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[2009] VSC 159
procedural. The Crown was not permitted to lead the accused's evidence of 27 January 2009 as part of its case. The relevance and unfairness objections to the proposed rebuttal evidence were rejected. A brief...
The judge ruled that the Crown could not use testimony Mr Rich had given during an earlier application as part of its trial case before he decided whether to testify. The judge did, however, allow the Crown to pursue evidence that challenged the technical plausibility of Mr Rich's proposed CCTV alibi. The judge considered the rebuttal evidence relevant and found that the complaint about late notice was difficult to maintain given the history of the alibi notice. The ruling decided evidentiary questions during the trial, not whether Mr Rich was guilty or not guilty.
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2,424 words · generated 28/09/2026
This ruling was delivered by Lasry J in the Supreme Court of Victoria on 24 April 2009, during the closing stages of the Crown case against Hugo Alistair Rich. The charges were murder and armed robbery said to have been committed on 8 March 2005. The ruling dealt with evidence, not the determination of those charges.
No linked legislation citations have been extracted yet.
The immediate background was an earlier application by Mr Rich for a temporary stay of the trial. On 27 January 2009, he gave evidence in support of that application, explaining how he said he had obtained and preserved CCTV footage which could support an alibi. His account was that he had connected to a building CCTV system, copied its feed to a computer and concealed the resulting material through a series of technical steps ([3]-[12]). He said the footage showed him in a restaurant near his business premises on the relevant date, and that two people at a nearby table could be identified ([7]-[8]).
The Crown proposed to use that earlier testimony before the jury. It also proposed to call evidence, including evidence from a security-industry witness and evidence about an inspection of the premises, to challenge the accused's account of how the CCTV footage could have been obtained ([13], [30]-[32]). The defence objected to both the use of the accused's earlier testimony and the proposed rebuttal evidence, raising separate issues of admissibility, relevance and unfairness.
The judge made two principal determinations. First, he refused to permit the Crown to lead the accused's 27 January evidence as part of its case ([25]). Secondly, he rejected the objections that the proposed rebuttal evidence was irrelevant or unfair because it was notified late ([33], [44]). He also directed a brief hearing in the nature of a Basha enquiry concerning the additional evidence, to take place on 27 April 2009 ([45]).
The ruling does not decide whether the alleged footage existed, whether the accused's account was true, or whether the alibi would be accepted. It determines how certain evidence could be used at that point in the trial.
On the first issue, the Crown argued that the accused's evidence was different from evidence given on a voir dire about the voluntariness of a confession. In the Crown's submission, Mr Rich had voluntarily chosen to testify in support of his stay application, so the protection discussed in Wong Kam-Ming should not control ([14], [20]).
Lasry J was not persuaded that the distinction justified admitting the evidence. His concern was that an accused giving evidence on a discrete pre-trial issue might not understand that the evidence could later be used against him in a different context before the jury. He considered that an accused should be able to give evidence on a relevant voir dire issue without that risk, because otherwise the accused's choice whether to testify at trial could be compromised ([14]).
The judge read Wong Kam-Ming as supporting a principle broader than its particular facts, which concerned evidence given on a voir dire about a confession's voluntariness ([15]-[20]). He also distinguished R v Mills: an accused who chooses to testify at trial, or make an unsworn statement in that setting, can be taken to understand that the evidence may be used for or against him. The same assumption could not be made about evidence given for a separate pre-trial purpose ([22]).
The judge treated the timing of any possible cross-examination as important. He distinguished permitting the Crown to use the voir dire evidence as part of its case before the accused has chosen whether to testify from questioning the accused about it if he later gives evidence at trial. The latter question was left open, though the judge observed that it would likely be answered affirmatively ([24]-[25]).
The Evidence Act 2008 (Vic) issue was not decided. The judge examined s 189, including subsection (8), and considered that Mr Rich's evidence did not appear to fall within the statutory category of evidence given at a hearing to determine a preliminary question. But he expressly said that he did not have to decide the issue, and no detailed interpretative submissions had been made ([20]-[21]). The ruling therefore should not be read as resolving the statutory question.
On the rebuttal evidence, the judge found a direct connection between the Crown's proposed evidence and the anticipated alibi. The alibi notice relied on Mr Rich being near his business premises and on CCTV footage said to show him there. Evidence about the system's configuration, cable routes, access and whether the described footage could have been produced addressed that account directly ([28]-[33]). The judge rejected the suggestion that the evidence was irrelevant.
