R v Rich

Supreme Court of Victoria|2008-06-23|Before: LASRY J

CRIMINAL LAW - Application for stay of trial - Internet access while on remand - Potential exculpatory alibi evidence - Requirements for notice of alibi - Crimes Act 1958 (Vic) s 399A.

1 On 2 May 2008 I delivered Ruling No. 2 in this matter.[1] Broadly, that ruling concerned at least the potential application for a stay of the trial of the accused unless certain steps were taken to ensure that he was able to properly prepare the defence of his trial. At the end of the ruling I expressed 12 conclusions as to steps that it seemed to me needed to be taken in order for him to adequately prepare his trial. At present the trial is listed to commence on 21 July 2008.

2 Central amongst those matters was the reconstitution of certain computer hard disk drives and in relation to that issue I said:

Fourth, however, there is a risk of unfairness to the accused if he does not have a reasonable opportunity to reconstitute the hard disk drives to which I have earlier referred as soon as possible to enable him to have access to the data and to instruct his lawyers about it, whether on the question of his financial affairs or on the issue of alibi. This conclusion should not be regarded as meaning that I consider the data itself to be integral to a fair trial of the accused. However, in view of what I am told, he must have the opportunity to peruse it and instruct his lawyers about it.

Fifth, that data should be reconstituted in the most efficient and timely way possible and if that involves the use of the software programs Windows Vista and Filemaker Pro 8.5, then they should be used. I consider the reasons offered by Corrections in relation to that software do not deal with the issue concerning me.

3 Finally, I indicated that I would reconsider my decision not to order a further adjournment of the trial if the reconstitution of the data did not occur promptly.

4 A further issue has now arisen which I did not specifically deal with in that ruling so far as a recommendation or direction is concerned. In part that was because of a lack of clarity in identifying what was being sought. That issue concerns access to the internet by the accused. In a formal application dated 12 May 2008, the solicitor for the accused applied for "access to the internet being access between 9:00 am and 4:00 pm each day to the WAREZ bulletin board". However, that request soon broadened. As the application developed, the question from my earlier ruling became whether having a reasonable opportunity to reconstitute the hard disk drives requires, in effect, unfettered access by the accused to the internet.

5 In addition to this specific request, the accused also demonstrated in a set of "outline notes" provided to the Court on 20 May 2008 that he wished to re-litigate close to the entirety of Ruling No. 2. It is sufficient to say that I was not prepared to permit that to happen.

6 On 23 May 2008, as arranged, the matter was listed before me for hearing. Mr Desmond of counsel with Mr Edney appeared on behalf of the accused and sought an opportunity to confer with their client. After a short adjournment I was informed by Mr Desmond that the accused was dispensing with the services of his lawyers for "these purposes". Mr Desmond went on: "He is not sacking us and we were mainly engaged for the trial, but he is dispensing of our services for this matter that's currently before Your Honour."[2]

7 Mr Desmond also raised an application to vacate the current trial date and I observed that the appropriate time to have the debate about that was after the present issues had been dealt with.

8 The further hearing to consider the application for internet access and other related issues was conducted over two days - 23 May and 2 June 2008 - with evidence from the accused and from a witness expert in IT matters called on behalf of Corrections Victoria.

9 On any view of the history of this case, this is a late request. The Crown have submitted that transcripts of various hearings over the history of this matter where the accused has stated his requirements for facilities to prepare his defence had not included a demand for internet access until April 2008. It is a request that should properly have been squarely raised during the proceedings on 14 and 15 April 2008, which dealt with the issue of what facilities were required for the preparation of the accused's defence in this case.

10 During cross-examination by counsel then appearing for Corrections Victoria on 23 May 2008, the accused was asked why he did not refer to his need for unlimited access to the internet to reconstitute the hard drives when the issue of their reconstitution was first raised before me (i.e. in his affidavit of 31 March 2008). The accused said it was implied in the material, but he did not wish to forecast or flag his position. He said that access to the internet with respect to referring to legal publications would have given him access to "the other stuff as well".[3] He appeared to be explaining his lack of reference to the need for the internet to reconstitute the data by saying that he wanted to keep that specific aspect a secret. He later explained "It's the internet per se, it's the vehicle, I want an access to the vehicle, I'm giving one or two examples, without forecasting where I was actually going."[4]

11 It is true that in the course of the evidence of the accused on 14 April 2008 he indicated a need to have access to the internet for certain specific purposes - for example, in order to solve some "bugs" in the operating system he was proposing to use, being Windows Vista, and for the purpose of getting access to "broader programming and scripting tools" on the Warez bulletin board site in order to complete the reconstitution of the hard drives. However, Mr Rich only now submits that unfettered access to the internet is required as a condition precedent to the reconstitution of the hard drives.

