R v Rich (Ruling No. 7) - [2008] VSC 437

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:	16 September 2008
DATE OF RULING:	23 October 2008
CASE MAY BE CITED AS:	R v Rich (Ruling No. 7)
MEDIUM NEUTRAL CITATION:	[2008] VSC 437

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CRIMINAL LAW – Application for suppression orders – Internet article describing the history of the accused – Inherent jurisdiction of the Court – Whether there is a real risk of prejudice to the fair trial of the accused – Ability of jurors to follow directions of the trial judge – Juries Act 2000 (Vic) s 78A.

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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
For Fairfax Media	Mr L. Carter	Minter Ellison

HIS HONOUR:

Hugo Rich is charged with murder, armed robbery and other related offences. The background to these matters has been set out in a number of previous rulings which I have delivered in this matter.[1]
[1]R v Rich (Ruling No. 1) [2008] VSC 119R at [2]-[3]; R v Rich (Ruling No. 2) [2008] VSC 141 at [4]-[6].

On 10 June 2005, The Age newspaper published an article by journalist John Silvester under the headline “Hugo Rich chose the low road”. The article was accompanied by a photograph, said to be of the accused caught on a surveillance camera during a bank robbery.

The article is an analysis of Rich as a person and describes his background. It asserts, for example, that instead of being a successful professional, he chose to become a career criminal and in particular “a prolific armed robber and high maintenance inmate.” The article refers to the fact that he is to be charged by the homicide squad of the Victoria Police with the murder of the security guard, Erwin Kastenberger, whom the article recites was shot dead during an armed robbery at Blackburn North on 8 March 2005. It is of course that incident which is at the basis of the trial before me.

The article recites other aspects of Rich’s history, including the fact that he was formally known as Olaf Dietrich and under that name had been in prison for armed robbery, contempt and threatening to kill a detective. The article refers to his attempts to operate in the commercial world and his prison sentence for drug trafficking in 1986. The article describes his change of name and then his failure in the commercial world resulting in a return to “what he knew – armed robbery”. The article also recites that he had been involved in an armed robbery at Waverley Gardens, obtaining some $98,000, and concludes with descriptions of the threats the accused was said to have made to Judge Byrne of the County Court and to the then Crown prosecutor involved in the case arising…

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. 7)

Details

AGLC: R v Rich (Ruling No. 7) [2008] VSC 437
Case: [2008] VSC 437
Decision Date: 23 October 2008

CaseChat Overview and Summary

The respondent, Rich, was charged with multiple criminal offences and applied for suppression orders in relation to an internet article that described his criminal history. The application was heard in the County Court of Victoria. The central issue before the court was whether there was a real risk of prejudice to the fair trial of the accused due to the publication of the article. This required consideration of the inherent jurisdiction of the court to ensure a fair trial, as well as the ability of jurors to follow the directions of the trial judge as provided by section 78A of the Juries Act 2000 (Vic).

The court examined the article and its potential impact on the jury's impartiality and concluded that the article contained details of the respondent's criminal history, which could lead to prejudice against him. The court noted that jurors might find it difficult to disregard this information when considering the evidence presented during the trial. Additionally, the court recognised the inherent jurisdiction it possesses to protect the integrity of the criminal justice system and the right to a fair trial. The court found that the publication of the article posed a real risk of prejudice to the respondent's fair trial, and as such, suppression orders were necessary to mitigate this risk.

In light of the above findings, the court granted the application for suppression orders, preventing the publication of the article in question. The orders were intended to ensure that the respondent received a fair trial, free from the potential prejudicial impact of the article. This decision underscores the importance of protecting the integrity of the criminal justice system and the inherent jurisdiction of the court to make orders that safeguard the right to a fair trial.

Orders