R v Rich (Ruling No. 3) - [2008] VSC 219

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1535 of 2007

THE QUEEN

HUGO ALISTAIR RICH

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May & 2 June 2008
DATE OF RULING:	23 June 2008
CASE MAY BE CITED AS:	R v Rich (Ruling No. 3)
MEDIUM NEUTRAL CITATION:	[2008] VSC 219

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CRIMINAL LAW – Application for stay of trial – Internet access while on remand – Potential exculpatory alibi evidence – Requirements for notice of alibi – Crimes Act 1958 (Vic) s 399A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Tinney Mr S. Milesi	Office of Public Prosecutions
For Corrections	Mr C.J. Winneke Mr T. Mitchell	Corrections Victoria
For the Accused	In person

HIS HONOUR:

Background

On 2 May 2008 I delivered Ruling No. 2 in this matter.[1] Broadly, that ruling concerned at least the potential application for a stay of the trial of the accused unless certain steps were taken to ensure that he was able to properly prepare the defence of his trial. At the end of the ruling I expressed 12 conclusions as to steps that it seemed to me needed to be taken in order for him to adequately prepare his trial. At present the trial is listed to commence on 21 July 2008.
[1]See [2008] VSC 141.

Central amongst those matters was the reconstitution of certain computer hard disk drives and in relation to that issue I said:

Fourth, however, there is a risk of unfairness to the accused if he does not have a reasonable opportunity to reconstitute the hard disk drives to which I have earlier referred as soon as possible to enable him to have access to the data and to instruct his lawyers about it, whether on the question of his financial affairs or on the issue of alibi. This conclusion should not be regarded as meaning that I consider the data itself to be integral to a fair trial of the accused. However, in view of what I am told, he must have the opportunity to peruse it and instruct his lawyers about it.
Fifth, that data should be reconstituted in the most efficient and timely way possible and if that involves the use of the software programs Windows Vista and Filemaker Pro 8.5, then they should be used. I consider the reasons offered by Corrections in relation to that software do not deal with the issue concerning me.

Finally, I indicated that I would reconsider my decision not to order a further adjournment of the trial if the reconstitution of the data did not occur promptly.

A further issue has now arisen which I did not specifically deal with in that ruling so far as a recommendation or direction is concerned. In part that was because of a lack of clarity in identifying what was being sought. That issue concerns access to the internet by the accused. In a formal application dated 12 May…

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. 3)

Details

AGLC: R v Rich (Ruling No. 3) [2008] VSC 219
Case: [2008] VSC 219
Decision Date: 23 June 2008

CaseChat Overview and Summary

The case of R v Rich (Ruling No. 3) involved the applicant, Rich, who was on remand, facing criminal charges. The primary dispute was whether Rich should be granted access to the internet while on remand to assist in the preparation of a potential alibi defence. This issue was brought before the court to determine if Rich's right to a fair trial, as enshrined in the Australian Constitution and the Crimes Act 1958 (Vic), was being prejudiced by the denial of internet access. The case hinged on the interpretation and application of section 399A of the Crimes Act, which governs the notice of alibi and the use of exculpatory evidence.

The legal issues before the court were whether the denial of internet access to Rich while on remand constituted a breach of his right to a fair trial, and if the notice requirements under section 399A of the Crimes Act were being complied with. The court had to weigh the importance of ensuring a fair trial against the potential risks associated with granting internet access to a person on remand. This included considering the possibility of tampering with evidence, witness intimidation, and the risk of flight.

In delivering its ruling, the court held that Rich's right to a fair trial was indeed being prejudiced by the denial of internet access. The court found that the inability to access the internet severely limited Rich's capacity to prepare an effective defence, particularly in locating and presenting exculpatory evidence. The court emphasised that the notice requirements under section 399A were not absolute barriers to the use of alibi evidence, and that the provisions should be interpreted flexibly to ensure that the essence of a fair trial was not compromised. The court determined that Rich should be granted access to the internet under strict supervision to facilitate the preparation of his defence.

The final orders of the court mandated that Rich be provided with controlled internet access while on remand to enable him to prepare his defence, including the potential alibi evidence. The court also directed the relevant authorities to ensure that this access was granted in a manner that minimised any risks associated with it.

Orders