Rich v The Queen
[2014] VSCA 126
•20 June 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0898
| HUGO ALISTAIR RICH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE, NEAVE and OSBORN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 19 March 2013 and 17, 18 and 19 March 2014 |
| DATE OF JUDGMENT | 20 June 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 126 |
| JUDGMENT APPEALED FROM | The Queen v Rich [2009] VSC 515 (Lasry J) (12 June 2009 (date of conviction) and 13 November 2009 (date of sentence)) |
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CRIMINAL LAW – Conviction – Murder – Armed robbery – Application for new trial – Fresh evidence – Whether evidence available at time of trial with reasonable diligence – Whether evidence credible – Whether evidence might have led jury to different verdict – Gallagher v R (1986) 160 CLR 392, applied; R v Abou-Chabake (2004) 149 A Crim R 417; Mickelberg v R (1989) 167 CLR 259; R v Nguyen [1998] 4 VR 394, referred to.
JURY – Empanelment – Whether constitution of jury vitiated by order of judge that members of first, discharged, jury return to panel whence second jury subsequently selected – Whether selection of panel corrupted by informant assisting in handing out of documents – R v Gallagher [1998] 2 VR 671, considered; Juries Act 2000, s 30(4); Juries Regulations 2001, regs 5 and 10.
EVIDENCE – Hearsay – Whether evidence of co-offenders' out-of-court statements admissible as evidence of acts in furtherance of joint criminal enterprise – Whether evidence ought to have been excluded in exercise of discretion – Tripodi v R (1961) 104 CLR 1; Ahern v R (1988) 165 CLR 87, applied; R v Christie [1914] AC 545, referred to.
EVIDENCE – Unreliable witness warnings – Whether judge failed to warn sufficiently of risks of relying on evidence of co-offenders – R v Strawhorn (2008) 19 VR 101, applied; DPP (Vic) v Faure [1993] 2 VR 497; Jenkins v R (2004) 79 ALJR 252, referred to.
MURDER – Statutory felony murder – Common purpose – Manslaughter – Whether applicant or co-offender shot deceased – Whether sufficient case of manslaughter to be left to jury – Whether applicant believed his and co-offender’s weapons to be unloaded – Whether applicant foresaw possibility that other weapons could be fired – R v Galas (2007) 18 VR 205; Brown v R [2006] NSWCCA 395, applied; R v Vandine [1970] 1 NSWR 252; Johns v R (1980) 143 CLR 108, considered; Gilbert v R (2000) 201 CLR 414; Gillard v R (2003) 219 CLR 1; Dupas v R (2010) 241 CLR, 237, distinguished – Crimes Act 1958 (Vic), s 3A.
CONSTITUTIONAL LAW – Unlawfully obtained evidence – Documentary evidence seized under warrant issued on faith of affidavit not sworn or declared in accordance with ss 100 and 103 of Evidence Act 1958 – Whether evidence admissible – Whether s 5 of Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 inconsistent with Charter right to fair trial – Whether repugnant to Kable principle – Whether requiring court to turn blind eye to police impropriety – Momcilovic v R (2011) 245 CLR 1; Nicholas v R (1998) 193 CLR 173, applied; Kable v DPP (NSW) (1996) 189 CLR 51; Fardon v AG (Qld) (2004) 223 CLR 575, distinguished; Bunning v Cross (1978) 141 CLR 54; Ridgeway v R (1995) 184 CLR 19, considered – Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012, s 5; Charter of Human Rights and Responsibilities Act2006, s 24.
TRIAL – Fair trial – Whether Crown in breach of obligation to call witness in interests of justice – Whether witness so lacking in credibility as to justify prosecutor’s decision not to call him – Diehm & Anor v R (2013) 303 ALR 42, applied; R v Apostilides (1984) 154 CLR 563, referred to.
AGGREGATE OF ERRORS – Whether judge’s refusal of multiple applications for discharge of jury productive of miscarriage of justice – R v Boland [1974] VR 849; Crofts v R (1996) 186 CLR 427, applied.
DENIAL OF DUE PROCESS – Whether judge’s refusal to grant applicant access to sections of subpoenaed documents productive of miscarriage of justice – Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & Ors [2011] VSC 3; Woolworths Ltd v Svajcer [2013] VSCA 270, referred to.
VERDICT – Whether unreasonable – Whether evidence sufficient to sustain finding of guilt beyond reasonable doubt.
SENTENCING – Validity of proceedings – Double punishment – Whether judge made sufficient allowance for criminality common to murder and armed robbery – Whether judge erred in taking into account quashed or spent conviction – Pearce v R (1998) 194 CLR 610, applied; Dietrich v R (1992) 177 CLR 292, referred to.
Applications for leave to appeal against conviction and sentence dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr T R Alexander with Mr D Ternovski | Tait Lawyers |
| For the Respondent: | Mr G J C Silbert QC with Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Intervenor (Attorney-General’s Department): | Mr S G E McLeish SC with Ms R Orr | Victorian Government Solicitor’s Office |
TABLE OF CONTENTS
Introduction
The issues at trial
The Crown case at trial
(i) The relationship between Ryan and the applicant
(ii) Planning for the armed robbery
(iii) The hiring of secondary getaway vehicles
(iv) The events of 8 March 2005
(v) Post offence events
(vi) Events of evening of 8 March 2005
(vii) Records of use of Linton/Larkins phones (phones purchased in false names and used for the armed robbery)
(viii) Records of use of the applicant’s phones
(ix) Post 8 March 2005 meeting
(x) Evidence of Brent James
(xi) Betterment evidence
(xii) Evidence that the applicant went to book flights on 9 March 2005
(xiii) Evidence relating to a Fort Knox storage locker
Defence case at trial
Application for leave to appeal against conviction
Ground 1 — The application to admit new/fresh evidence
(i) The evidence of Kirsch
(ii) The matters relied upon in summary
(iii) Is the evidence fresh?
(iv) Was the evidence relevant and admissible?
(v)Does the Evidence Act 2008 apply?
(vi) Is the new evidence admissible under a common law exception to the hearsay rule?
(vii) Opinion as to the identity of the killer
(viii) Is the evidence credible?
(ix) A significant possibility of acquittal?
Ground 2 — Empanelment of the jury
(i) Authorisation under s 30(4)
(ii) Return to panel
(iii) Failure to swear juror 204 properly
(iv) Involvement of informant in empanelment process
Ground 3 – Hogan’s evidence
(i) Counsel’s submissions
(ii) Conclusion on ground 3
Ground 4 — The learned trial judge erred by failing to (a) adequately detail the dangers that were inherent in convicting the applicant on the evidence of Ryan and Hogan in his warning to the jury; and (b) by failing to give a full unreliable [witness] warning for James.
(i) Counsel’s submissions
(ii) Conclusion on ground 4
Ground 5 — Failure to leave alternative possible verdict of manslaughter
(i) New argument
(ii) Section 3A
(iii) Significance of finding of guilt
(iv) Was there a viable case of manslaughter?
Ground 6 — Wrongful admission of unlawfully obtained evidence
(i)Charter right to a fair trial
(ii) Kable principle
Ground 7 — Aggregate of Errors
Ground 8 — Denial of due process
(i) Conclusion on ground 8
Ground 9 — Failure to call witness Dickson
(i) Conclusion on ground 9
Ground 10 — Unsafe and Unsatisfactory Verdict
(i) The ‘five pillars’
(ii) The applicant’s submissions
(iii) Pillars 1, 2 and 3 — Ryan, Hogan and James
(iv) Planning issues
(v) Guns and ammunition
(vi) The Nissan Maxima evidence
(vii) Events at Maddox Road
(viii) Pillar 4 – Eye witness and video camera evidence
(ix) Pillar 5 — The circumstantial evidence
(x) Conclusion on ground 10 — Was it open to the jury to convict the applicant?
(xi) The relationship evidence
(xii) The hiring of the cars prior to the robbery
(xiii) Absence from the office
(xiv) The taller man
(xv) The further car hire
(xvi) The night of 8 March 2005
(xvii) The Flight Centre evidence
(xviii) Betterment
(xix) The Fort Knox storage locker
(xx) The telephone given by Ryan to the applicant
(xxi) Other matters
(xxii) Motive
(xxiii) The white van
(xxiv) Docklands
Conclusion on application for leave to appeal against conviction
Application for leave to appeal against sentence
Ground 1 — Validity of proceedings
Ground 2 — Double punishment
Ground 3 — Irrelevant consideration
Conclusion on application for leave to appeal against sentence
NETTLE JA
NEAVE JA
OSBORN JA:
Introduction
Following a trial in the Criminal Division of almost five months’ duration, on 12 June 2009 the applicant was found guilty of the murder of Erwin Kastenberger in the course of an armed robbery committed at Blackburn North Shopping Centre on 8 March 2005. After a plea in mitigation of penalty, on 13 November 2009, he was sentenced for those offences as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Murder
[contrary to common law]
Life imprisonment
[s 3 Crimes Act 1958 (Vic)]
Life imprisonment Concurrent 2 Armed robbery
[s 75A Crimes Act 1958 (Vic)]
25 years imprisonment
[s 75A(2) Crimes Act 1958 (Vic)]
20 years’ imprisonment Concurrent Total Effective Sentence: Life imprisonment Non-Parole Period: 30 years Pre-sentence Detention Declared: 1647 days 6AAA Statement: None Other orders:
Sentenced as a serious and violent offender pursuant to s 6F of the Sentencing Act 1991 (Vic)
The applicant now seeks leave to appeal against conviction and sentence. The application has proceeded by way of an application to adduce fresh evidence which was heard on 19 March 2013 and the hearing of the remainder of the application for leave to appeal over a period of three days between 17 and 19 March 2014. By way of explanation, the reason it has taken so long to deal with the application is because of the large number of grounds which the applicant from time to time propounded and then amended, and in some cases amended again, and the time which he requested and was afforded to formulate written arguments and summaries which he wished the court to take into account.
As the result of a process of amendment and rationalisation over the last 12 months, the grounds of appeal as finally propounded are not as numerous or far reaching as they were at some points during the interlocutory stages of the proceeding. As will be seen, however, even as finally propounded, they include questions as diverse as an application to adduce what was alleged to be fresh evidence, the constitutionality of the Evidence (Miscellaneous Provisions) Act 1958, the nature and scope of the right to a fair trial afforded by s 24 of the Charter of Human Rights and Responsibilities Act 2006, and a number of more conventional grounds of appeal against conviction and sentence.
