27 It could not be clearer, in my view, that the learned magistrate was then, and is now, fully aware of the requirements of procedural fairness, of the need to ensure that Mr Rich has a fair hearing at his committal. More than that, the ruling of last October shows unambiguously that the learned magistrate was quite prepared to intervene - no doubt at great inconvenience to all of those who were ready to proceed last September and October - and postpone the committal where he was not satisfied that Mr Rich would have a fair hearing. He adjourned the committal for what ended up being a period of five months - a very lengthy adjournment indeed. I do not overlook the sustained submission made by Mr Rich that the time elapsed is really no guide because, he says, the obstruction has continued and he has still not been given access, or sufficient access, to critical materials.
28 As I said earlier, this is not an inquiry into the conduct of the Office of Corrections. There is no provision under Victorian law for a review on the merits of administrative decisions made by the Office of Corrections; nor, for that matter, is there a procedure for merits review of administrative decisions made in most other government departments. There is provision for judicial review - that is, on a question of law - of decisions by the Office of Corrections.
29 If this were an inquiry into the conduct of the Office of Corrections in relation to Mr Rich, and I were asked by him to evaluate critically the conduct of the Office of Corrections over the last fifteen months, and in particular the last five months, I would inevitably have also to evaluate critically his own conduct in his dealings with the Office of Corrections. From what I have read and heard, it seems likely that neither Mr Rich nor the Office of Corrections would emerge unscathed from such a review. The magistrate's reasons of last Friday said as much. He attributed fault to both sides.
30 I view with very great concern what the magistrate has said about obstruction by the Office of Corrections and the view expressed by him that this may have been deliberate. I am in no position to express any view about that, precisely because I am not conducting, and cannot conduct, a factual investigation of which request was or was not acted upon, or what was and was not done, or whose fault it was. I express no view about the conduct either of Mr Rich or of Corrections in relation to their ongoing wrangles about access to materials. But let there be no mistake. Deliberate obstruction of a person in custody seeking to prepare to meet very serious criminal charges is as serious an abuse of power as I can imagine. The situation in which a prisoner finds himself when facing such charges is made very much more difficult by his dependency upon prison authorities for access to information. Of course, the relationship is a bilateral one, and there is evidence filed on behalf of the Office of Corrections about the conduct of Mr Rich which, if I were investigating it, would raise some questions about where fault lies in relation to any given failure of access.
31 In my respectful opinion, the magistrate has acted according to the highest principles of the criminal law in intervening when he apprehended that such obstruction was taking place, such that Mr Rich was not having sufficient, or sufficiently timely, access to material. I would respectfully encourage the learned magistrate - though he needs no encouragement from me - to remain as vigilant as he clearly has been, to ensure that there is no obstruction of any kind.
32 Mr Rich has to accept, as every citizen in our legal system has to accept, that it is not possible to investigate every grievance and every complaint. For the reasons I have given, it is not possible or relevant on this application to investigate to a conclusion every grievance and every complaint he has against Corrections. I have formed the clear impression that Mr Rich has unrealistic expectations as to what constitutes a fair hearing. It does not involve being heard uncontradicted. It does not necessarily involve having your arguments upheld. Having a fair hearing means having a fair opportunity to present your arguments and to have those arguments considered by a person who approaches them with an open mind.
33 In the course of the hearing on Wednesday afternoon, Mr Rich objected strenuously to the procedure I was following, of enquiring of him and of the prosecution what the matters in issue were about access, and then asking them each in turn for their responses to what the other said. At one point Mr Rich told me that he had specifically wanted an ex parte hearing and had not asked for the other parties to be present. He appeared at one point to be on the verge of abandoning his application because of what he perceived to be the unfairness of the hearing in this Court.
34 Mr Rich seemed not to appreciate that the very reason I had directed that notice be given to those against whom he makes such trenchant criticisms was in order to be able myself to conduct a fair hearing. I needed to be able to hear from both sides in order properly to understand and evaluate those criticisms, as far as possible within the limitations of an application such as this. All parties are entitled to a fair hearing but there is no such thing as perfection. Every day in every court, judges and magistrates strive to do the very best they can.
