R v Rich

(b) inability to work on the police exhibit computer/hard drives;

(c) inability to secure internet access to retrieve encrypted material;

(d) significant impediments to the accused's ability to fully prepare his defence and instruct his lawyers;

(e) the resultant real risk of the accused not receiving a fair trial and/or a real and substantial risk of a miscarriage of justice.

2 The application also recites the willingness of the accused to adhere to strict conditions including a curfew, the wearing of an electronic bracelet, reporting conditions and the like. The ground in paragraph (a) above was not the subject of any argument on behalf of the accused.

3 The "linchpin"[1] of the application as identified by Mr Desmond on behalf the accused concerns the requirement that the accused expresses that he needs to have access to the internet in order to prepare his defence by using it to retrieve data which will support his defence of alibi.

4 The application is supported by an affidavit sworn by the accused on 30 October 2008. I will return to the content of that affidavit shortly.

5 The accused is charged with murder, armed robbery and other offences. It is alleged that on 8 March 2005 he, Leonard Ryan and Sean Hogan were involved in an armed robbery which occurred at a Blackburn North shopping centre when two Chubb Security guards were delivering money to a nearby Commonwealth Bank of Australia. The participants in the robbery were substantially disguised. Leonard Ryan agrees that he was one of the participants and he says, as a witness for the Crown, that the accused, Hugo Rich, was the other. During the course of the robbery it is alleged that Mr Rich approached the deceased man, Erwin Kastenberger, and fatally shot him. A bag containing $162,000 was taken from the guards and Mr Ryan and the accused exited the scene.

6 The prima facie rule in s 4(1) of the Bail Act 1977 is that any person accused of an offence is entitled to bail. However, where a person is charged with murder, the right to bail is abrogated and instead the applicant must prove to the satisfaction of a judge of this Court "that exceptional circumstances exist which justify the making of such an order" (see s 4(2)(a) and s 13(2)). The applicant has the burden of proving the exceptional circumstances.

7 Even if that is established, bail will also be refused if there is an unacceptable risk that if the applicant is released on bail he may commit one or more of the prohibited acts set out in s 4(2)(b) such as failing to answer bail, committing an offence whilst on bail, or interfering with a witness. The burden of establishing the unacceptable risk finding is on the Crown.

8 As to what might constitute exceptional circumstances, this has been the subject of examination on numerous occasions by judges of this Court. For example, in Re Mantase,[2] Vincent J (as he then was) said:

Of their very nature, exceptional circumstances are incapable of clear definition and can arise either as a consequence of the presence of some particular feature which may be regarded as exceptional of itself, or because there exists a combination of circumstances which take the matter so far beyond the normal situation that they can be regarded as exceptional.

9 It should be noted that Vincent J is also regularly referred to for his observations in the matter of Re Moloney,[3] where his Honour said:

By reason of the requirement that the circumstances be exceptional, it is not possible to identify as a matter of general definition what situations are encompassed by this provision.

A number of decisions which have been handed down by judges in this Court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.

There are, it seems to me, a number of matters which would be relevant to the exercise of this discretion. Among them must be included the apparent strength of the Crown case which it is anticipated will be made out against him or her.

10 There is no question that the hurdle of exceptional circumstances is a high one and that Parliament's intention is that a person charged with murder should be denied bail unless they discharge the heavy burden by demonstrating exceptional circumstances. However, as Warren J (as she then was) observed in Re Whiteside,[4] the hurdle is not so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail.

11 The evidence in support of this application first involved an affidavit from the accused which raised two issues at the basis of the application that were pursued. First, the police exhibit computer and, second, the desire that the accused have access to the internet, even if supervised.

12 The police exhibit computer is, in effect, the hard drives that were seized from his office and home on 12 May 2005 when a warrant was executed. In addition Mr Rich maintains that he has a set of hard drives which were secreted by him prior to the execution of the warrants on 12 May 2005.

13 As to that first issue, in his evidence Mr Rich said a copy of the police exhibit computer is in a locker in the Exford Unit at the Metropolitan Remand Centre. Mr Rich is now housed in the Cambridge Unit at the Metropolitan Remand Centre. Another copy was made during pre-trial argument at the request of the accused, but he has apparently refused to accept delivery of that copy to the Metropolitan Remand Centre on the basis that there is no point examining it until he is given access to the internet. The accused wishes to transfer some data from the police exhibit computer to the "day-room computer", which he uses to prepare his defence. Some of that data he says he requires for use with the internet in order to reconstitute other data bearing upon the defence of alibi. According to Nicholas Paul Selisky,[5] the Operations Manager at the Metropolitan Remand Centre, an attempt was made to carry out that exercise on 8 December 2008 but when an effort was made to transfer files to an external hard drive the process could not be completed. Mr Selisky has proposed methods by which that issue can be resolved. The arrangements appear to exist for the accused to have access to that computer and to transfer the data he needs.

14 The second issue concerns the desire of the accused to access the internet. In essence, access to the internet is sought because the accused says there is encrypted and secreted data that is only accessible through the internet which will reveal video material to demonstrate that on 8 March 2005 at the time these offences were being committed, he was in the central business district of Melbourne with identifiable people.