For the reasons which follow, we do not think any of the grounds of appeal is persuasive.
The issues at trial
On 8 March 2005 at approximately 1:00 pm, an armed robbery was committed by two men outside the Commonwealth Bank within the Blackburn North Shopping Centre in the eastern suburbs of Melbourne. The targets of the robbery were Mr Kastenberger and his colleague, Robert Crowe, who were Chubb armoured van security guards conveying a large quantity of cash from their Chubb armoured van to the bank.
Each of the armed robbers wore a balaclava and carried a handgun. One of the armed robbers wore a yellow fluorescent vest and the other wore an orange fluorescent vest. Most of the eye-witnesses described the robber wearing the orange vest as the taller of the two and the one wearing the yellow vest as shorter. That evidence is discussed in more detail below. For ease of reference, we describe the two robbers as the ‘taller’ robber and the ‘shorter’ robber in what follows.
Mr Kastenberger had the Chubb bag containing the cash and the taller of the armed robbers yelled at him to get on the ground. Mr Kastenberger threw the bag in the general direction of the robbers and the shorter robber went to get it. The taller armed robber then struck Mr Kastenberger on the head with the firearm which the armed robber was carrying and, after Mr Kastenberger had been driven to the floor, fired a shot into Mr Kastenberger’s right shoulder which severed his pulmonary artery and caused his death. The two armed robbers then fled with the shorter armed robber carrying the cash.
It was not in issue at trial that Mr Kastenberger was murdered. It was also not in issue that Leonard Ryan (‘Ryan’) was one of the armed robbers. The Crown case was that the applicant was the taller armed robber who shot and killed Mr Kastenberger. A third offender, Sean Hogan (‘Hogan’), assisted the two armed robbers by alerting Ryan by mobile phone when the security guards were approaching the shopping centre.
The defence case was that the applicant was not one of the armed robbers or at least that the jury could not be satisfied beyond reasonable doubt that he was.
The issue for the jury was, therefore, whether the applicant was the armed robber who shot and killed Mr Kastenberger.
The Crown case at trial
The Crown case centred on the evidence of Ryan (and to a lesser extent the evidence of Hogan) and objective evidence which the Crown relied upon as supporting those witnesses’ testimony. The judge ruled that some of the objective evidence was capable of corroborating their testimony.
Ryan had earlier pleaded guilty to the armed robbery and to conspiracy to commit another armed robbery and was sentenced therefor to a total effective sentence of eight years’ imprisonment with a non-parole period of six years. Before being sentenced, he undertook to give evidence against the applicant. Ryan then gave evidence at the applicant’s trial that he and the applicant committed the armed robbery with the assistance of Hogan waiting outside, and that the applicant shot Mr Kastenberger during the course of it.
Hogan gave evidence at trial that he had waited in a stolen white van (OIJ 090) outside the shopping centre for the Chubb security van to arrive. Ryan, and a person whom Hogan did not know, then pulled up in a second stolen van. That person approached Hogan’s van and gave him a scanner. Hogan said that Ryan also produced some lighter fluid with which the vans were later to be destroyed. Then, when the Chubb security van arrived, Hogan telephoned Ryan on a stolen mobile telephone and, after alerting Ryan to the arrival of the security van, Hogan drove away keeping the phone call connected. He claimed that he later heard yelling and screaming over the phone connection and then a gunshot.
(i) The relationship between Ryan and the applicant
Among other connecting factors, the Crown relied on evidence of a close relationship between Ryan and the applicant to show that Ryan’s testimony against the applicant was unlikely to be an attempt to implicate him falsely.
(ii) Planning for the armed robbery
Ryan deposed that the motive for the armed robbery was to obtain money to purchase a business, Precision Design Australia (‘PDA’), in which the applicant was interested and in which in turn the applicant had offered Ryan employment with fringe benefits. Ryan and Hogan deposed that the armed robbery was to occur on 1 March 2005. According to Ryan, however, it had to be postponed when the applicant failed to attend at the pre-arranged meeting place that day. Ryan said that he met the applicant later on 1 March 2005 and gave him a 9 mm Browning handgun without any ammunition.
(iii) The hiring of secondary getaway vehicles
In the days leading up to the armed robbery, Ryan and the applicant went to two car rental firms, Europcar and Hertz. On the first occasion, on 28 February 2005, Ryan and the applicant hired a Ford Falcon sedan (SRN 852) from Europcar and paid for it using the applicant’s Mastercard. Ryan said that it had been intended to use the Ford as a secondary getaway vehicle in the armed robbery planned for 1 March 2005. The car was returned to Europcar on 2 March 2005.
On 7 March 2005, Ryan and the applicant went to Hertz in Franklin Street in the city and the applicant hired a Nissan Maxima (TGX 223) and paid for it using his Mastercard. Initially, the Maxima was hired for only one day to be used as a secondary getaway vehicle on 8 March 2005. But the hire was later extended for a further three days. The car was returned to Hertz on 11 March 2005.[1]
(iv) The events of 8 March 2005
[1]The trial judge ruled the hire of these two vehicles was capable of amounting to corroboration of Ryan’s evidence of the need for a second car for escape from the armed robbery. The trial judge decided not to inform the jury that this and other evidence was capable of amounting to corroboration. Rather, he decided to identify those parts of that evidence (ruled to be capable of being corroborative) and to tell the jury the prosecution relied on the evidence as corroboration.
Hogan deposed that Ryan gave him a piece of paper on which was written the name of a street in Kew, a registration number, ‘OIJ 090’, and the words ‘white van’. Hogan said that on 8 March 2005 he went to the street in Kew and collected the van, which was stolen. From there, he drove it to the Blackburn North Shopping Centre where the armed robbery was to take place and waited to give a pre-arranged signal to Ryan when the guards arrived.
Ryan said that, after receiving the signal from Hogan that the guards had arrived, Ryan and the applicant entered the shopping centre through an entrance near some toilets. Both were wearing balaclavas, fluorescent tops, tracksuit pants and gloves, and each had a firearm. According to Ryan, he was carrying a .38 revolver and the applicant had the Browning 9 mm pistol which Ryan had given him on 1 March 2005. Ryan said that, as they approached the toilets, they confronted a person (Tony Laria) whom the applicant ordered to get on the floor. Then they confronted the two security guards as has previously been explained.
A number of eye-witnesses (Crowe, Duniam, Faulisi, Werninghaus, Barry, Grant, Laria, Simms and Spencer) gave evidence of what they saw of Mr Kastenberger’s shooting.
(v) Post offence events
Ryan said that, as he and the applicant left the shopping centre, they placed a piece of wood against the exit door to prevent anyone from following them. He claimed that the piece of wood had been left by Hogan for him and he had taken it to the shopping centre for that purpose. According to Ryan, he and the applicant left the shopping centre in a second stolen van (EWD 771) and later discarded it in Box Hill. At that point, they transferred to the Nissan Maxima hire car (TGX 223) and drove it to a park in Footscray. There, they disposed of stolen licence plates which they had fitted to the Maxima for the purposes of the armed robbery. Ryan said that the applicant also purchased some envelopes from Officeworks in the Williamstown Road area and the money was counted. A sum of $20,000 was placed into one of the envelopes for Hogan. The applicant retained the balance of the cash of approximately $142,000.
While there, the applicant told Ryan that he had lost his balaclava (described by Ryan as sheer like silk and open around the eyes then stitched up so you could not really see the person’s eyes) and that he would have to go back to check the van in Box Hill. Before doing that, however, they both drove in the Maxima to Europcar in Hoppers Crossing. The applicant there hired a blue Commodore station wagon (RXG 298) for Ryan to drive to Sydney. At that point, they separated, the applicant taking the Maxima and Ryan taking the Commodore.
Ryan said that, by mistake, he left the envelope containing Hogan’s $20,000 under one of the seats in the Maxima. When he realised what he had done, he endeavoured to contact the applicant and alert him to the problem. Ryan said, however, that he could not get in contact with the applicant and, therefore, he went to the vicinity of Hertz Rental premises in Franklin Street, Melbourne to see if the applicant had returned the Maxima to Hertz at that location. While there, Ryan attempted to call the applicant by telephone. Documentary evidence of a telephone call from a pay phone at 67 Franklin Street at 5:45 pm on 8 March 2005 to a telephone connected with the applicant was tendered at trial. In cross-examination, Ryan also gave evidence that, while he waited at Hertz in Franklin Street, he saw Andrew Keenan (the brother of an acquaintance, Darren Keenan) in Franklin Street. Andrew Keenan gave evidence that he had seen Ryan one day in the vicinity of his work place at 50 Franklin Street but he could not recall the date.[2]
(vi) Events of evening of 8 March 2005
[2]The trial judge ruled that the phone records of telephone calls to and from the applicant’s mobile phone on the afternoon and evening of 8 March 2005 (Exhibit Q) were capable of corroborating Ryan’s evidence that he was attempting to contact the applicant to obtain Hogan’s share of the robbery.
Ryan said that he again attempted unsuccessfully to contact the applicant by phone and ultimately went back to the applicant’s offices in Exchange Towers in Little Collins Street in the city. He found that the applicant was not there but that the applicant’s van (PLN 189) was parked in a lane nearby. Ryan said that he went and waited at the nearby Menzies Tavern. He won a jackpot prize on one of the gaming machines at 6:29 pm. The manager of the tavern was called as a witness to confirm that Ryan won that prize. After leaving the tavern Ryan left a note under the windscreen wiper of the PLN van for the applicant to contact him.
Telephone records tendered at trial showed that a call was made from the Menzies Tavern to the applicant’s mobile phone at 7:04 pm and that at 7:12 pm a call was made from a public phone at the intersection of King and Collins Streets to Hogan’s mobile phone.
Ryan said that he telephoned Hogan to come to the city to collect his money. Ryan and Hogan met at Crown Casino and then drove in the Commodore to the vicinity of the applicant’s offices in the city. They found that the van on which Ryan had left the note was gone.[3] Ryan and Hogan therefore drove in the Commodore to the applicant’s home in Newport.
[3]The trial judge ruled that the evidence was capable of amounting to corroboration that Ryan was trying to contact the applicant on the evening of 8 March to collect Hogan’s money.
