Rich v The Queen [2014] VSCA 126

Rich v The Queen [2014] VSCA 126 - VSCA 2014 case summary — Zoe

[83]

The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict. Although I have stated the matters in that way, it will be seen that there has been some difference of expression, if not of opinion, in the judicial discussion of these questions. The combined effect of the two considerations was stated by Rich and Dixon JJ in Craig v The King,[19] as follows:

A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.

Perhaps no more elaborate statement of the position can usefully be made.[20]

[293]

It seems to me, with all respect, that where the trial was by jury, the accused was entitled to have the question of his guilt determined by the verdict of the jury, and that the Court of Criminal Appeal, in considering the effect of the fresh evidence, should consider what effect it might have had upon a reasonable jury. It is not enough that there is a bare possibility that a jury might have been influenced by the evidence to return a verdict of not guilty. On the other hand, it is too severe, and indeed speculative, a test, to require that the Court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so. I have had the advantage of reading the reasons for judgment prepared by Mason and Deane JJ who suggest that the Court of Criminal Appeal will conclude that the unavailability of the fresh evidence at the time of the trial will have involved a miscarriage of justice if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial. I am in substantial agreement with this statement. However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial.

[364]

In [Miletic] the Court identified four aspects of that general principle. The first is that a perceptible risk is one that is real, or of substance, as opposed to a theoretical or insignificant risk. Secondly, the factors calling for the warning must be such that it would be unsafe to leave the jury to rely only upon the arguments of counsel. Thirdly, weight should be given by an appellate court to the judge's assessment of what was necessary in the circumstances of the trial. Finally, the consequences of failure to give the direction depend upon whether, in the event, there has been a miscarriage of justice. In Bromley v R,[79] Brennan J in referring to the circumstances in which a warning is required stated:

The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer ... "partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind": ... If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given. As Barwick CJ said in Kelleher ...:

"The rule of practice as to the warning to be given to the jury is related to the reasons which have prompted it. In my opinion, it does not require a warning where those reasons have no play".

When the danger is not obvious to the lay mind, the absence of the usual warning may leave a Court of Criminal Appeal unable to say that a reasonable jury properly directed on the evidence would have convicted.[80]

In Miletic,[81] the Court said:

In our opinion a distinction should also be drawn, in cases such as the present, between circumstances that it is well within the ability of the jury to assess for themselves and factors the full significance of which may be more apparent to the judge: cf Bromley v R ... and Carr v R ... Appellate intervention is much more likely to be warranted in the latter case than in the former. Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel's addresses, it is only in exceptional cases that a warning is required. More often it is simply a matter for the judge to decide whether or not it is appropriate to make a comment for the assistance of the jury.[82]

In R v Weiss,[83] Callaway JA, in reference to a Faure warning, said as follows:

... The duty to warn in the manner contemplated by that case arises only where the factors which make the evidence potentially unreliable are so strong that it becomes unsafe to assume that the jury will rely on the arguments of counsel, even if those arguments are repeated and emphasised by the judge. Only then does it become necessary to give a warning which emanates from the judge with the weight of judicial office.[84]

[379]

The prosecutor has submitted that I should incorporate into my description of the legal elements of murder a reference to s.3A of the Crimes Act which is in the following terms:

(1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime, the necessary elements of which include violence for which a person upon first conviction may under or by virtue of any enactment be sentenced to Level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.

...

Mr Desmond on behalf of the accused submits that I should not refer to s.3A on the basis of the manner in which the case has been conducted.

There is no question that the Crown have conducted this case such that if the jury are satisfied that the accused participated in the armed robbery, then the shot which the Crown say he fired was fired with an intent to kill. Mr Desmond submits that there is no factual basis on which s.3A, as an alternative means of reaching a verdict of guilty of murder, could be put to the jury.