12 The necessity of access to the internet during the reconstitution process was first squarely raised in the affidavit sworn by Mr Bill Doogue on 12 May 2008, filed along with the formal application for internet access. It is important to identify what it was that Mr Doogue submitted was needed by Mr Rich in terms of internet access. Mr Doogue's affidavit states:

My instructions are firstly that the hard drives cannot be reconstituted without limited internet access. Internet access is integral to the reconstitution process. ... the need for internet access I am instructed is explained as follows.

Rich burnt data from the relevant original hard drives (see par 57 of the ruling) onto another storage device/s (hard drives);
Rich then connected the hard drives to the bulletin board/site WAREZ;
Rich then used an NCA encryption code to encrypt the material and divide it into "packets";
these "packets" were then embedded by Rich into photographs (digital images);
Rich then encrypted the photographs with 9 different and unique keys (meaning the reconstitution or de-encryption process must be done in a particular way i.e. sequencing in a certain way);
with all the above process having been done it means there is one opportunity to reconstitute the hard drives results in [sic] if someone attempt [sic] to "get at it" and its [sic] not done correctly the data is corrupted;
In order to distribute the keys themselves were distributed by Rich on a "p2p" (peer to peer) data site in Ireland and the distribution sites are located by hyperlink from data entries in the police computer.

I am instructed thus Rich is unable to reconstitute the hard drives without internet access.

13 While Mr Doogue indicated that access to the internet was only required to be limited and indeed limited to the Warez bulletin board site, an affidavit apparently sworn by the accused on 16 May 2008 suggested that the "key elementary feature" of the reconstitution process is unfettered access to the internet.[5] It became clear in the evidence given by the accused on 23 May 2008 that his request for internet access was not so restricted and that he wanted access to the internet as a "vehicle".[6]

Evidence on 23 May and 2 June 2008 concerning the Internet

14 On 23 May 2008 the accused gave evidence concerning the way in which data on a number of hard disk drives would be accessed. He said that in one group there were three hard drives, and another two hard drives which had been partitioned. He said that the relevance of the material for the trial was that it related to the question of alibi and that if the information could be obtained there may be no necessity for a trial at all. I assume by that he meant that on being presented with this material the Crown would be likely to be persuaded to not proceed. His evidence was that the hard drives were secreted away and some of the other data is in a "data silo" and to obtain access to that data he needs to do certain technical things. He agreed that before he began to de-encrypt the data he needed to have physical possession of the five hard drives. He said that the hard drives would have to be installed and that the computer onto which they had been installed would then need to be connected to the internet. His first use of the internet was therefore explained on the basis that if he needed assistance he would "get on line" and "pose the question or questions" in order to resolve particular problems.[7] He said:[8]

I will not be able to reconstitute those files without access to the primary data, and that primary data is also in a data silo overseas which is only accessible through the Internet.

15 The accused said that the data had been encrypted with a program called "Pretty Good Privacy", known as PGP. He said that his data silo was encrypted and that to gain access to that data the internet was critical. He then explained the way in which the trial was being prepared in some considerable detail and that that work could not be finished until certain tools on the internet that are required to complete it were able to be accessed. As to that he said that he:[9]

... require[d] some specific tools in order to finish the files that are already prepared and I can't do that without having access to the Internet to get the tools off the web to be able to put all of those files together.

16 The accused also referred to his need to access legal data services on the internet saying that:[10]

It's a simple access to the law through the Internet. I've got accounts at Butterworth, I've got accounts at Thomson's (indistinct). There are some files there that I need with respect to - I've got shadow files that I can't use which is the legal arguments that support the objective and evidentiary target which has already been done. I can't refer counsel to those in the manner in which, though it's expedient, I'm not permitted to do that. Recently, Your Honour, some of the CD publications have been removed from the prison learn intranet for some reason. They have enabled one computer through their network in the day room but it doesn't permit me to transfer the data to read the shadow files that are existing. That's another difficulty. ...

I'm just not permitted to put together what needs to be put together so counsel can argue the case in my defence, Your Honour.