Ryan said that when they got to the applicant’s home, they could not see the applicant’s van, and so they went to get something to eat before coming back later. Ryan said that when they got back to the applicant’s house, he parked approximately 70 metres away and left Hogan in the Commodore while he walked up to the house. According to Ryan, he argued with the applicant out on the nature strip. Brent James (‘James’) and his partner, Leonie Stevens (‘Stevens’) gave evidence of having seen Ryan and the applicant arguing on the nature strip. Ryan said that the applicant directed him to destroy the two vans used in the armed robbery and he told Ryan that, once that had been done, Ryan could obtain the $20,000 cash for Hogan from the Maxima from an address in the Docklands area. The applicant said that the Maxima could be found there with a key on the exhaust pipe.
Ryan returned to the Commodore and told Hogan that everything was sorted out. Then they drove in the Commodore to the locations in the eastern suburbs where the two stolen vans had been abandoned. The Commodore was detected going under the tollgate between the Footscray Road and Racecourse Road exits heading north over the Bolte Bridge at approximately 10:54 pm. After travelling east, Ryan set alight both vans with the lighter fluid. The van in Greensborough (OIJ 090) was completely destroyed and the van in Box Hill (EWD 771) was partially damaged. After that, Ryan and Hogan drove to Docklands and Ryan obtained the envelope containing the $20,000 from the Maxima and gave it to Hogan. From there, Ryan drove directly on to Sydney.
(vii)Records of use of Linton/Larkins phones (phones purchased in false names and used for the armed robbery)
On 1 March 2005 and 8 March 2005, Ryan and Hogan communicated by means of two mobile telephones which had been purchased in false names. The Crown relied on the call charge records for those phones to support Ryan’s and Hogan’s testimony.
(viii) Records of use of the applicant’s phones
The Crown also tendered call charge records of the applicant’s mobile telephone service to show that he took no calls between 9:35 am and 7:32 pm on 8 March 2005 and to establish that, on the evening of 8 March 2005, an unanswered call was made from a payphone in Franklin Street and from the Menzies Tavern to telephones connected with the applicant.
Call charge records of calls between Ryan and the applicant leading up to 28 February 2005 were tendered as support of Ryan’s evidence of his close relationship with the applicant; and call charge records of the applicant’s office telephone service were relied on as supporting James’s testimony (referred to below) that the applicant was not in the applicant’s office in Exchange Towers on 8 March 2005 while James was there.
(ix) Post 8 March 2005 meeting
Ryan said that, sometime after the armed robbery, he met the applicant at the Australis Plaza in the city and they discussed the shooting. According to Ryan, he put it to the applicant that they had agreed in advance of the robbery that their guns would not be loaded. Ryan said that the applicant responded to the effect that he should keep his mouth shut and deal with it. Ryan also said that he gave the applicant one of two mobile telephones which Ryan had purchased in false names, so they could contact each other. One of those phones was later located by police at Ryan’s house and the other at the applicant’s home.
(x) Evidence of Brent James
James was employed by the applicant during the latter part of 2004 and frequently visited the applicant at his office in Exchange Towers. James had a history of car theft and he said that, in the lead up to 8 March 2005, the applicant asked him to obtain a white van. The applicant did not say why he wanted the van.[4]
[4]The trial judge ruled this as being capable of amounting to corroborating the evidence of Ryan and Hogan.
James also deposed that he was working in the applicant’s office on 1 and 8 March 2005. He said that on 8 March 2005, he was the only person in the office between the hours of 11:30 am and 3:30–4:00 pm and that the applicant’s unannounced absence at that time was out of the ordinary.[5] The applicant’s primary mobile was left in the office on 8 March 2005 and it rang throughout the day.
[5]The trial judge ruled that the evidence of James, that the applicant was not at the office on 8 March 2005, and the phone evidence as to the lack of use of phones connected with the applicant around the time of the armed robbery (apart from calls explicable by the making of calls by James to his partner Leonie Stevens) was evidence which tended to negate the suggestion that the applicant was in his office and was capable of corroborating Ryan and Hogan.
James said that on the evening of 8 March 2005, the applicant called him and insisted that he come over to the applicant’s house. James and Stevens did so and they observed Ryan arguing with the applicant on the nature strip.[6]
[6]The trial judge ruled their evidence was capable of amounting to corroboration of Ryan and Hogan that there was a problem with Hogan’s share of the robbery and this explained the argument.
James said that, sometime after 8 March 2005, the applicant drove him to a car park in the Docklands area and showed him a Maxima rental vehicle and gave him the keys. He said that he was allowed to keep the vehicle for the next 48 hours.
James said that the applicant also showed him a storage locker he maintained at a Fort Knox storage facility in West Melbourne and that, after the applicant’s arrest, James visited the storage locker on 12 May 2005 and helped to clear it out.
(xi) Betterment evidence
The applicant admitted making a number of cash payments of over $26,000 shortly after 8 March 2005. The payments were made in notes of large denomination and the Crown contended that the money had no discernible source from the applicant’s bank accounts.[7]
(xii) Evidence that the applicant went to book flights on 9 March 2005
[7]The trial judge ruled that the majority of those cash transactions after 8 March 2005 were capable of amounting to corroboration of Ryan and Hogan.
The Crown also relied on evidence, as evidence of attempted flight, that on 8 March 2005 the applicant went to Flight Centre in Queen Street, Melbourne and discussed booking a flight out of Australia. He said that he needed to leave within the week but had to sort out a passport. The applicant said that he wanted the ticket immediately and that he did not care what the airline was. In the following days, Flight Centre booked the applicant on a flight leaving Australia on 16 March 2005 returning on 8 April 2005 but the booking was later cancelled and a part-refund was paid. The Crown contended that the urgent nature of the request was demonstrative of consciousness of guilt.[8]
(xiii) Evidence relating to a Fort Knox storage locker
[8]The trial judge ruled that the attendance of the applicant at the Flight Centre and the urgent request to book overseas travel was capable of amounting to corroboration and of consciousness of guilt.
On 9 March 2005, the applicant hired a locker at the Fort Knox storage facility in West Melbourne for a term of 12 months. On 10 May 2005, the applicant and Ryan were observed getting out of a van (TIR 850) at the storage facility, each carrying a sports style bag, and the applicant was observed accessing his locker. On 11 May 2005, police searched the locker under warrant and seized a number of items which were tendered in evidence. They included a backpack containing a red beanie on which there was DNA matching the applicant’s DNA and a receipt for a balaclava purchased from Bike Barn Motorcycles on 31 January 2005.
Ryan gave evidence that the applicant told him that he had purchased the balaclava which he used in the armed robbery from a bike store in town and Ryan thought that the name of the bike store might be ‘Peter Stevens’.[9]
Defence case at trial[10]
[9]The trial judge ruled the evidence of the applicant’s purchase of a black silk balaclava on 31 January 2005 was capable of amounting to corroboration of Ryan’s evidence that the applicant wore a black silk balaclava during the robbery.
[10]The defence did not call any witnesses.
The applicant did not give evidence or call any evidence. Nor was there any record of interview. His case, which was put by defence counsel in cross-examination of Crown witnesses and in final address, was that the applicant had been falsely accused. Defence counsel contended that the applicant did not participate in the armed robbery at Blackburn North Shopping Centre on 8 March 2005. He was not there and so did not shoot Mr Kastenberger. The second offender at the armed robbery was somebody other than the applicant. Ryan was lying when he said the applicant was his co-offender and Ryan was not a credible witness. The police investigation was inadequate and evidence had been fabricated to incriminate the applicant. The applicant did not argue with James at the applicant’s home on the evening of 8 March 2005. The applicant did not instruct Ryan to burn any vans, and he did not tell Ryan to collect any money from the Maxima in the Docklands area.
It was further contended on behalf of the applicant that Hogan was an unreliable witness. James’s evidence was also unreliable in important respects and in conflict with Ryan’s evidence. No relevant conclusions could be drawn from the cash transactions relied on by the prosecution.
Application for leave to appeal against conviction
Ground 1 — The application to admit new/fresh evidence
By way of a first ground of appeal, the applicant sought to adduce evidence of Helmut Kirsch (‘Kirsch’), who did not give evidence at trial but was referred to throughout the trial as Middap, in order to establish that the applicant’s conviction was a miscarriage of justice. Counsel for the applicant argued that Kirsch’s evidence[11] raises a reasonable doubt as to whether the applicant was guilty of murder inasmuch as it indicated that another man, Helmut Staudacher (also known as Peter Brent James being the Brent James we have referred to above) was involved in the armed robbery and may have been the man involved in the shooting of Mr Kastenberger. As has been noticed, James gave evidence at trial but he later committed suicide in 2011.
[11]The relevance of this distinction is discussed below.
For present purposes, Kirsch’s evidence is contained in his:
(a) first affidavit sworn on 10 March 2012 and filed in this appeal;
(b) second affidavit sworn on 7 February 2013 and filed in this appeal; and
(c) oral evidence given in amplification of his second affidavit on 19 March 2013.
Prior to giving oral evidence, Kirsch sought a certificate under s 128 of the Evidence Act 2008. The certificate was granted on the basis that his evidence about specified meetings with James, at which various disclosures were made and firearms were produced, and about advice Kirsch gave to James, in relation to his answers to questions he was required to answer by the Chief Examiner, might expose Kirsch to prosecution for assisting an offender, or as an accessory after the fact to murder, or prosecution for firearms offences.
The Crown contended that much of Kirsch’s evidence was inadmissible hearsay and that, even if this were not the case, it should not be admitted as fresh or new evidence. The Court received the affidavit evidence and permitted Kirsch to give evidence at a preliminary hearing, on the basis that the admissibility of his evidence would be determined subsequently.[12]
[12]Under Crimes Act 1958, s 574.
Evidence which was not led at trial will not be regarded as a sufficient ground for appeal unless the absence of the evidence at trial resulted in a miscarriage of justice.[13]
[13]Gallagher v The Queen (1986) 160 CLR 392, 395 (Gibbs CJ), 402 (Mason and Deane JJ), 410 (Brennan J); R v Abou-Chabake (2004) 149 A Crim R 417, 428 [63]; R v AHK [2001] VSCA 220, [8] (Winneke P).
In deciding whether there has been a miscarriage of justice a distinction is generally made between ‘fresh’ evidence, that is evidence which was not available or could not have been relied on at the trial by an accused acting with reasonable diligence,[14] and ‘new’ evidence, that is evidence which could have been called at the trial but was not. Reflecting the adversarial nature of a criminal trial, a higher bar applies to the admission of evidence which the accused could have called at the trial. As Kirby J said in R v Abou-Chabake:
the concept of a miscarriage of justice is not an abstract investigation of truth ... It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better.[15]
[14]R v Nguyen [1998] 4 VR 394, 400 (Kenny JA, Winneke P and Callaway JA agreeing).
