R v Rich (Ruling No 4)
[2008] VSC 355
•17 September 2008
| 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: | 9 September 2008 | |
DATE OF RULING: | 17 September 2008 | |
CASE MAY BE CITED AS: | R v Rich (Ruling No.4) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 355 | |
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CRIMINAL LAW – Subpoena – Computer hard drive – Legitimate forensic purpose.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Tinney Mr S. Milesi | Office of Public Prosecutions |
| For the Accused | Mr J. Desmond with Mr R. Edney | Doogue & O’Brien |
| For Leonard Ryan | Mr J. Gullaci | Lewenberg & Lewenberg |
HIS HONOUR:
On 10 July 2008 the solicitors for the accused, Doogue & O’Brien, issued a subpoena for production addressed to a person in the custody of the Department of Justice, Leonard Frank Ryan. The schedule in the subpoena was in the following terms:
The documents and things you must produce are as follows:
1.A Computer Tower case containing all components inclusive of the hard drives, mother board, RAM, cables, power unit, graphic board, floppy drive and DVD, all being property belonging to prisoner Lenord Frank Ryan and potentially in the possession and/or control of Corrections.
2.Two Lever Arch Folders entitled “Relevant Issues” or “Relevant Individual Issues” and containing approximately 627 pages of documents.
[Please note: the documents can also be identified by a Footer margin specifying “Filename: Master Document – Relevant Issues 001 – 1023:2 – AM 26/09/2006 – Page 1 of 627”]
3.Any Lever Arch Folders containing Summary Reports for Witnesses and Telephone intercept material (these folders contain files prepared in advance of responding to the police allegations and are not files previously provided by the Victoria Police).
It is important to note that a subpoena in almost identical terms to this one had been issued in the Magistrates’ Court at the time of the committal proceedings in March 2007. During those proceedings, the accused was unrepresented. However, with the assistance of the Magistrate and in response to objection taken by counsel on behalf of Ryan to the production of the computer or the documents contained on its hard drive, the accused relied on the forensic purpose as being to obtain documentation which was stored on the computer that went to the evidentiary issues in the case including to Ryan’s credit as a witness. He also claimed that some of the material was co-authored by him and Ryan.
After hearing submissions, the Magistrate concluded that there had been sufficient particularisation of the documents and items sought, and that there was a legitimate forensic purpose demonstrated. There was then a discussion about how the documents – which appeared to be hidden or password protected – should be obtained and by whom. While some 20 odd folders of material printed from the hard drive were released to Rich by the Magistrate pursuant to the subpoena, Rich maintained that there remained documents secreted on the hard drive which were covered by the subpoena. Rich submitted, and the Magistrate seemed to accept, that Rich (or an expert acting on his behalf), would require access to the original hard drive in order to determine what material remained on the hard drive. Access to the original hard drive itself, it seems, was never finalised. The Magistrate did, however, make an order that the original hard drive be preserved, in the event that a proper application was made to a court to have the hard drive forensically examined.
When this subpoena was called on in this Court, Mr Gullaci announced his appearance on behalf of the respondent to the subpoena although he indicated that he attended as a friend of the Court because although he had acted in the matter previously when it was debated before the Melbourne Magistrates’ Court at the committal proceedings, due to a lack of a grant of legal aid he had not been formally briefed. As to that, he said:[1]
I can confirm that Legal Aid have refused funding for this matter. On the instructions that I’ve received from my instructor the primary basis for refusal at this stage is that these matters were fully ventilated in the Magistrates’ Court and based on their guidelines, at least at this stage, there’s no reasonable likelihood that funding will be granted.
[1]Transcript at 301.
As it turned out the central issue that I have to deal with concerning access to the hard drive of the computer was not determined by the Magistrate and even if it had been, I was concerned with a debate arising from a new subpoena issued in this Court. I am well aware of the strain on legal aid funding but it is unfortunate to have authorities responsible for granting legal aid making qualitative judgments about the how issues might be resolved and declining assistance on that basis.
Returning to the subpoena, the real issue which arose concerned paragraph 1 of the schedule because it was common ground between the parties that the documents referred to in paragraphs 2 and 3 have already been provided following the debate in the Magistrates’ Court.
As often occurs in such circumstances, the argument becomes a circular one. Mr Gullaci accepts that there may be documents on the hard drive which are relevant but until they are identified “in terms of what is being sought” he argues that his client cannot assist. He also adds in his submissions that it is necessary for the legitimate forensic purpose to be identified in relation to what is sought pursuant to the subpoena. He submits that the subpoena is not specific enough and therefore as to paragraph 1 of the schedule of the subpoena, it should be set aside on the basis that it is too wide.
