R v Rich (Ruling No 28) - [2009] VSC 162

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

No. 1535 of 2007

THE QUEEN

HUGO ALISTAIR RICH

---

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April 2009
DATE OF RULING:	27 April 2009
CASE MAY BE CITED AS:	R v Rich (Ruling No. 28)
MEDIUM NEUTRAL CITATION:	[2009] VSC 162

---

CRIMINAL LAW – Communications between accused and a solicitor – Whether employee solicitor of firm acting as solicitor for accused - Whether legal professional privilege applies – Solicitor a potential alibi witness – Communications concern solicitor’s police statement – dominant purpose test – Purpose not for legal advice or assistance – Solicitor cross-examined by accused in person at committal.

---

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:

Hugo Alistair Rich is standing trial charged with murder and armed robbery which occurred on 8 March 2005. The details of the case against him have been summarised in many of the previous 26 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.

The accused has filed a Notice of Alibi[1] and his defence has been conducted on the basis that on the date on which the offences of armed robbery and murder were committed, he was not at the scene but rather in the precincts of his “business premises” at 531 Little Collins Street, Melbourne.
[1]As to that see generally R v Rich (Ruling 26) [2009] VSC 159R

The business premises of the accused were in the vicinity of the offices of a firm of solicitors, Messrs Grundy Maitland. Mr John Andrusko was a solicitor working at that firm.

After the armed robbery of 8 March 2006 and the killing of Mr Erwin Kastenberger, members of Victoria Police began to make enquiries including enquiries about the whereabouts of the accused, Mr Rich. Police spoke to Mr Rich on or about 12 March 2005 and then again on 15 March 2005. Following that second occasion, a letter was written by Mr Terrence Grundy, principal of the firm Grundy Maitland, to Detective Senior Constable Cron of the Armed Offenders Squad, referring to the meeting of that day with Mr Rich and with Mr Grundy.

The letter dated 15 March 2005 clearly announces that Grundy Maitland are the lawyers for Mr Rich and that to the extent that information about Mr Rich’s movement on 8 March 2005 would be provided, it would be provided by them on his behalf. The letter then sets out details of Mr Rich’s movements that day. It then gives a description of the observations of Mr Andrusko on 8 March 2005 including observations of Mr Rich at particular times. The letter is signed by a principal of the…

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 28)

Details

AGLC: R v Rich (Ruling No 28) [2009] VSC 162
Case: [2009] VSC 162
Decision Date: 27 April 2009

CaseChat Overview and Summary

The case of R v Rich (Ruling No 28) involved the respondent, Rich, who was facing criminal charges. The primary dispute centred around the applicability of legal professional privilege to communications between Rich and an employee solicitor of the firm that was acting as his legal representative. The case was heard in the Victorian Supreme Court, which was asked to determine whether these communications were protected by legal professional privilege.

The legal issues at hand revolved around whether the employee solicitor's role as a potential alibi witness meant that the communications were not covered by legal professional privilege. The court was tasked with applying the dominant purpose test to determine if the primary intention behind the communications was to seek legal advice or assistance. Additionally, the court had to consider the implications of the accused cross-examining the solicitor in person during the committal proceedings.

The court ruled that the communications between Rich and the employee solicitor were not protected by legal professional privilege. It held that the dominant purpose test was not satisfied because the primary intention behind the communications was not to seek legal advice or assistance, but rather to prepare for Rich’s police statement. The court found that the nature of the communications, which concerned the solicitor’s police statement, did not align with the traditional purpose of legal professional privilege. Furthermore, the fact that Rich cross-examined the solicitor in person at the committal stage did not alter the court’s assessment that the privilege did not apply.

The court’s decision resulted in the communications between Rich and the employee solicitor being admissible as evidence in the proceedings. This ruling underscores the importance of the dominant purpose test in determining the scope of legal professional privilege and highlights the limitations of privilege when communications involve potential alibi witnesses or are not primarily for the purpose of obtaining legal advice.

Orders