I have reviewed the evidence of the eyewitnesses, apart from that of Mr Ryan who, as I understand his evidence, did not actually see the shot being fired. As far as I can tell, all witness[es] who saw the shot fired describe it as a deliberate shot. Even the witness who described wrestling, Ms Werninghaus, appeared to describe the shot being fired deliberately after the wrestling had come to an end. Most describe the person firing the gun as pointing the firearm at Mr Kastenberger. I cannot identify anything in any of that evidence that might suggest the shooting was 'unintentional'. Apart from some evidence about 'wrestling', Mr Tinney has not referred me to anything else.

In the circumstances, I do not consider that there is any factual basis on which s.3A of the Crimes Act can be relied upon as the second basis for a verdict of guilty of murder. I do not propose to direct the jury about it thus the prosecutor should not rely on it in the course of his address.[88]

[388]

Maria Faulisi said that she saw two men run from a huddle towards the corridor. The taller of them then returned and lifted his arm with a gun. She saw the deceased walking very slowly in front of the bank towards the entrance and then heard the sound of 'a popgun go off and shot him'.
Genevieve Werninghaus said that she saw two men wrestling. One was in dark clothing with a balaclava and a yellow fluoro top and the other was in dark clothing. The man without the fluoro top went to ground with his feet towards the Go-Lo store and his back towards the Commonwealth Bank. The man with the balaclava had a pistol in his right hand and was aiming it at the man on the ground. He then lent over the man on the ground and fired a shot.
Elizabeth Marie Grant said that she heard yelling from the man that was shooting.[89] He was wearing an orange fluoro shirt and was in front of the Commonwealth Bank. He yelled at the security guard and then shot him in the head.
Maxine Nola Barry said that she saw three men and then one of them point at a man who seemed to be falling. When she first turned and observed that taking place, it looked as though the man who was pointing was pointing his finger. Then she realised it was a gun. She said that it looked like an extension of his hand, like a long black finger. The man who was shot was almost lying on the ground when the orange-topped offender took a pace towards him, made the pointing action and then the shot was fired.
Bethan Esme Sims said that, after she saw the yellow-topped offender, she heard a loud bang. She looked over to the orange-topped offender and saw that he was holding a gun in his right hand. He had his arm outstretched with the weapon pointing slightly down. She had no doubt it was the orange-topped offender who shot the guard although she agreed that she might have been mistaken when she had earlier stated that the deceased was shot in the head.
Finally, there was Leonard Ryan's evidence. He said that the idea had been to intercept the guards before they reached the inside of the bank. When he and the applicant came out the corridor from the toilet area it was at a brisk walk, not 'full running', and the applicant was yelling 'Get on the ground'. Ryan said that he was pointing his gun in front of him towards the guards and he thought that the applicant was doing the same. The applicant was in front of Ryan and approached the guard closest to the entrance to the Bank and, as that was happening, a bag was thrown over to Ryan's left side to the right of the Go-Lo stuff. Ryan said that he ran over to the bag and grabbed it. He might have touched the second guard but he did not think that he had. As he bent down to get the bag, his sunglasses fell out of his pocket. At that point, he heard a loud 'pop', like a broom handle falling off a wall and slapping down on the linoleum floor. He did not register it as a gunshot, he described it as surreal. He did not think anyone had been shot because he did not see the guards take their guns out. The applicant was right up against the first guard, the deceased. The applicant came around the corner and then retreated to the exit sign where he stood making sure that everything was taken care of while Ryan was grabbing the bag. The applicant told Ryan to go back and grab his sunglasses and Ryan turned around and went back and picked them up. He then ran back the way he came in, although he became disorientated and ended up in another room. He realised what he had done and then came back out where the applicant was waiting. They then both made their way to the waiting van.