The unfairness argument rested on the lateness of the Crown's notice. The judge considered that timing in the context of the history of alibi disclosure. Mr Rich had said he knew of the need for alibi evidence from 2005; the court had raised the need for notice; and the final version of the notice was not before the court until 1 April 2009, day 34 of the trial ([34]-[41]). The judge accepted that the Crown could decide how to rebut the alibi only once its final detail was known ([42]). He concluded that the delay complaint was difficult to maintain in light of the accused's conduct and the course of disclosure ([43]-[44]).
The ruling records that the breadth of the principle in Wong Kam-Ming was contested. The Crown sought to confine it to circumstances where an accused gave evidence about the voluntariness of a confession and, in that setting, might have had little practical choice about testifying. The defence argued for wider protection against using evidence given on a voir dire as part of the prosecution case ([20]).
Lasry J adopted the broader view for the issue before him. His ruling treated the central concern as the accused's ability to give evidence on a discrete preliminary issue without risking use of that evidence before the jury before making the separate choice whether to testify at trial ([14], [20], [25]). It applied that reasoning to evidence given in support of a temporary stay application, while noting that whether the evidence should be described strictly as voir dire evidence was contested ([1]).
That ruling must be distinguished from the statutory question. Section 189(8), as reproduced in the judgment, restricts adducing evidence given by a witness at a hearing to determine a preliminary question, subject to stated exceptions for inconsistent evidence or the witness's death. Lasry J considered that the hearing on 27 January did not fit those statutory categories, but did not decide the point ([20]-[21]). Accordingly, the ruling's protection was not expressed as a final interpretation of s 189.
The second part of the decision concerns the treatment of late rebuttal evidence in the setting of a delayed alibi notice. The judge applied s 399A(1) of the Crimes Act 1958 (Vic) as the provision under which leave had been granted to rely on the alibi, and assessed the fairness objection against the specific history of notice and disclosure ([28], [41]-[44]). He rejected exclusion on the facts before him. He did not state a general rule that late rebuttal evidence is always admissible, or that delay caused by an accused will invariably defeat an unfairness objection.
The judge's comment that more precise legislative criteria for late alibi leave might be useful was a suggestion for legislative consideration, not a change to the statutory test ([44]). The ruling records no subsequent legislative change or appellate determination.
At [14], the judge said an accused should be able to give evidence on a voir dire “without the risk that the evidence could form part of the case against him before the jury.” In plain English, evidence given for a separate pre-trial purpose should not automatically become prosecution evidence at trial before the accused chooses whether to testify.
At [20], the judge accepted that Wong Kam-Ming supported a principle of general application, while recognising that there were no other cases in which the precise question had been determined. This matters because the ruling extended the reasoning beyond the original confession-voluntariness setting, but did so as a trial judge addressing the issue before him.
At [22], the judge distinguished R v Mills. He reasoned that an accused who chooses to give evidence at trial can be taken to understand that it may be used for or against him. Evidence given on a separate issue is different because it is given in a particular context and may not be given with awareness of its possible later use.
At [25], the judge stated: “I will not permit the Crown to lead the evidence given by the accused on 27 January 2009 as part of the Crown case.” This is the operative ruling on the Crown's first application. It did not decide whether the evidence could be used in some other way if the accused later testified.
At [33], the judge said the proposed rebuttal evidence was “demonstrably relevant” because it went directly to anticipated alibi evidence. In practical terms, evidence about the CCTV system and the physical layout was capable of testing the account on which the alibi depended.
At [43], the judge said the delay was “a direct result of [the accused's] conduct.” That finding was tied to the chronology described in the ruling, including the late finalisation of the alibi notice. It explains why the judge rejected the specific unfairness objection, rather than establishing a universal rule about notice.
At [44], the judge suggested that the legislature might consider more precise criteria for granting late alibi leave. The passage identifies a perceived area for legislative clarification, but does not itself create or alter a legal test.
The first part of the ruling is most directly relevant to a situation where an accused has given evidence in a voir dire or another discrete pre-trial proceeding, and the prosecution later seeks to use that evidence as part of its case before the accused has decided whether to testify at trial. The concern is particularly engaged where the evidence was given for a specific preliminary purpose and the accused may not have understood that it could be used in a different trial context ([14], [22], [25]).
The ruling's reasoning is not limited, in Lasry J's view, to evidence about the voluntariness of a confession. However, the judge acknowledged that this was a novel question on the authorities before him and that the 27 January evidence's character as voir dire evidence was contested ([1], [20]). The decision should therefore be read with its procedural context in view, not as resolving every possible use of pre-trial testimony.