[15](2004) 149 A Crim R 417, 428 [63] (citations omitted).
If admissible evidence persuades the Court that there has been a miscarriage of justice because the appellant was innocent, or there is a reasonable doubt as to his or her guilt, it will quash the conviction and order entry of a verdict of acquittal or a new trial. That is the case whether the evidence is characterised as ‘fresh’ or only ‘new’.[16]
[16]Ratten v The Queen (1974) 131 CLR 510, 518, 520 (Barwick CJ, McTiernan J agreeing).
If the Court is not persuaded of either of those matters, but the evidence is ‘fresh’ and there is a significant possibility that the failure to receive it could result in the maintenance of an unfair conviction, the verdict will be set aside because there would be a miscarriage of justice[17] if it were permitted to stand.
[17]A ‘substantial miscarriage of justice’ is now required under Criminal Procedure Act 2009. Presumably this would also be established.
In Gallagher v The Queen,[18] Gibbs CJ said:
The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict. Although I have stated the matters in that way, it will be seen that there has been some difference of expression, if not of opinion, in the judicial discussion of these questions. The combined effect of the two considerations was stated by Rich and Dixon JJ in Craig v The King,[19] as follows:
A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.
Perhaps no more elaborate statement of the position can usefully be made.[20]
[18](1986) 160 CLR 392 (‘Gallagher’).
[19](1933) 49 CLR 429, 439.
[20]Gallagher v The Queen (1986) 160 CLR 392, 395–6 (citation in original).
In Mickelberg v The Queen,[21] Toohey and Gaudron JJ said:
There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be ‘credible’, ‘cogent’, ‘relevant’, ‘plausible’: see, e.g., Gallagher;[22] Craig v The King;[23] Ratten;[24] Lawless.[25] In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it (Gallagher,[26] per Brennan J) or, if there be a practical difference, that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the [accused]’ (Gallagher,[27] per Gibbs CJ and per Mason and Deane JJ.[28]).[29]
[21](1989) 167 CLR 259 (‘Mickelberg’).
[22](1986) 160 CLR 392, 395–396, 401–402, 408–409.
[23](1933) 49 CLR 429, 439.
[24](1974) 131 CLR 510, 519–520.
[25](1979) 142 CLR 659, 671, 676–677.
[26](1986) 160 CLR 392, 410.
[27]Ibid 399.
[28]Ibid 402.
[29]Mickelberg v The Queen (1989) 167 CLR 259, 301 (citations in original).
In summary, in R v Nguyen Kenny JA said that ordinarily a Court would not be satisfied that a fresh evidence ground was made out unless:
(b) the evidence is relevant and otherwise admissible;
(c) the evidence is apparently credible (or at least capable of belief) and;
(d)there is a significant possibility (or maybe a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before the trial: see Gallagher at 399, 402, 410, 421 and Mickelberg at 273, 288, 301. (If there is any practical difference between a test expressed in terms of ‘a significant possibility’ and a test expressed in terms of a ‘likelihood’ none has thus far been suggested; for it has been said that ‘likelihood’ is no more than a ‘substantial — a ‘real and not remote’ — chance regardless of whether it is less or more than 50 per cent’.[30]
[30]R v Nguyen [1998] 4 VR 394, 400–401 (Kenny JA, Winneke P and Callaway JA agreeing), citing as follows: ’See Boughey v R (1986) 161 CLR 10 at 21, Mickelberg at 301, Cheney v R (1991) 28 FCR 103 at 108 and R v Heffernan (unreported, Court of Criminal Appeal, 20 May 1994)’. See also Miechel v The Queen [2010] VSCA 225; Coleman v The Queen [2011] VSCA 301 (where the Court asked whether there was ‘a substantial chance’ that the fresh evidence would have resulted in the jury acquitting the appellant) and Greensill v The Queen [2012] VSCA 306, which cited the test as set out in R v Nguyen.
Where an appellant seeks to rely on fresh evidence
the Court is concerned with the question of what effect the … evidence would have had on the jury at the trial under appeal had that evidence been placed before it.[31]
[31]R v Kucma (2005) 11 VR 472, 487 [52] (Eames JA).
In considering whether there has been a miscarriage of justice the Court will consider any admissible new or fresh evidence in the context of the whole of the evidence.
(i) The evidence of Kirsch
Kirsch is a man who well understands the process of giving evidence and the significance of perjury. In his affidavit he said:
1.I am a qualified legal executive and hold sufficient academic and professional experience for admission as a fellow of the Institute of Legal Executives. I have undertaken both post and undergraduate studies and hold inter alia, the Degree Diploma in Legal Practice and Certificate Business Studies (Law). During my engagement as a Managing Law Clerk I have instructed and have had the care and conduct of numerous trials and pleas in the Supreme, County and Magistrates Courts in a range of matters including murder, armed robbery and other serious indictable offences.
It is convenient to summarise Kirsch’s evidence by initial reference to the framework of his second affidavit and in so doing to refer back where relevant to his first affidavit and forward to his oral evidence.
Kirsch described his relationship with James as follows:
8.I first met Helmet STAUDACKER [sic] in or about 1983. I had an intimate relationship with him from that time until about 2009.
9.After our intimate relationship ceased, we remained close personal friends until his death by suicide in about 2011.
10. Over the course of our relationship and close friendship, I was STAUDACKER's confidant. He confided much of his personal life to me over that time, including at times his criminal activities, his drug use and other personal issues.
11.On a number of occasions I assisted him with defending criminal offences with which he was charged over the years from 1983 onwards, including armed robberies. This was in the capacity as Managing Clerk of Yianoulatos Lawyers. I am not admitted to practice as a lawyer, although I am academically qualified.
12.On the basis of my past involvement with STAUDACKER, I know that STAUDACKER had participated in a number of armed robberies during that time, including as a ‘get-away driver’. He was a career armed robber. His prior criminal history is evidence of that fact.
13.In essence, I was STAUDACKER'S closest friend over 25 years. He turned to me for personal and professional advice when he needed it, as did many other criminally active individuals.
Kirsch then described meeting with James and Ryan on or about 19 June 2005:
14.On or about the evening of 19 June 2005, STAUDACKER telephoned me and asked me to meet him at the North Melbourne football oval ('the oval') as soon as possible.
15.Prior to that evening, STAUDACKER had called me and asked me to meet him at this same football oval on a number of occasions over the years seeking counsel and advice; including once in about 1995 when he was involved in an armed robbery; and once in about 1997 when he was involved in a separate armed robbery with Brett MASTON.
16.On both of those occasions, STAUDACKER was in the company of another person, whom it was apparent was a co-offender in the offence for which he sought advice.
17.Sometime around midnight, I arrived at the North Melbourne football oval and met with STAUDACKER. Two other males were with him. I had never met either of the other males before. I now know one of these males to be Leonard RYAN. I do not know the identity of the other male and did not meet again after that night.
18.STAUDACKER and I then had a conversation, away from RYAN and the other male.
19.To the best of my recollection, that conversation went as follows:
STAUDACKER:
‘Something big has happened, I'm in trouble.’
KIRSCH:
‘Don't tell me what happened, but tell me if you were directly involved. Does it concern the other two?’
STAUDACKER:
Nodding and said, ‘My mate needs a place to stay for a short while, he needs to stay off the radar.’ (Pointing to RYAN.)
KIRSCH:
‘OK, call me tomorrow.’
20.I was at the oval for about half an hour. I then left without saying anything further either to RYAN or the other male.
21.Nothing else of substance was said to me on that occasion about which I can give evidence.
This conversation amplified but is not inconsistent with [6] and [7] of the first affidavit describing the same events. It can be seen that it does not describe any affirmative answer to the question, ‘tell me if you were directly involved?’ Rather, it attributes nodding and reference to Ryan following the enquiry, ‘Does it concern the other two?’
Kirsch then described meeting with James and Ryan on or about 20 June 2005:
22.The following day, on or about 20 June 2005, STAUDACKER telephoned me and we agreed to meet again at the oval.
23.Sometime in the late afternoon on that day, I went to the oval and met STAUDACKER. This time he was with only RYAN.
24.To the best of my recollection, that conversation went as follows:
KIRSCH:
‘I need to know what I'm getting myself into.’
STAUDACKER:
‘It's about the Chubb truck shit.’
25.I had read about the robbery and subsequent shooting of a Chubb security guard in the media.
26.STAUDACKER in the presence of RYAN said to me that RYAN was concerned that the police had been carrying out raids on various premises and that the police were after him and wanted to kill him, and that RYAN was in fear for his life.
27.I then had a further conversation with STAUDACKER to the best of my recollection as follows:
KIRSCH:
‘If RYAN goes to the police, how will that affect you?’
STAUDACKER:
‘I’ll be OK.’
KIRSCH:
‘Are you sure?’
STAUDACKER:
‘Yes.’
28.My concern was that RYAN would implicate STAUDACKER if he surrendered to the police.
29.STAUDACKER did not say any anything [sic] more about the matter on this occasion. RYAN appeared to me to be nervous.
30.RYAN then said to me words to the following effect:
‘I want to square the matter up’ and ‘I'm scared.’
31.I understood this to mean that RYAN wanted to hand himself in to police but was fearful. It was peculiar that RYAN did not ask me about bail or the course of the criminal process. I formed the belief, based on my past experiences and what RYAN did not ask me about, that RYAN had already been in contact with the police and was looking for assistance with his surrender.
32.I was not interested in assisting RYAN in any further way than referring him to a solicitor.
33.However, I agreed to help STAUDACKER. I handed to STAUDACKER a set of keys and the alarm code to a premises located at 600 Sydney Road, Coburg, Victoria, which was an empty hostel that was undergoing renovations at the time. STAUDACKER had been there before.
34.I told STAUDACKER that he and RYAN could use the hostel for a week or so.
35.Nothing else of substance was said to me on that occasion about which I can give evidence.
Paragraphs [26]–[30] are odds with [8] of the first affidavit:
8.The following day STAUDACKER and I met at the North Melbourne Football oval. This time only a male person whom I now know to be RYAN was also in attendance. I said I can help but wanted to know what I was getting myself into and what the matter concerned was. STAUDACKER indicated that he was involved with the ‘Chubb Truck shit’. He did not offer any more details and I did not press the matter further. He was clearly nervous and I thought at the time that he might have been scared of or pressured by RYAN.
