R v Rich (Ruling No 25)
[2009] VSC 63
•26 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: | 24 February 2009 | |
DATE OF RULING: | 26 February 2009 | |
CASE MAY BE CITED AS: | R v Rich (Ruling No. 25) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 63 | |
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CRIMINAL LAW – Application for a discharge of the jury – Prejudice – Answers given in cross‑examination – Judicial interference.
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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:
This is yet a further application to discharge the jury in the trial of Hugo Alistair Rich. The application was made on the twelfth day of the trial in which the accused Hugo Alistair Rich is charged with murder and armed robbery in relation to events which occurred on 8 March 2005 at the Blackburn North Shopping Centre. I heard the application on 24 February 2009 and announced on 25 February 2009 that I would later publish my reasons.
Prior applications have been made for the jury to be discharged which I have refused. I now refer to those to deal with any suggestion, though none was made specifically, that there was an accumulating effect generated by the factual basis for each of the applications. The first application for a discharge of the jury which I refused occurred on 16 February 2009. In brief, that application was made on the basis of the publication in the Herald Sun newspaper of a photograph of the widow of the deceased, Mr Erwin Kastenberger, appearing to be in a distressed condition. As I noted in the ruling I delivered on the application,[1] the jury had been carefully instructed about issues of sympathy and prejudice and I saw no reason to discharge the jury.
[1]Transcript at 363-4.
The next application for discharge of the jury occurred on 18 February 2009 and I ruled on the matter and refused the application.[2] That application was based on evidence given by the primary Crown witness, Leonard Ryan, a person said to be another offender in the armed robbery with the accused. That application was based essentially on the evidence that Mr Ryan gave that the third offender on the Crown case, Sean Hogan, was selected to conduct reconnaissance at the proposed site of the armed robbery at Blackburn North because he was without prior convictions and therefore if he were to be intercepted in the course of that reconnaissance there would not be any suspicion or difficulty. The application was based on the inference it was said the jury would draw that Mr Ryan and, importantly, Mr Rich were, on the other hand, people with prior convictions. As I explained in that ruling, that did not seem to me to follow to the point where a high degree of necessity was demonstrated for the jury to be discharged and I refused the application. In my opinion the factual basis for this application is different from the basis for those applications although, as it is argued, it is concerned with previous conduct of the accused.
[2]Ibid at 534-9.
This application is based primarily on statements of the witness Leonard Ryan during the course of being cross‑examined by Mr Desmond of counsel on behalf of the accused. The application is also based, as I understand the argument, on the submission that there has been inappropriate “interference” on my part while the witness was being cross‑examined. I propose to deal with each matter in the order in which they occurred and express my opinion about them. I will then express an opinion about the overall position as at the time the application was made.
The first passage in the order in which events occurred arises from questions that I asked the witness Mr Ryan. During Mr Desmond’s cross‑examination I asked the following questions:[3]
[3]Ibid at 782.
Q:Just before you go to that, Mr Desmond. Mr Ryan, there must have been a time when you and Rich first discussed the possibility of an armed robbery at Blackburn?
A:Yeah, that …
Q:When do you say that was?
A:That was probably at the time that he raised PDA, a possibility of an armed robbery being done to gather funds was like mooted, if you like, at that point of time, the specifics …
Q:When was that conversation?
A:Probably before the New Year when he’d come round to my place with the PDA booklets and onwards into the New Year.
The primary complaint about that passage is that I as the trial judge have intervened on a topic in which I should not have and that as a result of those questions being asked the witness altered his evidence. I express no view about whether or not the questions resulted in a change of evidence because it is sufficient, in my opinion, for me to observe that the time at which the witness Mr Ryan and the accused first discussed the possibility of an armed robbery was a matter of significant contention and presumably of some interest to the jury. As is apparent from the transcript all I was seeking to do in a non‑leading way was to ask the witness to identify when that conversation occurred and he did so. I reject the submission that my questions were inappropriate. In the course of argument counsel for the accused referred to R v Mawson,[4] and in particular to the observations of the Full Court of this Court regarding judicial interference. In that case the judge had himself examined witnesses to elicit evidence the Crown had not sought to lead, commented adversely on the defence and failed to inform the jury (as I have already) that they were not bound by any comment of the trial judge on the facts which were for them alone to decide. No step I have taken could be compared with what occurred in that case.
