R v Rich (Ruling No 9)
[2008] VSC 453
•30 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: | 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 8th 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:
(a) the data connected to the CCTV is encrypted and dispersed, and can only be retrieved through the technology of the internet. The accused, by reason of his status as a remand prisoner, is not permitted to have access to the internet. The retrieval of the required data cannot be, called for, or copied through the medium of the internet whilst being “offline”;
(b)the required data/documents require a specific methodology to unpack and decrypt the encrypted documents because the accused, with the aid of the World Wide Web wrote, inter alia, a PHP script with a PHP database behind it, to secure the said data/documents;
(c)the script has programming features embedded in order to remove certain symbols from the scripted file and this function operates in a specific combination order. The scripted file also has lines of instructions to make sure, if this file was to ever be copied, moved or even opened offline, a command would then be self‑executing and that data would be appended itself to the scripted file, and destroy the original file would cause corruption;
(d) the scripted file is not a read only file, therefore, upon the relevant file being subjected to any appended activity, it cannot be fixed and would be unrecoverable.
4.At or about 2:30 pm the accused was approached by Leonard Ryan at or about 530 Little Collins Street, Melbourne.
5.At or about 3:00 pm and within minutes shortly thereafter the accused attended car hire premises in or about Hoppers Crossing, details of which are known to the Crown.
6.The accused returned to his work premises thereafter and went home.
The leading prosecutor, Mr Tinney, has recently raised issues about the lack of specificity of the notice and it is likely that it will be amended, although I do not understand that the substance or nature of the alibi will change.
The Crown Indicates that a Witness Is Not to Be Called
Connected with the alibi on which the accused proposes to rely is the status of the witness John Francis Andrusko whom the Crown has announced it does not propose to call. Andrusko’s name is on the presentment and he has made several police statements. Andrusko is a barrister and solicitor and had been employed by a firm known as T.F. Grundy & Co which later became Grundy Maitland & Co. That firm had previously represented Rich in a number of matters including armed robbery charges which were dealt with in the County Court of Victoria in 2001. According to a statement made by Andrusko, to which I will shortly refer in more detail, after Rich had been released from prison in October 2004 he commenced a consultancy and computer business at the same premises occupied by Grundy Maitland & Co at Suite 410, 530 Little Collins Street, Melbourne.
The debate about Andrusko commenced before me on 17 September 2008 when Mr Tinney again indicated that he had advised the defence that Andrusko would not be called by the Crown “as he provides no relevant evidence in relation to this matter”.[1] By way of introduction, Mr Tinney then set out the history concerning the witness with which I will deal shortly.
[1]Transcript at 890.
The response by Mr Desmond of counsel on behalf of the accused was to raise two issues. First, Mr Desmond complains about the unfairness of Andrusko not being called and, relying on the principles set out in R vApostilides,[2] makes submissions the effect of which are intended to lead me as the trial judge to discover the reasons which led the prosecutor to decide not to call Andrusko and to invite the prosecutor to reconsider his decision having regard to the implications as they then appeared to me at this stage of the proceedings. It is also to be noted that the observations of the High Court in Apostilides do also contemplate that a trial judge might call a witness to give evidence but such a course is described as being only to occur “in the most exceptional circumstances” and I have already expressed my strong reluctance to pursue such a course in this case. I have discovered in detail the reasons why the Crown do not propose to call Andrusko. The only question is whether I would, at this stage, invite the prosecutor to reconsider that decision. For the reasons which follow I do not propose to do so.
[2](1984) 154 CLR 563, in particular at 575.
The second limb of the application made on behalf of the accused, which did not become apparent until well into the debate, is that I should stay the commencement of this trial if the prosecutor persists in not calling the witness Andrusko. The application for a stay is based on issues of fairness as well as investigatory and prosecutorial impropriety of the kind which Mr Desmond submits amounts to an abuse of process. I also will return to deal with the way in which that application is made in due course.
It will be necessary to deal in some detail with the circumstances surrounding Andrusko but for the purpose of introduction it is sufficient to say that on 23 March 2005, some 15 days after the armed robbery and murder occurred, Andrusko made a statement to the police the effect of which was that at the time those offences were occurring in North Blackburn, he was having contact with the accused in or near the vicinity of Suite 410, 530 Little Collins Street, Melbourne. As will be seen shortly, his statement detailed other contacts he had with Rich on 8 March 2005. The complication is that he no longer adheres to that account at least to the extent that he can identify the events he describes as occurring on 8 March 2005.