Note in particular the statement in the first affidavit, ‘He did not offer any more details and I did not press the matter further’. Conversely, [26], [27] and [30] of the second affidavit now allege conversations of substance.
Further, whereas the first affidavit includes the statement that James ‘indicated that he was involved with the Chubb Truck shit’,[32] the second affidavit did not depose to any words to this effect. Rather, the conversation concerns Ryan as a person involved.
[32](Emphasis added).
The second affidavit then describes a meeting between James and Kirsch at Arden Lodge in the following week:
36.Sometime in the afternoon during the following week, STAUDACKER attended at Arden Lodge. Although I was seeing him regularly, this was unarranged. I was managing the facility. I was in the office and STAUDACKER came in.
37.I was surprised and asked him what he wanted. STAUDACKER said: ‘I have some cameras for sale. They are worth $2000.00.’ I asked him where they came from. He laughed and said words to the effect that: ‘No, this is Ollie's alibi.’ Ollie referred to Hugo Rich. I said: ‘No, I don't need them.’
38.I then asked further questions of STAUDACKER in respect of his comment that they are ‘Ollie's alibi.’ STAUDACKER was present for about half an hour.
39.On legal advice, I am unwilling to give further evidence about what STAUDACKER then said or produce any exhibits without a certificate.
This evidence was amplified orally. Before going to that, however, it may be observed that it is surprising the first affidavit makes no reference at all to the incident referred to in [36]–[39] of the second affidavit, involving as it did express reference to the applicant.
In oral evidence, Kirsch initially said James used the words (or words to the effect that),[33] ‘This will harm Mr Rich. This is the alibi’. The reference to harm was a material change from the second affidavit and followed total omission of this conversation from the first affidavit.
[33]The evidence is somewhat unclear.
Subsequently in evidence, Kirsch said that James’s de facto worked for Kirsch as a receptionist and James often called in. On this occasion James came in with a plain cardboard box in a jovial mood. James may have been affected by some substance. James said, ‘This is Ollie’s alibi’. Amongst the items James produced were a DVD recorder, four surveillance cameras and a .38 four inch Smith & Wesson revolver.
When Kirsch asked James what he was talking about, James was incoherent. At the time, his methamphetamine habit was significantly affecting his conduct. The impression Kirsch got was that James was ‘quite negative’ towards the applicant. Kirsch had the impression that James believed that ‘this’ would harm the applicant significantly. James ‘rumbled on’ about creating some dates or something on the camera by altering the times. ‘Whether it was for him or some other person I don’t know’.
It may be observed that this evidence in large part is of the impression Kirsch had of an incoherent statement by an apparently drug affected person who was laughing and in a ‘jovial mood’. Nevertheless, the production of video equipment was accompanied both by reference to its potential use to provide an alibi for ‘Rich’ (and no-one else) and explicit reference to a proposal to tamper with it by altering dates.
The second affidavit then describes a meeting between Kirsch, James and Ryan on or about 27 June 2005:
40.Approximately a week later, STAUDACKER contacted me and again requested that we meet. We agreed to meet at the empty hostel.
41.Sometime in the evening, I went to the empty hostel to meet with STAUDACKER. RYAN was also present.
42.I recall that when I arrived, RYAN appeared to me to be nervous and guarded. STAUDACKER appeared to be assuring RYAN and said to him words to the effect that I could be trusted.
43.I explained to RYAN that I had previously worked at Yianoulatos Lawyers as a Managing Clerk, and that I could perhaps provide him with some legal or practical support.
44.STAUDACKER then said to RYAN words to the following effect, referring to me: ‘He knows all about it.’ These comments appeared to comfort RYAN, as he appeared to relax.
45.To the best of my recollection, I had a conversation with RYAN in the presence of STAUDACKER to the following effect:
RYAN:
‘The police will put me off, that's the word on the street, the police will put me off. They have been raiding homes and looking for me. I am really scared’
KIRSCH:
‘What do you want me to do for you?’
RYAN:
‘I want a solicitor to escort me to the police station when I surrender myself.
I also want him to sit in on an interview. The policeman I want to surrender to is called lddles. I have spoken with lddles. If I surrender myself to him, I'll be ok. I just need to get to see him.’
46.Ryan said he had written to the Herald-Sun newspaper and the Attorney-General's Department. This statement has stuck in my mind as I had never heard a person in RYAN's say such a thing, or adopt such a course if it was true. It was highly unusual. But it was apparent from RYAN's conduct and his statements that he was fearful of the police, although he insisted on surrendering himself and on being accompanied in that process.
47.RYAN then stated that he wanted to get on with his life. He told me that he was in the process of settling down with his girlfriend's family in Ballarat and wanted to start his own family. He then said to me: ‘I'm no dog’ and repeated this a number of times.
48.However, at no stage did he tell me what it was that he intended to tell the police or Iddles after surrender.
49.During this conversation I asked RYAN to assure me that he would not implicate STAUDACKER. RYAN said to me that he would not and said:
‘We're sweet.’
50.I told RYAN that the Prisoners' Advocate Legal Service would make arrangements for him to surrender himself including a solicitor to accompany him. I gave him the business card of Mr Peter Monagle, Solicitor, who was then working for the Legal Service.
51.I am informed that soon afterwards, RYAN surrendered himself to the police accompanied by a solicitor from the Prison Advocate Legal Service, Mr Monagle, and was arrested and charged with armed robbery.
There are differences in complexion between this account and that contained in the first affidavit as reflected in [12] of the first affidavit:
12STAUDACHER sought of [sic] broke the ice and committed RYAN by saying that he had already told me about the ‘Chubb truck’. This was not true, but it seemed to give RYAN some confidence. He explained that police were actively looking for him. When RYAN was referring to the ‘Chubb truck’ I was only vaguely aware of the matter from media reports.
In part we accept that these differences are matters of incidental detail only which, taken by themselves, could not be regarded as particularly significant. Nonetheless, the changes in emphasis occurred in a particular context to which we shall return below. The changes include matters such as the following. Saying that ‘He knows all about it’ differs from saying ‘that he had already told me about the “Chubb truck”’. As the accounts given of the earlier conversation indicate, a reference to the truck was potentially no more than a labelling of the incident. Further, the claim in the first affidavit that Kirsch was only vaguely aware of the matter from media reports is scarcely credible and does not sit comfortably with [25] of the second affidavit quoted above.
Furthermore, in [45] of the second affidavit Ryan is said to have stated in plain terms that he had spoken with police[34] about surrender. This may be contrasted with [15] of the first affidavit:
15I continued to speak to RYAN, and had the very distinct impression that RYAN had already made some effort to establish contact with police and indicated that he made some efforts including written to the Herald-Sun and also to the Attorney-General's office claiming that he had had ‘no confidence’ that he would have made it to court. I formed the view that RYAN may have already spoken to IDLES [sic] by telephone. …
[34]Det Sgt Iddles.
It may also be contrasted with the oral evidence of Kirsch that he drew the inference from the overall circumstances that Ryan had already spoken to police, which likewise does not accord with the terms of the second affidavit.
The second affidavit next describes contact between Kirsch and James after June 2005 and before October 2005.
52.I was suspicious of RYAN and I was concerned that RYAN would implicate STAUDACKER based on what he had told me previously and I told STAUDACKER of my concern on several occasions.
53.STAUDACKER said to me that he trusted RYAN and he wasn't worried.
54.I however desired to protect STAUDACKER from RYAN and what he might say to the police about what had occurred.
55.Sometime in about July 2005, I assisted STAUDACKER by giving him a position as manager of Centennial Lodge, which I owned and operated, and employing his then girlfriend Raelene FAGAN at various lodges.
56.As a result of my employment of him, I saw STAUDACKER almost on a daily basis. As a rule however, we would not discuss this matter in any detail.
The appointment of James as a manager does not sit comfortably with Kirsch’s oral evidence that at the time of the June 2005 meeting James had a methamphetamine addiction which was significantly affecting his conduct. More fundamentally, the second affidavit does not attribute any confessional statement to James up to this point in time.
The second affidavit then goes on to describe a meeting with James at Arden Lodge in about August 2005:
57.Sometime in about August 2005, STAUDACKER said that he wanted to ‘go for a walk.’ I understood that he wanted to talk to me about something sensitive.
58.STAUDACKER informed me that members of the Victoria Police Homicide Squad had been pressuring him to make another statement implicating Hugo RICH. I was not aware that he had made any previous such statement to Victoria Police, given my advice to him previously. Nor had there been any mention of Hugo RICH in any previous discussion with him. I was therefore highly surprised that STAUDACKER had made this comment.
59.I said to STAUDACKER words to the effect that he should not get any further involved and not speak to the police. STAUDACKER agreed. He requested my assistance to have a solicitor present with him should the police want to speak to him again.
60.I subsequently contacted Mr MONAGLE and directed him to accompany STAUDACKER should the police want to speak with him again.
61.We then returned to Arden Lodge. I do not recall for how long we spoke.
The terms of [58] relating to the first mention of the applicant are inconsistent with [37] of the second affidavit quoted above (ie the relatively dramatic video camera incident). In oral evidence Kirsch resiled from the statement that there had been no mention of the applicant in any previous discussion with James. As we have already observed, it is surprising that Kirsch’s sworn evidence of the sequence and contents of statements about the applicant is materially inconsistent.
We note that the substance of this portion of the second affidavit appears to equate in part to [23]–[24] of the first affidavit. In the first affidavit, however, the conversation takes place in November 2005 and there is no reference to Kirsch advising James that he should not get further involved with the police:
23In early November 2005, STAUDACKER once more contacted me and asked to meet. I informed STAUDACKER that he could come to Arden Lodge at 302 Arden Street North Melbourne.
24Upon his arriving, we left Arden Lodge, and again went for a walk, where STAUDACKER advised, that members of the Homicide Squad of the Victoria Police had been pressuring him to make another statement implicating RICH.
More materially perhaps, the change in chronology is accompanied by the omission in the second affidavit of the following significant passage from the first affidavit:
22STAUDACKER also informed me, that he had received ‘a message’ through a person named TADIC (having apparently been the other person with RYAN at the North Melbourne park earlier) who was directing STAUDACKER to distribute items that could be falsely planted so that RYAN could somehow assist police in locating them in an effort to secure possible bail.
