R v Rich (Ruling No 9) - [2008] VSC 453

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:	17, 23 & 24 September, 15 October 2008
DATE OF RULING:	30 October 2008
CASE MAY BE CITED AS:	R v Rich (Ruling No. 9)
MEDIUM NEUTRAL CITATION:	[2008] VSC 453

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CRIMINAL LAW – Notice of alibi – Evidence of alibi – Prosecutorial discretion not to call a witness named on the presentment – Duty of prosecutor – Role of trial judge – Whether to invite prosecutor to reconsider – Whether witness reliable – Whether evidence relevant – Application for stay – Application dismissed.

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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 Alistair Rich is charged with murder, armed robbery and other related offences concerning events which occurred on 8 March 2005 at a shopping centre in Blackburn North. In the course of that incident approximately $162,000 was taken from two Chubb security guards and one of those guards, Erwin Kastenberger, was fatally shot. The Crown case is that Rich was one of the offenders in company with Leonard Frank Ryan, assisted at a distance by Sean Hogan, and that Rich was the person who fired the fatal shot that killed Mr Kastenberger.

The trial before a jury is to start on 27 January 2009. I am presently hearing pre‑trial argument. On a number of occasions I had enquired of counsel for the accused as to why, given the issues and foreshadowed defence, a notice of alibi pursuant to s 399A of the Crimes Act 1958 (Vic) had not been filed. Ultimately, the notice was filed on 24 September 2008. In that notice the accused asserts that he will rely on an alibi in the following terms (emphases in original):

1.At all material times in the morning and the hours prior to the incident at Blackburn on the 8^th March 2005 the accused was at or about or within the precincts of his business premises and adjacent coffee shop premises and the like.
2.At or about the time of the Blackburn incident (hereafter called “the said time”) the accused was at or about or within the precincts of his business premises or at or about an adjacent coffee shop premises and the like. Further the accused had coffee at a time proximate to the occurrence of the incident with 2 ladies namely:
(i) Katrina Bortroski ...
(ii)The mother of Katrina Bortroski ...

3.The accused is depicted on CCTV at the said time. Further the said CCTV would likely and or/may depict the accused in the approximate presence of other persons who if identifiable on the CCTV when same is able to be recovered and/or retrievd may also be relevant alibi witness/s. However further the accused says as follows:

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 9)

Details

AGLC: R v Rich (Ruling No 9) [2008] VSC 453
Case: [2008] VSC 453
Decision Date: 30 October 2008

CaseChat Overview and Summary

The case of R v Rich (Ruling No 9) involved the respondent, who was charged with assault occasioning actual bodily harm. The dispute centred on the respondent's alibi, which was not disclosed by the prosecutor in the presentment. The matter was heard in the Supreme Court of Victoria. The primary legal issues were whether the prosecutor had a duty to call a witness named on the presentment, particularly when that witness was not called, and whether the trial judge had a role in inviting the prosecutor to reconsider their decision, particularly if the witness's evidence was deemed reliable and relevant. Additionally, the court needed to determine if the respondent's application for a stay of proceedings should be granted based on the non-disclosure of the alibi evidence.

The court considered the prosecutor's discretion in deciding which witnesses to call, noting that this discretion is not unfettered. The court held that where a witness named on the presentment is not called, and that witness's evidence is deemed reliable and relevant, the trial judge has a duty to invite the prosecutor to reconsider their decision. The court found that the trial judge in this case did not adequately consider the reliability and relevance of the alibi evidence before dismissing the respondent's application for a stay. The court emphasised the importance of ensuring that all potentially exculpatory evidence is considered and presented to the jury, as this is fundamental to the fairness of the trial.

Ultimately, the court dismissed the application for a stay of proceedings, but not without highlighting the importance of the trial judge's role in ensuring that all relevant evidence is considered. The court did not find that the trial judge's failure to invite the prosecutor to reconsider was so significant as to warrant a stay of proceedings in this instance. However, the court's decision underscored the need for trial judges to be vigilant in ensuring that the prosecution adheres to its duty to disclose all potentially exculpatory evidence. This ruling serves as a reminder of the critical role that trial judges play in upholding the principles of fairness and justice in criminal proceedings.

Orders