15 Mr Rich was charged with these offences in May 2005 and has remained in custody since then. Given that he is charged with murder in circumstances where he proposes to conduct his defence on the basis of alibi, I would have assumed that he would have set about obtaining the material that he needed in order to do so immediately upon being charged. There is no question that Mr Rich would not have needed the advice of lawyers to understand the importance of the information supposedly secreted. Indeed, it was its importance to these charges that led him to secrete it, as I understand it.

16 However, by this year that had not occurred and the matter first arose for my consideration in April 2008 when the accused made an application for a stay of the trial. I dealt with these issues in detail in a ruling published on 2 May 2008.[6] In that ruling I concluded that it was not appropriate to make coercive orders in relation to Corrections Victoria concerning the requirements of the accused and that I would not further adjourn the trial which was then intended to commence on 21 July 2008. I was of the opinion then that the arrangements proposed by Corrections Victoria in relation to the computer hardware as they then stood were sufficient to enable the accused to do the work necessary to assist in the preparation of his defence. However, I identified what I described as a "risk of unfairness" if he did not have a reasonable opportunity to reconstitute the hard disk drives bearing upon the issues of his financial affairs and the issue of alibi. I observed that "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".

17 The question of access to the internet was raised before me on 23 May 2008 and I dealt with the matter by a ruling on 23 June 2008.[7] In that ruling I briefly reviewed the history of the request for internet access. In effect that history revealed no mention of the need for the internet for these purposes until April 2008. The importance of access to the internet by the accused to obtain exculpatory evidence was not raised before the Melbourne Magistrates' Court at the committal proceedings nor in an application for bail before Byrne J in this Court in December 2007.

18 Further, any requirement for internet access for these purposes has been previously disavowed on several occasions. At the time of the application for bail before Byrne J, the date fixed for Mr Rich's trial on the charges of murder and armed robbery was 31 March 2008 and his Honour dealt with the application on the basis that the trial would commence then. At that stage, the accused represented himself. In that application the exceptional circumstances relied upon included the long delay since arrest; the difficulty of collating witnesses for trial for a self-represented accused; and the claimed weakness of the Crown case. During that application there was some reference to access to the internet but the need for it, as it is now formulated, was not raised. It was only raised during cross-examination of the witness from Corrections Victoria, Nicholas Selisky, in the context of the accused wishing to perform legal research.

19 On other occasions earlier this year when I have convened to deal with Mr Rich's requirements, the internet has not been raised.[8] Further, on 13 March 2008, counsel for the accused produced a set of "draft orders" which did not include a requirement for access to the internet for the purpose for which it is now sought. Draft order 8 sought supervised internet access to particular legal and other research web sites and draft order 10, read:

[T]he said hardware, computer and software be configured to ensure the same is not internet accessible in any shape, manner for [sic] form and configured to ensure that the user profile sittings [sic] cannot function as date [sic] communication equipment for the purpose of accessing the internet, sending or receiving emails or any like communication.

20 In my ruling of 23 June 2008, I referred to the manner in which the encrypted data which was to be obtained could be accessed based on the evidence of the expert witness called on behalf of the Crown, Mr David Thompson. His evidence, which I accepted, was that an "offline" solution was feasible. I therefore concluded that I would not make orders staying this trial unless the accused was given "unfettered" access to the internet.

21 Counsel for the accused now suggests that by delivering that ruling I have "enter[ed] the arena" by accepting the possibility of an alternative solution. It is not for the judge, counsel submits, to be telling the accused how to collate or assemble his defence. That was not the purpose of the ruling. I was ruling that I would not stay the trial because the accused did not have access to the internet. One of the bases on which I did that was an acceptance of the evidence of the witness Mr Thompson who said an "offline" solution was viable. That was the issue I was asked to rule on and I did so.

22 On this application, the accused referred to what had occurred since that ruling in his affidavit in two paragraphs.[9] In those paragraphs he deposed that he was "endeavouring" to co-operate with my ruling but the difficulty identified was that Victoria Legal Aid would not fund an expert to confer with him to "address the issue". The accused gave evidence before me in support of this application. He stated that he was "prepared to accommodate supervised internet access",[10] but that he was being denied internet access. By the time the accused gave evidence before me, an IT consultant had been engaged by the defence to assist Mr Rich with his need to access the encrypted data. Mr Rich gave evidence that he had had a conversation with the IT consultant on the telephone, but, he said, "... he wouldn't answer some questions I asked him either and I wasn't convinced that he had his finger on the pulse on the competing issues" and the "upshot" was of "no meaningful or practical effect". That would appear to be the extent of the effort that has been undertaken to deal with this matter other than by securing internet access for the accused.