As a result of his change of position, on 17 June 2005 Andrusko made a further statement the effect of which was that his recollection of what had occurred on 8 March 2005 may have, in fact, taken place on some other date. He indicated that he had suffered from poor health over the previous 20 years which may have affected his recollection of the events. The terms of the statement are reproduced below at paragraph 19.
Andrusko was subsequently questioned at length by the Office of the Chief Examiner and gave evidence on two separate occasions at the committal proceeding of this matter in 2007. In that evidence on each occasion he maintained that he no longer adhered to the accuracy of what he had said in his initial statement on 23 March 2005, at least as to the date on which the events he described occurred.
I should also note that I have heard the submissions concerning the refusal of the Crown to call the witness Andrusko on the assumption that I would grant leave to the defence to lead evidence in support of an alibi pursuant to s 399A(1) and (2) of the Crimes Act 1958 (Vic), although I have not yet heard that application or determined the outcome.
The Factual Basis of the Crown Case
The Crown case will be that some time after 12.30 pm on Tuesday, 8 March 2005, two Chubb security guards – Robert Crowe and Erwin Kastenberger – were walking towards the Commonwealth Bank of Australia in the North Blackburn Shopping Centre carrying the first of two cash deliveries when they were approached by two armed and disguised assailants. The offenders each wore a fluorescent vest and they are said by witnesses to have run from a door near the toilets in the Shopping Centre in the vicinity of a variety store known as “Go-Lo” and confronted the two guards. The Crown case is that Rich and a person who is now a witness for the Crown in this trial, Leonard Frank Ryan, were the offenders. They were aided from a distance by a third offender, Sean Hogan. During the robbery, Ryan ordered Crowe to the ground and the evidence suggests that Rich approached Kastenberger. It is alleged that in the course of the robbery, Rich fired a shot which killed him. A bag containing $162,000 was taken and Ryan and Rich exited through the same doors where they had previously entered. The Crown case is also that Sean Hogan was the “look-out” for the robbery and it is he who is said to have kept the guards under observation prior to the actual robbery and informed Ryan by phone when they had walked through the sliding doors of the Shopping Centre being the appropriate opportunity to confront them.
After the robbery had occurred, Rich and Ryan were alleged to have travelled away from the scene and parked in Footscray in a hired Nissan Maxima where the money was counted. The evidence indicates that they then drove that vehicle to Europcar in Hoppers Crossing where Rich hired a blue Holden Commodore station wagon, RXG 298.
Evidence to be led by the Crown will also indicate that on the following morning at about 8:45 am Rich attended at a Flight Centre business in Queen Street, Melbourne, where he spoke to Ms Quimby Macintosh and was told to return after 9:00 am. He did so and, according to her statement, on his return told the witness he wished to travel with destinations being identified. He said he was not flexible with the dates and needed to leave within a week. He said he wanted to travel business class. He provided a credit card for payment then. He said he wanted the ticket immediately and was indifferent to the airline he was flying with. The ticket was paid for on Friday, 11 March 2005, but later in the day he returned and said he would have to delay his trip by about one month. There is a separate debate about whether this evidence should be admitted. At the time of publishing this ruling I have not yet ruled on that issue.
Also on 11 March 2005, a letter was written by Andrusko’s employer, Terence Grundy, to the Adult Parole Board, seeking permission for Rich to be allowed to travel overseas on 16 March 2005. The letter said the application was “urgent and immediate”.
On 12 and 15 March 2005, police approached the accused asking for a statement in connection with the armed robbery and murder. He declined to give one. However on 15 March 2005, a letter was sent to the Homicide Squad from Grundy Maitland & Co, giving information about Rich’s movements on 8 March 2005. The letter refers to Andrusko’s recollection of speaking to Rich at particular times on that day (10.30 am, 11.45 am and 12.30 pm) at the office. The letter was in the following terms:
Mr John Andrusko, a solicitor of our firm, recollects speaking to Hugo personally on three occasions during the day, namely at approximately 10:30 am, 11:45 am, and 12:30 pm. John spoke to Hugo about a problem that John was experiencing with his desk top computer, and with a query concerning a lap top computer that Hugo had loaned to John. John further recollects speaking to Hugo about DVD “burning”, and the swapping of disks. John also recalls seeing Hugo later that day (at around 3:30 pm) in his office, however, he did not speak to him. John recalls that Hugo was dressed in a suit with a blue and white striped shirt, and a blue and grey tie.