[408]

In Gilbert the jury was instructed that on the view of the facts for which the defence contended the accused was entitled to outright acquittal. The direction accorded with the law as it was understood at the time. The understanding proved to be wrong, as on the view of the facts for which the defence contended, it had been open to convict Gilbert of manslaughter. The question in this Court was whether the Queensland Court of Appeal erred in dismissing Gilbert's appeal against his conviction for murder under the proviso in s 668E(1A) of the Criminal Code (Q). The majority held that the verdict did not preclude the possibility that the jury had not applied the instructions concerning proof of the elements of murder. Gleeson CJ and Gummow J disavowed that appellate courts are to assume a mechanistic approach to fact-finding on the part of the jury. In this context, their Honours observed that the jury's findings of fact are made in the context of instructions as to the consequences of the findings. They referred with approval to statements in Mraz v The Queen concerning the 'realities' of jury deliberations when murder is in issue. In Mraz those realities were that murder was punishable with death. Gleeson CJ and Gummow J considered that an equally influential contemporary reality is that '[t]his is an age of concern for the victims of violent crime, and their relatives' (emphasis added). Callinan J, the other member of the majority, also reasoned that it is contrary to human experience, where there is a choice of decisions, that what is chosen will be unaffected by the variety of choices offered.

The rationale of the decision in Gilbert is discussed in Gillard. In that case manslaughter was not left when, on a view of the facts, it was an available verdict, albeit not one for which the defence contended. As Hayne J explained, the holding in Gilbert precluded the appellate court from taking into account the findings made by the jury and for this reason it could not be concluded that Gillard had not lost a chance of more favourable verdicts than those that the jury returned.

Gilbert and Gillard are concerned with the consequences of the wrongful neglect of the obligation to leave manslaughter to the jury in any circumstance in which it is open. History and recognition of the gravity of conviction for murder inform the obligation...[104]

[447]

(1) If an affidavit signed before 12 November 2011 by a person and by a person duly authorised to administer oaths contains words indicating that the first person states that the affidavit is made on oath or affirmation -

(a) it is not, and was not at any time, necessary that -

(i) the oath or affirmation be made orally; or

(ii) the first person signed the affidavit in the presence of the person duly authorised to administer oaths; or

(iii) the person duly authorised to administer oaths signed the affidavit in the presence of the first person; or

(iv) if the first person signed the affidavit in the presence of a person duly authorised to administer oaths, the person so authorised observed the person signing the affidavit; or

(v) the affidavit contained the statement required by section 126; and

(b) the words indicating that the first person states that the affidavit was made on oath or affirmation are and are taken always to have been effective by way of oath or affirmation even if anything referred to in paragraph (a)(i) to (v) was not done or did not occur.

(2) A warrant, an order, a summons or other process issued or made by a court or a judicial officer in reliance, directly or indirectly, on an affidavit referred to in subsection (1) is not invalid only by reason of the fact that, but for subsection (1), the affidavit would not have been duly sworn or affirmed.

(3) For the purposes of the prosecution of an alleged offence, the fact that, but for subsection (1), an affidavit would not have been duly sworn or affirmed is to be disregarded in determining whether evidence obtained in reliance, directly or indirectly, on that affidavit ought to be admitted.

(4) Subject to subsection (3), this section does not limit a discretion of a court -

(a) to exclude evidence in a criminal proceeding; or

(b) to stay a criminal proceeding in the interests of justice.

(5) This section does not affect the rights of the parties in -

(a) the proceedings known as Director of Public Prosecutions (Vic) v Marijancevic (No 264 of 2011), Director of Public Prosecutions (Vic) v Preece (No 263 of 2011) and Director of Public Prosecutions (Vic) v Preece (No 265 of 2011) in the Supreme Court of Victoria, Court of Appeal; or

(b) any other proceeding in which a court, before the day on which the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 receives the Royal Assent, has made a ruling on the validity of-

(i) an affidavit referred to in subsection (1); or

(ii) a warrant, an order, a summons or a process issued or made in reliance, directly or indirectly, on an affidavit referred to in subsection (1); or

(c) any other proceeding in which a court, before the day on which the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 receives the Royal Assent, has made a ruling on the admissibility of evidence obtained under a warrant, an order, a summons or other process issued or made in reliance, directly or indirectly, on an affidavit that, but for subsection (1), would not have been duly sworn or affirmed.

(6) In this section affidavit includes a document purporting to be an affidavit.

