R v Rich (Ruling No 22)
[2009] VSC 39
•17 February 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1535 of 2007
| THE QUEEN |
| v |
| 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 should have access to it.[2] After making those observations a proposition was put to the Court on behalf of Corrections Victoria as to how that might be achieved and I will outline the detail of that proposal shortly.
[2]See, eg, Transcript at 140, 155-6.
The Evidence
I note that as the Court of Criminal Appeal observed in R v Jones:[3]
Many applications for adjournments are made which are plainly without foundation. If these applications are to be made in a bona fide way, then we think it is highly desirable they should be supported by evidence, either verbal evidence or evidence on affidavit. Unless that course is taken, the learned judges to whom the applications are made are left with assertions being made one way and assertions being made the other way, and there is no real opportunity of having the matter properly tested by evidence properly authenticated and placed before the Court.
[3][1971] VR 72 at 72.
It is significant to note that in September of 2008 an application was made that these disks be made available to the solicitor for the accused. That application was necessary because the loose disk media had been provided to the Court in response to a subpoena issued on behalf of the accused and had been in the Court’s custody ever since. There is no evidence about this in the current application but as I follow the instructions to Mr Edney of counsel who conducted this application on behalf of the accused, the solicitors made some effort to examine what was on the disks but found their effort to be not viable and did not proceed with it.[4] Until this application was made that was essentially where the matter stood.
[4]See Transcript at 333-7.
In support of this application, the accused gave evidence as he has done on several previous occasions. During the course of that evidence he said that there were a large number of files on the hard drives and on the loose disk media and that such files included contemporaneous notes, audio product, documents in Word format, documents in Word Perfect format and spreadsheets. I did not understand the accused to be giving that as a complete list but as an example of the kind of material there contained. His evidence was also that some of the material was protected by passwords and, in turn, they were passwords which he knew in some cases and had forgotten in other cases. In other cases the files were said to be protected by an encryption process under the programme known as “Pretty Good Privacy (PGP)”.
Proposal by Corrections Victoria
Mr Mitchell of counsel who appeared on behalf of Corrections Victoria outlined his instructions on this matter at the outset of this application on 12 February 2009. Those instructions included a proposal as to the means by which the accused might have access to this data whilst in custody. That proposal was formalised into a document, provided to the Court on 13 February 2009, which reads as follows:
Corrections Victoria and the Metropolitan Remand Centre will make available the following facilities on the conditions set out below for the duration of Mr Rich’s trial.
Exford Conditions
The disabled cell in Exford Unit will be made available for Mr Rich to use. The cell will contain his dayroom computer, all loose disk media, the police exhibit computer, the LEARN computer with access to Thomson Legal Resources.
The dayroom computer will continue to be permitted to be transferred to and from Court each day. Any of the other Exford Unit computer items, including loose disk media, may be transported to and from Court each day. For the sake of convenience, a copy of the police exhibit computer should be left in the dock, or with the legal representatives of Mr Rich for him to use each day while in Court, rather than transporting the copy that is stored in Exford Unit.
On any day Mr Rich wishes to use the Exford Unit cell, he will be permitted to stay overnight in the Exford Unit if he chooses, or be transferred back to Cambridge Unit. He must advise a prison officer before 7.30pm on weekdays or 6.30pm on weekends if he wishes to move back to Exford, and will be required to return to Cambridge by 8pm on weekdays, or 7pm on weekends. If he does not advise of a wish to transfer back to Cambridge by the specified time, he will stay in Exford for the night.
He will be searched when entering and exiting Exford.
Legal visits will be permitted while Mr Rich is in Exford Unit during ordinary visiting hours, and he will be taken to the visitors’ reception centre to conduct such visits. At these visits, Mr Rich may take the dayroom computer or any other computer housed in Exford Unit with him and transfer data relevant and necessary for the conduct of this proceeding to the computers of his legal representatives.
Mr Rich’s legal representatives must undertake not to receive any data other than data for the conduct of the proceeding, and must not transfer to Mr Rich’s computer any data other than that which is for the conduct of the legal proceeding.