The next step was for Andrusko to make a police statement. A document was drafted which was submitted by Andrusko to the accused who made suggested changes including the addition of a paragraph at the end which read:
I then next spoke to Hugo at approximately 3:30 pm when he called into my office to say that he was leaving early as he had a number of calls to make.
That last paragraph, apparently suggested by the accused, is at odds with the letter written about Andrusko’s recollection to the Homicide Squad on 15 March 2005, which I have just described. However the suggested paragraph was incorporated into the statement. That draft then became Andrusko’s police statement which was signed by him on 23 March 2005, and to which a sworn acknowledgement was attached on 11 April 2005. As to relevant matters, the final product was in the following terms (emphasis added):
Rich would attend the office premises on a daily basis with flexible hours, but in the main, normally from 8.00 - 9.00 am until 4.00 - 5.00 pm.
During the time that we shared offices, Rich and I would discuss computers, and normal day to day matters.
In early February 2005, the firm Grundy Maitland & Co decided to download its office space due to staff restructure and as a result it decided to terminate it’s [sic] lease for Suite 418. Rich then took over the lease.
I joined the other staff members in Suite 410. I continued to speak to Rich on a daily basis whenever I went past his offices on my way to the kitchen on that level or when using the exit door (which is just outside Suite 418) on my way downstairs to Level 1 where the building’s mail/postal site is situated.
I can recall the events of the morning of March 8, 2005, quite well. I have always had an excellent memory and recall of events, times, facts and daily events. I can clearly recall greeting Rich on my way to the kitchen for an early cup of tea upon my arrival at the office at approx 8.30 am – that is a normal daily ritual although on most days I arrive a little earlier than that day. I then attended to my normal duties. I later attended Suite 410 and spoke to Rich about a problem I had been encountering with a Toshiba laptop. I also discussed the possibility of swapping dvd’s as I had started my own collection and Rich had informed me of a contact who himself had a large collection and suggested we swap some by “DVD burning”. Our conversation was cut short as I was called from my own office to answer an urgent call from interstate.
I attended to other matters and then went to have a quick cup of tea whereupon I was called by Rich as I passed his office. We completed our earlier conversation then discussed his furniture arrangements.
Rich suggested I bring the laptop into the office the next day to enable him, or his assistant, to examine same and locate the fault. He suggested it might be a good idea to upgrade the operating system to an XP version. I admit I am not very computer literate.
I spoke to Rich on a couple of other occasions throughout the day but Det Snr Const Cron had indicated that he only wanted to vouch for Rich between the hours of about 9.00 am until about 1.00 pm.
I next had contact with Rich at approx 12.45 pm - 1.00 pm. I had decided to hand deliver an urgent letter that I had prepared to another firm of solicitors within the CBD, attend the Court of Appeal to collect documents, and have a short break for lunch. I called in to Suite 410 on the way and gave Rich a list of the dvd’s that I had in my collection, together with a list that his assistant had given me setting out the available dvd’s for swapping. I then spoke with Rich about a couple of legal cases which involved parties familiar to both of us. Rich then showed me some additional furniture that had arrived and a brief general discussion followed. I then left the suite a short time after 1.00 pm.
I attended to my own matters in the CBD and returned from lunch at approx 2.15 pm - 2.25 pm. I got off at Level 1 to hand over a letter for posting at the building’s mail centre then climbed the stairs of the fire exit and came out at Level 4. Rich’s desk faces the exit door and as I passed I waived [sic] a “hi” hand signal and walked to my office at Suite 418.
I next spoke to Rich at approximately 3.30 pm when he called into my office to say that he was leaving early as he had a number of calls to make.
I have made this declaration to the very best of my recollection and the contents are true and correct. I have no doubt as to the visits and the contact with Rich as described. The times may be out a few minutes either way but I believe they are generally very active [sic]. I keep meticulous time records of my telephone conversations, and whenever some development occurs regarding my numerous files.
I am prepared to answer any questions pertaining to my statement.
On 17 June 2005, Andrusko made a further brief statement recanting from his original position. The statement was as follows:
On the 23rd of March I provided police with a statement outlining my recollection of what occurred on 8th March.
I have since given this matter careful consideration and I am concerned that my recollection as stated may not be entirely accurate. I know that on or about 8th March I did hand deliver an urgent letter to a CBD firm of solicitors and I recall that on the same day I had a number of brief discussions with Mr Rich.
I have attempted to verify this date, but have been unable to do so. I am concerned that whilst the contents of my statement are generally correct, my recollection of what occurred may have in fact taken place on a date other that [sic] the 8th of March, and quite possibly the previous day the 7th March.
