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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rich v The Queen

Details

AGLC: Rich v The Queen [2014] VSCA 126
Case: [2014] VSCA 126
Decision Date: 20 June 2014

CaseChat Overview and Summary

In the case of Rich v The Queen, the applicant, who had been convicted of murder and armed robbery, applied for a new trial and for leave to appeal against his conviction and sentence. The High Court of Australia dismissed both the application for a new trial and the application for leave to appeal. The applicant argued that there were numerous grounds for a new trial, including the admission of hearsay evidence, the failure to warn the jury adequately about the risks of relying on co-offenders' statements, and the potential contamination of the jury selection process. The court considered these arguments and others, including the admissibility of unlawfully obtained evidence and whether the judge had erred in sentencing.

The legal issues before the court included whether the fresh evidence the applicant sought to introduce was available at the time of the trial with reasonable diligence, and whether this evidence might have led the jury to a different verdict. The court also had to consider whether the jury's constitution was vitiated by the judge's order that members of the first, discharged, jury return to the panel from which the second jury was selected. The court further examined whether the judge had failed to warn the jury sufficiently of the risks of relying on the evidence of co-offenders and whether the judge had erred in sentencing by not making sufficient allowance for the criminality common to both the murder and the armed robbery.

The court found that the applicant had not satisfied the threshold for a new trial as set out in Gallagher v R. The fresh evidence was either not new or not credible, and even if it had been admitted, it was unlikely to have led the jury to a different verdict. The court also found that there was no contamination of the jury selection process, and that the judge had adequately warned the jury about the risks of relying on the co-offenders' statements. The court further found that the judge had not erred in sentencing and that there was no double punishment. Accordingly, the applications for leave to appeal against conviction and sentence were dismissed.

The court made no orders as to costs.

Orders