It will be recalled that, when describing the meeting with two men in the park in North Melbourne in his second affidavit, Kirsch deposed: ‘I do not know the identity of the other male and did not meet again after that night’. In oral evidence, Kirsch confirmed that he did not know the identity of the other male. There is a marked difference in the two accounts. Information and belief as to Tadic’s identity appears to have evaporated.[35]
[35]Tadic was the subject of further evidence at trial.
The second affidavit then goes on to deal with the role of the Office of the Chief Examiner in 2005:
62.Sometime in late 2005, STAUDACKER told me that he had been served with a summons to appear before the Chief Examiner. I cannot recall the circumstances in which this was raised.
63.Again, in accordance with my desire to protect STAUDACKER, I arranged for STAUDACKER to have representation before the Chief Examiner. I again directed Mr Monagle to appear with STAUDACKER at the hearing.
64.I gave advice to STAUDACKER about what he should say.
65.On legal advice, I am unwilling to give further evidence about what STAUDACKER then said without a certificate.
66.However, I can say that STAUDACKER said he was concerned that if his co-operation was apparent to his previous associates, he would be branded a ‘dog’ and his life would be in danger. Being known as a 'dog' within the circles in which STAUDACKER moved was life-threatening. From my experience, to co-operate with the police and make a statement against another person would only be an option of last resort, given the potential consequences.
67.I am aware that STAUDACKER attended the Office of the Chief Examiner on or about 20 December 2005.
68.STAUDACKER gave further evidence in January 2006 and June 2006.
69.I specifically asked STAUDACKER not to tell me what he said at the examination.
70.At this stage, I had serious concerns about my own involvement and level of knowledge. It became increasingly apparent that STAUDACKER's involvement in the 'Chubb truck shit' [sic]. However, despite my concerns, I still wished to assist STAUDACKER.
This evidence was materially amplified in the oral evidence. Kirsch confirmed that, after Kirsch had launched a proceeding against the Chief Examiner, James expressed concern to him about being labelled a dog. This evidence places the conversation with respect to his concern after 4 October 2006 (see below).
Kirsch further said that in 2005, prior to the initial questioning of James by the Chief Examiner, James attended the Arden Lodge manager’s office. Kirsch was uncertain of the date of that attendance, but said that it was a month or two after the occasion on which Kirsch describes James attending Arden Lodge offering to sell the video cameras and showing him the .38 Smith & Wesson revolver. That earlier attendance occurred on an uncertain date during the week following the meeting of approximately 20 June 2005. On the second occasion James produced three firearms. The first was a Ruger .22 calibre silenced automatic pistol. The second was a German ‘toggle’ 9 mm Luger with seven round capacity. The third was a Smith & Wesson .38 revolver. James complained about the Luger and said some ‘fuckwit’ had attempted to modify it and had ruined the silencer. He also said the Luger continually misfired. When Kirsch examined the .38 Smith & Wesson revolver and the Luger, each gun had been recently fired. James asked if Kirsch could repair the Luger and the Ruger. The Luger had the toggle damaged, which meant it could fire accidently. Kirsch could not fix it.
The second affidavit further describes a meeting with James and Hogan in about June 2006:
71.In about June 2006, STAUDACKER was to give further evidence before the Chief Examiner.
72.Shortly before that time, STAUDACKER attended at Arden Lodge. He said that he wanted to ‘take a walk.’
73.We walked towards the Lost Dogs Home near the rear of Arden Lodge.
74.Standing by a car in that location was Paul HOGAN. I was surprised to see Paul HOGAN there, although I knew who he was, I did not know why STAUDACKER had arranged for him to be there.
75.To the best of my recollection, STAUDACKER said in my presence and in the presence of HOGAN words to the following effect:
‘I have not lagged any one. Everything with Ryan is sweet. What we agreed is what I have said, its [sic] ok.’
76.Hogan appeared to be listening intently to what STAUDACKER was saying.
77.I was not aware of what STAUDACKER said to the Chief Examiner or to HOGAN previously. However, as it was apparent that STAUDACKER wanted me to agree with his statement in the presence of HOGAN, I did so.
78.STAUDACKER and I then spoke about many other issues with the case and the hostel management. HOGAN said nothing and simply smoked cigarettes.
79.After about half an hour, STAUDACKER and HOGAN left.
No such meeting was referred to in the first affidavit despite the fact that Kirsch must have known at the time of its making that Hogan gave evidence at the trial of the applicant describing his involvement in the fatal armed robbery. In oral evidence, Kirsch also said that in the period between the attendances by James before the Chief Examiner Kirsch spoke to James weekly if not more frequently. Kirsch described those conferences insofar as they related to the offending as follows:
You have to understand the basis of my relationship with James. It's a very, very, longstanding one and for some time an intimate one. I was concerned about his welfare. Was he getting involved – he was getting himself involved with some very serious people but, of course, I didn't have the presence of mind at that time, nor did he tell me, he was actually engaged. If his involvement was anything in this matter, I assumed, from his past conduct, it would have been as a get away driver, certainly not as a principal actor. So I wasn't making the connection at that time.[36]
[36](Emphasis added.)
It follows that none of the conversations described by Kirsch up to this point in time involved an admission by James of direct involvement in the offending.
The second affidavit then goes on to deal further with the release of transcript of the examination of James before the Chief Examiner:
80.On or about 4 October 2006, on instructions from STAUDACKER, the Prisoners Advocate Legal Service commenced proceedings in the Supreme Court of Victoria against the Office of the Chief Examiner and the Department of Public Prosecutions, for the purpose of suppressing details of the Office of the Chief Examiner proceedings and the evidence given by STAUDACKER in those proceedings. Victoria Legal Aid approved a grant to Prisoners Advocate Legal Service to cover counsel's fees in these proceedings.
81.I drafted the writ and the application for legal aid funding for these proceedings.
82.The Supreme Court of Victoria rejected the application.
…
83.I am informed that subsequently to this, transcripts of the evidence given by STAUDACKER to the Chief Examiner were obtained by RICH. I believe this occurred sometime in the first half of 2007.
84.As a result, I discussed this with STAUDACKER.
85.In the course of these discussions, STAUDACKER said to me words to the following effect:
STAUDACKER:
‘RICH has become aware of what RYAN and I did with the hire car' and ‘If I am linked to the hire car, I am fucked.’
86.He made various comments about this hire car and a white Ford van. I was not clear about what the context or meaning of these statements was at the time, nor am I really clear now. I did not ask any further questions.
87.Subsequently to this, on instructions from STAUDACKER, the Prisoners Advocate Legal Service again commenced proceedings in the Supreme Court of Victoria against the Office of the Chief Examiner and the Department of Public Prosecutions, for the purpose of suppressing details of the Office of the Chief Examiner proceedings and the evidence given by STAUDACKER in those proceedings.
88.The Supreme Court of Victoria rejected the application.
89.After the failure of that application, there was nothing further I could do to assist STAUDACKER.
90.His drug use had escalated significantly and our relationship was strained. I also no longer trusted him given that he was co-operating with police, despite my earlier advice as to the dangers of that.
It may be noted that this affidavit does not acknowledge the fact that Kirsch himself read the transcript of the evidence of James before the Chief Examiner.
It is also to be noted that this evidence puts the escalation of drug use by James as occurring in 2007. One may contrast this with the oral evidence of Kirsch to which we have already referred.
In oral evidence Kirsch also described the course of the advice he gave James as follows:
You said you were discussing the Office of the Chief Examiner's proceeding? - - - Yes. Staudacher had previously asked me — he'd been pressured by police, although the words he's used, that, 'They want to talk to me about Ollie and the armed robbery'. I said, 'Well, look, just avoid them. It's as simple as that. Don't get involved', which I made out was exactly the same course I was adopting. He later become [sic] summoned to appear before the Chief Examiner. He asked me about it. I said, 'Well, you're compelled to attend. Tell them as little as possible'. Again this is just general advice. I'm not aware, at this time, of even the issues that are being alleged at the time between Mr Rich and Staudacher. I subsequently later read his evidence.
The second affidavit then deals with further events at Centennial Lodge:
92.In the course of a discussion at Centennial Lodge about his management and the effects of his conduct on the business, STAUDACKER made a comment to me.
93.On legal advice, I am unwilling to give further evidence about what STAUDACKER said without a certificate.
…
94.I was concerned that STAUDACKER had commenced regular drug use and had misused his position as manager of Centennial Lodge to obtain drugs and to distribute them from the premises.
95.My relationship with STAUDACKER therefore commenced to deteriorate.
96.Subsequently, police raided the lodge and two firearms were recovered as well as a quantity of drugs in his own room and in the manager's office.
97.After the raid, I spoke with STAUDACKER about the potential charges that could be laid.
98.On legal advice, I am unwilling to give further evidence about what STAUDACKER said without a certificate.
99.STAUDACKER was not charged in relation to any of this conduct.
100.At that point I was estranged from STAUDACKER. In fact, I had obtained court orders against STAUDACKER to remove him from the premises.
101.I wanted nothing more to do with him, or this affair, any longer. I no longer spoke with STAUDACKER.
This evidence was amplified orally as follows. Kirsch said that at that stage James was heavily addicted to ice. He was stealing money and doing all sorts of things. Kirsch’s relationship with James was virtually at an end and they had a heated exchange at the top of the steps at Centennial Lodge just outside the manager’s residence. Kirsch was concerned that money was going missing from Centennial Lodge and that two pistols which were missing from Kirsch’s premises had been discovered during a police raid at Centennial Lodge. Kirsch says he told James he had to get off the gear and that he was out of control. Kirsch said that he would not ‘cover’ for James anymore and that James was deliberately continuing to ‘draw himself in’. Drugs and other issues were addressed and then Kirsch said ‘what the fuck are you getting yourself involved in … murders and all sorts of shit’. James said ‘it was an accident’.[37]
[37]Kirsch subsequently rephrased this as ‘it was just a fuckin’ accident’.
This is an inherently ambiguous statement, as Kirsch himself acknowledged. It may be understood as indicating James’s involvement was accidental or that the killing was accidental. Following this confrontation, Kirsch says his relationship with James of 28 years ended.
Kirsch further said that he formed a belief as to what was going on and when asked whether any of the evidence he had given was ‘tainted’ by his belief Kirsch said ‘yes it has to be of course’ before affirming the accuracy of his account of events.