17 A further reason why the accused says he needs access to the internet is because the "keys" that are required to decrypt data on these hard drives are on a server and he needs to get access to the server and "a number of other methodologies" to be able to achieve that result.[11] He said he was not prepared to divulge that because it would result in the police having access to the data. There are, he said, 34 keys altogether.

18 In the course of his evidence I asked the accused the following:[12]

Can I ask you a question, Mr Rich which requires a couple of assumptions, and I want you to understand I ask you to make a couple of assumptions not based on any existing evidence, but let us assume that your solicitor presented you with a person who was thoroughly expert in this area of dealing with this software, and let us also assume that you are persuaded that whoever that person was not only was he an expert but he was a person that you were prepared to trust 100 per cent, just make those assumptions for the purpose of this question. Is there any reason why that hypothetical person could not do this work outside of the Metropolitan Remand Centre?

Answer: Well I don't accept the second assumption.

Later, in relation to the risk of mistake, I asked the accused:[13]

Presumably my hypothetical expert understands that. I know there is a risk, but assuming those arrangements were made is there any reason why it couldn't be done outside the walls of the Remand Centre?

Answer: I would not trust anybody, Your Honour, that's the reason and I would have no confidence on the second assumption.

19 Mr Rich also said the he did not trust Victoria Legal Aid and that they had already indicated a refusal to fund "it" - I assume that he was there referring to the downloading or the reconstitution of data.[14] I am unable to accept that it is impossible to engage a person as part of the defence of the accused who could do this work and who could be trusted not to reveal the details beyond the legal team for the accused. That said, as I will outline below, the details of what this information shows will have to be revealed to the Director of Public Prosecutions in any event as a result of the operation of s 399A of the Crimes Act 1958 (Vic).

20 In further cross-examination, the accused went on to describe that the data that he needed access to contained 24 hours of surveillance for 8 March 2005 which is the date on which it is alleged that he committed the offences with which he is charged. He endeavoured to explain that the data was separated into packets, each of which had an encryption key, and those packets were then distributed at different locations. He said that to "re-generate the collation" of that data requires access to the internet.[15] He further explained that a telephone call could be made to put the data back on to the network where it had been and he said:[16]

[a] series of files will be then put back on. With those files and with the other files that I've got here and I referred to as the jigsaw puzzle earlier, in my evidence, will be all put together and once I've got the one piece in then I can un-encrypt it. And I can't do that without the internet.

21 He then indicated that in order to obtain the one piece, he needed to write a code and, he said, no one else can do it except him because he doesn't trust anyone else, "it's as simple as that".[17]

22 In response, Corrections led evidence from a Mr David Thompson, a partner of Deloitte Touch Tomatsu, who is an expert in IT matters. He had also sworn an affidavit and had been present in court when Mr Rich gave his evidence.

23 As to the need for the internet, Mr Thompson's evidence was essentially in the following terms. He expressed the view that the work that needed to be done to access the data the accused wishes to access could be done "off-line" because, he said, the process described by the accused is one which could be done on a stand alone computer. Even confronted with a suggestion by the accused that the verification process which would need to be gone through included a requirement that it be done online, Mr Thompson suggested there would be alternatives. In particular he suggested that the script which had created that requirement could be altered to avoid its effect. His evidence was that the files could be retrieved and loaded onto a local computer environment. The essence of the challenge being made by the accused to the evidence of Mr Thompson was, as I understand it, that the process which had been constructed to enable access to the data also required access to the internet and therefore, as a tool, access to the internet was required. Mr Thompson rejected the description of the internet as a "tool".[18]

24 Corrections say that for good and proper security reasons, those detained in a prison, whether as remand prisoners or serving prisoners, should not have unfettered access to the internet. They also particularly assert that the Warez site poses a particular security risk. Mr Hutchinson previously gave evidence before me as to Corrections Victoria's concerns relating to Warez, stating:[19]

It's a software warehouse for pirate programs. I'm well aware of it. Under no circumstances would we allow him to have access to that. It's specifically used for the distribution of pirate programs.

25 Similarly, an affidavit sworn on behalf of Corrections Victoria by Nicholas Paul Selisky - the operations manager at the Metropolitan Remand Centre - on 16 May 2008 contains the following:

The position of Corrections Victoria remains that the accused will not be permitted access to the internet. I am informed by Peter Hutchinson and verily believe that the warez.com website is particularly objectionable because it is a peer-to-peer site for distribution of data ad programs. Once a computer user is logged in to the peer-to-peer network, he or she has access to all other data available worldwide on the network, which includes pornography, pirated programs, pirated movies and music. The user is also able to distribute any data to others on the network worldwide. Access to this site poses an unacceptable security risk to the MRC.