The rebuttal-evidence part is relevant where the Crown proposes evidence that directly tests the factual or technical basis of an anticipated alibi, and the accused argues that the evidence is irrelevant or unfair because notice came late. The circumstances that mattered here included the accused's knowledge of the alibi issue, the history of requests for a notice, the detail ultimately supplied, and the point at which the Crown could identify its means of rebuttal ([34]-[43]).
The ruling does not establish that any technical challenge to an alibi will be relevant, or that late disclosure will always be fair. Its relevance finding was based on the specific connection between the proposed evidence about the CCTV system and the accused's account of how the footage was produced ([28]-[33]). Its fairness finding was also fact-specific ([43]-[44]).
The judgment text does not identify any later court considering or applying R v Rich (Ruling No 26). It therefore does not provide a basis to state whether later courts followed, distinguished, limited or overruled its reasoning.
The authorities discussed in the ruling are authorities considered by Lasry J, not later treatment of this ruling. Wong Kam-Ming was the principal authority informing the approach to the use of voir dire evidence ([15]-[20]). R v Mills was distinguished because the accused there had chosen to testify at trial or make an unsworn statement, while this case concerned evidence given for a discrete pre-trial purpose ([22]). R v Tofilau (No 2) was considered in relation to observations about cross-examination on voir dire evidence and the possible relevance of truth to voluntariness ([23]-[24]).
R v Heuston and Whitehorn were mentioned in addressing the timing and prosecutorial fairness aspects of rebuttal evidence. The judge noted that Heuston concerned the Crown's duty to disclose rebuttal evidence before a case in reply, whereas the proposed evidence here would be led as part of the Crown case in anticipation of the defence case. He concluded that the circumstances did not involve a departure from the standards discussed in Whitehorn ([42]). Those references do not establish later treatment of R v Rich itself.
The ruling expressly left open the application of s 189(8) of the Evidence Act 2008 (Vic) to evidence given during a pre-trial application that is not clearly a hearing to determine a statutory preliminary question. The judge gave a tentative view about the categories covered by s 189, but stated that he did not need to decide the question ([20]-[21]).
It also did not decide whether the Crown could cross-examine the accused about the earlier evidence if he later chose to testify before the jury. Lasry J distinguished that possibility from the Crown's attempt to tender the evidence before the accused made the choice to testify ([24]-[25]).
The ruling does not determine how broadly its general principle applies to different kinds of pre-trial hearings, or to evidence given in circumstances where an accused has been expressly warned about possible later use. The judge's reasoning emphasised the absence of an express consideration of that risk and the different context in which the evidence was given ([14], [22]).
The ruling also leaves open what more precise legislative criteria for granting leave to rely on a late alibi might look like. Lasry J raised that as a matter for possible legislative attention, but did not define new criteria beyond the existing provision ([44]). Finally, this ruling alone does not establish the truth of the alleged CCTV account, the ultimate admissibility of all proposed rebuttal evidence, or the result of the criminal trial.
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CRIMINAL LAW - Voir dire - admissibility of accused's voir dire or pre-trial evidence as part of the Crown case - Wong Kam-Ming breadth of application of principle - Right to silence - realisation of the possible use of voir dire evidence - Potential effect of Uniform Evidence Act - Crown application to lead pre-trial evidence of accused refused - Rebuttal of alibi - Relevance of evidence - Delay in Notice of Additional Witness - Effect of delay - Refusal by accused to give notice of alibi within time.
1 Hugo Alistair Rich is standing trial charged with murder and armed robbery on 8 March 2005. The details of the case against him have been summarised in many of the previous 25 published rulings I have been called upon to deliver and a large variety of ex tempore rulings I have delivered during the course of the trial. The trial is in the closing stages of the Crown case. There have now been in excess of 40 hearing days. Mr Tinney SC, the senior Crown prosecutor, has announced his intention as part of the Crown case to lead details of evidence given by the accused during a pre-trial application by him for a temporary stay of the trial on 27 January 2009. Whether this evidence can be properly described as evidence given on the voir dire is, to some extent, in contention.
In this case, he [i.e. the accused] claims he had precisely that exculpatory information in electronic form as well as two significant witnesses, but in a period of almost four years he has been unable to obtain it and appears not to have approached the witnesses or the owners of the building from which the CCTV was diverted. He did not need legal advice to understand the significance of the information - that was something he well knew and, on his evidence, motivated its creation.
The convoluted steps which he has described to conceal the information that he now says he requires are almost beyond belief. That, coupled with the conduct of the accused over the entire period and the long delay in even raising this issue leaves me in a position where I am by no means persuaded that such data does actually exist.
The application for a six months' stay of this trial is refused.
