Rich v The Queen
[2012] VSCA 183
•9 August 2012
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 days from the date of any such order so made, given that the Court has previously directed the Crown to so attend to the matter comprehensively on 10 February 2012, and of which the
Crown had not seemingly acted upon that issue in the period exceeding 4 months. [sic]
On 10 February 2012 Maxwell P and Bongiorno JA reserved liberty to renew an application in respect of evidence relating to the defective jurat of relevant affidavits following the furnishing of an appropriate ground of appeal. Their Honours also expressed the view that if a ground of appeal could be properly articulated, there should be no need for an order by this Court for production of relevant documents.
On 26 July 2012, the OPP provided to the applicant a chart which identifies the affidavits relevant to evidence adduced at trial and states whether the affidavits were or were not properly sworn. No further documentation has been produced.
Since the matter was before the Court, however, the Evidence (Miscellaneous Provisions) Act 1958 has been amended. Section 165 now provides:
(1)If an affidavit signed before 12 November 2011 by a person and by a person duly authorised to administer oaths contains words indicating that the first person states that the affidavit is made on oath or affirmation—
(a) it is not, and was not at any time, necessary that—
(i)the oath or affirmation be made orally; or
(ii)the first person signed the affidavit in the presence of the person duly authorised to administer oaths; or
(iii)the person duly authorised to administer oaths signed the affidavit in the presence of the first person; or
(iv)if the first person signed the affidavit in the presence of a person duly authorised to administer oaths, the person so authorised observed the person signing the affidavit; or
(v)the affidavit contained the statement required by section 126; and
(b)the words indicating that the first person states that the affidavit was made on oath or affirmation are and are taken always to have been effective by way of oath or affirmation even if anything referred to in paragraph (a)(i) to (v) was not done or did not occur.
(2)A warrant, an order, a summons or other process issued or made by a court or a judicial officer in reliance, directly or indirectly, on an affidavit referred to in subsection (1) is not invalid only by reason of the fact that, but for subsection (1), the affidavit would not have been duly sworn or affirmed.
(3)For the purposes of the prosecution of an alleged offence, the fact that, but for subsection (1), an affidavit would not have been duly sworn or affirmed is to be disregarded in determining whether evidence obtained in reliance, directly or indirectly, on that affidavit ought to be admitted.
(4)Subject to subsection (3), this section does not limit a discretion of a court—
(a) to exclude evidence in a criminal proceeding; or
(b) to stay a criminal proceeding in the interests of justice.
(5) This section does not affect the rights of the parties in—
(a)the proceedings known as Director of Public Prosecutions (Vic.) v. Marijancevic (No. 264 of 2011), Director of Public Prosecutions (Vic.) v. Preece (No. 263 of 2011) and Director of Public Prosecutions (Vic.) v. Preece (No. 265 of 2011) in the Supreme Court of Victoria, Court of Appeal; or
(b)any other proceeding in which a court, before the day on which the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 receives the Royal Assent, has made a ruling on the validity of—
(i)an affidavit referred to in subsection (1); or
(ii)a warrant, an order, a summons or a process issued or made in reliance, directly or indirectly, on an affidavit referred to in subsection (1); or
(c)any other proceeding in which a court, before the day on which the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 receives the Royal Assent, has made a ruling on the admissibility of evidence obtained under a warrant, an order, a summons or other process issued or made in reliance, directly or indirectly, on an affidavit that, but for subsection (1), would not have been duly sworn or affirmed.
(6)In this section affidavit includes a document purporting to be an affidavit.
No proper basis has been articulated upon which the proposed ground of appeal could succeed in the face of this amendment. Mr Rich submits that because a police officer is sworn to uphold the law and evidence was obtained contrary to the law, an abuse of process has occurred which cannot be cured by s 165. In effect, the evidence constitutes the fruit of a poisoned tree.
I do not accept that the effect of the legislation is so constrained. The plain purpose of the amendment was to meet the situation before this Court. Further, the premise of Mr Rich's argument is conceded in any event by the Crown in that the document filed admits that affidavits were not lawfully sworn.
In my view, the terms of s 165, and in particular subsection (3), render the ground unarguable on its face. Nevertheless, I accept Mr Rich's statement to the Court this morning that he has come to court not fully prepared to argue the effect of s 165 and I would record that it is open to him to further argue this issue on the leave application. The factual basis for the argument is conceded by the Crown, namely that a number of affidavits were not properly sworn.
There is no proper basis for the provision of further documentation in respect of the affidavits pursuant s 317 of the Criminal Procedure Act 2009 at this point in time.
