R v Rich (Ruling No 8)
[2008] VSC 438
•23 October 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: | 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 giving much notice, and his attendance at jury trial cannot be guaranteed.” Mr Desmond submitted on behalf of the accused that this application was made “… in case Alty is unavailable for the trial.”
However, documents in the form of emails which appear to emanate from the proposed witness show a willingness on his part to attend and give evidence at the trial. On 18 August 2008, John Alty appeared to offer himself as a witness on behalf of the accused saying that he would return to Australia and give evidence of the conversation said to be relevant. The solicitor for the accused then responded advising of the state of the proceedings and indicated he would be in contact again when the question of how Alty was to give evidence was resolved by the Court. On 25 August 2008, Alty appeared to respond saying that he would be “much happier” to give evidence in the court room and asked the solicitor for the accused to “push to have [him] there”. Nonetheless, the application is pressed.
Attached to the application made by the accused in this matter is an affidavit which purports to have been dated 23 November 2007. In sworn evidence on the application, the accused informed me that the affidavit prepared by him for swearing by the relevant witness had in fact been sworn. The accused described how he had sought assistance from this Court to “secure” Alty’s evidence in 2007 to which I will refer later.
The application is opposed by Mr Tinney who appears on behalf of the Crown. As a preliminary matter, he submits that the principal impediment to such evidence being taken in the way proposed by the accused is that s 11 of the Act is not intended for such a purpose. In effect, he submits that s 11 formalises the process established by the judgment of Hunter J in R v Basha.[1]
[1](1989) 39 A Crim R 337.
Background
On 9 November 2007, Rich wrote to the Court requesting a special mention to seek the Court’s assistance in taking evidence from defence witness(es) who were scheduled to be deported from Australia in the first week of December 2007. The request was made to the Court again on 20 November 2007. On 22 November 2007, the matter was raised before Byrne J, who was hearing an application for bail by Rich. Rich sent a letter to the Office of Public Prosecutions (OPP) on 25 November 2007, with a similar request for assistance. In this letter, the relevant individual was identified as Alty and a copy of a draft affidavit (not yet signed by Alty) was attached which demonstrated the evidence Alty was expected to give. The letter was forwarded to the Court by the OPP on 28 November 2007. The OPP requested that gaol orders be prepared for Alty’s attendance before Byrne J or in the Practice Court. On 29 November 2007 the Court was informed by the OPP that Alty was not due for release until 14 December 2007, and that the prison authorities had no record of any pending deportation. Consideration was given to him being brought to Court on 13 December 2007. This was done, and the sworn affidavit was provided to Byrne J by Rich. The Crown prosecutor confirmed in Court that Alty was due to be deported the following Sunday. Byrne J indicated that it would be preferable to have Alty present to give his evidence in person, and be cross-examined, at the trial. He raised with the Crown the possibility of the OPP issuing a subpoena to require Alty’s attendance at the trial (which would stay the act of deportation), and asked if Rich objected to such a course of action. Rich indicated he did not want to be responsible for Alty remaining in custody, so no subpoena was issued. Byrne J accepted the affidavit of Alty in support of the bail application, but refused to allow Rich to call Alty to give evidence before him on the application.
The essence of the evidence said to be able to be given by this witness is that in November of 2006 he had a conversation with the Crown witness Mark Dickson, during the course of which Dickson told him that Rich had nothing to do with the armed robbery and murder of Mr Kastenberger on 8 March 2005 and that another witness to be called by the Crown in this matter, Leonard Ryan, committed the offence with another person (although never mentioning that person’s name). Dickson is also claimed to have told this witness that his job was to provide a false alibi for Ryan but he forgot to do it, and that Ryan was pressuring him to make an affidavit placing responsibility for another armed robbery at the Dandenong Plaza on Sean Hogan.
Submissions
Mr Desmond, on behalf of the accused, submitted that his application comes within s 11 of the Act because Alty was not available to be examined as a witness at the committal proceeding and a statement from him was not included in a hand-up brief served on the accused under Schedule 5 to the Magistrates’ Court Act 1989 (Vic) and therefore he was examined under s 56A of that Act. Alty, I am told, has now been deported and the accused has contact details for him which reveal that he is now in Thailand.
Mr Desmond at times eschews the proposition that the application is one that seeks to both take the evidence prior to trial and then use it at trial if the witness is unavailable. Instead he submits:
It’s not an application at this stage to then use that evidence before the jury. We see where we go. If come March of 2009 the defence go into evidence and we seek to call Mr Alty and he’s available to be called, then I’d anticipate there will be no application made then to use that material. If a need arises for the defence seek to use the evidence secured pursuant to s 11, then no doubt the court will consider that application on its merits and either rule in favour of it or rule against it.