3 In the cause of supporting an application for a stay on 27 January 2009, the accused gave evidence. The purpose of him doing so was to explain how it came to be that he had exculpatory video which had been recorded on the closed circuit television system in Exchange Towers which is a building at 530 Little Collins Street, Melbourne in which Mr Rich's office was located.
4 During that evidence he said he spliced the main service for the closed circuit television system in the building after some burglaries had happened within different floors of the building and he piped it into a computer.[3] Having obtained that video he secreted it by a series of quite complex IT steps as he described.
5 In answer to questions from me he said he first spliced into the video from the service provider in November 2004 and said the video if now observed would reveal the foyer area of the lift well and in addition there was also a camera from the reception which faced into a restaurant directly opposite the building.
6 The accused said he had no proprietorship to that particular medium and he had no right to it but he determined that as a means of self-preservation he needed to have 24 hour a day seven day a week ability to prove where he was at any particular time.[4]
7 The accused agreed that he was spoken to on 12 March 2005 and after the police had spoken to him he examined the video to see what it showed. He said it showed him sitting in a restaurant downstairs from a camera directly opposite the concierge desk and the date is an embedded date and time stamp and showed 8 March 2005.
8 The accused said that it showed him sitting in the vicinity of a "retired judicial officer" and a "retired prosecutor". [5] Ultimately the accused declined to identify those people.
9 When cross-examined by the prosecutor the accused said that he piped the data from the closed circuit television system into which he had tapped, into a notebook computer that was in the ceiling.
10 He said he had two notebook computers, one in the annex office and the second Sony notebook in the ceiling with a pin hole lens camera. [6]
11 He said he used the notebook in the ceiling because it was the smallest device that he could rest on the suspended ceiling to connect to a particular type of lens and on that basis it was triggered to the door. Anyone who walked in would be captured in a stored image.[7]
12 He said the splicing into the system of the building was for the foyer camera which was above the concierge office in the Exchange Tower.
13 The Crown are now in a position where they submit it can be demonstrated that the description given by the accused is false. It is proposed by the Crown that they should be permitted to put the evidence given by the accused to which I have referred before the jury. They then propose to demonstrate the falsity of that evidence by the production of other evidence which will apparently establish that the observations made by members of the Victoria Police, albeit four years later, are inconsistent with the description given by the accused in his evidence. They also propose to lead evidence from an experienced security witness to give evidence which will contradict the account given by the accused. That evidence is also subject to objection by the accused but for different reasons.
The Crown wish to tender the evidence of the accused on 27 January 2009
14 I will deal first with the Crown's application to put the evidence of 27 January 2009 before the jury. For a number of reasons, I do not believe I should permit this to occur. In the course of his submissions Mr Tinney sought to draw a distinction between a voir dire where an accused had little choice but to give evidence - such as where the voluntariness of a record of interview was in issue - as opposed to the circumstances here where the accused, on 27 January 2009, gave evidence voluntarily to support an application for a temporary stay of this trial. I am not persuaded that the distinction is a valid one. In my opinion, on the several occasions in which the accused has sought to give evidence in the numerous voir dire hearings that have been held in this case, no express consideration was given to whether if he did so he risked that if such evidence later turned out to be relevant to an issue in the trial before the jury, possibly in a different context, it could be used against him as part of the Crown case. An accused person should be able to give evidence on a voir dire in circumstances where that evidence was relevant to the issue to be determined without the risk that the evidence could form part of the case against him before the jury. To conclude otherwise would be to compromise the basic choice reserved to an accused as to whether to give evidence on his or her trial or not.
15 In Wong Kam-Ming v The Queen[8] the Privy Council was concerned with a case concerning a group of men attacking the manager of a massage parlour. The appellant was one of six charged with murder and malicious wounding and the only evidence against him at the trial was his own signed statement indicating that he was present and had "chopped" someone with a knife. The admissibility of that statement was under challenge on the basis of an issue of voluntariness and the trial judge ruled that the statement should not be admitted.
16 The appellant had given evidence on the voir dire and had been cross-examined by the prosecution during the course of which he admitted he was present at the scene and involved in the attack.
17 In order to demonstrate that the appellant was present, counsel for the Crown called the shorthand writers from the voir dire to prove the evidence he had given in relation to that issue.
18 The question arose for the resolution by the Privy Council as to whether the prosecution may lead evidence regarding the evidence given by a defendant on the voir dire. In the trial of this matter the trial judge had ruled that such evidence was admissible albeit that the statement itself about which the voir dire was being conducted had been excluded.
