R v Rich (Ruling No 8) - [2008] VSC 438

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. 8)
MEDIUM NEUTRAL CITATION:	[2008] VSC 438

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CRIMINAL LAW – Application by Defence under Crimes (Criminal Trials) Act 1999 (Vic) s 11 – Application to pre-record evidence by video-link to ensure availability of evidence at trial – Witness deported prior to trial – Whether s 11 appropriate – Basha enquiry – Inherent power of the Court to ensure the fair trial of the accused.

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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:

Hugo Rich is charged with murder, armed robbery and other offences concerning events at North Blackburn on 8 March 2005. During the course of an armed robbery which the Crown alleges was committed by Rich and Leonard Frank Ryan with assistance from Sean Hogan, some $162,000 was taken and a Chubb security guard, Erwin Kastenberger, was fatally shot. The Crown alleges that the shooting of Kastenberger was done by Rich. Rich denies any involvement in the offences and has now filed a Notice of Alibi, out of time.

This is an application on behalf of Rich that evidence be taken from a defence witness prior to the trial pursuant to s 11 of the Crimes (Criminal Trials) Act1999 (Vic) (“the Act”).

Section 11 is in the following terms:

(1) Prior to the day on which a trial is due to commence, a party to a criminal proceeding may apply to the court for an order that the evidence of a person be taken at a time and place fixed by the court.
(2) An application may only be made under subsection (1) if–
(a) the person was not available to be examined as a witness at the committal proceeding; or
(b) a statement from the person was not included in a hand-up brief served on the accused under Schedule 5 to the Magistrates’ Court Act 1989–

and the person was not examined under section 56A of the Magistrates’ Court Act 1989.
(3) An application under subsection (1) must state the grounds on which an order is sought.
(4) The court must not make an order under subsection (1) unless it is satisfied that it is in the interests of justice that the evidence of the witness be taken.

In effect, the application on behalf of the accused demonstrates that what is sought is the taking of evidence by video‑link and the recording of that evidence with a view to it being played at the trial because, as the application states, the witness “… currently lives in Thailand however he is prone to move from country to country without…

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 8)

Details

AGLC: R v Rich (Ruling No 8) [2008] VSC 438
Case: [2008] VSC 438
Decision Date: 23 October 2008

CaseChat Overview and Summary

In the case of R v Rich, the defendant was facing criminal charges and sought to have evidence pre-recorded under section 11 of the Crimes (Criminal Trials) Act 1999 (Vic). The issue arose because a key witness was due to be deported before the trial, potentially resulting in the loss of crucial testimony. The matter was heard in a Victorian court, which was tasked with determining the appropriateness of applying section 11 and considering the inherent power of the court to ensure a fair trial.

The legal issues before the court were whether the application of section 11 was appropriate in the circumstances and if the court had the inherent power to direct the pre-recording of evidence to safeguard the defendant's right to a fair trial. The court had to balance the statutory provisions against the overarching principle of ensuring justice was served in the case.

The court found that while section 11 was not strictly applicable due to the witness's impending deportation, the inherent power of the court to ensure a fair trial could be invoked. The court conducted a Basha enquiry, weighing the potential prejudice to the defendant against the interests of justice. It concluded that the inherent power allowed for the pre-recording of the evidence via video-link, ensuring the witness's testimony was available for the trial. The court's decision was based on the necessity to prevent potential injustice and uphold the principles of a fair trial.

The final orders of the court included directions for the pre-recording of the witness's evidence using video-link technology, ensuring the evidence would be available for the trial despite the witness's deportation.

Orders