R v Rich (Ruling No 6) - [2008] VSC 436

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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:	11 & 15 September 2008
DATE OF JUDGMENT:	23 October 2008
CASE MAY BE CITED AS:	R v Rich (Ruling No. 6)
MEDIUM NEUTRAL CITATION:	[2008] VSC 436

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CRIMINAL LAW – Voice identification – Reliability – Identification at court where accused expected to be seen – Prejudice – Discretion – Whether unfair to admit the evidence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Tinney with Mr S. Milesi	Office of Public Prosecutions
For the Accused	Mr J. Desmond with Mr R. Edney	Doogue & O’Brien

HIS HONOUR:

This is an application on behalf of the accused, Hugo Rich, to exclude the evidence of the witness Tony Laria, insofar as it relates to the identification of the voice and physical appearance of the accused at the Melbourne Magistrates’ Court on 21 March 2007 and 3 April 2007. The application has proceeded on the basis that although the evidence is relevant and admissible, the evidence should be excluded in the exercise of my discretion.

Factual Circumstances

On Tuesday 8 March 2005 two Chubb security guards were delivering money to the Commonwealth Bank of Australia at Blackburn North Shopping Centre when an armed robbery occurred. There were two people directly involved in the robbery and the Crown says that one was Leonard Frank Ryan and the other was the accused, Hugo Rich. A bag containing $162,000 was stolen from the guards, and during the course of this robbery one of the guards, Mr Erwin Kastenberger, was fatally shot. The Crown case is that Rich was responsible for that shooting.

A third person was also said to have been involved, being Sean Hogan. Hogan was in a position to send a signal to Ryan and Rich that the guards carrying the money had arrived, and upon receiving that signal they entered the Shopping Centre through an entrance near the toilets. Inevitably, the two offenders were wearing items of clothing designed to conceal their appearance, including balaclavas. According to the Crown case, as the two offenders Ryan and Rich went through a doorway leading to a corridor near some toilets they confronted Tony Laria. Mr Laria was a customer at the Shopping Centre, who at the time was heading towards the toilet. He was ordered to get on the ground by one of the offenders and that command was reinforced a minute or so later as they were leaving. Mr Laria is not able to identify either of the offenders by physical appearance other than to describe what he saw and that description is incorporated into two statements that he made to police.

In his statement of 8 March 2005, Mr Laria gave a description of the one offender that he actually saw, the relevant portions of which are as follows:

I was just about to open the males…

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 6)

Details

AGLC: R v Rich (Ruling No 6) [2008] VSC 436
Case: [2008] VSC 436
Decision Date: 23 October 2008

CaseChat Overview and Summary

The case of R v Rich (Ruling No 6) involved the defendant, Rich, who was facing criminal charges. The central issue in the case was the reliability and admissibility of a voice identification made by a witness in court. The identification was made during the trial where the accused was expected to be seen by the witness, raising concerns about the potential for prejudice. The matter was brought before the court to determine whether the evidence of the voice identification was so unreliable or prejudicial that it should be excluded from consideration.

The legal issues the court needed to address included whether the identification process was conducted in a manner that could lead to an unfair prejudice against the accused, and whether the discretion exercised by the court in admitting the evidence was appropriate. The court had to consider the potential for the witness to be influenced by seeing the accused in court and how this might affect the reliability of their voice identification. The court also examined the criteria for determining when voice identification evidence should be excluded due to its unreliability or the potential for prejudice.

In delivering the ruling, the court considered the specific circumstances of the case, including the manner in which the voice identification was obtained and presented. The court concluded that while the identification process was not without its flaws, it was not so unreliable or prejudicial as to warrant exclusion. The court held that the discretion exercised in admitting the evidence was appropriate, given the context of the trial and the reliability of the identification despite the potential for prejudice. The court ultimately found that the evidence was admissible and could be considered as part of the overall case against the accused.

The final orders of the court included the admission of the voice identification evidence, with a cautionary instruction to the jury regarding its potential unreliability and the circumstances under which it was obtained. The court did not exclude the evidence but rather ensured that the jury was properly informed of its limitations and the potential for bias.

Orders