19 The Privy Council was concerned to answer a number of questions framed by counsel for the defendant. Questions 1 and 2 were concerned with whether a defendant can be challenged as to the truth of a confession when giving evidence on a voir dire challenging its admissibility and, if he can, whether the Court has a discretion to exclude such cross-examination. Questions 3 and 4 concerned whether, even if the confession was excluded, answers favourable to the Crown could be led as part of their case on the trial. The Privy Council answered in the negative and it is the basis on which they did so that is said to give rise to the principle of general application. Lord Edmund-Davies delivered the judgment of the majority and, on that issue concluded that:
Where the confession has been excluded, the argument against ever admitting such evidence as part of the Crown case must prevail. But what if the confession is held admissible? In such circumstances, it is unlikely that the prosecution will need to do more than rely on the confession itself. Nevertheless, in principle should they be prevented from proving in addition any admission made by the defendant on the voir dire? This question has exercised their Lordships a great deal, but even in the circumstances predicated it is preferable to maintain a clear distinction between the issue of voluntariness, which is alone relevant to the voir dire, and the issue of guilt falling to be decided in the main trial. The blur this distinction can leave, as has already been shown, to unfortunate consequences, and their Lordships have therefore concluded that the same exclusion of evidence regarding the voir dire proceedings from the main trial must be observed, regardless of whether the challenged confession be excluded or admitted. [9]
20 Mr Tinney submitted that the reasoning of the Privy Council can, and should, be restricted to its own unusual facts. In particular, he submitted that the reasoning was confined to circumstances, as in that case, where the accused was obliged to give evidence on the issue of the voluntariness of a statement or confession. The circumstances here are quite different, in Mr Tinney's submission. There is some force in that submission, but in my opinion the principle is broader that those somewhat bizarre circumstances. Mr Edney, on behalf of the accused, submitted that the answers of the Privy Council to questions 3 and 4 are of general application albeit that they might be said to be confined to the question of the evidence of a defendant on a voir dire concerning the voluntariness of a confession. He also submitted that in this case the accused was also effectively obliged to give evidence because of comments I had made in the debate that preceded the giving of evidence about there being a lack of evidence on the issue that I mighty need to determine. I agree with that submission. I also consider that there is a principle of general application that flows from the views expressed in Wong Kam-Ming. That said, it seems there are no other cases where the question I am concerned with has been determined. I had originally been of the view that the issue is decided by statute in the Australian states where the Uniform Evidence Act applies, as it soon will in Victoria. Pursuant to s 189(8) of that legislation, evidence of any witness on the voir dire cannot be admitted in the trial unless the witness has died or the witness gives inconsistent evidence during the trial. However on reflection that may not be correct. Section 189 of the Evidence Act 2008 provides:
(1) If the determination of a question whether -
- (a) evidence should be admitted (whether in the exercise of a discretion or not); or
- (b) evidence can be used against a person; or
- (c) a witness is competent or compellable -
depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question.
(2) If there is a jury, a preliminary question whether -
- (a) particular evidence is evidence of an admission, or evidence to which section 138 (Discretion to exclude improperly or illegally obtained evidence) applies; or
- (b) evidence of an admission, or evidence to which section 138 applies, should be admitted -
is to be heard and determined in the jury's absence.
(3) In the hearing of a preliminary question about whether a defendant's admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission's truth or untruth is to be disregarded unless the issue is introduced by the defendant.
(4) If there is a jury, the jury is not to be present at a hearing to decide any other preliminary question unless the court so orders.
(5) Without limiting the matters that the court may take into account in deciding whether to make such an order, it is to take into account -
- (a) whether the evidence to be adduced in the course of that hearing is likely to be prejudicial to the defendant; and
- (b) whether the evidence concerned will be adduced in the course of the hearing to decide the preliminary question; and
- (c) whether the evidence to be adduced in the course of that hearing would be admitted if adduced at another stage of the hearing (other than in another hearing to decide a preliminary question or, in a criminal proceeding, a hearing in relation to sentencing).
21 That means that what is precluded by section 189(8) is evidence given during the hearing of a "preliminary question", being a hearing concerned with the admissibility of evidence, how evidence might be used or whether a witness is competent or compellable. The evidence given by the accused in this case on 27 January 2009 does not fall into those categories. Mr Tinney thus submits that the Uniform Evidence Act would not preclude this evidence being led in the Crown case. Mr Edney, for the accused, does not accept that reasoning but in the absence of a detailed analysis of the relevant interpretative materials, made no submission and, of course, I do not have to decide the issue.
