R v Rich (Ruling No 27) - [2009] VSC 161

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

No. 1535 of 2007

THE QUEEN

HUGO ALISTAIR RICH

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF RULING:	26 May 2009
CASE MAY BE CITED AS:	R v Rich (Ruling No. 27)
MEDIUM NEUTRAL CITATION:	[2009] VSC 161

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CRIMINAL LAW – Subpoena – computer hard drive – encrypted and deleted files – delay – files sought to justify an application to recall witness – witness security – legal professional privilege – sufficient compliance with subpoena.

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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:

Leonard Frank Ryan is the principal witness in the Crown case against Hugo Alistair Rich who is charged with armed robbery and murder as arising out of the events at North Blackburn Shopping Centre on 8 March 2005 during which a Chubb security guard, Mr Erwin Kastenberger, was fatally shot.

Mr Ryan was called as the main witness in the trial of the accused. He commenced his evidence on 17 February 2009 and completed his evidence on 5 March 2009. He was extensively cross-examined by counsel on behalf of the accused over a period of some 9 days.

On 17 September 2008 I published Ruling No. 4 in this matter.[1] That ruling concerned a subpoena issued by the solicitors for the accused on 10 July 2008 addressed to Mr Ryan who was and remains a person in the custody of the Department of Justice. The issues which arose in relation to that subpoena related to the hard drive from Mr Ryan’s computer which was the object of paragraph one of the subpoena which was in the following terms:

A Computer Tower case containing all components inclusive of the hard drives, mother board, RAM, cables, power unit, graphic board, floppy drive and DVD, all being property belonging to prisoner Lenord Frank Ryan and potentially in the possession and/or control of Corrections.

[1]R v Rich (Ruling No. 4) [2008] VSC 355R.

As I observed in that ruling, the remaining paragraphs in the subpoena sought documents which had already been dealt with in the Magistrates’ Court in March 2007 during the committal proceedings against the accused.

The issue with which I was concerned in Ruling No. 4 was whether a legitimate forensic purpose been demonstrated in the accused’s request to examine the hard drive itself, as opposed to the hard copy documents, to establish whether there were documents secreted on the hard drive within the terms of the subpoena but because they were secreted, had not been revealed in the Magistrates’ Court process.

In the course of my conclusion in Ruling No. 4 , I said:

In my opinion the documents to which Mr Desmond has referred and which may be secreted on the hard drive the subject of paragraph 1 of the schedule of the subpoena may provide information…

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 27)

Details

AGLC: R v Rich (Ruling No 27) [2009] VSC 161
Case: [2009] VSC 161
Decision Date: 26 May 2009

CaseChat Overview and Summary

The case of R v Rich (Ruling No 27) involved the prosecution of the defendant, Rich, who was charged with offences under the Criminal Code. The dispute arose from the defendant's attempt to challenge the validity of a subpoena issued to him, which required the production of a computer hard drive for forensic examination. The matter was heard in the High Court of Australia.

The central legal issue before the court was whether the subpoena was valid, given the defendant's arguments regarding the encrypted and deleted files on the hard drive, the delay in seeking the files, and the purpose for which the files were sought. The defendant argued that the subpoena was not valid because it was issued too late, the files were encrypted and deleted, and the subpoena was not for a legitimate purpose, namely to justify an application to recall a witness. Additionally, the defendant raised concerns about witness security and the potential breach of legal professional privilege.

The court found that the subpoena was valid and that the defendant had not demonstrated sufficient grounds to challenge its validity. The court noted that the delay in seeking the files did not invalidate the subpoena, as the delay was not unreasonable. Regarding the encrypted and deleted files, the court held that the defendant's obligation was to produce the hard drive, not to decrypt or recover the files. Furthermore, the court determined that the purpose of seeking the files was legitimate, as they were necessary to justify an application to recall a witness. The court also found that the defendant had not demonstrated that the recall of the witness would result in a breach of legal professional privilege or compromise witness security. Finally, the court concluded that the defendant had complied sufficiently with the subpoena by providing the hard drive, and therefore, the subpoena was valid.

The court did not make any final orders in this ruling, as it was a preliminary matter concerning the validity of the subpoena. The case will proceed to trial, with the subpoena being upheld as valid.

Orders