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

v

HUGO ALISTAIR RICH

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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

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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.

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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:

1. 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.

1. 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

1. 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.

1. 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.

1. 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 firm, Mr Terrence Grundy who has been a witness in this trial.

1. On 23 March 2005 a statement was signed by Mr Andrusko (though not formally acknowledged) which was broadly consistent with the letter of 15 March 2005 to which I have referred.  Therefore, the position at that stage was that Mr Rich’s movements on 8 March 2005 were the subject of a witness statement by

   
   

   Mr Andrusko.

1. There were then several developments in relation to Mr Andrusko and he made two further statements on 17 June 2005 and 25 July 2006 in which he retreated from his original position concerning the events of 8 March 2005.  Prior to his making the last statement, on 13 January 2006, Mr Andrusko appeared before, and was questioned by, the Chief Examiner, Mr Damien Maguire pursuant to the Major Crime (Investigative Powers) Act (2004).  In his evidence he continued his retreat from his original position in his statement of 23 March 2005. These developments and the content of the statements are set out in detail in my ruling concerning the Crown’s declared intention not to call Mr Andrusko as a witness on this trial.[2]  I do not propose to repeat that detail except to refer to the summary of Mr Andrusko’s position during his evidence before the Office of Chief Examiner as I described it in that ruling:

Andrusko described the role the accused played in the preparation of his statement and said that he did not check whether the amendments suggested by Rich were accurate or not.  He claimed that he had a good memory of the events but was not certain that they occurred on 8 March 2005.  He agreed that he had made inconsistent statements about the quality of his memory.  He did suggest that the accused was “putting things in [his] brain” and that he was not careful enough to go through it.  At the time of making the statement he said he was careless and totally confused.[3]

[2]R v Rich (Ruling No 9) [2008] VSC 453R

[3]Ibid, at paragraph 22

1. During the course of this trial, counsel for the accused has launched criticism of the investigating police on the basis that they overbore Mr Andrusko and improperly “dismantled” the alibi that he provided for Mr Rich.  Counsel for the accused has chosen to raise the issue in the cause of establishing that the investigating police had decided to build a case against the accused regardless of whether he was, in fact, the offender and in order to do so pressured Mr Andrusko into recanting from his alibi.  By way of response, the Crown wish to establish through the evidence of police including the informant Senior Detective Trewavas, that far from being overborne by the police, Mr Andrusko – a barrister and solicitor of this Court – had realised that, having permitted the accused to draft portions of his statement or contribute to the drafting of his statement providing that alibi, he was in some difficulty and wished to recant from that position.  

1. Whilst the firm Grundy Maitland announced to the Victoria Police that they were acting as the solicitors for the accused, there is no other evidence to indicate that

   
   

   Mr Andrusko was acting in any capacity as a legal advisor to the accused – quite the contrary.  Mr Andrusko was, himself, a potential witness for the accused concerning the events of 8 March 2005.  During a hearing at the Office of the Chief Examiner,

   
   

   Mr Andrusko gave evidence about the circumstances of the original statement he made.  Mr Trewavas was present.  In that evidence, Mr Andrusko described some of the discussions he had with Mr Rich at the time the statement was being formulated. 

1. Counsel for the accused objects to reference being made to what Mr Trewavas heard Mr Andrusko saying during that evidence for the purpose of meeting the assertion that Mr Andrusko changed his position on his memory of 8 March 2005 due to the application of pressure by investigating police.  The only basis of the objection to this evidence is that that such communications between Mr Rich and Mr Andrusko concerning the content of Mr Andrusko’s statement are claimed by the accused to be the subject of legal professional privilege.  I note, as Mr Desmond properly pointed out during the submissions, that in his evidence before the Chief Examiner,

   
   

   Mr Andrusko said that at the time of making his first statement he did not regard himself as acting under the “general auspices of [his] principals in appearing and acting for a client”[4].  In some senses and in the absence of any other evidence, that resolves the argument against the submissions of the accused.  There is no evidence from the accused that I am aware of to suggest that the communications he had with Mr Andrusko were for the purpose of  getting legal advice or assistance.  Indeed, as I follow it, the intention was that the result of the communications would be a statement by Mr Andrusko that would given to police, as it was.

   [4]Evidence before the Office of Chief Examiner – 13 January 2006 at page 25.

1. Confidential communications passing between a client and a legal advisor are protected by the privilege if they were made to enable the client to obtain legal advice or assistance in connection with existing or contemplated legal proceedings.  The fact that a person speaking is a solicitor, and the person to whom he speaks is his client affords no protection.  Indeed in this case I am far from satisfied that John Andrusko was the solicitor acting for the accused.  The subject matter of the discussion – the contents of Mr Andrusko’s proposed police statement itself – demonstrates that the communications could not possibly have been privileged. 

1. The rationale for the rule has been stated in many cases including Attorney General (NT) v Kearney[5].  In that case the High Court held that it would be contrary to the public interest in the better administration of justice to allow legal professional privilege to be used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law. Dawson J (dissenting but stating the general principle) said:

The whole purpose of legal professional privilege is to ensure that professional communications may take place in confidence which will not be violated by compulsory disclosure of them. The policy which lies behind the doctrine views unrestricted communication between lawyer and client upon professional matters as being necessary for the proper functioning of our legal system.[6]

[5]Attorney General (NT) v Kearney (1985) (1985) 158 CLR 500

[6]Ibid  at 532

1. In Daniels Corporation International Pty Ltd  v ACCC[7]  Gleeson CJ, Gaudron, Gummow and Hayne JJ in dealing with the “dominant purpose” test said:

It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the "dominant purpose" test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation in place of the "sole purpose" test which had been applied following the decision in Grant v Downs.[8]

[7](2002) 213 CLR 543

[8]Ibid at 552

1. In my opinion, the submission that these communications could have been privileged must be rejected on the material to which I have so far referred.  The communications were not for the dominant purpose of getting legal advice or assistance.  However, there is another aspect which highlights the futility of this application.  On 12 April 2007, at the committal proceedings in this matter,

   
   

   Mr Andrusko gave evidence and was cross-examined by the accused who was then self-represented.  In that cross-examination Mr Rich questioned Mr Andrusko extensively about the role that he played in the compilation of Mr Andrusko’s statement[9].  Rather than seek to protect the communications on the basis that they were privileged  (at no stage did Mr Rich suggest to Mr Andrusko that Mr Andrusko was acting as his solicitor) the purpose of the questioning was to establish that the only criticisms or contributions that Mr Rich had made were grammatical or concerned with the layout of the document.

   [9]Transcript of proceedings 12 April 2007 – pages 1109-1116.

1. In my opinion, the communications between Mr Andrusko and the accused to which reference is sought to be made during the evidence of Senior Detective Trewavas are not subject to legal professional privilege.

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