22 The Crown also relied on R v Mills[10], where Southwell J ruled that on a re-trial of the accused the Crown could lead the unsworn statement of the accused as part of the Crown case and gained some comfort from the observations of Lord Edmund-Davies in Wong Kam-Ming. However, it seems to me the situation is quite different. In such a circumstance an accused makes a choice to give evidence (or make an unsworn statement as in that case) and must surely realise that once in the witness box the evidence given can be used for or against the accused without qualification. It is a logical extension of that position that such evidence given after the making of such a choice would be available to the Crown in a re-trial. However, such a realisation does not apply to voir dire evidence or evidence given in the circumstances that applied here. The evidence is given on a discrete issue and in a particular context and it could not be assumed that an accused person gave the evidence conscious of its potential use in a different circumstance or context.
23 Some reliance was placed by Mr Tinney on the observations of Callaway JA in R v Tofilau (No. 2)[11] as follows:
Three years later, in Wong Kam-Ming v R, the majority of the Privy Council held that R v Hammond was wrongly decided. Their Lordships answered the question, "During the cross-examination of a defendant in the voir dire as to the admissibility of his challenged statement, may questions be put as to its truth?", "No". Lord Hailsham dissented. He deprecated the practice of asking the accused, almost as a matter of course, whether the confession was true but pointed out that there are cases in which truth is relevant to the issue of voluntariness. All the members of the Board considered that, if a confession were admitted and the accused gave evidence before the jury, he could be cross-examined on statements he had made on the voir dire. In MacPherson v R Gibbs CJ and Wilson J said that both the points dealt with in Wong Kam-Ming v R remained to be decided by the High Court. Mason J accepted that, where the confession is admitted, the accused can be cross-examined on discrepancies between his answers given on the voir dire and the evidence he gives before the jury.
24 Callaway JA went on to observe that it would be open to a trial judge to permit questions as to the truth of a confessional statement, or at least parts of it, to be asked on the voir dire if the prosecutor demonstrated both that the questions were relevant to voluntariness and that they needed to be asked in order properly to test the evidence given by the accused in the particular circumstances of the case.[12] For myself, and with due respect to his Honour, I find it difficult to imagine circumstances where that would be fair or appropriate on the issue of voluntariness but that is not the issue I am here concerned with. It is one thing to acknowledge that if the accused gives evidence during the trial before the jury, he or she can be cross-examined about voir dire evidence they have given. It is, in my view, quite another to permit the voir dire evidence to be used as part of the case for the prosecution before the accused has made the choice as to whether to give evidence.
25 In my opinion, it is not appropriate for the Crown to lead the evidence given by the accused on 27 January 2009. Notwithstanding the enthusiasm of the accused to give evidence in voir dire hearings, it is my view that even in those circumstances, the person charged with serious crimes should feel free to give evidence on a voir dire without the risk that that evidence will form part of the Crown case against him. If, on the other hand, the accused gives evidence, it is another question likely to be resolved in the affirmative as to whether he can be cross-examined about that evidence. I will not permit the Crown to lead the evidence given by the accused on 27 January 2009 as part of the Crown case.
26 I turn then to next issue to be determined which is the admissibility of the evidence proposed to be led in rebuttal of the alibi as the Crown perceive it.
27 Two objections are taken to this evidence on behalf of the accused. First that its relevance to the issues in the trial is questionable and, second, that even if that objection is not sustained, such evidence coming so late in the Crown case is unfair and works a prejudice to the accused.
28 I deal first with the relevance issue. On 1 April 2009, I granted leave to the accused to rely on an alibi pursuant to s 399A (1) of the Crimes Act 1958. The final version of the Notice of Alibi recites that on 8 March 2005 at or about the time these offences of armed robbery and murder were being committed, the accused was "at or about the precincts of his business premises" at 530 Little Collins Street Melbourne. The notice refers to closed circuit television footage which, it is claimed, depicts him consistently with his claimed alibi. This footage is said to be footage which the accused "spliced into" and then, having obtained it, encrypted and dispersed it in a manner which means it only be retrieved via the internet[13].
29 As I have already outlined, the accused in his evidence on 27 January 2009, outlined how this footage was obtained. In summary, he said the following:
• In November 2004 he "spliced the main service after some burglaries" and "piped it into a computer";
• The "splicing" was for the foyer camera above the concierge office;
• The splicing involves going from "junction box to junction box" by "putting a new system in" and "putting a T piece in that".
• This was done with a ladder accessing the "void of the ceiling" on the fourth floor and "remov[ing] the suspended ceiling" and then identifying where the main coaxial cable is to the foyer area. This was done from the fourth floor.
• The coaxial cable goes from there to the junction box on the ground floor.
