R v Rich (Ruling No 24)

[2009] VSC 62

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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:	17 February 2009
DATE OF RULING:	25 February 2009
CASE MAY BE CITED AS:	R v Rich (Ruling No. 24)
MEDIUM NEUTRAL CITATION:	[2009] VSC 62

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CRIMINAL LAW – Application to exclude the evidence of the main Crown witness – Whether unreliable – Motive for the witness to lie – Benefit in giving evidence – Sentencing discount.

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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:

1. The accused is charged with murder and armed robbery.  It is alleged that on 8 March 2005 he, Leonard Ryan and Sean Hogan were involved in an armed robbery which occurred at Blackburn North Shopping Centre when two Chubb security guards were delivering money to a nearby Commonwealth Bank of Australia.  In the course of the armed robbery, Erwin Kastenberger, one of the guards, was fatally shot.  On 12 February 2009, I empanelled a jury in order to commence this trial.  Leonard Ryan is currently giving evidence as a witness for the Crown.  His evidence is that the accused, who was a participant in the armed robbery, shot Erwin Kastenberger.

1. Mr Desmond of counsel applies to have the entirety of the evidence of Leonard Ryan excluded from the trial because he submits his evidence is unreliable.  He submits that this is an exceptional case which “warrants the exercise of the residual discretion test”.[1]

   [1]Transcript at 449.

Unreliability of the Evidence

1. Mr Ryan is said to be unreliable for a number of reasons articulated on behalf of the accused.  First, he is a witness who is not indemnified in relation to the murder of Erwin Kastenberger.  Although originally charged by police with murder, that charge against Mr Ryan was withdrawn.  It is put, as I follow the argument, that Mr Ryan therefore has an interest in the evidence he gives which is primarily to avoid the risk of being again charged with murder.  I would have thought there are practical and evidentiary difficulties in again charging Mr Ryan with murder.  Mr Ryan has been dealt with for his role in the armed robbery on the basis that he was not the person who caused Mr Kastenberger’s death.

1. Ultimately, the unreliability of the evidence which Mr Ryan is now giving is primarily said to be demonstrated because of his motive to lie in his particular circumstances.  The “real danger” in relation to Mr Ryan’s evidence is said to be the fact that he made a statement implicating the accused with a desire to “preserve ... his family and himself”.[2]  It is put that Mr Ryan was aware that Victoria Police wished him to inculpate the accused whether or not that allegation was true and it is also put that when one examines the evidence given during the course of the Basha enquiry his evidence was “fairly poor”.[3]  As I have already noted in Ruling No. 19,[4] I observed Mr Ryan giving evidence on a number of days during the Basha enquiry and I would not agree with that submission.

   [2]Transcript at 452.

   [3]Transcript at 454.

   [4][2008] VSC 538R.

1. The only particular that was provided by counsel for the accused in support of this submission was that there was some confusion as to which colour jacket was being worn by Mr Ryan during the course of the armed robbery.  The evidence of the witness is that the two participants wore fluoro tops and an issue in the case is which top was being worn by Mr Ryan and which was being worn by the accused.

1. The applicable principle seems to me to have been clearly articulated by the Appeal Division of this Court in Rozenes & Anor v Beljajev & Ors.[5]  In that case the trial judge had reached a number of conclusions about the evidence of the accomplice Hills which led to his Honour excluding that evidence.  His Honour apparently concluded that Hills was a “very wicked, most deceitful and profoundly untrustworthy man” as well as being an accomplice who was not indemnified and therefore liable to prosecution.[6]  His Honour concluded also that the witness had made statements incriminating the accused for the purpose of deriving advantages to himself, including a sentencing discount.  He and his family were under the witness protection scheme.  His Honour concluded further that the witness had a motive to

curry favour with the authorities, if necessary by giving false evidence, by reason of his desire that he and his family should remain under the Witness Protection Scheme [and] by reason of his liability to prosecution for perjury if he departed from his statements …[7]

His Honour finally concluded that there was a substantial risk that the jury would not pay proper heed to the directions he would be required to give in relation to the witness and that the difficulty of eradicating prejudice by means of judicial direction meant that it was appropriate to exclude the evidence. 

[5][1995] 1 VR 533.

[6]Ibid at 542.

[7]Ibid.

1. As to that approach, the Appeal Division of this Court said:[8]

But while the existence of a residual discretion must be accepted, it is not easy to think of circumstances in which grounds might exist for the exercise of that residual discretion in relation to any evidence – we are not speaking of confessions – which would not bring the case within the more specific principle whereby evidence is not to be admitted where its prejudicial effect is out of proportion to its probative value.  … 

In the present case the suggested basis of exclusion is the discretion to exclude evidence on the ground that its reception would be unfair to the accused in the sense that the trial would be unfair, and the unfairness is said to exist by reason of the unreliability of the evidence having regard to the strong motive which the accomplice has for falsely implicating the accused in the offence charged.

[8]Ibid at 549.