23 On these issues, affidavits were filed by Nicholas Paul Selisky, the Operations Manager at the Metropolitan Remand Centre, and Peter John Hutchison, the Operations Manager, Security and Emergency Services Group. The detail of these affidavits was not referred to by the accused in his evidence in chief or by Mr Desmond in his submissions. In those affidavits, developments concerning the access of the accused to the police exhibit computer and its data, other IT issues and access to the internet were dealt with. Mr Hutchinson sets out why there is a prohibition on prisoners having access to the internet. The solution to this issue is either the "offline" solution to which Mr Thompson referred in evidence before me,[11] or a video conferencing solution which is identified in the affidavit of Mr Selisky. That would involve a video link from the accused at the Metropolitan Remand Centre to the office of the solicitor for the accused so that the accused could instruct on the retrieval of the information.

24 In his evidence, the accused said he would not accept such a solution. He asserts that it is not for this Court or for Corrections Victoria to tell him how to "collate [his] defence" and that is the "nub" of the problem. He also referred to the risk of another person pressing a wrong key and somehow corrupting the data.[12]

25 Counsel for the accused provided a detailed written outline of his submissions although those written submissions do not deal in any detail with the factual issues in this application. He asserted, and I agree, that a trial judge is required to supervise the trial to ensure that it is fair. As I follow it, he submits that in this case the supervisory role that I have must result in a grant of bail to ensure a fair trial. The applicant is, it is submitted, entitled to due process and that a failure to grant bail would result in the denial of due process. In my view the principles of due process have been observed in this case. The accused is in custody legitimately. A significant amount of time has been spent ensuring that despite his custody, he has the opportunity and facilities to meet the case against him with legal representation and all the assistance that can be provided.

26 Mr Rich further claims that he is being discriminated against by contrast with a prisoner on bail who would be able to access the internet. There is no doubt it is more difficult for him to obtain this information but, as I have stated, he is in custody for good reason. Alternative means by which this might be done have been put forward by Corrections Victoria during this year and they have been rejected by him.

27 In his oral submissions, Mr Desmond submitted that by denying bail to the accused I would be depriving him of a fair trial by preventing him from accessing information which would support his alibi. This argument proceeds on the basis that, if the data exists, only the accused can obtain it and this can occur only via the internet. I did not accept that for the purpose of my earlier ruling and I do not accept it now. There are alternative means by which this might be done which do not seem to me to have been seriously pursued.

28 Additionally, Mr Desmond placed emphasis on the Charter of Human Rights and Responsibilities Act 2006 ("the Charter"). I was originally required to deal with the application of the Charter to this case specifically in R v Rich (Ruling No. 2).[13] On 22 December 2008, I received, direct from the accused, further submissions aimed at establishing that since he was arraigned before Cummins J on 18 August 2007 and that commencement of the proceedings is arraignment, the Charter applies. I am prepared to assume, without deciding, that the applicant is correct in that submission. In relation to applications for bail which are made under the Bail Act, I have previously expressed the following view where, without argument, the Charter does apply in the particular case:[14]

There are, in my opinion, a number of matters that point to a refusal of bail and where that is the case, whilst it is appropriate to take the terms of the Charter into account and give full effect to the right referred to, that must be done against the scheme of the Bail Act and its relevant provisions.

29 Mr Desmond also pointed to the time for which the accused has been in custody without bail - since May 2005. That is, I agree, a very long time. However I have now dealt with almost all of the preliminary matters in this trial and I see no reason why this trial cannot start on 27 January 2009.

30 By way of response, Mr Tinney SC argued, in summary, by reference to the history of the matter, that the alleged factual basis for this application is a fiction and that the application should be rejected.

31 In the course of his submissions, Mr Desmond on behalf of the accused described the Crown case as "inherently weak" and submitted that it will stand or fall on the evidence on Leonard Ryan. There is no question that Mr Ryan is the central witness and that he is open to a variety of criticisms. However, I have had the advantage of watching Mr Ryan give evidence during a Basha enquiry over a period of some eight days and it is fair to say that a jury may very well be prepared to act on his evidence notwithstanding his circumstances. I reject the submission that the Crown case is inherently weak.

32 In my opinion, whatever might be the truth about the existence of the material which the accused says he needs access to the internet to obtain, more than three years have passed since the need for access to this data would have been obvious. Assuming it exists, the evidence indicates that there are at least two alternative means by which this data can be accessed despite the accused being in custody.

33 In my opinion, the responsibility on the accused of demonstrating exceptional circumstances has not been discharged. The application for bail is refused.

[2] Unreported, Vincent J, 21 September 2000 at 1.

[3] Unreported, Vincent J, 31 October 1990 at 1-2.

[4] [1999] VSC 413.

[5] Affidavit of Nicholas Paul Selisky of 15 December 2008, at [13] and ff.

[6] See R v Rich (Ruling No. 2) [2008] VSC 141.

[7] See R v Rich (Ruling No. 3) [2008] VSC 219R

[8] For example, at the mention of this matter on 11 March 2008.

[9] Affidavit of Hugo Alistair Rich sworn 30 October 2008.

[11] See R v Rich (Ruling No. 3) [2008] VSC 219R at [22]-[23].

[13] [2008] VSC 141.

[14] Re Dickson [2008] VSC 516 with reference to the issue of delay.