• The computer was a "notebook" placed in the ceiling;
• There were two "notebooks" - one was in the "annex office" and the second one in the ceiling had a pin hole lens camera that was in the reception office;
• The video camera, the feed of which he spliced into, showed the main foyer of the building;
• The video shows the accused sitting in a restaurant downstairs opposite the concierge desk;
• There is an embedded date and time stamp on the footage;
• A "retired judicial officer" and a "retired prosecutor" were sitting at the next table;
30 The Crown now seek to call evidence to rebut that evidence on the basis that the accused may give that evidence on the trial. The Crown contend that the evidence given by the accused on 27 January 2009 is demonstrably false. The Crown have given notice of their intention to put before the jury evidence of an inspection of the premises and a video tape of the inspection. They also propose to call Neil Robert Louden who has some 20 years experience in the security industry. His statement of 3 April 2009, deals with some aspects of the evidence given by the accused.
• The system was analogue meaning no data could be captured on to a computer without being converted via a video capture card which converts analogue footage to digital format;
• Any interception of a coaxial cable by T junction or splitter would cause a loss of quality in the image;
• To obtain an image as described by the accused a cable from the duplex unit in the foyer would be required;
• There would be no date or time stamps on the images;
• There was no indication on inspection of the coaxial cable above the concierge desk being tampered with or cut;
• There are no cameras fitted to level 4 in the building. The communication risers are locked and accessed by security key;
• A cable from the concierge desk to any of the floors travel via the concrete floor, into a car park, across a fire control room and then into the ground floor communications riser. Some 100 metres of cable would be required to run a cable to the fourth floor.
32 The witness will give other similar evidence concerning the access to the ceiling on the fourth floor and the fact that there were no coaxial cables on that floor going toward the communication risers.
33 On that brief summary, the evidence is demonstrably relevant. Mr Desmond identified what he referred to without further elaboration as a "continuity issue". I assume he means whether the condition of the building and the closed circuit system is the same now as it was in 2005. I assume evidence can be led about that. I reject the submission that this evidence is not relevant. It goes directly to anticipated alibi evidence.
34 The final question concerns unfairness. The unfairness is said to have arisen from the lateness with which the notice of the Crown's intention to lead this evidence was given to the accused. This complaint must be dealt with in the context of the circumstances of this case. The accused has given evidence before me that he has been aware of his need for alibi evidence since 12 March 2005 when he was first spoken to about his movements on 8 March 2005 coupled with his later arrest on 12 May 2005[14]. That is more than four years ago.
35 At the committal, the learned Magistrate was required to give the accused an alibi caution near the conclusion of the proceedings. This occurred on 13 March 2007 - some two years ago. That produced the following exchange[15]
HIS HONOUR: I am just advising you of the law in relation to alibis.
DEFENDANT: 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.
HIS HONOUR: As I indicated, I am obliged as a matter of law to tell you those matters.
DEFENDANT: The law's an ass, Your Honour. The law's an ass.
36 We are now "at the end" and the issue must be dealt with. However, the transcript of the proceedings leading to and including this trial reveals a tortured path to 1 April 2009 when finally leave was sought pursuant to s 399A(1) the Crimes Act 1958 and not opposed by the Crown. I will refer to only a handful of examples given the need to finalise this issue. On 14 April 2008, the then prosecutor Mr Elston SC urged that if an alibi was to be relied on by the accused then a notice should be filed and served[16]. On 26 June 2008, Mr Desmond indicated that a notice of alibi would need to be filed and served[17]. On 17 July 2008 the Summary of Prosecution Opening included the following paragraph:
The Prosecution awaits the service of the Notice of Alibi as foreshadowed by Mr Desmond on 26 June 2008 and reserve [sic] the right to provide supplementary material by way of opening.
37 On 11 August 2008, Mr Tinney then raised the issue again[18]:
Your Honour has referred a couple of times in the course of various rulings to the provisions in s.399 and the absence of an alibi notice in this case. Mr Desmond is on record as saying that a Notice of Alibi would be filed. We ask where is it? We are about to embark upon the trial proper in terms of the preliminary matters next week.
38 The matter was raised again in September 2008[19] and from thereon. In the course of discussion the following occurred:
HIS HONOUR: This is an unresolved difficulty, but the difficulty is that the provisions require that some notice, it doesn't say some notice, but notice of an alibi be given within a particular time. The provisions exist for a particular purpose.
HIS HONOUR: There is obviously a difficulty - and they particularly exist to enable the Crown or the police to check the provenance of the alibi relied upon.
39 The first Notice of Alibi was provided on 24 September 2008 but before leave was sought to rely on alibi the document went through a series of iterations. On 21 October 2008, the Crown complained about the deficiency in the particulars of alibi and the extent to which they could rebut it given those circumstances[20].