[465]

To suggest that the statutory will of the Parliament, expressed in s 15X, is to be held invalid because its application would impair the integrity of the court's processes or bring the administration of criminal justice into disrepute is, in my respectful opinion, to misconceive both the duty of a court and the factors which contribute to public confidence in the administration of criminal justice by the courts. It is for the Parliament to prescribe the law to be applied by a court and, if the law is otherwise valid, the court's opinion as to the justice, propriety or utility of the law is immaterial. Integrity is the fidelity to legal duty, not a refusal to accept as binding a law which the court takes to be contrary to its opinion as to the proper balance to be struck between competing interests. To hold that a court's opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power. It would elevate the court's opinion about its own repute to the level of a constitutional imperative. It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts' repute as the administrator of criminal justice.

The fact that, s 15X apart, on the trial of an offender for an offence against s 233B of the Customs Act or for an associated offence, the courts would reject evidence of the illegal importation of the relevant narcotic goods by a law enforcement officer does not establish that s 15X is beyond the legislative power of the Parliament. Once the Parliament has enacted s 15X, it is the duty of the courts to apply it. In doing so, the courts defer to the legislative competence of the Parliament and affirm their own adherence to the rule of law. In striking a balance between the factors relevant to the Ridgeway discretion, subject to the conditions prescribed by Div 3 of Pt 1AB, the Parliament expresses where the balance of public interest lies. The declaration of the balance of public interest devolves on the court when the Parliament is silent, but once the Parliament has spoken, it is the voice of the Parliament that declares where the balance of the public interest lies.[140]

[466]

Once it is accepted that the legislature may make or change the rules of evidence it is clear that it may make or change the rules governing the discretionary exclusion of evidence. In particular, it may make or change rules governing the factors which a court is to take into account in exercising that discretion. In the case of this particular discretion, the exercise of which depends upon the balancing of competing considerations, I see no intrusion on the judicial power by the legislature saying that in some kinds of case, one consideration (that of preserving the reputation of the courts by their not being seen to condone law breaking) is to be put to one side in favour of the consideration that persons committing a particular kind of crime should be convicted and punished.

It is said that if the courts do that, their reputation is harmed because they are seen to condone the breaking of the law by law enforcement officers. But that is to ignore a fundamentally important consideration - that the courts would receive evidence which otherwise may have been rejected because that is the effect of the statutory injunction to disregard the fact that the law was broken by the law enforcement officers. There would, in these circumstances, be no harm to the reputation or integrity of the judicial process if the courts were to follow the law and there would be no harm to the reputation of the courts if, applying the law, a court received the evidence in the course of trying the issues joined between prosecution and accused. Moreover, it is always necessary to recall that not every breach of the law by those who should enforce it led to rejection of their evidence at common law; a discretion was exercised. Harm to the courts has not been seen, in Australia or elsewhere, as the inevitable consequence of the reception of such evidence.

As was noted in Bunning v Cross[141] there was a marked contrast between the approach manifest in R v Ireland[142] (and in Bunning v Cross) and the approach that had, until then, been taken in the English and Canadian courts. Since then, the general effect of English cases has been to favour the reception of evidence even though it has been illegally obtained.[143] (The question in England has also now been affected by legislation.)[144] In Canada the matter is controlled by s 24(2) of the Charter of Rights and Freedoms which provides, in effect, that if evidence is obtained in breach of the Charter, the evidence is excluded if it is established that, having regard to all of the circumstances 'the admission of it in the proceedings would bring the administration of justice into disrepute'.[145] In the United States, the view that appears to have prevailed is not that a defence of entrapment is necessary to 'preserve the institutional integrity of the system of federal criminal justice'[146] but that the relevant question is whether the accused would have committed the offence but for the actions of the law enforcement officers.[147] In none of these jurisdictions, then, has the reception of evidence obtained illegally been seen as presenting such a threat to the integrity of the judicial process, or the reputation of the courts, as to require its rejection in all cases. Nor is there any reason to consider that the factors affecting the decision whether to admit evidence that one element of an offence charged against an accused which has been constituted by the illegal conduct of law enforcement officers are so different from those that bear on whether to receive evidence obtained illegally that a different conclusion should be reached.