The second affidavit also purports to depose to Kirsch’s contact with the applicant:
104.Prior to the attendance of IDDLES in 2010, after his conviction, RICH called Arden Lodge. I was told by an employee, Sarah LO, that RICH had called and had asked to include me on his approved telephone list.
105.Although I had not spoken to him for over a decade or more, and our relationship was not friendly, I agreed to accept telephone calls. I had no idea what he wanted.
106.Sometime later, I cannot recall how long, RICH telephoned Arden Lodge.
107.I spoke with him. The conversation was pleasant. There was no discussion about his case other than a cursory reference to his conviction. He wanted some help in obtaining software and I sent him some money to pay for it or purchased it, I do not recall.
108.He continued to call about once a week for about 6 months. Very often he would talk to LO. Sometimes I would speak with him. I allowed him to use her to assist him with whatever he wanted. That was the purpose of Prisoners' Advocate Welfare Service.
109.During those conversations, which were between 15 minutes and half an hour, we discussed some aspects of the case and the evidence. I never had any contact with RICH other than these telephone calls.
110.I never disclosed any of the details of my discussions with STAUDACKER to RICH. This was predominantly because I did not want to implicate myself in any way.
111.Sometime in about January 2012, Tate [sic] Lawyers contacted me and asked if I would prepare an affidavit. I agreed.
In cross-examination Kirsch said of the first affidavit, ‘there was ongoing narrative as to what I could give and not give’. The communications with the applicant and his solicitor extended over perhaps a year. There were six or more drafts. Kirsch typed up suggested amendments. The second affidavit was produced on the basis of the first affidavit but after a conference with counsel and an instructing solicitor. There were a number of suggestions put to Kirsch. The applicant made suggestions in a ‘very, very small manner’. There were a number of amendments to the initial draft. All of this contact followed the extensive telephone conversations with the applicant about aspects of the case and the evidence to which Kirsch himself referred in his second affidavit.
In addition to the matters described or foreshadowed in his affidavits, Kirsch gave oral evidence as to one further matter. He stated that about six months prior to the armed robbery James said he was trying to raise $130,000 for the acquisition of a web server and design company in Queensland. Kirsch reviewed documentation (which he claimed he no longer had) and counselled against the investment. James had trouble raising the money and said ‘Look, I’ll raise the money’. Kirsch ‘drew [his] own conclusions as to how he’d raise the money’.
In oral evidence, Kirsch said that he regarded the applicant as a potential soldier for the Nazi Party with a great deal of intelligence. He conceded that he may have introduced James to the applicant in 1984 as James stated at trial.
In oral evidence he further explained his preparedness to give evidence:
I'm probably one of the most reluctant witnesses, you would think. I don't want to become involved in this matter, never have. I have somewhat of a history with Mr Rich. Quite frankly, I'm simply motivated, though this will be the last opportunity I have, I've since sold most of my assets in the state and will leave — to right what I consider is a potential wrong. Of course ultimately it's a matter for this honourable Court but I have my own view.
It may be recalled that in oral evidence Kirsch acknowledged that he read the transcript of James’s evidence before the Chief Examiner. He was thus aware prior to the trial of the substance of the evidence James would give at trial.
(ii) The matters relied upon in summary
The applicant sought to rely on the following matters to which Kirsch deposed:
(a) Evidence that, on or about 20 June 2005, James and Ryan jointly sought the assistance of Kirsch about consequences of the ‘Chubb truck shit’.
(b) Evidence that, in the following week, James produced video camera equipment to Kirsch at Arden Lodge and laughed and said words to the effect of ‘this is Ollie’s alibi’, said further or gave the impression that ‘this will harm Rich’, and spoke further of a proposal to create dates on the camera by altering times.
(c) Evidence that, on or about 27 June 2005, James and Ryan again sought the assistance of Kirsch and Ryan discussed surrendering to the police.
(d) Evidence that, in about June 2006, James and Kirsch met Hogan and James made a statement implying co-operation with Ryan:
I have not lagged anyone. Everything with Ryan is sweet. What we agree is what I have said, its [sic] OK.
(e) Evidence that, in 2006 before he was questioned by the Chief Examiner, James attended the Arden Lodge manager’s office and produced three firearms including a 9 mm Luger. The Luger had the toggle damaged, which meant it could fire accidentally.
(xx) The telephone given by Ryan to the applicant
The Crown case also relied on evidence that a telephone which Ryan said he had given to the applicant so that they could communicate in the aftermath of the robbery was found in the applicant’s office by investigating police on 11 May 2005.
The evidence was that two telephones were purchased in the name of Smith on 21 March 2005. Ryan said he gave one to the applicant at a meeting in a café in the Australis Plaza on that day. Ryan said he gave the applicant a phone because the applicant said he did not want Ryan coming around to his office at that stage. The discovery by investigating police of one of the two phones at Ryan’s home in Inkerman Street in May and the further discovery of the other phone (a Sony Ericsson T105 with a particular identification number) in the applicant’s office when it was searched was capable of being regarded by the jury as evidence tending to support and confirm the truth of Ryan’s evidence concerning his dealings with the applicant albeit perhaps only with respect to conduct subsequent to the armed robbery rather than the robbery itself.
Putting the above matters together, the evidence most strongly corroborative of Ryan’s account of the applicant’s involvement in the armed robbery was:
·the evidence as to the hiring of two successive cars respectively prior to the initial date proposed for the robbery and immediately prior to the robbery;
·the evidence of the applicant’s absence from his office on the day of the robbery;
·the evidence suggesting that the killer was the taller of the two armed robbers;
·the evidence of the hiring of a further car in the aftermath of the robbery and its provision to Ryan and of Ryan’s efforts to subsequently recontact the applicant;
·the evidence of the argument outside the applicant’s house on the night of 8 March 2005; and
·the discovery of the twin phone purchased by Ryan for the applicant when the applicant’s office was searched by police.
The other matters to which we have referred were also capable of acceptance by the jury as tending to confirm the truthfulness of Ryan’s account of the robbery and the applicant’s role in it. When regard is had to these matters as a whole, it was in our view plainly open to the jury to accept Ryan’s evidence as truthful and reliable with respect to the robbery and shooting.
For these reasons ground 10 fails.
(xxi) Other matters
For the sake of completeness, we record that there are some limited aspects of the evidence upon which the Crown relied as supporting Ryan’s evidence upon which we accept the jury could place little weight, either because they did not intersect directly with Ryan’s account of his dealings with the applicant or because we accept they were ultimately of little probative value. These matters include:
·the evidence as to motive;
·the evidence that Ryan and Hogan collected Hogan’s money from a location in Docklands; and
·the evidence the applicant asked James to get him a white van.
(xxii) Motive
We have already referred to Ryan’s evidence that the applicant said he needed money to purchase interest in PDA and that Ryan could in turn be offered a role with side benefits, such as a good car, a credit card and overseas travel. In particular, Ryan said that the applicant told him at the end of 2004 that he needed $200,000 to make the deal with PDA happen.
Ryan’s evidence was that he put the proposal for the armed robbery to the applicant initially on the basis that he could get money for PDA from it and that there was ongoing reference to PDA in subsequent discussions.
The evidence ultimately showed that the applicant entered into a consultancy agreement with Precision Design Australia Pty Ltd commencing on 10 December 2004. This agreement provided for a payment to the applicant of a consultancy fee and did not demonstrate that the applicant had an objective need for a substantial amount of cash money (in the order of $200,000) at the time of the robbery. The motive for the applicant’s involvement in the robbery suggested by Ryan was thus not established. On the other hand, the dealing with PDA confirms that the applicant may well have discussed PDA with Ryan and to this incidental extent was consistent with his evidence.
(xxiii) The white van
James gave evidence that because he had a history with car theft the applicant asked him to obtain a van. He did not recall where the conversation took place but said he was asked to obtain a white van. James was cross-examined as to the detail of what occurred and the defence ultimately submitted that his evidence was inconsistent and unconvincing. It is sufficient to say that for our part we accept that it could not be regarded as materially corroborating the truth and reliability of Ryan’s evidence.
(xxiv) Docklands
The Crown also relied on the fact that Ryan’s evidence was that the envelope containing the money for Hogan was collected from the Nissan Maxima at a location in Docklands. Hogan was less sure about the location. In any event whatever may have been the recurrent associations that the applicant had with Docklands, we do not think much could be inferred from the location of the pick-up.
For the reasons already given, we do not consider that the limited weight to be accorded to Ryan’s evidence relating to the motive for the robbery, James’s evidence about the request to steal a van and Hogan’s evidence about the collection of the envelope meant that it was not open to the jury to find the applicant guilty of murder or armed robbery.
Conclusion on application for leave to appeal against conviction
It follows that the application for leave to appeal against conviction will be dismissed.
Application for leave to appeal against sentence
The applicant seeks leave to appeal against sentence, on three grounds:
(1) The sentence is a nullity because the proceedings were a nullity.
(2) The judge subjected the applicant to double punishment for the offence of armed robbery.
(3) The judge erred in failing to prevent the Crown from referring, in the course of the plea, to one of the applicant’s former convictions which was quashed on appeal to the High Court.
Ground 1 — Validity of proceedings
The submission put in support of ground 1 was expressed in the applicant’s written case as follows:
The applicant stood before an incompetent proceedings that the law could have ever recognised, denying the judge any lawful authority to impose any sentence or ordering a term of imprisonment.
Counsel for the applicant was invited to expand on the argument but he informed the court that he had nothing to add to what was set out in the written case.
In our view, therefore, the argument is untenable. The applicant was put up for trial on a Presentment signed by the Director of Public Prosecutions and otherwise in apparent conformity with s 353 of the Crimes Act 1958.[177] The applicant has not identified any defect in the Presentment or any other reason why it should be regarded as invalid. No objection was taken to its validity in the course of the trial. No question as to the judge’s standing or authority to impose sentence was voiced in the course of the plea. We reject ground 1.
[177]Which was filed over on 12 February 2009.
Ground 2 — Double punishment
The argument under ground 2 was that the judge erred by taking into account as an aggravating circumstance of the murder that it was committed in the course of the armed robbery. It was submitted that, because the applicant stood to be sentenced separately for the armed robbery, taking the robbery into account on the charge of murder amounted to double punishment. Alternatively, it was contended that the judge erred in failing to moderate the sentence imposed on the charge of murder to take account of the extent of criminality which was common to both charges.
