedings or possible proceedings;
·legal/professional privilege over such documents; and
·the effective right of unimpeded access to the court with equity.
I will deal with the central basis of this application presently but despite the nature of the allegations, the introductory words to each of grounds I, III and IV are not said to support an application for a permanent stay of the trial. Further, in the document presented to the Court as I have described, no evidentiary analysis is attempted by counsel for the accused to support such allegations. It is obviously believed that such assertions can be made with impunity and without any detailed evidentiary justification. They cannot. As to ground II, the principle surrounding that complaint is dealt with in Ruling No. 7,[10] though that ruling is not referred to or sought to be distinguished and further analysed. Ruling No. 7 dealt not only with the particular piece of publicity complained of but also with appropriate legal principle. As will be apparent from my observations, I do not believe there is any reason to delay the trial on that basis.
[10]R v Rich (Ruling No. 7) [2008] VSC 437R.
The Basis of the Application
The primary basis of this application concerns the claimed need by the accused for access to the internet in order to retrieve evidence relevant to his defence of alibi. Although no such analysis was conducted in support of the application, it is necessary for me to consolidate the total factual picture as it has been presented to me into one narrative so that the basis on which the accused seeks to further delay this trial can be understood.
Until October 2004 the accused had been serving lengthy sentences. On 3 October 2004, he was released on parole. Some time after his release he sought to establish a business called HR Concept Management, located at Suite 418, 530 Little Collins Street, Melbourne – a suite located in the common area of the fourth floor of that building. He moved into those premises, which at the time were leased by a solicitor’s firm known as T.F. Grundy & Co,[11] shortly after his release from custody. When the solicitor’s firm decided not to continue the lease of that suite in February 2005, the accused opened the office in his name.[12]
[11]The accused was at that time working as a consultant for the firm, which later became Grundy Maitland & Co. As to that firm and the solicitor John Andrusko, see R v Rich (Ruling No. 9) [2008] VSC 453R.
[12]Transcript at 3783. See also Transcript of Committal Proceedings (12 April 2007) at 1104.
The building was known as Exchange Towers. The accused said most recently[13] that there was a closed circuit television (CCTV) system in the building and in November 2004 he interfered with it in order to record its product. He said the camera recorded the foyer area of the lift well and from the reception area into the restaurant directly opposite. He said he “spliced the main service” after some burglaries had happened within different floors of the building.[14] He said he did that for “preservation”. Part of that was having 24 hour per day, seven day per week ability to prove where he was at any given time.[15] Having claimed to have taken that step for that purpose, nearly four years after he was asked to account for his whereabouts on 8 March 2005, the process has not worked very well at all.
[13]Transcript at 3778ff.
[14]Ibid at 3777, 3786.
[15]Ibid at 3779.
The accused said that he had “piped” the images captured by the camera into a computer of his and he examined what he claims the video shows.[16] He claims that for 8 March 2005, the video shows an embedded date and a time stamp which he volunteered he could not change. He claims it shows him sitting in the restaurant opposite the concierge desk. He said that the camera shows that at the next table there was a “retired judicial officer” and a “retired prosecutor”.[17] Asked whether he knew the retired prosecutor, the accused said he was not prepared to identify him until he has the video.
[16]Ibid at 3777-9.
[17]Ibid at 3779-80.
The accused then offered to write down the names of those people on condition that the Crown prosecutor not be shown the result. Upon being informed by me that the Crown prosecutor would be shown the result, the accused refused to identify those people on the stated basis that he had no obligation to reveal such information.[18]
[18]Ibid at 3780-1. See also Transcript at 3785.
Cross‑examined by Mr Tinney SC for the Crown, the accused said that he had access to the offices as early as 4 October 2004 although he officially opened his office on 26 February 2005.[19] He said the product from the CCTV was going into two notebook computers, one of which was in the ceiling with a pin hole lens camera and one in the “annex office”.[20] He said most of his business was conducted in the nearby restaurant to avoid what he suspected were police listening devices in his office.[21] He said that he climbed a ladder into the void of the ceiling in the office,[22] and identified the main coaxial cable to the cameras in the foyer. This occurred on the fourth floor of the building. He seemed to say that the footage he relied on fluctuated between what he described as the “various areas of the cameras”.[23]
[19]Ibid at 3783.
[20]Ibid at 3786.
[21]Ibid at 3784.