Cambridge Conditions
As Mr Rich will be classified as a mainstream prisoner he may stay in his usual cell in Cambridge Unit whenever he wishes to do so, subject to the daily deadline for requesting transfer from Exford Unit. He may take meals in Cambridge, or in Exford Unit, depending on whether he wishes to continue preparing his trial while eating.
If Mr Rich requests and co-operates with prison staff in allowing a copy to be made, in Cambridge Unit Mr Rich may have a copy of the current dayroom computer hard drive containing all of the data currently on the computer (“the Dayroom Copy”). This will allow Mr Rich to work on those materials while in Cambridge if he wishes to do so. Data from the Day Room Copy may be copied to computers of his legal representatives on a legal visit. Data from the Dayroom Copy may also be copied to the computer(s) in Exford Unit under the supervision of prison staff at reasonable intervals (i.e. no more than once per week), on request made to Operations Manager Nick Selisky only.
Although Corrections Victoria staff members have examined some of the loose disk media, Corrections Victoria do not know, and have no control over, the contents of the remainder of the loose disk media or police exhibit computer. In those circumstances, once this material enters Exford Unit it will not be returned to the mainstream prison population at any time in the future. At the conclusion of the trial (or any subsequent appeal) all of these items may be collected on behalf of Mr Rich and removed from the prison.
When asked in evidence why such a proposal was not satisfactory, the accused said that the proposal:[5]
… does not deal with the central issue of having to transfer applications and data from the existing storage mediums to the medium that I'm currently using so I can work with that data unbridled, unencumbered, without administrative interruptions.
[5]Transcript at 337.
The accused also appeared to add that there were difficulties so far as time was concerned and making arrangements to be in one particular part of the MRC or another and that an effect of it will be that he will be, from time to time, in the Exford management unit – a prospect which is very unsatisfactory from his point of view.
In the course of being cross‑examined on behalf of the Crown by Mr Tinney SC, who appears with Mr Milesi to prosecute, the accused noted that he had not read the written proposal that had been provided by Corrections Victoria. He did say that his objections were based on what Mr Mitchell of counsel for Corrections Victoria had outlined verbally to the Court on 12 February 2009.[6]
[6]Transcript at 200-1.
On behalf of the Crown, Mr Tinney SC submits that the proposal of Corrections Victoria provides Mr Rich in effect with what he has sought. The primary objection to it appears to be the fact that at times Mr Rich will have to be in the management unit at Exford and he should be able to have everything in the one cell.
Discretion to Adjourn the Trial
The question is whether I should adjourn this trial in order to force Corrections Victoria to make the arrangements as requested by Mr Rich.
In exercising a discretion whether or not to adjourn the trial I must have regard not only to the interests of the accused but also the interests of justice. As the Court of Criminal Appeal said in R v Cox:[7]
How the power is to be exercised is a matter in the judicial discretion of the trial judge, a discretion which will only be disturbed on serious grounds. The judge in exercising his discretion is not confined to regarding the interests of the accused. He is entitled to regard the interests of justice which may well be a different matter.
[7](1960) VR 665 at 667.
The way in which the discretion is to be exercised was also referred to by Barwick CJ in McInnis v R[8] during the course of which his Honour observed:
… I would emphasize the need for the most careful weighing of the interests of the accused, of Crown, witnesses, jurors and, generally, of the administration of justice, when an adjournment is sought in order to obtain or to endeavour to obtain the services of counsel for the conduct of the defence.
[8](1979) 143 CLR 575 at 579.
Of course ultimately the High Court of Australia came to a different conclusion on the issue of legal counsel in Dietrich v R.[9]
[9][1992] 177 CLR 292.
It does not seem to me that the transfer of data is inhibited in the way Mr Rich has described. There is no evidence from the solicitor for the accused about efforts made by him to access the data from September 2008 onwards and although the accused gave evidence I am by no means persuaded that he is the only person who can access and process this data. I am also not satisfied that significant efforts were made in cooperation between the accused and his solicitors to access this data in time to commence this trial. Indeed on the basis of his evidence it seems to me (unlike his assertions concerning access to the internet) that this is data which could have been and still can be processed, analysed and the subject of instructions under the currently proposed arrangements.
In all the circumstances the application for an adjournment of this trial is refused.
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