I generally believe that I do have a good memory, however, I have suffered over the last 20 years from poor health, which for personal reasons I do not wish to particularize here. This may have affected my recollection of these events.
I have made this statement after obtaining independent legal advice.
The circumstances under which Andrusko changed his position were the subject of evidence by him at the Office of the Chief Examiner and the committal proceedings for the trial before me.
Examination by the Office of the Chief Examiner
In January and February 2006, Andrusko was questioned by Office of the Chief Examiner. Both counsel have referred me in detail to this evidence. The two themes in the approach of counsel in relation to that evidence were broadly as follows. The Crown relies on the fact that in that evidence Andrusko continues to withdraw from the position he adopted in his statement signed on 23 March 2005. Mr Desmond, on behalf of the accused, suggests that what can be deduced from that evidence is that Andrusko was pressured, both by the police and by the Chief Examiner, to recant from the original alibi he provided for Rich. Mr Desmond outlined the evidentiary basis which tended to indicate contact between Andrusko and members of Victoria Police interested in the investigation of Rich’s involvement in this matter. Effectively, what was submitted by Mr Desmond was that the police had obtained a statement from another witness (Brent James) indicating that Rich was not in the offices at 530 Little Collins Street on 8 March 2005 and, it is to be inferred, set about dismantling Andrusko’s first statement. Andrusko’s recantation from his first statement is said to be a product of police pressure and Mr Desmond also relies upon the transcript of the examination of Andrusko before the Office of Chief Examiner in that regard.
In very brief summary, the evidence he gave before the Chief Examiner that has been relied on during this debate was to the following effect. Andrusko described the role the accused played in the preparation of his statement and said that he did not check whether the amendments suggested by Rich were accurate or not. He claimed that he had a good memory of the events but was not certain that they occurred on 8 March 2005. He agreed that he had made inconsistent statements about the quality of his memory. He did suggest that the accused was “putting things in [his] brain” and that he was not careful enough to go through it. At the time of making the statement he said he was careless and totally confused.
It is also true, as Mr Desmond points out, that in his evidence before the Office of the Chief Examiner, Andrusko describes being approached by Detective Iddles of the Homicide Squad shortly before he made his statement of 17 June 2005 departing from his original version. Iddles enquired as to whether Andrusko was still sure that what he described in his first statement was correct and Andrusko described that he had “lingering doubts” about the issue. Iddles told him to have a “good think” about what occurred and then a meeting would be arranged. Andrusko described his doubts as “serious”. He said he was told by Iddles, “We’ll get the truth out of you” or words to that effect. There was then a meeting and the statement of 17 June 2005 was prepared for Andrusko by Iddles.
At the conclusion of his evidence before the Office of the Chief Examiner, Andrusko said that the contents of his 17 June 2005 statement were correct and that he still agreed with it. Asked about the earlier statement of 23 March 2005, he said he “certainly” did not agree with the contents of that document and that he was:
… under a lot of pressure when I made that original statement, and words had basically been put in my mouth … or to the typewriter. And it just – I wasn’t feeling the best. That certainly didn’t help, that he drummed into me, and I didn’t realise the repercussions of what had occurred until later.
On 25 July 2006, after the examination before the Office of the Chief Examiner, Andrusko made yet a further police statement. That statement was in the following terms:
My full name is John Francis ANDRUSKO. I am a Lawyer working for Grundy Maitland and Company. I have previously made statements to police but have been asked to include the following information.
I have located a copy of my draft statement which I supplied to Detective CRON. I recall that when I was asked to supply a statement in relation to Hugo’s movements on 8 March 2005, Hugo wanted to read a copy of it. He took it away and handwrote amendments and additions for me to make on it prior to sending it. I typed most of the amendments and sent it to Detective CRON.
I now produce the draft document complete with Hugo’s handwritten amendments which I later included.
In short Hugo “buttered up” my initial letter.
Committal Evidence
Andrusko next gave evidence about these matters at the committal proceedings at the Melbourne Magistrates’ Court. He gave evidence on two occasions – first, on 12 April 2007,[3] and then on 24 May 2007. The accused was unrepresented and he cross-examined Andrusko.
[3]Andrusko also appeared as a witness in the proceedings on 16 April 2007, but did not give any substantial evidence on that day.
