R v Rich (Ruling No 29)
[2009] VSC 168
•4 May 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1537 of 2007
| THE QUEEN |
| v |
| 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 that he should not be around. On both occasions Dickson went to Ballarat.
The only evidence that Dickson might have been able to give directly affecting the issue of whether Hugo Rich participated in these offences was in relation to a conversation that occurred some time after 8 March 2005 following the return of Leonard Ryan from Sydney. Ryan had gone to Sydney from Melbourne on the night of the armed robbery. The statement was in the following terms:
I think it was the Thursday that Lenny came back, a day after this or early the following week, we both went into Hugo’s office in Little Collins Street. From there we went to a coffee shop three floors up in a building not far away. Lenny had asked me to go along to watch his back. We sat down outside the coffee shop, next to the balcony railing as I remember looking down. Lenny asked Hugo where the ammunition had come from, and Hugo replied that he was not going to go in empty handed. Lenny said, “It was not agreed upon you should have told me”. Hugo said, “I made a statement, keep your mouth shut and deal with it”. I looked at Lenny and he looked at me without saying anything. But we were both surprised and shocked at Hugo’s response. After this Lenny and I walked away and Hugo went his own way.
On 25 August 2008, I commenced pre-trial hearings in relation to this trial. Dickson had not been called at the committal proceedings in 2007. As a result, on 18 September 2008 Dickson was called to give evidence.[1] On 19 September 2008, at the end of the day and upon request from Mr Desmond, appearing on behalf of the accused, I warned the witness in the following terms:
[1]See transcript at p 926.
HIS HONOUR: Yes. Mr Dickson, did you hear that?
WITNESS:Yes.
HIS HONOUR: What Mr Desmond says is right, there is an order for witnesses out of court, although I am not suggesting there are other witnesses that you could speak to, but you are not permitted to speak to any other witnesses in the case, do you understand?
WITNESS: Okay.[2]
[2]See transcript at p 1090
On 22 September Mr Dickson was recalled and was further cross-examined by Mr Desmond. During the course of that evidence Dickson was asked whether over the intervening weekend he had sought permission within the prison in which he was held to speak to Ryan by telephone and whether he had done so. He said he did not speak to him nor did he seek permission to speak to him. Confronted with the records which showed that a telephone call was approved by the Governor of the prison on the previous Saturday to enable Dickson to speak to Ryan, he agreed that he had requested to make a call to Ryan on that day in contravention of the direction that I had given him and, as it turned out, had spoken to him specifically for the purpose of discussing the evidence he was giving. In particular, he raised with Ryan the issue of the alibi which he had originally attempted to provide.
That having been established, the matter was temporarily adjourned while Dickson obtained legal advice, he having clearly enough perjured himself.[3] Ultimately, I referred the matter to the Director of Public Prosecutions. Whether any further action has been taken is unknown to me.
[3]See transcript between pp1134-1139.
On 18 December 2008 the accused made a bail application which was unsuccessful. During the course of the submissions in support of that application Mr Desmond on behalf of the accused made submissions about the Crown case and its strength or lack of it and said, in relation to Dickson, the following:[4]
MR DESMOND: Your Honour is in the best position having heard it, and insofar as I address that issue of fact-finding, I mean he gives them Rich on the critical issue but he is a most unimpressive witness in relation to all manner of detail that he ought be expected to answer, to the extent that Dickson inculpates Rich, this is the word of a bald faced liar who on oath denies having spoken to Ryan during cross-examination and assures the judge of a Supreme Court, "I've got no intention of so", and then denies it the following Monday until he's then confronted with the note of Governor Smith is a name I'll use, I can't remember the Governor's name. "Did you make that call? Yeah." Water off a duck's back to these people. He - the papers have been referred to the DPP, the defence have heard no further as to what's happened in that regard, but of course the DPP is proposing to call Dickson as a witness of truth in that context.
[4]See transcript at p 3662.
In January 2009 I was advised by counsel on behalf of the accused that they had been, in turn, advised that the Crown were not proposing to call Mark Dickson as a witness.
On 17 February 2009 I was informed by Mr Tinney that in considering whether or not he would call Dickson he thought it was significant not only that Dickson had committed perjury but the circumstances in which he had done so – i.e. that he had been warned specifically in relation to there not being any contact between he and the other witness Leonard Ryan[5]. As to that he submitted, referring to the earlier incident over the telephone call with Ryan:
This was a deliberate piece of conduct employed by Mr Dickson in relation to that transaction in breach of the order of the Court in relation to a witness Ryan who was surprised, as is clear from the material, to receive that communication. A very significant event and one which he then came to the witness box and told lies about. Now, in that setting for him to be called in any shape or form by the Crown in our submission is something that really can’t be contemplated in these circumstances.
[5]Transcript at p.435
On 30 April 2009 I heard further submissions from counsel on this issue. Counsel on behalf of the accused, Mr Desmond, spent a substantial portion of his submissions identifying not so much the evidence that Dickson could give which went directly to the issues in this trial but rather the manner in which he desired to cross-examine Dickson. Such cross-examination was to be aimed primarily at demonstrating that what Dickson said was untrue and also for the purpose of endeavouring to use such an attack on Dickson to impugn the evidence and credibility of Leonard Ryan.
It is sufficient for me to observe that there does not appear to be any evidence that Dickson gives which is directly relevant to Rich’s involvement in these offences aside from the evidence to which I have already referred concerning the conversation after 8 March 2005. As I noted in Ruling No. 9[6], in Richardson v R[7] the High Court, in referring to the judgment the prosecutor must make as to whether or not a witness should be called referred to that decision being made taking into account “many factors” and included whether or not the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful and whether in the interest of justice the evidence should be subject to cross‑examination by the Crown. The High Court later observed in Apostilides[8] that the decision not to call a witness must be made with a due sensitivity to the dictates of fairness towards an accused person[9]. The Court went on to note that the unreliability of the evidence will only suffice where there are “unidentifiable circumstances” which clearly establish it as opposed to the prosecutor’s suspicion bearing in mind the history in relation to this witness there are certainly circumstances which appear to demonstrate the willingness of the witness to perjure himself, coupled with the express desire of counsel for the accused to have the witness called in order that he be cross‑examined to, in turn, be demonstrated to be a liar.
[6]R v Rich (Ruling No. 9) [2008] VSC 453R
[7](1974) 131 CLR 116.
[8]R v Apostilides (1984) 53 ALR 445
[9]Ibid at 455
Ultimately, the decision is one for the prosecutor. The only issue I have to deal with, as I was required to consider in Ruling No. 9[10] and the subsequent ruling I delivered in relation to Mr Andrusko on 30 April 2009, is whether I should question the prosecutor in order to discover the reasons why he is not calling Dickson as a witness. I am specifically not called upon by authority to adjudicate the sufficiency of those reasons. The real issue is whether I should now, with the close of the Crown’s case imminent, invite the prosecutor to reconsider his decision not to call Dickson having regard to the implications as they now appear to me be at this stage of the proceedings. I am not able, nor authorised, to direct the prosecutor to call a witness. To a significant extent, the process contemplated by the High Court in Apostilides has occurred. I have been provided with detailed reasons for Dickson not being called which are the result of detailed reflection by the prosecutor in response to a request to reconsider by the accused or counsel on his behalf. I do not propose to invite the prosecutor to reconsider his decision not to call Dickson. That matter ultimately is a matter for him.
[10]R v Rich (Ruling No 9) [2008] VSC 453R
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