Rich v The Queen - [2012] VSCA 183

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0898

HUGO RICH	Applicant
	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 August 2012
DATE OF JUDGMENT	9 August 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 183

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APPEALS – Application for directions in respect of application for leave to appeal against conviction and sentence – Whether order should be made for production of unlawful affidavits relating to the obtaining of evidence – No arguable basis for avoiding s 165 Evidence Miscellaneous Provisions) Act 1958 – Whether audio compact disc of transcript should be provided – Whether transcript of charge, plea hearing and sentence should be provided in Transcript Analyser format – Whether orders should be made against general manager of prison – Applications refused – Criminal Procedure Act 2009 s 317.

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APPEARANCES:	Counsel	Solicitors
The applicant appeared in person
For the Crown:	Mr S Milesi with Mr B Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Second Respondent:	Mr S O’Bryan SC	Corrections Victoria

BUCHANAN JA:

I will ask Osborn JA to deliver the first judgment.

OSBORN JA:

On 12 June 2009, the applicant was convicted of murder and armed robbery following a trial lasting nearly five months.

On 26 August 2009, he was sentenced to life imprisonment for the murder and 20 years’ imprisonment for the armed robbery. The sentencing judge fixed a minimum term of 30 years before eligibility for release on parole.

The applicant has filed a 63 page written case dated 4 March 2012 in support of an application for leave to appeal against conviction. This raises 20 proposed grounds of appeal. He has also filed a seven page written case dated 7 March 2012 in support of an application for leave to appeal against sentence. This raises three proposed grounds.

Ground 20, in respect of the proposed appeal against conviction, asserts that a substantial miscarriage of justice has arisen because affidavit material supporting relevant search warrants was not properly sworn in accordance with s 138 of the Evidence Act 2008. The ground is in the following form:

A substantial miscarriage of justice has arisen by virtue of Fresh Evidence that has come into the applicant’s possession, since trial, namely, that raises for consideration the fact that affidavit material tendered in support of search warrant were not properly, or at all sworn as is prescribed in accordance with s 138 of the Evidence Act 2008: DPP v Marijanecvic & Ors [2011] VSCA 355 …

The applicant now seeks an order:

AThat Crown forthwith produce all affidavits which had been relevant to evidence used in the trial, along with a detailed account from the Crown, with supporting documents, of the extent to which irregular police affidavits had been relied on, and also the significance of any affidavits obtained by the use of warrants issued, and on the basis of such affidavits had been so used, and that such documents be produced within 14…

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 [2012] VSCA 183
Case: [2012] VSCA 183
Decision Date: 9 August 2012

CaseChat Overview and Summary

The case of Rich v The Queen involved an application for directions regarding an application for leave to appeal against both conviction and sentence. The applicant sought various orders, including the production of affidavits, an audio compact disc of a transcript, and a transcript of the charge, plea hearing, and sentence in Transcript Analyser format. The application also sought orders against the general manager of the prison. The court was required to determine whether the orders should be granted, particularly focusing on the arguable basis for avoiding the provisions of s 165 Evidence Miscellaneous Provisions) Act 1958.

The court analysed the applicant's arguments and considered the relevance and admissibility of the requested documents. It found that the applicant had no arguable basis for avoiding the provisions of s 165 of the Act, which pertained to the production of affidavits. The court further concluded that there was no compelling reason to order the production of an audio compact disc of the transcript, and that the provision of the transcript in Transcript Analyser format was unnecessary. The court also determined that the orders should not be made against the general manager of the prison as the application did not demonstrate a sufficient connection between the prison and the matters being appealed.

In light of the above, the court refused all the applications made by the applicant. The decision was made under s 317 of the Criminal Procedure Act 2009, which governs applications for leave to appeal. The court emphasised that the applications did not have a reasonable prospect of success and would not result in a just outcome. Consequently, the applicant's requests for various orders were denied, and no further appeals were permitted without the leave of the Court.

Orders