[22]Ibid at 3791.
[23]Ibid at 3791-2.
The accused gave the following evidence about how he “tucked” this information away:
You tucked it away, and how did you tuck it away? - - - I transferred it from the Notebook computer on to another hard drive that was purchased up at Latrobe Street, transferred that image on it there and then encrypted it on that hard drive.
It would be still be on the Notebook, obviously? - - - No.
Why not? - - - No, because the Notebook was then – the hard drives were then destroyed.
Destroyed, why? - - - Because this is what I do, sir.
Is it? Why would you destroy – I’ll come to the issue of why you would encrypt, but why would you destroy footage that you would say would disprove your involvement? - - - No, with respect, you’re misunderstanding. You are putting words in my mouth or you are not understanding.
No, maybe I’m not? - - - I transferred the medium from an existing Sony Notebook that was in the ceiling to another hard drive.
Yes? - - - I mirrored that data.
You mirrored it? - - - I took the existing hard drive out of the Sony Notebook and put a new one in and then operated that again. The hard drive that I put away with the exculpatory material was then encrypted.
Yes? - - - It was then put away but I kept the keys off that and then transferred the keys to overseas.[24]
[24]Ibid at 3787-8.
The accused also gave evidence that he never spoke to those who managed the building and whilst they would have had records he was unaware of their policy about keeping them.[25] Further cross‑examined, the accused said that he had data for 8 March 2005 and 30 other days of footage. There are, as a consequence, two files which he says he has encrypted. One file contains the data for the whole period. He said that he had taken the records for 8 March 2005 “… out for a small file”.[26] He explained that all of this data is here (i.e. within the jurisdiction or at least accessible).
[25]Ibid at 3788-9.
[26]Ibid at 3789.
The accused also gave evidence that he had instructed his partner, Ms Sandra Blackney, to see if she could assist him with respect to the “key factors of rewriting the algorithm so she could get access to drawing down ... the key back from overseas”.[27] In addition to the evidence of the accused, Ms Blackney swore an affidavit which, in summary, deposes that despite her best endeavours, she was unable to understand in any meaningful way what the accused was saying to her during their conversations on 18 January 2008 (which totalled approximately four hours) in order to fulfil the tasks he had set in order to retrieve the encrypted data.
[27]Ibid at 3790.
I should also note that the solicitor for the accused, Mr Taaffe, filed an affidavit the effect of which was that a conference between the accused and a legal aid funded IT expert was unsatisfactory from the accused’s point of view. Mr Taaffe also deposed that it would not be feasible for an employee of his office to spend six weeks supervising the downloading of data. Such an exercise would, it was suggested, raise ethical considerations for that firm.
From the evidence before me I am unaware as to whether either the “retired judicial officer” or the “retired prosecutor” has been approached by the lawyers for the accused to establish, for example, whether there are records they could check to be able to say whether they were in Melbourne on 8 March 2005; whether they agree they socialised with each other on or about that date; and, therefore, whether it is possible or even likely that they were in the restaurant where the accused claims they were.
There is also no evidence of any approach by the accused or his lawyers to the owners of the building to support the assertions of the accused as to the arrangements for the security cameras and their locations and to enquire as to whether such footage might still be stored somewhere on their system. Apart from the evidence of the accused I am unaware of any evidence of enquiries being made to corroborate the claim that there had been a series of burglaries in the building at the time and that security was a matter of concern.
The accused said that some time after members of Victoria Police attended his office (which, according to the statement of Detective Acting Sergeant Cron was on 15 March 2005) he viewed then encrypted and secreted the data.[28] He did that, he said, by using an encryption algorithm which he said he had been working on for a while.[29] He purchased some computer hard drives and then transferred the data to those drives and then the “keys” which could be used to unlock the data were “sent overseas”.
[28]Ibid at 3779. See also Transcript (14 April 2008) at 43.
[29]Transcript at 3778.
It is now necessary for me to endeavour to summarise in a little more detail what the accused said he did with the data and how he now says it is to be retrieved.
I have been concerned with a number of computer issues in this case but in relation to the data which is said to provide evidence of alibi, there are three hard disk drives which are relevant. As I understand the way the argument has been run there are two separate steps which the accused says need to be taken for him to access the data which he says supports his alibi: the reconstitution of data stored on three physical hard drives and data divided into packets and placed in a data “silo” by the accused, and decryption of that reconstituted data.