When asked about 15 March 2005, which is when the letter was written to the Homicide Squad concerning Rich’s movements on 8 March 2005, Andrusko said he had no memory of what he did that day. It was put to him that Mr Grundy approached him to discuss some matter in relation to the accused. Andrusko agreed that he was approached, but he was not sure of the date and could not remember the details of the conversation. He agreed that he might have told Mr Grundy he had seen Rich in the office at various times during the day (referring to 8 March 2008). He said to the best of his recollection, prior to making his first statement to police, both Mr Grundy and Rich approached him, and asked him to tell them what he could recall about 8 March 2005, following which a statement would be typed up, which Rich would like to see before it went to the police. It was put to Andrusko that Rich did not speak with him before he drafted his statement. Andrusko said that he couldn’t recall whether Rich was there with any certainty. When questioned by the Magistrate about the manner in which the statement was compiled, Andrusko said it came out of a general discussion with Mr Grundy in the office, and he thought Rich had some input as well. He said he typed it himself. He explained that Mr Grundy first typed a letter to Victoria Police, and when Andrusko was asked by the police if he was prepared to make a statement, he (Andrusko) typed up a statement to the effect of the letter.
Asked if Rich had requested he give him a false alibi, Andrusko said he couldn’t recall but Rich never asked him to lie about his whereabouts. Andrusko agreed the typed statement prepared in collaboration with Mr Grundy had been given to Rich, who commented on typographical errors. He agreed the words “I recall 8 March quite well” were his words, and said he thought he made that statement without any inducement or pressure. He said he would not deliberately make a false statement. He again said he couldn’t say for certain one way or the other whether Rich was present when the statement was prepared with Mr Grundy. When he made the first statement, he made it to the best of his recollection and he thought it was a true statement at the time. He said the police had not pressured him in any way. When asked whether the police making contact with him made him change his mind about the accuracy of his statement, Andrusko refused to answer the question, on the basis that he wished to seek legal advice.
Andrusko gave further evidence on 24 May 2007 and was again cross‑examined by the accused. The essence of his evidence on that occasion was that at the time he made his statements he believed the information in them was true. He said the events were accurate but he believed he had mixed up the days. He said several times that at the time he signed the statement he thought it was true. He said he was not encouraged to make a false statement in the matter and his first statement was made of his own volition. He was questioned about the evidence he gave before the Chief Examiner and he said that the evidence he gave in that hearing was true.
Andrusko again described being approached by Detective Iddles of the Homicide Squad and agreed that Iddles may have said something to the effect of “I’m going to have you in my office, we’re going to have a chat”. He agreed that as a result of that he sought legal advice. He said however that the approach from the police was not the only reason he wanted legal advice. As to the other reasons he said,
I was having reflections on what I had made in the statement by going through my files and trying to picture on what days that I took the letter to Herbert Geer & Rundle, the Appeals Office, on the way back, through all those other matters. I went through my files and through the computers because I was a bit concerned about my statement.[4]
It was then put to him that he was concerned about his statement because he was being pressured by the police and he said, “I wasn’t being pressured”. He said the police asked him to “consider whether that was a true reflection of what happened”.
[4]Committal Transcript at 2835.
The accused subsequently attacked Andrusko’s reliability, raising issues of alcoholism during the course of Andrusko’s life and putting to him that a particular barrister who he named would have nothing to do with Andrusko because of his “inebriated state”.
Returning to 8 March 2005, Andrusko repeated that he had endeavoured to corroborate by his records the events which occurred on 8 March 2005 and was unable to do so. He later said:
I know what I did on a particular day which I – when I made my statement I thought it was for the 8th. I know exactly what I did and the events that followed a particular day. I looked at the file and found out that it was not the 8th at all, could not possibly be the 8th.[5]
Then later, the following:
And I thought I made a statement which I thought was the – the 8th, those events happened on the 8th, and then I – afterwards I started having concerns about where I was asked – was I sure that that was what happened on the 8th. That I went then to have a look at my files to see if that could match with the 8th and they couldn’t – couldn’t find them.[6]
[5]Committal Transcript at 2853.
[6]Ibid at 2854.
He then said he could not recall whether he saw Rich on 8 March 2005 or not.
The Submissions of Counsel
With the factual outline to which I have referred in mind, in summary the position of the prosecutor, Mr Tinney, is as follows:
At the end of the day Mr Andrusko on the only aspect of relevance in his statement, the movements of Mr Rich on 8 March, cannot be clearly enough relied upon by reference to the various matters I’ve taken Your Honour to. There’s no other basis to rely upon him from the Crown’s perspective. Of course we will make him available should my friends wish to call Mr Andrusko as a witness, but as it exists presently, though I suppose it would be open to the Crown to call the witness in a way to try and establish a false alibi, that’s not a profitable exercise. There is other material that touches upon that in any event and the creation of a false alibi, and in the circumstances we say that he’s not a witness who is relied upon by the Crown. He can provide no relevant evidence. He’s available to the defence should they see fit to call him. The very many versions that he has given, including the adoption of a marked up statement including material that he now says is simply untrue, would, we say, impact upon the requirement that the Crown call Mr Andrusko as a witness, and so we won’t.