No doubt the conduct of law enforcement officers who participated in controlled operations involving the importation of drugs into this country was a deliberate and serious breach of the law (a breach ordinarily attracting condign punishment) but the choice made by the legislature is that these facts are to be disregarded in deciding whether to receive evidence of their conduct. That choice is, as I have said, the choice of the legislature, not the courts and is not a choice which leads to damage to the reputation of the courts.[148]

[686]

MR TINNEY: As to the armed robbery itself, my friend has conceded that it's obviously enough a serious example of the offence of armed robbery and clearly that must be so by an offender with a highly relevant past history and the Crown would say, no prospects of rehabilitation on the material, and I'll come back to that shortly.

Your Honour knows that Mr Rich was released on parole on 3 October 2004. That's another matter, I won't keep going back to it, your Honour, because it stands to no proposition at all, of course, but my friend has placed it before you as providing some guidance.

Mr Rich was on parole, he was on parole following a very lengthy sentence for armed robbery and other offences. He was released on parole on 3 October 2004 and within a very short space of time was planning to commit an offence. The offence itself - I now speak of the armed robbery - was obviously a high yield, high stakes offence given the nature of the target, the fact that the targets were armed. It involved, as your Honour has said, significant planning. On Mr Rich's behalf, the carriage of a loaded firearm is a, and your Honour scarcely needs me to make this submission, I would have thought, your Honour has seen the video footage and has seen a passing parade of witnesses who had the misfortune to be present in that shopping centre on the day in question, lunch time. A loaded firearm, a highly visible and dangerous armed robbery committed at a time when, as we say, there are very many civilian bystanders, young and old present up against uniform guards known to possess loaded weapons so obviously a high level of risk of confrontation and discharge of weapons in that setting, children in pushers, as your Honour sees, school students in the vicinity. They're all of them aggravating circumstances in terms of each of the crimes as indeed, of course is the very significant aspect of it being committed whilst on parole for the same offence.

As to the murder, my friend concedes it's a serious example of that offence. Discharge of a nine millimetre weapon deliberately into Mr Kastenberger, who'd done nothing to provoke the shooting. He was just doing his job. The money had been thrown away, he was totally compliant. His murder was totally unnecessary to effect the armed robbery. In that sense, it's submitted that it's a brutal and a senseless killing in a public place of a guard just going about his daily duties.

Your Honour has had a brief opportunity and no doubt your Honour will read them again, the victim impact statements to which I referred your Honour earlier but the impact has been profound obviously on a number of levels and to a number of people.

My friend has taken your Honour to Mr Rich's history and he's ultimately concluded in his submissions that there are prospects of rehabilitation.

HIS HONOUR: Primarily by the effluxion of time?

MR TINNEY: Yes. Mr Rich is not a 24 year old such as Mr White committing an offence and standing to be sentenced when 26 with the history of Mr White. Mr Rich is Mr Rich, standing to be sentenced for the offence committed by him as a mature man with the history that he's got whilst on parole.

Your Honour knows that there were certain sentences passed upon Ryan. I don't take your Honour to those other than to refer to her Honour's remarks in those sentencing remarks as to the armed robbery sentence that would have been passed for Ryan being in the mid-double figures but for the level of cooperation and the undertaking and the guilty plea. I refer to paragraph 66 of her sentencing remarks.

There is in this case a total absence of any remorse as demonstrated by a range of activity in the course of the trial. Your Honour can have regard to that if needs be pursuant to the provisions of s 5(2C) of the Act. There has been a total lack of regard for the court and the court process. That would only be relevant, of course, in relation to an assessment that your Honour makes in relation to his prospects for change.

He has demonstrated a track record showing a flagrant disregard for the court and orders imposed by the court and for that matter orders imposed by the Parole Board. It leads us to a submission that the Crown is generally reticent in making in this sort of proceeding, that Mr Rich has absolutely no prospects of rehabilitation.