First, the physical hard drives and the various “packets” of data need to be reconstituted. That involves taking the three hard drives to the MRC and installing them into a computer casing with all the peripherals.[30] It is also said to involve using the internet to download those portions of the data which the accused claims to have divided into packets and placed in a data “silo” in Europe. Included in this data, he says, is seven and a half months of CCTV video of three different locations[31] – the video taken on 8 March 2005 is said to be one file. The accused gave evidence that the program by which the data was divided into packets was written by him.[32] David Thompson, a partner of Deloitte Touche Tohmatsu who was called as a witness expert in IT by Corrections Victoria during the proceedings on 23 May 2008, said this is a very complicated process and that commercial applications would usually be used for this function.[33] However, Mr Thompson said that once the program was rewritten by the accused (if this is what is required) it could be given to someone else who could then use it to put the “packets” back together.[34] The data could then be put through the second step: the decryption process.
[30]Transcript (23 May 2008) at 25-6.
[31]Ibid at 50.
[32]Ibid at 54-6.
[33]Ibid at 62.
[34]Ibid at 62.
As if that was not complicated enough, when the accused himself cross‑examined the witness Mr Thompson, he appeared to suggest that once the data had been encrypted he opened an encrypted file in a “notepad” application and then applied another program, the effect of which was to remove certain lines of data and then save the file again.[35] It was agreed between the accused and Mr Thompson that if that had been done the data could not be decrypted to reproduce the original data without the removed lines being re-inserted. The accused again referred to the internet as being essential to the completion of this process, as well as the need to communicate with others to assist in the process.[36]
[35]Ibid at 69ff.
[36]Ibid at 71ff.
The second step is that the data has to be decrypted using multiple “keys” and a particular commercially available computer program – PGP (“Pretty Good Privacy”).[37] On the evidence of Mr Thompson, encryption is a two part process which combines a unique “key” with an encryption formula provided by the PGP program to uniquely encrypt the information.[38] The accused claims he requires some 34 keys of which he has access to some but not others.[39] The ones he does not have access to he claims he will have to download from a file server through a “peer to peer” network once someone at the other end of the network has uploaded them.[40]
[37]Ibid at 26.
[38]Ibid at 60.
[39]Ibid at 45.
[40]Ibid at 50-53.
When the accused was asked why a person whom he trusted could not perform this process for him outside the MRC, he said that he was concerned that there was no such person that he could trust to that extent but that even if there was, he would be concerned they would make a mistake and that the data would be lost. On the other hand, asked why such a risk did not apply to him, he said he had a very good memory.[41] Curiously the accused claimed in his evidence that one wrong key stroke would activate sequencing which would destroy the data, even if the mistake was his.[42] That was part of the reason why he suggested it was only him who could do this exercise. It is odd indeed that he would create such risk to the data at a time when he can be taken to have clearly understood its significance.
[41]Ibid at 47-8.
[42]Ibid at 48-9, 72-3.
Broadly, the “self‑destruct” possibility that the accused claims would occur if errors were made could be avoided, according to the witness Mr Thompson, by working on a copy of the data and doing the process “offline”. In response (and I emphasise “in response”) the accused asserted that the “self‑destruct” trigger would be activated if someone tried to copy the data.[43]
[43]Ibid at 73-4.
Even if it was accepted that only the accused could complete the decryption process, the evidence of Mr Thompson was that this process itself could be done “offline”. He said that once the data to be decrypted, as well as the keys, are retrieved by a trusted person either over the internet or by being placed on a CD or hard drive, the decryption could be done on a local computer without access to the internet.[44] It was this evidence on which I relied for the conclusion I reached in Ruling No. 3.
[44]Ibid at 78-80.
The constantly expanding web of computerised complications which the accused says he has applied to this data to protect it is difficult enough to understand. But, knowing from shortly after the armed robbery and murder that he was a person of interest to the police and then being arrested in May 2005, to have left any mention of the need to “unwind” this process until April 2008 throws substantial doubt on the credibility of the factual basis of this application.
Legal Principle Relied On
The applicant relies on legal principle which supports the inherent power of the Court to stay the trial if it will be unfair.[45] The accused also relies upon a claimed breach of the Charter and submits that despite previous concessions to the contrary, the Charter applies to this case. It is claimed that the operative date which determines whether the Charter applies is the date of arraignment which occurred on 20 July 2007. For the purposes of this ruling, I am prepared to assume, without deciding, that the Charter “affects” these proceedings.