Mr Desmond submitted that the witness is on the presentment and should be called. He complained that the Crown does not say he is unreliable but simply that he cannot give relevant evidence. I observed during argument that, in reality, the Crown makes both points. Mr Desmond also submitted that it is significant that an experienced prosecutor at the committal, other than Mr Tinney, called Andrusko to give evidence. However, there is an axiomatic difference between the committal and the trial. In addition, I am informed that at the committal the prosecutor did not have the evidence given by Andrusko to the Office of Chief Examiner.
Regrettably, Mr Desmond felt the need to accuse the prosecutor of what he referred to as “prosecutorial manipulation” and he later suggested the conduct of the Crown was an abuse of process aiming to achieve a particular result being the conviction of the accused. Mr Tinney is thus accused of refusing to call evidence simply because such evidence would assist the accused to achieve an acquittal. Such an allegation is a very serious one. In my opinion it is thoroughly unjustified and should never have been made.
Mr Desmond also criticises the police investigation concluding, based on the concurrence of events, that once the police realised that there was a witness (Brent James) who was prepared to make a statement saying that Rich was not at his office on 8 March 2005, the police needed to “dismantle” the alibi provided by Andrusko and under pressure from the police, Andrusko capitulated and abandoned his original position.
Mr Desmond submitted that a fair reading of the two statements made by Andrusko is that he could have seen Rich at the office on 8 March 2005, but he is no longer sure. I do not agree and one only needs to look at the second short statement to see that his position is “… my recollection of what occurred may have in fact taken place on a date other [than] the 8th of March, and quite possibly the previous day the 7th March”. But that is not the only consideration.
The evidence suggests that Andrusko – a barrister and solicitor of this Court – was prepared to submit to the police a sworn statement which appeared to account for the movements of Rich on 8 March 2005. One would expect that a legal practitioner would take particular care in taking such a step and in permitting the person apparently suspected of the offences to assist in compilation or settling of the statement. That person has then recanted from his statement in circumstances where the change of recollection has hardly been adequately explained. As appears in his statement described above in paragraph 18, he has asserted the accuracy of his recollection based on “meticulous time records” which, it would appear, were not checked before the statement was made and, on checking taking place, did not support what he said about 8 March 2005. This is most unfortunate behaviour for a member of the legal profession.
Prosecution Duty to Call Witnesses
At the conclusion of his submissions, Mr Tinney said:[7]
I am aware of my obligations. I have considered the range of authorities from Apostilides to Richardson to Whitehorn to Shaw. Armstrong’s case, cited at [1998] 4 VR 533. For the reasons that I have referred to, it is not appropriate, though Armstrong would seem to counsel on some occasions a conference for the witness, this is not one where it’s appropriate, in our submission. And I refer Your Honour to passages in Palmer.
We say and submit, Your Honour, that this is a case where in the words of the Court of Appeal in Palmer, paragraph 56, “It cannot be I think that it was in the interests of justice that he [referring to the witness in this case] be called by the prosecution in circumstances where the details of his various accounts would not be before the jury. On the contrary in my view it was in the interests of justice that this detail be provided” and there is reference in the body of the case to the nature of the disparity in the witness’s accounts. It is really taking up the position in Richardson. There are, we say, in this case clear identifiable circumstances establishing the unreliability of this particular witness. In fact he asserts it himself. And there are a number of demonstrable circumstances that would give rise to a very significant concern as to his being tendered as a witness of truth in relation to these areas. And that seems to be accepted by the defence in the course of their submissions. And given his status as a solicitor, and given the chronology that I’ve taken Your Honour through, he is not a witness that the Crown propose to call as part of the prosecution case, though of course he will be made available to the defence. The suggestion that they need to cross‑examine a solicitor to get a truthful version from him is, when one examines it, an extraordinary proposition.
[7]Transcript at 2734.
Many of the submissions made on behalf of the accused concern, by way of complaint, the prosecutor’s duty to call witnesses and how that decision is to be made. As discussed during the course of argument, in R v Apostilides the High Court identified general propositions in relation to the calling of witnesses in criminal trials in Australia. They were as follows:
1.The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2.The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3.Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4.When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor’s reasons for his decision as the prosecutor thinks it proper to divulge.