In my opinion the difficulty with that submission is that it effectively ignores the status of Ryan in this case and the history in relation to attempts by the defence to obtain documents whether from the computer or otherwise.
Ryan is a principal witness in this case. The Crown case against the accused is put on the basis that at the time the accused carried out the relevant armed robbery and killed the deceased, Mr Kastenberger, Ryan was present as an accomplice in the armed robbery. He will be called to give direct evidence about what he saw and heard and of course will give direct evidence on the main central issue in the case – whether his co-offender was the accused or some other person.
During his submissions, Mr Desmond who appears with Mr Edney on behalf of the accused, referred to the lengthy history of this matter before the Magistrate who conducted the committal proceedings. As he pointed out in his submissions, in examining the documents, the Magistrate identified a number of documents on the hard drive on Ryan’s computer which he could see as a result of his inspection but which were password protected. His Honour had expressed the view that it was appropriate to allow cross‑examination on those matters in an effort to address the issue of whether or not they were relevant for the purpose of the subpoena issued on behalf of the accused. On the basis of the transcript of the committal proceedings it seems clear enough that the Magistrate contemplated that at some stage in the future a court might be disposed to order that the hard drive be examined and so, for that purpose, he gave directions the effect of which was to preserve the integrity of the hardware and the data which is on it.
Mr Desmond also relied on facts to which I have earlier referred including that Ryan is a professional armed robber and a “principal in this incident”. He also refers to a likelihood that there are documents which are connected with the change of approach that Ryan had in relation to this case, it having been his original intention to contest the matter. It is clear that Ryan is an important witness and his credit will be substantially in issue throughout the proceedings.
I was referred by Mr Gullaci to the judgment of Bell J in Ragg v Magistrates’ Court of Victoria and Corcoris.[2] In that case his Honour also refers to the judgment of Gillard J in R v Mokbel (Ruling No. 1).[3] In both cases their Honours deal with the principles in relation to attacking the validity of a subpoena.
[2][2008] VSC 1.
[3][2005] VSC 410.
As Gillard J noted in Mokbel, the authorities indicate that a court must adopt a liberal approach to the issue in criminal cases.[4] The first step is to require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents. The test which is imposed on me is whether I am satisfied “that it is ‘on the cards’ that the documents would materially assist the accused in his defence”.[5]
[4]See R v Saleam (1989) 16 NSWLR 14; Alister v R (1984) 154 CLR 404.
[5]R v Saleam (1989) 16 NSWLR 14 at 18 (per Hunt J).
As Bell J noted in Ragg, “[i]t is clear that the accused does not have to establish that the defence would actually be assisted by the production of the documents.”[6] His Honour later said: “In determining an objection to a summons to produce in the criminal law context, the court is really determining, after balancing those competing considerations, what a fair trial between the prosecution and the accused requires the defence to be given.”[7]
[6][2008] VSC 1 at [88]
[7]Ibid at [93].
His Honour then concluded that the true test on the basis of the authorities was “whether there is a reasonable possibility that the sought‑for information would materially assist the defence. Probability is too high a standard.”[8]
[8]Ibid at [94], quoting Cummins J in DPP v Selway [2007] VSC 244 at [10].
In my opinion the documents to which Mr Desmond has referred and which may be secreted on the hard drive the subject of paragraph 1 of the schedule of the subpoena may provide information which will be relevant to the question of credibility of Ryan. It follows that counsel for the accused have demonstrated that this material is sought for legitimate forensic purposes.
However, unlike other cases, it is not simply a matter of handing over the documents. In the circumstances I propose to adjourn the further hearing on this subpoena pending the formalising of arrangements for the hard drive, which is presently in the custody of the Court, to be examined by an independent expert to whom reference has been made during the course of Mr Desmond’s submissions. To advance that process it is necessary for Victoria Legal Aid to approve funding and in my opinion such funding is necessary in order to finalise the process begun by this subpoena.
Once that process has occurred and any material which has not so far been disclosed is identified, I will hear further argument on how much, if any, falls within the forensic purpose to which I have earlier referred.
In relation to paragraphs 2 and 3 of the schedule of the subpoena, I conclude that they have been already complied with and that all documents which are there referred to are presently in the possession of the accused.
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