35 Given the issue which Mr Rich raises, this is an inquiry into the conduct of the committal - not a Royal Commission or a judicial inquiry or a merits review. The question is whether there will be a fair hearing. Everything I have read and heard leads me to the conclusion that Mr Rich has received, and will continue to receive, a fair hearing before this magistrate. The record of proceedings reveals a magistrate who has an acute sense of fairness, admirable courage and persistence, and remarkable patience, and a readiness to step in vigorously in defence of Mr Rich's interests when he judges that to be necessary. The extracts from the magistrate's statements which are set out in Mr Rich's own affidavit confirm all of those characteristics. Of critical importance is the judgment made by the magistrate that Mr Rich is not prejudiced despite the obstruction which the magistrate says has occurred. Despite that, the magistrate concluded, he will receive a fair hearing, while at the same time noting - if I might say so, quite realistically - that there are very likely to be issues which will arise which may require adjournment or other steps in the management of the committal to give Mr Rich a reasonable opportunity to deal with them.
36 Sitting in the Court of Appeal, I have had the opportunity to hear and observe a large number of unrepresented litigants. On two separate occasions I have upheld an argument by an unrepresented litigant that a decision was affected by a breach of natural justice.[7] I have had the opportunity since Wednesday to read the very substantial documentation prepared by Mr Rich and filed in various proceedings. I refer to the application for bail in February 2006, the application for judicial review in August 2006 (consisting of a 35-page motion and a 23-page affidavit), the affidavit in support of a further application for bail in November last year, and an affidavit of 19 January 2007 in support of his application to adjourn. One of the exhibits to the affidavit of August 2006 is a 19-page document containing a summary, analysis and critique of the case against him. This document shows that Mr Rich was in a position, some seven months ago, to prepare a sophisticated document of that kind in relation to the case against him.
37 On the basis of my experience as judge and counsel over more than 20 years, I regard Mr Rich's demonstrated capabilities, both procedural and substantive, as quite exceptional. Not only is he very fluent verbally, as he demonstrated in his submissions to me on Wednesday, but he has the very great advantage, which I have seen very rarely with other unrepresented litigants, that he can set out his arguments in writing, clearly, logically, coherently and forcefully. On the face of both the written material I have read and the submissions that he made to me on Wednesday, I am of exactly the same view as the magistrate about Mr Rich's impressive capacities.
38 Mr Rich has made a number of specific complaints. At my invitation he listed all the matters in respect of which there has been a denial of access. He referred first to the problem that he only ever has access to part of the documents in the police brief at any one time. At the same time he acknowledged, properly, that he had had access to the brief since November 2005, which is some fifteen months ago. He agreed with me that it is possible to make notes on whatever is being examined at the time, including things that need to be checked when other material is examined subsequently. He said he suffers from a lack of long-term memory but agreed with me that note-taking is a means of overcoming problems of forgetfulness. There is an unresolved dispute of fact about whether he has, or has not, been denied access to the folders held in storage. He does not, as I understand it, dispute that in the work station which he uses there are 24 volumes, five of which are marked "Brief of Evidence". In any event, given the very, very lengthy period during which he has had access to the brief itself, any difficulties of not having access to it all at the one time would seem to be capable of being resolved in the manner I have referred to.
39 Mr Rich raised concerns about three audio-visual items. The first concerned the tape recording of D24 conversations. Senior Counsel for the Director told me that the Director places no reliance on anything said on those tapes and will be relying on direct evidence from co-accused implicating Mr Rich in the relevant events. Mr Rich has been given a log of those conversations. This occurred at least six months ago, when his then solicitor was given the opportunity to hear the tapes and have passages transcribed. That opportunity was not taken up, so I was told. Again, I make no findings about these matters.
40 Then a complaint is made about telephone intercepts and the record of interview of one Hogan. Mr Rich says he does not have the media necessary to enable him to listen to those things. Ms Mortimer says that is not the case and he does have the media. Naturally I cannot determine the factual position, nor is it necessary for me to. Again I would say, as forcefully as I can, that it is no good Mr Rich having the telephone intercepts and the record of interview if the audio-visual equipment available to him does not enable him to listen to it. That is a matter which the Magistrate can deal with, but it seems to me that the minimum access that Mr Rich is entitled to involves having available at reasonable times the media necessary to listen to things like the telephone intercepts and the record of interview.
41 Then he raises two topics about surveillance videos - one being the so-called Citysafe video, the other being the shopping centre video. Mr Ryan for the Director said these matters had only been raised in the last few days. Mr Rich acknowledged that that was so and said he was sorry it was raised late. Mr Ryan says that Mr Rich has, and has for some time, had the surveillance video of the day of the robbery. There is a dispute about whether that is an edited version and whether he should have the full tape. Again, this is not a matter I can rule upon. It is a matter perfectly within the Magistrate's control. Mr Ryan says there were 15 cameras filming each day for seven days leading up to the day in question. That is obviously a huge amount of material, which Mr Ryan says is of no evidentiary relevance. Again, these are matters amply within the competence of such a vigilant and conscientious magistrate to manage, as the need arises.
