| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1535 of 2007
| THE QUEEN |
| v |
| 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…
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- AGLC
- R v Rich (Ruling No. 3) [2008] VSC 219
- Case
- [2008] VSC 219
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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