Mr Desmond submitted that, alternatively, “... there’s the inherent jurisdiction the court has to make sure that there’s not an unfairness worked against the accused here.”
Mr Tinney, on behalf of the Crown, submitted that that there is no ability to embark on this process under s 11 of the Act. Section 11 is contained in Part 3 of the Act which concerns pre‑trial procedure and formalises the procedure known as the Basha hearing,[2] as is described in the relevant clause of the Explanatory Memorandum for the Crimes (Criminal Trials) Bill 1999. He also submitted that this was not a procedure to be used for pre-recording evidence but rather it is a provision which is designed to ensure fairness at the trial by the disclosure of evidence before the trial which had not been otherwise provided in the committal proceedings. If it were a pre‑recording provision with a view to such evidence being subsequently presented before a jury at trial, Mr Tinney submitted there would be a prescribed mechanism by which the procedure was to be employed. Finally, putting aside the issue of whether this was an appropriate use of s 11 of the Act, Mr Tinney also submitted that the evidence before me indicated that the witness was available.
The Use of s 11 of the Crimes (Criminal Trials) Act 1999 (Vic) for this Purpose
[2]R v Basha (1989) 39 A Crim R 337 and see R v Sandford (1994) 72 A Crim R 160.
The primary issue is whether or not s 11 of the Act can be used for the purpose for which the accused wishes to use it. Next, if it can, should I embark on such a process in this case?
The Explanatory Memorandum for the Crimes (Criminal Trials) Bill 1999, in describing the intended provision and it purpose, says:
Clause 11 sets out the grounds upon which a party may apply to have the evidence of a witness taken prior to trial. In most cases the defence will have had an opportunity to cross-examine a witness at the committal proceeding. If that opportunity has not been available, the defence may wish to cross‑examine the witness in the absence of the jury. However, it is not appropriate for this to occur in all cases. Parties will not automatically be permitted to examine witnesses who were not examined at the committal proceeding, even where the magistrate refused to grant leave to examine the witness at that stage. A preliminary examination will only be permitted where there is a serious risk of an unfair trial if the defence is not given the opportunity to examine the witness in the absence of the jury.
This provision is intended to replace the use of the Basha enquiry ...
Other provisions of the Evidence Act 1958 (Vic) establish a procedure for the pre‑recording of evidence intended to be reproduced before the jury during trials of a particular kind. For example, s 37B of the Evidence Act 1958 (Vic) provides:
Use of recorded evidence-in-chief in certain Proceedings
(1) This section applies to a legal proceeding, other than a committal proceeding, that relates (wholly or partly) to a charge for—
(a) a sexual offence; or
(ab) an offence under Subdivision (8EAA) of Division 1 of Part I of the Crimes Act 1958; or
(b) an indictable offence which involves an assault on, or injury or a threat of injury to, a person.
(2) The evidence-in-chief of a witness for the prosecution may be given (wholly or partly) in the form of an audio or video recording of the witness answering questions put to him or her by a person prescribed for the purposes of this section if the witness is a person with a cognitive impairment or is under the age of 18.
(3) Subject to subsection (4), the recording is admissible in evidence in the proceeding as if its contents were the direct testimony of the witness if—
(a) it is proved that a transcript of it was served personally on the defendant or by post on his or her legal practitioner at least 14 days before the commencement of the hearing of the proceeding; and
(b) it is proved that the defendant and his or her legal practitioner were, in accordance with the regulations, given a reasonable opportunity to listen to and, in the case of a video recording, view the recording; and
(c) at the proceeding the witness—
(i) identifies himself or herself and attests to the truthfulness of the contents of the recording; and
(ii) is available for cross-examination and re-examination.
(3A) The admissibility of the recording of the evidence of a person under the age of 18 is not affected only because the person attains the age of 18 years before the evidence is presented in a proceeding.
(4) The court may rule as inadmissible the whole or any part of the contents of a recording.
It will be seen that the purpose of this provision is clearly aimed at the earlier recording of the evidence of witnesses of a particular class in particular cases. Sections 41G and 41H are similar provisions. Section 41G, in part, provides:
(1) This section applies to a legal proceeding, other than a committal proceeding, that relates (wholly or partly) to a charge for a sexual offence.
(2) Subject to subsection (3), the whole of the evidence of a complainant who was a child or who had a cognitive impairment at the time at which the proceeding was commenced (including cross-examination and re-examination) must be—
(a) taken at a special hearing under this section and video recorded; and
(b) presented to the court in the form of that recording.