[45]See Williams v Spautz (1992) 174 CLR 509 at 518.
The submissions then outline allegations against Corrections Victoria all of which assert, in broad terms, deliberate interference and frustration of the ability of the accused to prepare his trial. When asked about the basis for these submissions, counsel for the accused said:[46]
Your Honour, much of that all follows on from Rich’s inability to secure Internet access to obtain what’s identified as the relevant material, that is access to the business documents and the alibi evidence.
[46]Transcript at 3717.
This case does not seem to be claimed to be an abuse of process in the sense in which it was discussed in Williams v Spautz,[47] since no permanent stay is sought. In this case, the application is for a temporary stay of a trial which the accused presently says would be unfair without access by him to the internet in order to enable retrieval of the information I have described. At all material times, the accused has been in custody awaiting trial. As part of the arrangements, whilst he has been afforded substantial facilities for the purpose of preparing his case, the prison arrangements do not permit him to have access to the internet. In summary, Corrections assert that to do so is a security issue for the prison.[48]
[47](1992) 174 CLR 509.
[48]See, eg, Affidavit of Peter John Hutchinson (3 April 2008) at [7], [35]; Affidavit of Nicholas Paul Selisky (16 May 2008) at [19]. See also the evidence of Mr Hutchinson before me on 14 April 2008: Transcript (14 April 2008) at 80-1.
It is clear that if I were of the view that the denial of those facilities to the accused would result in the trial being unfair then it would be open to me to prevent the trial from commencing until the situation was altered. As Deane J observed in Jago v District Court of NSW,[49] the notion of unfairness “defies analytical definition”. It was not possible, his Honour observed, to catalogue the occurrences, outside or within the actual trial, which will or could affect it to such an extent that it could not be properly regarded as fair. The identification of what constitutes unfairness and the steps which need to be taken to avoid it involve what his Honour described as an “... undesirably, but unavoidably, large content of essentially intuitive judgement.” With respect to the “right” to a fair trial, Deane J noted that the common law recognises no such “right” in the strict sense. What it does recognise is a right not to be tried unfairly.
[49](1989) 168 CLR 23.
In the words of Brennan J in Jago v District Court of NSW, this is an application for an adjournment said to be necessary to prevent injustice.[50] In that context Brennan J said:[51]
When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.
[50](1989) 168 CLR 23 at 47. See also Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) at 76.
[51](1989) 168 CLR 23 at 47.
Thus, in this case given the history including rulings I have already delivered, the relevant question that presently arises for determination is whether the inability of the accused to access the internet is an obstacle to a fair trial.
The next stage of the submissions concerned the alleged breach by Corrections Victoria of the common law rights of the accused which are not otherwise particularised except that I assume they refer to the same issue. Much of the rest of the submissions concern the suggestion that the refusal by Corrections Victoria to permit the accused to have internet access is unlawful under various statutes including the Corrections Act 1986 and the Charter. The argument generally depends on accepting that not giving the accused access to the internet is “destroy[ing] the accused’s autonomy” or “extinguish[ing] his right to a fair trial”.[52]
[52]Defence Submissions at [68].
The long‑standing debate between the accused and Corrections Victoria about the relevant provisions of the Corrections Act 1986 do not seem to me to be matters that I need to resolve and I will not do so. The question I am concerned with is whether, if access to the internet is not given to the accused, his trial will be unfair.
Conclusion as to the Application for a Temporary Stay
In Ruling No. 2 in this matter, I identified a risk of unfairness to the accused if he did not have a “reasonable opportunity to reconstitute the hard drives …” so that he could instruct his lawyers about his financial affairs of the time and his alibi.[53] I noted that as I then perceived the circumstances, I had not reached the conclusion that the data was integral to a fair trial of the accused. At that stage, the trial was to commence on 21 July 2008, my ruling being delivered on 2 May 2008. As is well known, the trial has since been adjourned and we are now at the beginning of February 2009. In Ruling No. 3, my conclusion was as follows:[54]
Mr Rich was charged in relation to these matters on 16 June 2005 – some three years ago. As I follow the evidence, there is no satisfactory explanation as to why, in those three years, efforts were not made to retrieve this data and, if the internet was an essential prerequisite, why that issue was not raised prior to April 2008. It is apparent that the reconstitution of the hard drives was referred to during the committal proceedings but the need for the internet to retrieve the data was not identified either as relevant or necessary.