[4][1967] VR 205.
The next passage that is the subject of this application occurred the following day. The witness was being cross-examined about the details of a meeting between himself and the accused on 1 March 2005 when, after the armed robbery planned for that day did not go ahead and was postponed until 8 March 2005, Mr Ryan alleges that he handed a firearm which was in his possession to the accused. That was said to have occurred in the vicinity of the rear of the accused’s office at 530 Little Collins Street in Melbourne. The witness was being questioned about the route he took to and from the office of the accused as follows:[5]
[5]Transcript at 832.
Q:So you were saying, “It’s either one of those two routes I took” and you can’t actually remember; is that the position?
A:Yeah. I’m not too sure because I’ve been, I’ve been there a number of times down the back there so I’m not too sure.
Q:But have you been there a number of times down the back carrying a 9mm Browning?
A:I have been there previously dealing with gun related matters and Hugo, yes.
Q:Carrying a 9mm Browning in your pants?
A:Well …
Q:Yes or no?
A:I don’t know if it was a Browning but I have been there before with a weapon, yes.
Q:With that particular weapon?
A:Not that particular weapon, no.
Q:Have you been there in the context of getting a 9mm Browning from Bourke Street, Melbourne, and walking down to 530 Collins Street?
A:I’ve been there in the context that I’ve returned a weapon to someone there.
Q:In any event it’s not a daily thing for you to be doing, surely?
A:No, it’s only been a couple of times before that I’ve been there.
The complaint is that the witness has given, in a non‑responsive way, information about other occasions on which he has had some dealings with the accused in relation to firearms including a handover of firearms in the vicinity of the office.
It is fair to say that Mr Ryan was the subject of significant cross‑examination about the circumstances of this handover. In answer to the first question the witness had told the jury that he was not too sure about the route he took because he had been there a number of times before. Undeterred, counsel has pressed on asking questions about whether there were a number of occasions on which he went there carrying a 9mm Browning and the witness answered as I have outlined above. This was risky questioning, much of which appeared to be unnecessary and which at the same time ran the risk of the kind of answers that were in fact given.
A few pages further on counsel reinforced that the witness was unable to describe a “mental picture” of the handover of the gun in the following terms:[6]
Q:If this thing happened you would have a mental picture of it. Would you mind painting a picture with words, please, where were you?
A:I can’t recall exactly.
[6]Ibid at 835.
Counsel then put to the witness that the reason he could not recall exactly was because he was lying and he had made up the evidence that he had given. He said in response to that, “It’s not a lie. I’ve been there before.”[7] If the questioning had stopped there, there could be no complaint. However counsel then asked the following:[8]
[7]Ibid at 836.
[8]Ibid.
Q:I’m not asking you whether you’ve been there before?
A:It’s not the first time I’ve given Hugo a gun in that laneway, you know.
Q:I’m not asking you whether you’ve been there before, witness, do you follow?
A:Yes.
Q:I’m asking you about a specific occasion and would you mind giving responsive answers to the particular question that’s asked. That is the process, do you follow?
A:Yeah. Well, ask the question.
Clearly enough the answers suggest that on previous occasions there had been some dealing between the witness and the accused in the laneway connected with firearms. That is the extent of the detail that the jury have received. Whilst, on one view, the answers were not responsive to the questions towards the end of that exchange, the witness was being accused more than once of lying and was endeavouring to explain why it was that he was not able to give a specific recollection of the details of where and in what circumstances the firearm was being handed over. It was clear by this stage that the witness would not be able to give such a careful and accurate description and for the forensic purposes of the accused I would have thought the purpose of the questioning had already been achieved.