(3) The court may, on the application of the prosecution, direct that subsection (2) is not to apply and that the complainant is to give direct testimony in the proceeding if the court is satisfied that the complainant—
(a) is aware of his or her right to have his or her evidence taken at a special hearing under this section and video recorded; and
(b) is able and wishes to give direct testimony in the proceeding.
(4) If a special hearing is to be held, it must be held—
(a) within 3 months after the day on which the defendant is committed for trial; and
(b) before the court at which presentment is made.
Section 41H makes provision concerning the use to which such pre‑recorded evidence might be put during a trial. It provides, as a starting point, that such evidence is admissible as though it were direct testimony but then goes on to refer to editing and the prospect that a court might rule portions of such pre‑recorded evidence to be inadmissible. Finally, although of no assistance to the accused in his application, s 55AB of the Evidence Act 1958 (Vic) permits the use of a “deposition” in particular circumstances. A “deposition” is a statement admitted into evidence before a Magistrate hearing a committal proceeding or before a Coroner and the conditions which must be satisfied before that evidence will be admitted are particularised in the section.
All of these sections go to demonstrate what could be expected of legislation which intends that pre‑recorded evidence be able to be used at trial.
Section 11 of the Act has not often been the subject of consideration by courts but in Harvey v County Court of Victoria,[3] the use of s 11 arose for consideration by this Court. Hollingworth J was considering an application by the plaintiffs, who were journalists and proposed witnesses at the trial of another, Desmond Kelly, who was charged with an offence under s 70(1) of the Crimes Act 1914 (Cth) of communicating confidential information to the journalists who were not authorised to receive it. The Chief Judge of the County Court had dealt with the matter and in particular an application by the Commonwealth Director of Public Prosecutions that the two journalists be called to give evidence in advance of the trial pursuant to s 11 of the Act. His Honour made orders in accordance with the Director’s application. Those orders were the subject of challenge before Hollingworth J in this Court with the plaintiffs seeking orders in the nature of certiorari and the quashing of the Chief Judge’s orders. In essence the challenge to the making of the orders was that the procedure under s 11 of the Act was not intended to be used as an “investigative tool” after the committal. Her Honour reviewed the Chief Judge’s reasons. His Honour had referred to the Explanatory Memorandum to which I have referred and that the “facility would be available to either party in the proceeding”. He observed that he was satisfied that the facility was not being used as an investigative tool by the Director, noting that if he had a different view he would have dismissed the application.
[3][2006] VSC 293.
Hollingworth J considered that the Chief Judge’s conclusion that there was a serious risk of an unfair trial if the accused was not given an opportunity to examine the plaintiffs in the absence of the jury was unable to be impugned. I should note that it appears from the judgment of Hollingworth J that some consideration had been given as to whether s 11 of the Act would permit the “taking of evidence” prior to trial, for example, in relation to a witness who was not going to be available.[4] The question was not pursued because it was not relevant to the issues in that case.
[4]Ibid at [57].
There is nothing in the judgment of Hollingworth J which detracts from the broad argument of the Crown in this case that the provision is intended to fulfil the role identified by Hunt J in R v Basha.It is true that either party can make an application and in Harvey it was the Crown that made the application in relation to two of its witnesses.
Conclusion
In my opinion, s 11 of the Act has no application to the particular circumstances raised on behalf of the accused in this case. Although it is submitted on his behalf that the words of the section are plain and would permit the course he seeks, I disagree with the second limb of that proposition. The words are plain but there is no provision indicating that the legislation contemplates that such evidence would be used at the trial in lieu of the witness’ evidence due to his unavailability. For that reason alone, the application must be dismissed. However, even if I am wrong about that, in the circumstances of this case I would not exercise such a power to have the witness, who is a proposed defence witness, give evidence in advance of the trial with a view to using that evidence before the jury in the event that the witness were unavailable. In particular, I reach that view because the indications are that the witness on whom the accused wishes to rely is a willing defence witness, albeit that he will have to be returned to Australia to give that evidence or be the subject of a video‑link application if not. I do not consider that the purpose of s 11 of the Act on any interpretation could include using it to deal with what is little more than a risk of the witness being unavailable.
Inherent Jurisdiction
The Court has an inherent power to control the conduct of proceedings and to ensure the fair trial of the accused.[5] However, I do not consider that it is appropriate or necessary to exercise that power in the present circumstances. It is not the role of the Court to assist the accused in ensuring the presentation of his evidence. The responsibility is on the solicitors for the accused to ensure that happens. There is contact with the witness and he has expressed his willingness to attend. If there are difficulties with his attendance in person, an application can be made for his evidence to be heard via a video‑link pursuant to Part 2A of the Evidence Act 1958 (Vic).
[5]Dietrich v R (1992) 177 CLR 292.
For those reasons the application is refused.
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