1. This is essentially the basis on which the application is made before me.  The Court went on:[9]

“Unreliability” for this purpose does not mean the actual falsity or inaccuracy of the evidence: it means the risk or probability that, by reason of the position of the accomplice, his evidence will be false or inaccurate.  “Unreliability” means what has been described by the High Court as “potential unreliability” on a number of occasions in considering whether the position of a witness required that a warning about corroboration, or some similar warning, be given.

[9]Ibid at 549-50.

1. Later, the Court observed:[10]

…  once it is accepted that this proposition does not commit to the judge a broad and undefined discretion to determine what is in all the circumstances fair, but requires the judge to consider whether reception of the evidence will make the trial unfair, it becomes difficult to think of a set of circumstances which might give rise to the discretion in cases where it is not suggested that there is a disproportion between the probative value of the evidence and its prejudicial effect.  In particular, as Carter J. observed at 255 in McLean and Funk, it is difficult to see how it can be said that the trial is unfair by reason of the unreliability of evidence which is probative where the circumstances which make the evidence unreliable are properly exposed for the consideration of the jury.

[10]Ibid at 553.

1. Their Honours went on to observe that the approach of the courts has been, and should be, one with a very strong predisposition to the view that, questions of fact and credibility being for the jury and the jury being an institution in whose capacity and integrity confidence is reposed by the courts, evidence which is probative should go to the jury despite its infirmities, accompanied by directions by the trial judge concerning the general and particular considerations affecting its reliability including, of course, in an appropriate case, the matter of corroboration.  They noted that the ruling of the trial judge in that case was an anticipatory ruling which the judgment of the High Court of Australia in Doney v R[11] would demonstrate was erroneous if it had been given at the close of a Crown case.[12]

   [11](1990) 171 CLR 207.

   [12]See Rozenes & Anor v Beljajev & Ors [1995] 1 VR 533 at 550-1.

1. With respect, there was no detailed analysis by counsel before me of the evidence to be given by Mr Ryan which demonstrated it to be internally inconsistent or unreliable save for the considerations which are raised by Mr Desmond on behalf of the accused in this case and which were raised before the trial judge in Rozenes & Anor v Beljajev & Ors.  Mr Ryan gives direct evidence of his participation in an armed robbery and is a witness to the murder said by him to have been committed by the accused during the course of that armed robbery.  He is an accomplice.  He has made detailed statements about the matter and I have observed him giving evidence and being cross‑examined during the course of the Basha inquiry over eight days in 2008.  Whilst it is true that issues about his motive for giving evidence and the benefits that he stands to obtain from doing so are able to be exposed, they can be exposed before the jury who can take them into account in the manner contemplated by the Appeal Division of this Court in Rozenes & Anor v Beljajev & Ors.  Apart from his motive and apart from the claimed confusion in relation to the colour of the tops being worn by the two offenders in this matter, there is no other analysis of his evidence seeking to demonstrate inherent unreliability.  In my view, the evidence is extremely probative and indeed it is the evidence around which the Crown case is constructed. 

Ability to Attack the Credit of the Witness

1. The other issue which has arisen, though not developed to the point of being particularised in detail, is the question of whether or not the Crown’s decision not to call the witness Mark Dickson has an effect which should result in the exclusion of Mr Ryan’s evidence.  Mr Desmond complains that there is a restriction on the ability of the accused to attack Mr Ryan on substantive issues and on his credit because the Crown has announced an intention to not call the witness Mark Dickson who is an associate of Mr Ryan and who had a peripheral involvement in the events of 8 March 2005.  The primary difficulty with that, it is submitted on behalf of the accused, is that a “contradictory witness” to the version given by Mr Ryan has not been called by the Crown and it is submitted that I am restricted in my ability to identify the dangers associated with Mr Ryan’s evidence because of that fact. 

1. Based on the principles established in Rozenes & Anor v Beljajev & Ors, I am unable to see how that submission can be upheld.  To my understanding at this point, Mr Dickson did not participate in the armed robbery at the North Blackburn Shopping Centre but rather, having been given some notice that such an event might occur, endeavoured to ensure that his position was protected should he be suspected by the police by going to Ballarat and going to some trouble to establish independently of his own word that he had indeed been in that town on that day.  The reality seems to me to be that the complaints about Mr Dickson not being called (and for the purpose of this ruling I assume that the Crown will not call Mr Dickson) are that through Mr Dickson they will be restrained in their capacity to attack the credit of Mr Ryan. 

1. In my opinion, the non‑calling of Mr Dickson is not a consequence which would or could alter the view that I hold in relation to the exclusion of Mr Ryan’s evidence. 

1. In my view, the only basis on which this evidence might be excluded would be if I formed the view that it was unfair to the accused for it to be led on the basis that the prejudicial effect of the evidence exceeded its probative value.  I am by no means persuaded that that is the case and indeed the proposition has not been argued in that form.

1. The application to exclude the evidence of Leonard Ryan is refused.