He has the convictions that have been either admitted or proved, they include the two trials for armed robbery. He is now by my calculations 56 years of age. Since 1984, he has spent a total of approximately 36 months not in custody.

I repeat that, since 1984, he has spent a total of approximately 36 months not in custody.

Your Honour sees from the history that he received his first term of immediate imprisonment in October 1981 for deceptions, two years with a non-parole period of 12 months. Upon his release, he committed further dishonesty offences. In 1984 for thefts and deceptions he received five years with a three year non-parole period in the County Court. He was paroled in relation to those matters; I have a certificate that I can - that my friends have been provided with, but if there's any issue I'll provide it. He was paroled in March 1986. By December 1986, he was arrested in relation to Commonwealth offences that are not prior convictions, as your Honour will be aware. It deals with the issue of his custodial placement throughout this period. So, December 86 arrested in relation to the Commonwealth offence of importation, for which he was convicted in the County Court - - -

MR DESMOND: How is it relevant?

MR TINNEY: - - - in October of 1988, and he received a seven year term with a five year non-parole period. Now, ultimately he succeeded in his appeal with the High Court leading to an order that he be retried and ultimately the Commonwealth Director never bothered with that retrial as Mr Rich had already served his minimum term and been paroled - paroled on 27 April 1990.[179] The only reason I raise that, your Honour, was, it spells out the length of time that Mr Rich has been out of custody in the last quarter century.

PRISONER: I'm entitled to a total (indistinct).

MR TINNEY: So, having been paroled on 27 April 1990, in relation to those matters, which ultimately his appeal in the High Court was successful, on 2 December 1991, he was arrested in relation to the series of armed robberies ...

This history will be spelt out in some decisions that I will refer your Honour to. As your Honour's been told, he was convicted of a number of those. He had a measure of success in the Court of Appeal, which led effectively to his being sentenced for one of the armed robberies in 1997, retried on the other in 2000 and various nolle prosequis being announced for the remaining counts after that successful retrial.

Rich remained in custody from 2 December 1991 until being paroled in October 2004. As your Honour has been told, in that time he was serving sentences for the two armed robberies by that stage. Each of those armed robberies, by the way, were very serious examples of that offence. One involve[d] an armed robbery upon the Armaguard van making a collection from the Glen Waverley supermarket at 12.35 one afternoon.

The other was a forced entry to the Nunawading National Australia Bank branch just prior to the branch opening, and the armed robbery then of the cash that was awaiting collection by the Armaguard escort, and as I say the facts of those can be seen in various judgments that your Honour has been referred to along further, and I will refer to them again shortly.

In the course of the committal hearing, so these are not matters back in 1991, in the course of the committal hearing he issued threats to kill the informant. As you have been told that was the subject of a two and a half year cumulation following trial in relation to that matter. In the course of the armed robbery trial before Judge Byrne he threatened to kill the prosecutor, Ms Douglas, he made a series of contemptuous remarks to the trial judge and that then led to his conviction for contempt of court in 1998 for which again there was a measure of cumulation.

The upshot is that Mr Rich has spent a total of 22 of the last 25 years in custody. Within a very short space of time of being released on parole he was involved, though the truth of this was yet to be determined, your Honour has got the interview of Mr Rich though in relation to the various fraud allegations. He was involved in a series of frauds for which he made admissions. He awaits trial in the County Court for those. The current armed robbery and murder occurred whilst - - -

HIS HONOUR: And that, is there a time fixed for that trial?

MR TINNEY: It is - I am not involved in that your Honour, 20 October or thereabouts of this year, your Honour. The current armed robbery and murder occurred whilst on parole for armed robbery within five months of such release after being in custody for 13 years.

At a glance

Court

Decision date

Source

Judgment (838 paragraphs)

Rich v The Queen [2014] VSCA 126 (20 June 2014)

Parties

Legislation Cited (8)

Cases Cited (50)