However, we are willing to assist the accused in carrying out the tasks Mr Rich says are necessary. For example, Mr Rich could attend the video conference room at MRC, linked to a video conference which displays the contents of Mr Doogue's computer screen. Mr Rich could then instruct Mr Doogue in the carrying out of the retrieval of the keys and decryption of the photographs and other tasks described at paragraph 11 of Mr Doogue's affidavit. The retrieved and decrypted data could then be taken into Exford Unit for use in the reconstitution process.

27 Thus in addition to the "off-line" solutions which were suggested as viable by the witness Mr Thompson, a compromise solution has been suggested by Corrections Victoria which the accused effectively says is unworkable.

28 There is a further reality about this which needs to be considered. The data which the accused has said he requires for the defence of his trial is data which will support an alibi. In his written submissions, he referred to it as his "central defence". Mr Doogue explained in his affidavit of 12 May 2008 that the material on the computer hard drives is relevant to the question of alibi and deposes:

I am instructed the encrypted data on the hard drives contain video footage showing Mr Rich in the precincts of a city café area or premises at or about the time the armed robbery is said to have occurred in Blackburn.

29 In his evidence on 23 May 2008, the accused said the data which he wished to access might avoid the need for a trial altogether, so compelling would be the force of the information. Of course the alibi required is for one day being 8 March 2005. Mr Rich has informed me that the alibi that he wishes to rely on involves him in a casual contact with a former judge of this Court. The contact is relevant only for establishing the whereabouts of the accused on the day in question. He has indicated a desire to call that person as a witness in his trial.[20] I am unaware of that person's identity or whether the accused has instructed his lawyers about the matter so that the witness can be contacted to confirm the assertion made by the accused.

30 On 2 July 2007, at the conclusion of his committal proceedings, the accused was given an alibi warning by the Magistrate who presided at the hearing. That warning required the giving of notice of an alibi to the Director of Public Prosecutions no later than ten days after the completion of those proceedings.

31 In response to the warning, Mr Rich stated:[21]

Well, first of all you're asking me to give the police the defence ... I will not be telling him my defence and it won't be within ten days. I won't be giving them anything ...

I'm sorry, the law's an ass, because the last time they were told, they white-anted it by trundling in and putting the fear of God into a serving solicitor. I won't be telling them anything, Your Honour. I don't care what the law is. I won't be telling them anything. It's as simple as that. I'll deal with it at the end. I've got a nice surprise for them. A nice surprise. Yes, you can laugh. Don't worry, it's coming, I'll get to you one day in the witness box.

32 Before me, the question of alibi was raised by counsel for the accused on 14 April 2008,[22] to which Mr Elston SC, then appearing as the trial prosecutor, noted would need to be the subject of notice.[23]

33 Section 399A of the Crimes Act 1958 provides:

(1) On a trial on presentment the accused shall not without the leave of the court adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi in the manner provided by subsection (4).

(2) Without prejudice to subsection (1), on any such trial the accused shall not, without the leave of the court call any other person to give such evidence unless -

(a) the notice under that subsection includes the name and address of the witness or, if the name or address is not known to the accused at the time he gives the notice, any information in his possession which might be of material assistance in finding the witness;

(b) if the name or the address is not included in that notice, the court is satisfied that the accused, before giving the notice, took reasonable steps to secure that the name or address would be ascertained; and

(c) if the accused is notified by or on behalf of the Director of Public Prosecutions that the witness has not been traced by the name or at the address or by the information given, he forthwith gives notice of any information then in his possession which might be of material assistance in finding the witnesses or on subsequently receiving any such information, forthwith gives notice of it.

(3) The court shall not refuse leave under this section if it appears to the court -

(a) in a case where the accused was committed for trial on the charge in respect of which the alibi is sought to be relied upon, that he was not informed of the requirements of this section; or

(b) in any other case, that he was not informed of these requirements in writing by the Director of Public Prosecutions upon or before the supply to him of a copy of the statement and particulars of the offence as charged in the presentment.

(4) Notice under subsection (1) shall either be given in court during or at the end of the committal proceedings, or be given in writing to the Director of Public Prosecutions; and notice under paragraph (c) of subsection (2) shall be given in writing to the Director of Public Prosecutions.

