R v Rich (Ruling No 26) - [2009] VSC 159

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:	23 April 2009
DATE OF RULING:	24 April 2009
CASE MAY BE CITED AS:	R v Rich (Ruling No. 26)
MEDIUM NEUTRAL CITATION:	[2009] VSC 159

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CRIMINAL LAW – Voir dire – admissibility of accused’s voir dire or pre-trial evidence as part of the Crown case – Wong Kam-Ming breadth of application of principle – Right to silence – realisation of the possible use of voir dire evidence – Potential effect of Uniform Evidence Act – Crown application to lead pre-trial evidence of accused refused – Rebuttal of alibi – Relevance of evidence – Delay in Notice of Additional Witness – Effect of delay – Refusal by accused to give notice of alibi within time.

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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:

Introduction

Hugo Alistair Rich is standing trial charged with murder and armed robbery on 8 March 2005. The details of the case against him have been summarised in many of the previous 25 published rulings I have been called upon to deliver and a large variety of ex tempore rulings I have delivered during the course of the trial. The trial is in the closing stages of the Crown case. There have now been in excess of 40 hearing days. Mr Tinney SC, the senior Crown prosecutor, has announced his intention as part of the Crown case to lead details of evidence given by the accused during a pre-trial application by him for a temporary stay of the trial on 27 January 2009. Whether this evidence can be properly described as evidence given on the voir dire is, to some extent, in contention.

My ruling in relation to that application is in R v Rich(Ruling No. 20)[1]. In the course of that ruling[2] I concluded as follows:

In this case, he [i.e. the accused] claims he had precisely that exculpatory information in electronic form as well as two significant witnesses, but in a period of almost four years he has been unable to obtain it and appears not to have approached the witnesses or the owners of the building from which the CCTV was diverted. He did not need legal advice to understand the significance of the information – that was something he well knew and, on his evidence, motivated its creation.
The convoluted steps which he has described to conceal the information that he now says he requires are almost beyond belief. That, coupled with the conduct of the accused over the entire period and the long delay in even raising this issue leaves me in a position where I am by no means persuaded that such data does actually exist.
The application for a…

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 26)

Details

AGLC: R v Rich (Ruling No 26) [2009] VSC 159
Case: [2009] VSC 159
Decision Date: 24 April 2009

CaseChat Overview and Summary

In the matter of R v Rich, the Court of Appeal was tasked with determining the admissibility of evidence presented by the accused during a voir dire, specifically whether it could be incorporated into the Crown's case. The dispute centred on whether the principle established in the case of Wong Kam-Ming applied, allowing the Crown to use the accused's pre-trial evidence in their case, and the broader implications of the Uniform Evidence Act on this principle. The Court was also required to consider the accused's right to silence and the impact of a delay in providing a notice of an alibi.

The court examined whether the evidence presented by the accused during the voir dire could be used by the Crown, and whether the delay in the accused providing a notice of an alibi affected the admissibility of this evidence. The court deliberated on the extent to which the Uniform Evidence Act might alter the traditional approach to the admissibility of such evidence, particularly in relation to the accused's right to silence and the practicalities of using voir dire evidence. The court also considered the effect of the accused's refusal to provide a notice of alibi within the required timeframe.

The court concluded that the Crown's application to lead the pre-trial evidence of the accused as part of their case was refused. The court found that the potential use of voir dire evidence to rebut an alibi did not automatically render such evidence admissible for the Crown. The court emphasised the importance of timely notice of alibi and the impact of delay on the admissibility of evidence. The court held that the principles established in Wong Kam-Ming did not permit the Crown to use the accused's voir dire evidence in their case, and that the delay in providing a notice of alibi further prejudiced the accused's right to a fair trial. The court's decision was grounded in the need to protect the accused's right to silence and the procedural fairness inherent in the criminal justice system.

The final orders of the court were that the Crown's application to lead the accused's pre-trial evidence was refused. The court did not permit the Crown to use the accused's voir dire evidence as part of their case. The court emphasised the importance of adhering to the timelines for providing notices of alibi and the potential consequences of delays. The court's decision underscored the need to balance the rights of the accused with the interests of justice, and to ensure that the administration of criminal law was conducted fairly and in accordance with legal principles.

Orders