We do not think those submissions to be persuasive. We allow that there was a degree of overlap between the murder and the armed robbery. Although the elements of each offence were mutually exclusive, the gravity of the murder was informed by the fact that it was committed in the course of the robbery. We also accept that the judge was bound to make an allowance for the overlap in order to avoid the risk of double punishment. But it does not follow that the judge was bound to reduce the sentence imposed on the charge of murder. To the contrary, this offence of murder was among the worst instances of that offence, among other reasons, just because it was committed in the course of violent armed robbery. As such, it necessitated a sentence appropriate to the worst instances of the offence of murder.
We allow that, to the extent of the overlap, it was necessary for the judge to moderate the sentence imposed on the charge of armed robbery.[178] But we are not persuaded that the judge failed sufficiently to moderate the sentence imposed on the charge of armed robbery. This armed robbery, like the murder, was among the worst instances of the offence that may be imagined. It demanded a condign sentence made sterner still by the applicant’s antecedents, recalcitrance and very limited prospects of rehabilitation. Given the nature and gravity of the offending, and that the maximum penalty is 25 years’ imprisonment, we do not consider that a sentence of 20 years’ imprisonment was in all the circumstances too much.
[178]Pearce v The Queen (1998) 194 CLR 610, 621–3 [34]–[40].
Moreover, even if it were, it would make no difference to the sentence imposed on the charge of murder or, therefore, to the total effective sentence. Thus, we would dismiss the application for leave to appeal under s 280(1)(b) of the Criminal Procedure Act 2009. We reject ground 2.
Ground 3 — Irrelevant consideration
The argument under ground 3 was formulated in the applicant’s written case, as follows:
It is submitted, that [because] … it would have … been impermissible for the Court itself to … receive [a] submission based on a ‘quashed or spent’ former conviction … the judge had [a] duty to [stop] the Crown prosecutor from [making a] submission [based on such a conviction] as it really stood for nothing higher tha[n] [making] inappropriate attempts to convey to the judge [a need] to … impose the full weight of the statutory penalty — and such a penalty was so ultimate[ly] imposed.
Counsel for the applicant was invited to expand on that argument, too, but once again stated that he had nothing to add to the written case. We proceed accordingly. As we apprehend the argument, it amounts to saying that the prosecutor should not have referred to any ‘quashed or spent’ former conviction; and, because he did, the judge was thereby influenced to take into account an irrelevant consideration which vitiated the exercise of his sentencing discretion.
We reject the argument. The only reference to ‘quashed or spent’ conviction, which we can find in the transcript of the plea hearing is in the following passage of the prosecutor’s submission on plea:
MR TINNEY: As to the armed robbery itself, my friend has conceded that it’s obviously enough a serious example of the offence of armed robbery and clearly that must be so by an offender with a highly relevant past history and the Crown would say, no prospects of rehabilitation on the material, and I’ll come back to that shortly.
Your Honour knows that Mr Rich was released on parole on 3 October 2004. That’s another matter, I won’t keep going back to it, your Honour, because it stands to no proposition at all, of course, but my friend has placed it before you as providing some guidance.
Mr Rich was on parole, he was on parole following a very lengthy sentence for armed robbery and other offences. He was released on parole on 3 October 2004 and within a very short space of time was planning to commit an offence. The offence itself — I now speak of the armed robbery — was obviously a high yield, high stakes offence given the nature of the target, the fact that the targets were armed. It involved, as your Honour has said, significant planning. On Mr Rich’s behalf, the carriage of a loaded firearm is a, and your Honour scarcely needs me to make this submission, I would have thought, your Honour has seen the video footage and has seen a passing parade of witnesses who had the misfortune to be present in that shopping centre on the day in question, lunch time. A loaded firearm, a highly visible and dangerous armed robbery committed at a time when, as we say, there are very many civilian bystanders, young and old present up against uniform guards known to possess loaded weapons so obviously a high level of risk of confrontation and discharge of weapons in that setting, children in pushers, as your Honour sees, school students in the vicinity. They’re all of them aggravating circumstances in terms of each of the crimes as indeed, of course is the very significant aspect of it being committed whilst on parole for the same offence.
As to the murder, my friend concedes it’s a serious example of that offence. Discharge of a nine millimetre weapon deliberately into Mr Kastenberger, who’d done nothing to provoke the shooting. He was just doing his job. The money had been thrown away, he was totally compliant. His murder was totally unnecessary to effect the armed robbery. In that sense, it’s submitted that it’s a brutal and a senseless killing in a public place of a guard just going about his daily duties.
Your Honour has had a brief opportunity and no doubt your Honour will read them again, the victim impact statements to which I referred your Honour earlier but the impact has been profound obviously on a number of levels and to a number of people.
My friend has taken your Honour to Mr Rich's history and he's ultimately concluded in his submissions that there are prospects of rehabilitation.
HIS HONOUR: Primarily by the effluxion of time?
MR TINNEY: Yes. Mr Rich is not a 24 year old such as Mr White committing an offence and standing to be sentenced when 26 with the history of Mr White. Mr Rich is Mr Rich, standing to be sentenced for the offence committed by him as a mature man with the history that he’s got whilst on parole.
Your Honour knows that there were certain sentences passed upon Ryan. I don’t take your Honour to those other than to refer to her Honour’s remarks in those sentencing remarks as to the armed robbery sentence that would have been passed for Ryan being in the mid-double figures but for the level of cooperation and the undertaking and the guilty plea. I refer to paragraph 66 of her sentencing remarks.
There is in this case a total absence of any remorse as demonstrated by a range of activity in the course of the trial. Your Honour can have regard to that if needs be pursuant to the provisions of s 5(2C) of the Act. There has been a total lack of regard for the court and the court process. That would only be relevant, of course, in relation to an assessment that your Honour makes in relation to his prospects for change.
He has demonstrated a track record showing a flagrant disregard for the court and orders imposed by the court and for that matter orders imposed by the Parole Board. It leads us to a submission that the Crown is generally reticent in making in this sort of proceeding, that Mr Rich has absolutely no prospects of rehabilitation.
He has the convictions that have been either admitted or proved, they include the two trials for armed robbery. He is now by my calculations 56 years of age. Since 1984, he has spent a total of approximately 36 months not in custody.
I repeat that, since 1984, he has spent a total of approximately 36 months not in custody.
Your Honour sees from the history that he received his first term of immediate imprisonment in October 1981 for deceptions, two years with a non-parole period of 12 months. Upon his release, he committed further dishonesty offences. In 1984 for thefts and deceptions he received five years with a three year non-parole period in the County Court. He was paroled in relation to those matters; I have a certificate that I can — that my friends have been provided with, but if there’s any issue I’ll provide it. He was paroled in March 1986. By December 1986, he was arrested in relation to Commonwealth offences that are not prior convictions, as your Honour will be aware. It deals with the issue of his custodial placement throughout this period. So, December 86 arrested in relation to the Commonwealth offence of importation, for which he was convicted in the County Court - - -
MR DESMOND: How is it relevant?
MR TINNEY: - - - in October of 1988, and he received a seven year term with a five year non-parole period. Now, ultimately he succeeded in his appeal with the High Court leading to an order that he be retried and ultimately the Commonwealth Director never bothered with that retrial as Mr Rich had already served his minimum term and been paroled — paroled on 27 April 1990.[179] The only reason I raise that, your Honour, was, it spells out the length of time that Mr Rich has been out of custody in the last quarter century.
[179]Emphasis added.
PRISONER: I’m entitled to a total (indistinct).
MR TINNEY: So, having been paroled on 27 April 1990, in relation to those matters, which ultimately his appeal in the High Court was successful, on 2 December 1991, he was arrested in relation to the series of armed robberies …
This history will be spelt out in some decisions that I will refer your Honour to. As your Honour’s been told, he was convicted of a number of those. He had a measure of success in the Court of Appeal, which led effectively to his being sentenced for one of the armed robberies in 1997, retried on the other in 2000 and various nolle prosequis being announced for the remaining counts after that successful retrial.
Rich remained in custody from 2 December 1991 until being paroled in October 2004. As your Honour has been told, in that time he was serving sentences for the two armed robberies by that stage. Each of those armed robberies, by the way, were very serious examples of that offence. One involve[d] an armed robbery upon the Armaguard van making a collection from the Glen Waverley supermarket at 12.35 one afternoon.
The other was a forced entry to the Nunawading National Australia Bank branch just prior to the branch opening, and the armed robbery then of the cash that was awaiting collection by the Armaguard escort, and as I say the facts of those can be seen in various judgments that your Honour has been referred to along further, and I will refer to them again shortly.
In the course of the committal hearing, so these are not matters back in 1991, in the course of the committal hearing he issued threats to kill the informant. As you have been told that was the subject of a two and a half year cumulation following trial in relation to that matter. In the course of the armed robbery trial before Judge Byrne he threatened to kill the prosecutor, Ms Douglas, he made a series of contemptuous remarks to the trial judge and that then led to his conviction for contempt of court in 1998 for which again there was a measure of cumulation.
The upshot is that Mr Rich has spent a total of 22 of the last 25 years in custody. Within a very short space of time of being released on parole he was involved, though the truth of this was yet to be determined, your Honour has got the interview of Mr Rich though in relation to the various fraud allegations. He was involved in a series of frauds for which he made admissions. He awaits trial in the County Court for those. The current armed robbery and murder occurred whilst - - -
HIS HONOUR: And that, is there a time fixed for that trial?
MR TINNEY: It is — I am not involved in that your Honour, 20 October or thereabouts of this year, your Honour. The current armed robbery and murder occurred whilst on parole for armed robbery within five months of such release after being in custody for 13 years.
We see nothing improper in the prosecutor so mentioning the conviction which was quashed by the High Court.[180] It seems to us that it was necessary to refer to it in order to provide the judge with a complete understanding of the time which the applicant had spent in gaol. There is also nothing in what the prosecutor said about it, or the manner in which he said it, which appears calculated or likely to have caused the judge to give it improper weight. As the prosecutor told the judge, the only reason he referred to the matter was to explain the length of time which the applicant had spent in custody in the last quarter century. The important point, which was accurately reflected in the judge’s sentencing remarks, was that the applicant committed the subject offences shortly after serving the previous 13 years in gaol. Accordingly, we reject ground 3.
[180]Dietrich v The Queen (1992) 177 CLR 292.
Conclusion on application for leave to appeal against sentence
The application for leave to appeal against sentence will be dismissed.
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