5.Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6.A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
We have not attempted in our first proposition to deal exhaustively with the responsibility of the prosecutor. The description of that responsibility, which we have cited from Richardson, emphasizes that the prosecutor’s role in this regard is a lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but also a heavy one. A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross‑examined by the defence and then, if necessary, be re‑examined.[8]
[8](1984) 154 CLR 563 at 575-6.
In Richardson v R,[9] the High Court identified some of the considerations that might enter into the judgment of a prosecutor as to whether or not a witness should be called and said:
In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross‑examination by the Crown, to mention but a few.[10]
[9](1974) 131 CLR 116.
[10]Ibid at 119.
In Shaw v R,[11] the Victorian Court of Criminal Appeal upheld an application for leave to appeal on, among other grounds, a complaint that an eye‑witness to the stabbing of the deceased was not called by the Crown. The particular witness was said by the prosecutor in that case to be unreliable. She had made a statement and had been called at the committal but her name was not on the presentment. The trial judge expressed the view to the prosecutor that he thought the witness was a “crucial” witness. The matter was raised again at the end of the Crown case and the prosecutor again indicated he would not call the witness. In the judgment of the Court of Criminal Appeal, both Young CJ and Murphy J[12] referred to the following passage from the judgment of the High Court in Apostolides (emphasis added):
A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross‑examined by the defence and then, if necessary, be re‑examined.[13]
[11](1991) 57 A Crim R 425.
[12]Ibid at 429 (per Young CJ); 436 (per Murphy J).
[13](1984) 154 CLR 563 at 576.
In my opinion, the circumstances before me amount to more than just suspicion of unreliability. In summary, this legal practitioner has initially offered a version about 8 March 2005, which he said he could recall “quite well” and has always had an “excellent memory” which facilitates his clear recall. He had “no doubt” as to the visits and contacts with the accused and to support that account he referred to the “meticulous time records” he maintains which he did not check before making his statement – a statement made with some level of input from the accused. He said he spoke to the accused at 3:30 pm on 8 March 2005 although in a version contained in a letter written by his employer and describing his observations eight days earlier, he specifically said he had not done so.
In his subsequent statement, being made after an approach from police, he said that recollection had deserted him and he could not say it was 8 March 2005. He adhered to that through a lengthy examination at the Office of the Chief Examiner and the subsequent committal proceedings. He denied any pressure from police and at some stages has claimed some pressure from the accused. It seems to me that the unreliability of this evidence is identifiable.
In Palmer v R,[14] the Court of Appeal was concerned with a ground of appeal claiming that the trial of the applicant miscarried due to the failure of the Crown to call a “critical eye‑witness”, one Seward whose name was on the presentment. The applicant was Seward’s girlfriend. Seward was called as part of the defence case. He was a witness to the incident when the applicant was alleged to have struck the victim with a glass causing serious injury. Seward had told police immediately after the incident that he had not witnessed the incident and made similar assertions in a later police statement. At the request of the applicant’s legal advisors Seward was called at the committal and gave a version of events favourable to the applicant and at odds with the earlier two accounts. Dealing with the issue of unreliability, Phillips CJ said:
To take up the last mentioned matter, in my opinion there were, in the instant case, circumstances which did clearly establish such unreliability. The conflict between the relevant statements went far beyond inconsistency. The partisanship of Seward was manifest. His “explanations” for stark conflict lacked credence. At the least, he stood in the shadow of perjury. It cannot be, I think, that it was in the interests of justice that he be called by the prosecution in circumstances where the detail of his various accounts would not be before the jury. On the contrary, in my view it was in the interests of justice that this detail be provided. If I be correct in this view, then it mattered not that Seward was “singled out” or perceived as partisan or that there was a “very obvious distinction between him and Mellios”. His prior conviction for stating a false name and address to the police was, in my opinion, part of the material on which it was proper for the jurors to make an assessment of him. That he got into difficulties with other aspects of his criminal record was entirely due to his tendency to hedge in his cross‑examination.[15]
[14][2000] VSCA 236.
[15]Ibid at [56].
Although the circumstances here are different, the result is the same. There is a “stark conflict” between Andrusko’s original certainty and his later position. Looking at all the evidence he has given, and as counsel for the accused accepts, Andrusko similarly “stands in the shadow of perjury”:[16]
[16]Transcript at 1407.