The applicant also seeks an order that sound recordings of the hearing on particular days be provided to him by way of audio compact disc. No arguable deficiency in the transcript has been identified and no proper basis has been advanced for the order sought, save that Mr Rich asserts there are certain matters which he proposes to unveil in due course. Moreover, the transcript was produced by stenographers and supplied during the trial to the accused and his counsel on a real time basis. It was also supplied without objection to the jury. In these circumstances it seems to me that there is a heavy onus confronting the applicant in satisfying us that there is a real question that it is inaccurate. Lastly, I would add, that the only tapes available are VHS tapes which the Court Registry advises cannot be readily copied. I would dismiss this application
The applicant next seeks an order that the VGRS provide to him copies of the judge’s charge and of the plea and sentence transcripts in an electronic Transcript Analyser format. He submitted to us a book of detailed submissions which he has prepared with the assistance of Transcript Analyser in respect of the very extensive trial transcript.
Whilst I accept that he has found the Transcript Analyser software useful in dealing with the complicated and very extended course of the trial, I am not persuaded that the order sought is justified with respect to the judge's charge and the transcript of the plea and sentence. The charge is in a logical and readily analysable format. An indexed transcript was provided to the jury. The plea and sentence, likewise, present no special difficulties of analysis. The extensive written case the applicant has filed both with respect to the issues of conviction and sentence demonstrates a detailed acquaintance with the course of the trial and I am not, as I have said, persuaded, taking all these matters into account, that the order sought has been justified.
The applicant lastly seeks a series of orders against the General Manager of HM Prison Barwon with respect to alleged obstruction of the preparation of his defence. In the first instance, he seeks an order that the general manager be cited for contempt but this application is fundamentally deficient for want of particularity. Further, no affidavit has been filed by Mr Rich substantiating any arguable contempt of Court.
Mr Rich further seeks the appointment of a delegate to process requests made by him. Such a delegate might be appointed pursuant to s 24 of the Corrections Act1986. Such appointment is, however, a matter of internal prison management. It is not ordinarily a proper matter for the Court’s intervention or ongoing supervision.
The fundamental reason for this is that the responsibility of a prison Governor pursuant to s 21(1) of the Corrections Act 1986 is one which falls to be exercised by reference to the requirements for the management, security and good order of the prison as a whole and the safe custody and welfare of the prisoners as a whole. It follows that the interests of an individual prisoner alone will not necessarily be decisive of management outcomes and this Court could not readily be persuaded of the appropriateness of interference with matters of internal prison management.
If the applicant has specific requests denied that may potentially raise issues for this Court on the appeal, but overarching orders of the type sought by the applicant are inherently inappropriate. Furthermore despite the vehemence of the applicant’s written submissions there is a dearth of affidavit evidence substantiating any specific conduct materially impeding the preparation of his defence.
An affidavit filed by Mr Norman, the General Manager, deposes to responses that have been made to Mr Rich in respect of a series of matters. It states that he is unaware of the precise nature of outstanding requests by Mr Rich. Mr Rich takes issue with the history set out by Mr Norman but he has not, by his application, adequately specified what he now seeks, nor has he substantiated by affidavit an unreasonable failure to respond to his requests by the prison authorities.
A matter addressed with some particular force by Mr Rich was the provision of an updated version of Nuance PDF Converter Pro 3. As to this, Mr Norman states:
In relation to the updated Nuance PDF converter, the second item referred to in paragraph 13 above, I have made enquiries as a result of this Application. I have been made aware that a request for an earlier version of this software had been made by Mr Rich during this trial, and was approved. Yesterday I discussed this request for an updated version of the nuance software with Peter Hutchinson, the Operations Manager of SESG. Mr Hutchinson informs me that the application will be approved and he expects it to be met when Mr Rich meets the cost of it.
There is nothing unreasonable in this position and there is no basis on which to conclude that Mr Rich will be unreasonably refused access to the facility he seeks. Further, Mr Hutchinson states, at [25] of an affidavit sworn by him that Mr Rich has already been permitted access to Adobe Acrobat which has essentially the same function as Nuance PDF Converter Pro 3. Mr Rich is referred to by Mr Hutchinson as stating that the functionality he requires is the functionality to create, convert, view and edit PDF documents. Mr Hutchinson states that Adobe Acrobat has those
functions. This reinforces the view that Mr Rich has not been denied adequate facilitates in respect of the matter that he has particularly emphasised to us this morning.
In the event, I would refuse each of the aspects of the general application which Mr Rich has agitated before us.
BUCHANAN JA:
I agree.
The order of the Court will be that the applications of the applicant made in the document entitled 'General Application' dated 11 July 2012 are dismissed.
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