The next step in the process involved a continuation of the cross‑examination of Mr Ryan about the laneway and the meeting with the accused. During the course of this cross‑examination the witness was shown photographs taken on behalf of the accused in recent weeks. He was asked to identify particular places where he walked and endeavour to identify where it was that he met and spoke with Mr Rich and handed him the firearm which he says he handed him. The witness was also being questioned about evidence he had given before me during a Basha enquiry on 9 October 2008. During the course of the cross‑examination before the jury I noted that on 9 October 2008 when Mr Ryan gave evidence on the Basha enquiry the photographs were not shown to him. They had, of course, not been taken at that time. The following exchange occurred:[9]
MR DESMOND: I thought Your Honour was being critical of me.
HIS HONOUR: No, I wasn’t being critical. I just want the jury to be clear that when Mr Ryan was giving evidence on 9 October he wasn’t being shown these and he now is.
MR DESMOND: In defence of myself …
HIS HONOUR: I’m not criticising you, Mr Desmond. I’m simply making sure we all understand what was happening then, that’s all. It wasn’t a criticism at all.
[9]Ibid at 840.
Counsel for the accused complained about this exchange as being an example of judicial interference and it is relied upon in support of the application for the discharge. As I made clear in argument I reject the criticism. It is absolutely clear from the transcript that I was not criticising counsel but simply endeavouring to inform the jury that the circumstances in which Mr Ryan was being cross-examined in October 2008 were different (to the extent of photographs being produced on this occasion) from the circumstances before them.
The question of the gun being handed to the accused was again the subject of questioning further on in the cross‑examination of Mr Ryan:[10]
[10]Ibid at 864.
Q:Yeah. And this is the only occasion in March of 2005, right, which is the subject matter of your statement and the giving of evidence, that you took a gun from a bag from the boot of a car in Bourke Street, isn’t it?
A:No, it’s not.
Q:It’s … ?
A:It’s not.
Q:There are two occasions?
A:No, it’s not the only time that I’ve taken a gun there. I have been parked there.
Q:No, no, the question was this is the only occasion in March 2005 you took a gun out of a bag of a boot that was parked in a car in Bourke Street; is that right?
A:Well, it was 1 March.
The complaint in relation to that passage is the same effectively as the earlier complaints dealing with Mr Ryan’s evidence that there were other occasions or another occasion on which he met with Mr Rich at the back of the building and had some dealing in firearms.
By separate topic Mr Ryan was cross-examined about the use of a storage locker at an institution called Fort Knox in West Melbourne. The background to this issue is that on 9 March 2005, the day after the armed robbery and murder at North Blackburn, the accused arranged to hire a storage locker at Fort Knox in West Melbourne. Mr Ryan and the accused have from time to time been to those premises and have been under surveillance at those premises. Counsel was, in the following passage, concentrating on how it was that Mr Rich came to have Fort Knox storage recommended to him as a place that he might make use of. The passage complained of is as follows:[11]
Q:When you say you put him on to it, can I suggest a more accurate description as to how it emerged was you had observed that there was an area in Rich’s offices on the fourth floor of Little Collins Street where he clearly had a stack of documents that had been there for some time. In other words, there was no – there wasn’t a great deal of storage space in the – we’ve said it was a three-room office set up, and you suggested to him that you were aware of this place Fort Knox where, “It would be a good place where you would have a secure unit and you could have 24-hour access where you could store some of these sort of documents, Hugo, and just get them out of the way”?
A:No, he was looking for a storage place for other things. I’m not sure if I can go into them. And I’ve put him on to it and he used that accordingly for that and other purposes.
Q:You just make this stuff up, don’t you?
A:What, am I allowed to go into that or not?
[11]Ibid at 875.
I assume that Mr Desmond was aware that in Ruling No. 15[12] I concluded that in the exercise of my discretion I would not admit the evidence of the locating of three firearms and ammunition or the red balaclava in the Fort Knox storage locker. The fact was the accused kept those items in that locker. The witness Mr Ryan knew about it and knew that was part of the purpose for the use of the locker. He had obviously been told that he could not refer to those matters. To have asked such an open‑ended question, bearing in mind that history, is ill‑advised at the minimum.