42 Then there is a dispute about access to copies of hard drives seized from Mr Rich's office. Copies were delivered to him in September 2006 by his partner. This matter was dealt with by the magistrate in October. There were affidavits from the Office of Corrections in October and a further hearing on the 23rd. I pause to mention that there have been in this matter some 29 mentions in relation to or leading up to the committal. That is on any view a very substantial amount of attention being paid to preparatory issues and is consistent with what I have said about the conscientiousness of the magistrate and about Mr Rich being given every opportunity to raise matters of concern to him. Further affidavits from the Office of Corrections were filed on 6 December 2006 and 14 February 2007. Certain conditions of access to the hard drives were imposed. They were initially refused, then later agreed to. It has clearly taken time. Each side says the other has been unreasonable. It seems to me, without deciding any question of unreasonableness, that Mr Rich has been given adequate opportunities to have access to the material. For his own reasons he first declined to agree to the conditions, then after some lapse of time proposed a modified condition which was accepted. I express no view about that, but it is quite clear to me that this is not a matter which creates an apprehension of an unfair hearing. The magistrate can deal quite satisfactorily with that matter.
43 Then, finally in this list of specific matters, there was the issue of preparation materials, a database which Mr Rich said he had prepared in Microsoft Access, and which his current computer cannot read. As I have just said, and repeat as strongly as I can, computer access for a person in Mr Rich's position is meaningless if that computer and the software on it do not enable him to have access to the documents he needs to examine. That seems to me to be particularly important where the document which he wishes to read is a document containing his own annotations in respect of witness statements.
44 I made it very clear in the course of Wednesday's hearing that the preparation materials seemed to me to be peculiarly important. No submission was made on behalf of the Office of Corrections that I was wrong so to characterise them. I would expect that matter to be resolved without delay. As I say, the irreducible minimum for someone in Mr Rich's position is either to have a computer which enables him to read in electronic form material relating to the committal, including material prepared by him, or - as Ms Mortimer suggested late on Wednesday - to have access to that material in printed-out form. But again there is nothing in that issue which, in the circumstances, leads to an apprehension that the committal proceeding beginning on Tuesday will be unfair.
45 I have already referred to the analytical material which Mr Rich has set out in his affidavits and exhibits. There is quite enough in that material to satisfy me that Mr Rich could quite adequately commence to cross-examine and make submissions next Tuesday. If he says, "I am not in a position to deal with all of the 70 or 80 witnesses as at next Tuesday," then that would only put him in the position of any barrister appearing in such a matter. A barrister would prepare by reference to the order of appearance of witnesses, and would not expect to be in a position on the first day to be on top of all the material in relation to all of the witnesses. Of course, if there were a particular difficulty about a particular witness, the magistrate has made it perfectly clear that that can be raised by Mr Rich and will be resolved by him.
46 In the meantime, it seems desirable in Mr Rich's interests that he turn his considerable talents and energies to finalising his preparation for the committal over the next three days. Some of his submissions to me the other day were expressed in the language of, "Well, barristers wouldn't be expected to have to deal with a case with these sorts of difficulties." A barrister representing Mr Rich, and hence Mr Rich now representing himself, could reasonably be expected to draw together, in the final days before the proceeding began, notes for cross-examination, outlines of submissions and so forth. As I have said, Mr Rich's written material reveals that there is quite enough in his appreciation of the case against him, and in his critique of the evidence, to enable that preparation to be continuing.
47 Paradoxically, the failure of this application may be the best thing that could happen to Mr Rich, though I am sure Mr Rich will not share that view. At least he now has a ruling from this Court that this is not the place for a review on the facts of his dispute with Office of Corrections or a review on the facts of his dispute with Victoria Legal Aid. That cannot and will not occur in this Court. That having been made clear, and this Court having expressed its complete confidence in the capacity of the magistrate to conduct a fair hearing, Mr Rich should now be able to concentrate his formidable talents solely on the questions which arise in the committal, without the distraction of having to think about arguments that he might wish to present in this Court.
48 For those reasons, the application for injunctions is refused.
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