(5) A notice to the Director of Public Prosecutions under this section may be given by leaving it at his office or by sending it in a registered letter addressed to him at his office.

(6) Any notice purporting to be given under this section on behalf of the accused by his or her legal practitioner shall, unless the contrary is proved, be deemed to be given with the authority of the accused.

(7) In this section -

evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission;

the prescribed period means a period of ten days

from -

(a) in a case where the accused was committed for trial on the charge in relation to which the alibi is sought to be relied upon, the day on which he was so committed; and

(b) in any other case, the day on which he was supplied with a copy of the statement and particulars of the offence as charged in the presentment. ...

34 The safeguard for such a process in outlined in s 399B. Section 399B (Provision relating to witnesses to alibis) provides:

No one who has been named or referred to as a proposed witness in any notice given by the accused under the preceding section shall, before the conclusion of the trial for the purposes of which the notice was given or any re-trial which may be directed, be communicated with directly or indirectly by any person acting for the prosecution or by any member of the police force with respect to the case or to any matter related thereto, unless in the presence and with the consent of the accused's legal practitioner or, where he is unrepresented, the accused himself; and any such person or member so communicating with knowledge of facts which render his conduct a contravention of this section shall be guilty of a contempt of the court of trial and may be dealt with by it accordingly.

35 I would have expected that in the hearing before me, the accused would have provided full details of his alibi including what he expects the encrypted data will show on that issue. Apart from stating it in the broadest terms, he has not done so. The reality is that he is going to have do so because if an alibi is to be relied upon he will need leave from this Court under s 399A(1) of the Crimes Act 1958.

36 I will have to deal with the application for leave when and if it is made but it is important that the following considerations be clearly understood. First, s 399A is designed to enable the Director of Public Prosecutions to make appropriate enquiries about any alibi intended to be relied upon. Second, the giving of notice is intended to avoid the Director being taken by surprise and an advantage being gained by the provision of a false alibi.[24] The Crown has indeed submitted that it is improbable that the data which the accused regards as so central to his innocence would be so heavily secreted and encrypted that he might never again have access to it. Third, s 399A is not complied with by giving notice that an alibi is intended to be relied upon without more detail.[25] Fourth, the notice of alibi should include not only where the accused was at the time of the offence but also where he was prior to and subsequent to the offence.[26]

37 Mr Rich was charged in relation to these matters on 16 June 2005 - some three years ago. As I follow the evidence, there is no satisfactory explanation as to why, in those three years, efforts were not made to retrieve this data and, if the internet was an essential prerequisite, why that issue was not raised prior to April 2008. It is apparent that the reconstitution of the hard drives was referred to during the committal proceedings but the need for the internet to retrieve the data was not identified either as relevant or necessary.

38 In the present circumstances, given the evidence of Mr Thompson that an off-line solution is feasible, and given the compromise proposed in Mr Selisky's affidavit, to which I have already referred, I would not make orders which required Corrections to provide the accused with unfettered access to the internet. Despite the urgings of the accused, there is no process before the Court which would entitle me to make coercive orders to that effect. That is, of course, not the end of the matter. It would be open to me to stay the further hearing of this trial until such facilities were made available to the accused if I thought that was appropriate and necessary for the fair trial of the accused. On the basis of the material presently before me, including the potential alternatives for internet access if that is required, that is not my view.

39 To the extent that this issue might need to be re-visited in the light of further information, I would not do so in the absence of a formal Notice of Alibi pursuant to s 399A of the Crimes Act 1958 and after I had dealt with the application which would be required to be made under s 399A(1).

[2] Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 23 May and 2 June 2008) at 5.

[5] On 20 May 2008 the Court also received an affidavit apparently sworn by the accused on 17 May 2008. In that affidavit he refers to the affidavit sworn by his solicitor Mr Doogue on 12 May 2008 and refers to orders being sought permitting the accused to have access to the internet. The portion of the accused's affidavit then dealing with access to the internet is from paragraph 50 onwards.

[6] Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 23 May and 2 June 2008) at 37.

[19] Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 14 and 15 April 2008) at 80.

[20] Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 23 May and 2 June 2008) at 128.

[21] Transcript of Proceedings, Police v Rich (Magistrates' Court of Victoria, Magistrate Goldberg, 2 July 2007) at 3153.

[22] Transcript of Proceedings, R v Rich (Supreme Court of Victoria, Lasry J, 14 and 15 April 2008) at 13.

[26] R v Fields & Adams (1990) 12 Cr App R (S) 393.

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