40 On 27 January 2009, the accused was giving evidence as I have earlier outlined. In relation to two people who might be able to verify the alibi he wished to rely on, the following exchange occurred during Mr Tinney's cross examination:
MR TINNEY: Absolutely. Not only that, but it would also show on the given day and the date and the time two people who you could actually identify?
MR TINNEY: Well, I press you in relation to those two, who were they, Mr Rich?
ACCUSED: I don't have access to it yet, and when I've got it you will be the first to know, sir.
MR TINNEY: It's not a matter of having access to it, you know who these people were?
ACCUSED: I'm not telling you until I have the video.
ACCUSED: Because as far as I'm concerned there's no necessity for me to tell you anything until I've got my hands on that. It is not necessary nor is there any legal obligation for me, for an example, if I tell you who it is and I don't bring it I'm devil be damned. If I don't produce it I'm damned. So, with respect, that's not the way to do it. There's no obligation, never is there an obligation for me to tell the police officer where I was at a particular time. I have no necessity to tell them. Because of my experience with Victoria Police I would never engage in dialogue with them. I would never admit to anything with respect to where I may have been or may not have been. I'm not here to participate in their investigation.
41 Finally on 1 April 2009, which was day 34 of the trial, the matter of leave was finally resolved by application for leave and I said:
I will formally order that the accused have leave to adduce evidence in support of an alibi in accordance with the notice which, the most recent version of which is filed on 1 April 2009, and that grant of leave is given pursuant to s 399A(1).
42 It was at that point that the Crown knew what the final detail of the alibi to be relied on might be although even now some amendments are being foreshadowed. I agree with Mr Tinney that it was on 1 April 2009 that they could decide how, and by what evidence, the Crown would attempt to rebut the alibi the accused proposed to rely on. In R v Heuston[21], the Court of Criminal Appeal in NSW identified the principles that were relevant in such circumstances. In that case the Court was concerned with the duty of the Crown to disclose evidence by way of rebuttal of alibi before the case in reply. Here, there will be no case in reply. The Crown propose to lead this evidence as part of their case in anticipation of the defence case if there is one. It could not be said that there has been any departure from standards required of the prosecutor of the kind discussed in Whitehorn[22].
43 In my opinion, given the history of the accused's attitude to the required disclosure of alibi and the delay finally concluding a Notice of Alibi in respect of which an application for leave could be made means that a complaint that he has been caught by surprise and is disadvantaged by the delay with this evidence is, to say the least, difficult to maintain. There has been a delay but it has been a direct result of his conduct. It would also appear that despite the content of the Notice of Alibi, no-one on behalf of the accused has ever sought to examine or establish that the configuration of the building in which the office of the accused was located was consistent with his assertion about accessing the CCTV product as he claims.
44 In my opinion the difficulties in this case are precisely the difficulties that s 399A(1) of the Crimes Act 1958 was expected to resolve. Perhaps some consideration should be given by the legislature to identifying more precise criteria on which leave to rely on an alibi outside the time specified in that section should or should not be granted apart from what is contained in s 399A(3). However that may be I reject the submission that the evidence should be excluded because of an unfairness said to be created by the delay.
45 Finally, I will permit a brief hearing in the nature of a Basha enquiry in relation to the additional evidence the Crown propose to lead and I direct that hearing occur on Monday 27 April 2009 at 10:30 am. I will not otherwise delay the progress of the matter while witnesses, expert or otherwise, are engaged by counsel for the accused.
[11] [2006] VSCA 40; [2006] 13 VR 28 at page 35
[13] See R v Rich (Ruling 3) [2008] VSC 219R and R v Rich (Ruling 20) [2009] VSC 24R
[14] Referred to in R v Rich (Ruling 20) [2009] VSC 24R at para [45]
[21] (1996) 90 A Crim R 213 at 226.
[22] [1983] HCA 42; (1983) 152 CLR 657 at 663 per Deane J.
R
Rich
(1983) 152 CLR 657
The Crown was not permitted to lead the accused's evidence of 27 January 2009 as part of its case. The relevance and unfairness objections to the proposed rebuttal evidence were rejected. A brief Basha enquiry was directed for 27 April 2009, without otherwise delaying the trial ([25], [33], [44]-[45]).
(6) Section 128(10) does not apply to a hearing to decide a preliminary question.
(7) In the application of Chapter 3 to a hearing to determine a preliminary question, the facts in issue are taken to include the fact to which the hearing relates.
(8) If a jury in a proceeding was not present at a hearing to determine a preliminary question, evidence is not to be adduced in the proceeding of evidence given by a witness at the hearing unless -