Rich v The Queen

(2014) 43 VR 558; [2014] VSCA 126

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Fresh evidence
4. › Whether evidence available at time of trial with reasonable diligence
5. › Whether evidence credible
6. › Whether evidence might have led jury to different verdict
7. › Gallagher v R (1986) 160 CLR 392 applied
1. Criminal Law
2. › Trial
3. › Jury
4. › Empanelment
5. › Whether constitution of jury vitiated by order that discharged jurors return to panel
6. › Whether selection corrupted by informant assisting in handing out documents
7. › Juries Act 2000 (Vic), s 30(4)
1. Evidence
2. › Hearsay
3. › Out-of-court statements by co-offenders
4. › Whether admissible as evidence of acts in furtherance of joint criminal enterprise
5. › Whether evidence ought to have been excluded in exercise of discretion
6. › Tripodi v R (1961) 104 CLR 1
7. › Ahern v R (1988) 165 CLR 87
1. Evidence
2. › Warnings
3. › Unreliable witness warnings
4. › Whether judge failed to warn sufficiently of risks of relying on evidence of co-offenders
5. › R v Strawhorn (2008) 19 VR 101

Quick Take

The case confirms that section 5 of the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 (Vic) is not inconsistent with the Kable principle or the Charter right to a fair trial. The obligation to leave manslaughter as an alternative verdict under Mraz v R does not arise where there is no evidence to support the alternative, including where the only evidence of unloaded weapons comes from an accomplice's account of a pre-offence agreement that was breached. The Gallagher test for fresh evidence requires that the evidence was not available at trial with reasonable diligence, is credible, and might have led the jury to a different verdict.