[12][2009] VSC 34R.
At all events, the witness simply said that the accused was looking for a storage place for other things and that the witness was uncertain as to whether he was entitled to describe what they were. In my view, while some level of suspicion might be aroused by that answer if in fact the jury remember it, of itself it is not, in my opinion, of significant consequence.
The last passage complained of again arises in the context of when it was that Mr Ryan and the accused first discussed committing an armed robbery in North Blackburn. Questions were asked by me and were as follows:[13]
[13]Transcript at 894.
Q:Just before you move on. The question that Mr Desmond read to you included the phrase “when do you say you first raised this issue with Rich, Blackburn”, your answer: “Would be in early 2005, it definitely would be in 2005”, and then you go into whether it was January or February. When was it that you first raised with him the identity of the Blackburn shopping centre as the target?
A:It would have been late January and into, going into February. It was after Sean [Hogan] had been able to go out there and check it out.
Q:Had there been any other discussion about armed robbery prior to that?
A:Between me and Hugo?
Q:Yes?
A:We’ve had numerous discussion about armed robberies, yes.
It is the answer “We’ve had numerous discussion about armed robberies” about which Mr Desmond complains.
During the course of the evidence there has been a number of references to possibly five conversations about this particular armed robbery with the accused. The witness was criticised about his inability to identify dates and details for each of those conversations.[14] In essence, he said that his mind was a blank and that he could not remember the specifics of those conversations. In my opinion, the answer “We’ve had numerous discussion about armed robberies” would be seen by the jury in that context rather than in a wider context discussing other offences apart from the one which occurred on 8 March 2005 or in the more global sense about armed robberies because of the need for funds as expressed by Mr Rich and by Mr Hogan.
[14]See, eg, Transcript at 900 and following.
As was noted by Chernov JA in R v Miller:[15]
The discharge of a jury without verdict is a major and serious step which can only be taken when the trial judge considers that “a high degree of need for such discharge was made evident to his mind from the facts which he had ascertained”.[16]
[15](2000) 112 A Crim R 323.
[16]Ibid at 328 (citations omitted).
Further, as Dawson J said in Crofts v R:[17]
Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge’s discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that “a high degree of need for such discharge” must appear before a discharge will be ordered.
[17](1996) 186 CLR 427 at 432.
In the course of the judgment of the Full Court in R v Boland,[18] the Court observed:
It is one thing to say that the principles relating to the exercise of discretion are the same whether the trial be a long one or a short one. It is an entirely different thing to say that in the application of those principles a judge may not, in the particular case, bear in mind the duration and expected duration of the trial. Much depends in every case on the nature and degree of the alleged prejudice, the body of evidence already heard and yet to be heard, how far the prejudicial matter may be submerged and pushed into the background by the totality of the evidence, and whether in all the circumstances a clear warning to the jury will be sufficient to avoid or dispel any prejudice and enable a fair trial to be held.
[18][1974] VR 849 at 866.
As I have indicated, this application was made on the twelfth day of the trial and the estimate which has been given to the jury for the length of this trial is somewhere between three and five months. There is still a vast amount of evidence to be called although Mr Ryan is the primary witness in the case. The matters which have been the subject of complaint are, in my opinion, sufficiently non‑specific and sufficiently peripheral to ensure that any prejudice which they create can be cured by an appropriate judicial direction and may well be subsumed by the volume of evidence yet to be heard. I have already urged the jury to concentrate on the evidence that they hear and to not speculate beyond what the evidence tells them. I have observed the jury in the discharge of their function so far in this trial and I am satisfied that the jury are conscientious in their approach to the trial and that the directions which I have given them and will give them in the future are directions they will follow. In particular I am satisfied that my directions to them not to guess or speculate will be directions that they will both understand and comply with. In all the circumstances I am not persuaded that a high degree of necessity has arisen such as requires the discharge of the jury.
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