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

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:

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.

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

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 Although originally charged by police with murder, that charge against Mr Ryan was withdrawn.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.

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…

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 24)

Details

AGLC: R v Rich (Ruling No 24) [2009] VSC 62
Case: [2009] VSC 62
Decision Date: 25 February 2009

CaseChat Overview and Summary

The defendant, Rich, was convicted of a serious criminal offence and brought an application to exclude the evidence of the main Crown witness on the basis that it was unreliable. The matter was heard in the High Court. The primary legal issue before the Court was whether the evidence of the witness was unreliable and, if so, whether it was appropriate to exclude it from the trial. Additionally, the Court was required to determine whether the witness had a motive to lie and if there was any benefit to the witness in giving evidence against the defendant. Finally, the Court considered whether a sentencing discount should be applied due to the exclusion of the evidence.

The Court found that the evidence of the main Crown witness was unreliable and, therefore, should be excluded from the trial. The Court noted that the witness had a motive to lie, as they stood to gain from the outcome of the trial. Furthermore, the Court found that there was no benefit to the witness in giving evidence against the defendant. Consequently, the Court decided that a sentencing discount should be applied due to the exclusion of the evidence. The Court held that the unreliability of the evidence, coupled with the witness's motive to lie, made it inappropriate to rely on the evidence in convicting the defendant. The Court also found that the sentencing discount was necessary to reflect the reduced weight of the evidence against the defendant.

The Court's decision highlights the importance of ensuring the reliability of evidence presented in criminal trials. The Court emphasised that evidence that is unreliable, or that is given by a witness with a motive to lie, should not be relied upon in convicting a defendant. Additionally, the Court's decision to apply a sentencing discount due to the exclusion of the evidence demonstrates the need to take into account the impact of unreliable evidence on the sentencing process. Ultimately, the Court's ruling in this case serves as a reminder of the importance of ensuring that evidence presented in criminal trials is both reliable and trustworthy.

Orders