R v Rich (Ruling No 22) - [2009] VSC 39

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1535 of 2007

THE QUEEN

HUGO ALISTAIR RICH

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 & 13 February 2009
DATE OF RULING:	17 February 2009
CASE MAY BE CITED AS:	R v Rich (Ruling No. 22)
MEDIUM NEUTRAL CITATION:	[2009] VSC 39

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CRIMINAL LAW – Application for adjournment of trial – Need for access to computer data – Previous opportunity – Considerations for adjournment of the trial – Application refused.

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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
For Corrections Victoria	Mr T. Mitchell	Corrections Victoria

HIS HONOUR:

Introduction

This is an application on behalf of the accused Hugo Alistair Rich for an adjournment of his trial. The accused is charged with murder and armed robbery arising out of events which occurred on 8 March 2005. The accused is presently a remand prisoner at the Metropolitan Remand Centre (MRC). This case has a long history to which I have previously referred in other rulings. On Thursday, 12 February 2009, I empanelled a jury in order to commence this trial. Prior to doing so a foreshadowed application was made in relation to a difficulty which it was said had arisen on behalf of the accused in accessing what is described as “loose disk media”. It was said this loose disk media needed to be accessed by the accused and had not been able to be accessed. In support of this application for an adjournment of the trial so that that might occur, the basis of the need of the accused to access the data was outlined and I will return to that shortly.

This trial has a long history in relation to computer facilities. Throughout the recent history of the case the accused has complained on numerous occasions about his lack of necessary computer facilities yet in many respects the opposite seems to be the reality. In previous rulings I have dealt with issues in relation to Mr Rich’s need for computer access.[1]
[1]R v Rich (Ruling No. 2) [2008] VSC 141; R v Rich (Ruling No. 3) [2008] VSC 219R; R v Rich (Ruling No. 20) [2009] VSC 24R.

In this application Mr Rich has sought a delay in the trial until he is able to have access in a way that he says is necessary to data which is stored on a number of CDs and floppy disks (hence the title “loose disk media”) and also to three hard disk drives being in effect the police exhibit computer – a term which describes the computer and disk drives that were originally seized from his office when warrants were executed in May 2005.

I had earlier made observations that it was desirable that if this material was relevant to the trial the accused…

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 22)

Details

AGLC: R v Rich (Ruling No 22) [2009] VSC 39
Case: [2009] VSC 39
Decision Date: 17 February 2009

CaseChat Overview and Summary

In the case of R v Rich, the defendant was facing criminal charges, and the matter was before the court for an application to adjourn the trial. The central issue in this ruling was the defendant's request for additional time to access and review computer data that was anticipated to be critical to their defence. The court needed to determine whether the defendant's need for access to this data warranted an adjournment of the trial, considering the circumstances under which the request was made.

The legal issues before the court involved weighing the defendant's right to a fair trial against the need for timely proceedings. The court had to consider whether the defendant had previously had an opportunity to access the computer data, the potential impact of the data on the defence, and the reasons for the delay in seeking access. The court also needed to assess whether the defendant's application for an adjournment was reasonable and whether the adjournment would cause undue prejudice to the prosecution or the public interest.

After considering the arguments presented, the court concluded that the defendant's request for an adjournment was not justified. The court found that the defendant had previously had an opportunity to access the computer data and had not exercised reasonable diligence in obtaining it earlier. Additionally, the court determined that the potential impact of the data on the defence did not outweigh the need for timely proceedings. As a result, the application for an adjournment was refused. The trial proceeded as scheduled, with the defendant proceeding without the additional access to the computer data.

Orders