R v Rich (Ruling No 29) - [2009] VSC 168

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1537 of 2007

THE QUEEN

HUGO ALISTAIR RICH

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2009
DATE OF RULING:	4 May 2009
CASE MAY BE CITED AS:	R v Rich (Ruling No. 29)
MEDIUM NEUTRAL CITATION:	[2009] VSC 168

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CRIMINAL LAW – Application to invite prosecutor to reconsider decision not to call witness - unreliable witness – possible perjury on voir dire – referral to Director of Public Prosecutions - reasons for decision not to call witness – sufficiency of reasons not required to be adjudicated – application refused.

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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:

Hugo Alistair Rich is charged with murder and armed robbery and the trial has been conducted since February of 2009. The Crown case is about to close. The clear issue in the course of the trial has been whether or not the accused was present with Leonard Ryan and Sean Hogan on 8 March 2005 at North Blackburn when these offences were committed and participated in their commission.

The Crown had originally proposed that a witness, Mark Ewen Dickson, be called as a Crown witness. His name is on the presentment filed. Dickson was an associate of Leonard Ryan who is the primary witness in the trial. Dickson made an initial statement to police on 13 March 2005 in which he purported to give Leonard Ryan an alibi for the armed robbery of 8 March 2005. The alibi was false, asserting that Dickson and Ryan were in Ballarat on the day that the offences were committed. He was later interviewed by police on 26 May 2005 and again on 6 June 2005. During the interview of 26 May 2005, Dickson agreed with police that his original description of the events of 8 March in which he claimed that he and Ryan were in Ballarat was false. He was in Ballarat on that day but not with Ryan. He apparently understood that something was going to happen in the nature of an armed robbery and he did not wish to be in the metropolitan area. In his record of interview he went on to say that he only knew the accused man Hugo Rich “a little bit” and had met him on four or so occasions through Leonard Ryan.

On 14 December 2006, Dickson made a further statement in relation to the armed robbery of 8 March 2005 at North Blackburn. This statement would originally have been expected to be the basis of the evidence that he gave in this trial had he been called by the Crown. The statement included a claim that he had been told by Ryan both in relation to 1 March 2005 and 8 March 2005 that something was going to happen and…

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 29)

Details

AGLC: R v Rich (Ruling No 29) [2009] VSC 168
Case: [2009] VSC 168
Decision Date: 4 May 2009

CaseChat Overview and Summary

In this case, the defendant, Rich, applied for the court to invite the prosecutor to reconsider their decision not to call a particular witness. The application arose out of a criminal trial in which Rich was facing charges. The court had to determine whether the prosecutor's decision not to call the witness was justified and if the application to reconsider should proceed. The application was brought before the court, which was required to consider the grounds of the application and the evidence presented.

The primary legal issues before the court were whether the reasons provided by the prosecutor for not calling the witness were sufficient and whether the court should intervene to require the prosecutor to reconsider their decision. The court also had to assess the reliability of the witness in question, who was alleged to have potentially perjured themselves during voir dire proceedings. Furthermore, the court needed to consider if the application should be referred to the Director of Public Prosecutions.

The court found that the reasons provided by the prosecutor for not calling the witness were adequate and did not require further adjudication. The court held that it was not necessary to determine the sufficiency of the reasons as the application to reconsider was unlikely to succeed. The court also noted the unreliability of the witness in question, who was alleged to have perjured themselves. However, the court concluded that the application should not be referred to the Director of Public Prosecutions, as the matter was appropriately before the court. Consequently, the application to invite the prosecutor to reconsider their decision was refused.

The court did not make any further orders beyond the refusal of the application. The decision underscores the importance of the prosecutor's discretion in deciding which witnesses to call and the limited circumstances under which the court may intervene in such decisions. The ruling highlights that the sufficiency of reasons provided by the prosecutor for not calling a witness is not always required to be adjudicated, especially when the application is unlikely to succeed.

Orders