HIS HONOUR: He’s perjured himself there on your account and he’s perjured himself at the committal?
MR DESMOND: I’m not here to prosecute anyone, Your Honour.
HIS HONOUR: No, it must follow, wasn’t it, putting aside the - - -
MR DESMOND: He was overborne by that OCE.
HIS HONOUR: And the result of him having been overborne, a barrister and solicitor of the court, is that he’s had been prepared to perjure himself as a result of being overborne.
MR DESMOND: If we are going to use black and white terms, then yes, I suppose that’s what it amounts to.
HIS HONOUR: It must follow.
MR DESMOND: But there are shades of grey, Your Honour. He has certainly dramatically, alarmingly shifted.
Unlike the witness in Palmer, who by the time of the trial asserted that he saw what occurred in the relevant incident, Andrusko’s position is that he does not know when particular events happened and could not say they were occurring on 8 March 2005.
I have enquired of the prosecutor as to the reason why Andrusko is not being called by the Crown and I have been given a substantial and detailed explanation. The trial has not yet commenced but at this stage I do not propose to request Mr Tinney to reconsider his decision.
Application for a Stay of the Proceedings
As I indicated at the outset, I am asked to stay the continuation of this trial unless and until the Crown agrees to call Andrusko as a witness in its case.
During the course of submissions,[17] I asked Mr Desmond whether he was aware of any case where a trial judge had stayed a trial on the basis of the declared intention of the Crown not to call a witness whom the defence asserts is an important witness. He was unaware of any such circumstance. Mr Desmond responded by submitting that the proceeding falls within the concept of “prosecution manipulation” and therefore amounts to an abuse of process so that the trial should be stayed until “they change their mind”, which I take to mean until the Crown decides to call Andrusko as a witness in the course of its case.
[17]Transcript at 1345.
The authorities make clear that trial courts possess an inherent jurisdiction to do whatever is necessary to ensure a fair and impartial trial and to prevent an abuse of process. That jurisdiction was identified by the High Court in Williams & Ors v Spautz,[18] where the Court said:
It is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. … The jurisdiction to grant a stay of a criminal prosecution has a dual purpose, namely “to prevent an abuse of process or the prosecution of a criminal proceeding … which will result in a trial which is unfair”.[19]
[18](1992) 174 CLR 509.
[19]Ibid at 518, quoting Barton v R (1980) 147 CLR 75 at 95-6.
The circumstances in which an abuse of process can arise vary and as the High Court has said, “it would be unwise to limit those circumstances to fixed categories.”[20]
[20]See Rogers v R (1994) 181 CLR 251.
In Jago v District Court (NSW) & Ors,[21] Deane J referred to prosecutorial impropriety including in relation to witnesses. His Honour said:
The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essential intuitive judgment. The best that one can do is to formulate relevant general proposition and examples derived from past experience. Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre‑trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence. Another is where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence. In each of those examples, the effect of the default or impropriety could ordinarily be dealt with by orders (e.g., adjournment, further particulars or new trial) which will avoid unfairness in a subsequent trial or retrial. It is, however, possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused. Thus, one can envisage circumstances in which calculated and unreasonable delay on the part of the prosecution in bringing proceedings to trial had so unfairly and permanently prejudiced the ability of the accused to defend himself that no subsequent trial could be a fair one.[22]
[21](1989) 168 CLR 23.
[22]Ibid at 57.
The position here is that the witness is available to be called by the accused should the defence wish to rely on his evidence. It is not totally clear what he would say about 8 March 2005 – presumably he would say that he cannot recall whether he saw Rich on that day or not. To the extent that it would be relevant to lead evidence which impugns the conduct of the police investigation,[23] and Andrusko was able to give such evidence, then he is presumably available for that purpose also. However, substantial difficulties would be ahead of him in such a context because, as Mr Desmond conceded, there is every chance that he would have to be warned about his entitlement not to answer questions the answers to which would tend to incriminate him, in this case in relation to the offence of perjury.
[23]I am not to be taken as accepting that such evidence would necessarily be relevant as at this stage of proceedings. No debate has been conducted on the admissibility of such evidence and how it would be presented.
This application would only have a basis if I considered that the Crown should call Andrusko during its case. That is a decision for the prosecutor and as I have already indicated I do not propose to request him to reconsider it. This application is more in the nature of a request that the trial be stayed unless and until the accused is placed in a position where his counsel can cross‑examine Andrusko.
For the reasons I have already outline, the application for a stay of this trial until the Crown agrees to call Andrusko is refused.
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