In the present circumstances, given the evidence of Mr Thompson that an off‑line solution is feasible, and given the compromise proposed in Mr Selisky’s affidavit, to which I have already referred, I would not make orders which required Corrections to provide the accused with unfettered access to the internet. Despite the urgings of the accused, there is no process before the Court which would entitle me to make coercive orders to that effect. That is, of course, not the end of the matter. It would be open to me to stay the further hearing of this trial until such facilities were made available to the accused if I thought that was appropriate and necessary for the fair trial of the accused. On the basis of the material presently before me, including the potential alternatives for internet access if that is required, that is not my view.
[53][2008] VSC 141 at [89].
[54][2008] VSC 219R at [37]-[38].
As I outlined in Ruling No. 19,[55] which concerned the application by the accused for bail, there were alternative means by which the accused might have access to this data, if it exists. As might have been clear from the ruling but I now specifically state, I am not satisfied that the accused has made a significant effort to retrieve this data by using what might be described as an alternative or “offline solution”.
[55][2008] VSC 538R.
Further, as is apparent from the discussion above, I have reviewed the detail of the accused’s account of his need for the internet and other evidence, including expert evidence, to which I have referred. The issue I am concerned with on this application is whether, in all the circumstances as I now understand them, the accused’s trial will be unfair if he does not now have access to the internet. In my opinion, the answer is that it will not be. In another month it will be four years since this offence occurred. That is a very significant delay between offence and trial. Over the period since he was first put on notice that Victoria Police were interested in him as a potential suspect for the matters for which he is now to stand trial he has had a reasonable opportunity to obtain the data and use it in his trial. The accused has said that he was conscious of the need for him to be able to prove where he was at any particular time because, given his record, he expected he would often be a police suspect.[56] In this case, he claims he had precisely that exculpatory information in electronic form as well as two significant witnesses, but in a period of almost four years he has been unable to obtain it and appears not to have approached the witnesses or the owners of the building from which the CCTV was diverted. He did not need legal advice to understand the significance of the information – that was something he well knew and, on his evidence, motivated its creation.
[56]Transcript at 3779.
The convoluted steps which he has described to conceal the information that he now says he requires are almost beyond belief. That, coupled with the conduct of the accused over the entire period and the long delay in even raising this issue leaves me in a position where I am by no means persuaded that such data does actually exist.
The application for a six month stay of this trial is refused.
Publicity
On 18 January 2009 an article entitled “Criminal’s picnic” was published in the Herald Sun. The article commences with the following:
Criminals have hijacked Victorian human rights laws, clogging up the courts with bids for softer treatment from authorities. ... a Sunday Herald Sun analysis of the laws ... shows criminals, including some of our most notorious offenders, are the ones who have embraced the charter in court.
It later makes the following one-line reference to the accused:
Accused murderer Hugo Rich argued a failure to give him a computer and gel pens in jail was a breach of his human rights.
It was submitted on behalf of the accused that this material is “so overwhelmingly prejudicial that a fair trial could not be obtained by the accused while this material remains in the public arena.”[57] It was further submitted that there is a real risk that members of the jury will be chosen from a jury pool already contaminated by such material in the public domain, and that members of the jury will seek to access such material during the trial despite directions by me not to do so.
[57]Defence Submissions at [578].
I do not agree that the article published in the Herald Sun was particularly prejudicial and, as I informed counsel during argument, I will give the jury instructions during the empanelment procedure about the importance of deciding the case on the evidence they hear in the court room and not making their own enquiries. In particular I will inform them that they must not make any investigations or enquiries, or conduct independent research, concerning any aspect of the case or person connected with it. They will be told they must not use any research tools, such as the internet, to access legal databases, earlier decisions of this or other courts, or other material of any kind relating to the matters in the trial. They will also be told that they must not ask someone else to undertake such investigations. I will draw their attention to s 78A of the Juries Act2000 which makes such activities unlawful. As I have already observed, this matter is covered by the approach I pursued in Ruling No. 7.[58] The more recent publicity to which reference has been made is in my view not such as to require any delay in the trial.
[58][2008] VSC 437R.
---
5
20
0