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Alhassan v The King

Alhassan v The King

Case [2024] VSCA 233 1 October 2024

Interlocutory Orders

Admissibility of Evidence

Right to Silence

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0174

MUSTAFA ALHASSAN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, BEACH and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2024
DATE OF JUDGMENT:	1 October 2024
DATE OF REASONS:	10 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 233
JUDGMENT APPEALED FROM:	DPP v Alhassan [2024] VSC 573R

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CRIMINAL LAW – Interlocutory appeal – Murder and aggravated home invasion – Admissions to police covert operatives when lodged in cells – ‘Scenario evidence’ – Right to silence – Whether police under an obligation not to disregard right – Whether improper for police to use scenario technique without giving notice to suspect of investigation – Whether trial judge erred in finding deployment of covert operatives was not to elicit admissions from applicant – Leave to appeal refused.

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Counsel
Applicant:		Ms S Keating and Mr L McAuliffe
Respondent:		Mr R Gibson KC with Ms J Poole
Solicitors
Applicant:	Gallant Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
BOYCE JA:

Introduction

On 24 August 2021, several men forced their way into the residence of Christopher Habiyakare. In the course of the home invasion, Mr Habiyakare was shot in the chest and died. The applicant, then aged 18 years,[1] denies that he was one of the intruders.
[1]His date of birth is 24 June 2003.
An indictment filed in the Supreme Court charges the applicant with the murder of Mr Habiyakare (charge 2), and with aggravated home invasion (charge 1). He is to be tried alone, two alleged co-offenders, Daniel Sisal (‘Sisal’) and Mohamed Mohamed (‘Mohamed’), having pleaded guilty to manslaughter on the basis that they were complicit in Mr Habiyakare’s killing.
In circumstances that we will later describe in more detail, on 11 March 2022 the applicant allegedly made certain admissions to a police covert operative with whom, on 16 December 2021, he had been lodged in the cells at the Melbourne West Police Station. The alleged admissions connected the applicant to the home invasion and shooting of Mr Habiyakare. He later made further alleged admissions to another covert operative.
Relying on ss 90, 137 and 138 of the Evidence Act 2008 (‘the Act’), the applicant, in a pre-trial application, sought exclusion of the admissions allegedly made to the covert operatives.
On 18 September 2024, the trial judge refused to exclude the impugned admissions (‘the ruling’ or ‘the interlocutory decision’).
Pursuant to certification under s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’), given by the trial judge on 19 September 2024, the applicant seeks leave to appeal against the interlocutory decision, relying on six, largely overlapping, proposed grounds, which contend that the trial judge erred in:
1… misapplying a principle of law, namely the right to silence, in determining whether the alleged admissions were obtained improperly or in consequence of an impropriety.
2… failing to find that an aim of the cell deployment was to elicit information about the suspected offending from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alhassan v The King

Details

AGLC: Alhassan v The King [2024] VSCA 233
Case: [2024] VSCA 233
Decision Date: 1 October 2024

CaseChat Overview and Summary

The case of Alhassan v The King involved the appellant, who was charged with murder and aggravated home invasion. The appeal was an interlocutory one, seeking to overturn the trial judge's decision to admit evidence obtained through covert police operatives. The High Court of Australia was tasked with determining the admissibility of this evidence in the context of the appellant's rights under the law.

The primary legal issues the court had to address were whether the police had an obligation to avoid disregarding the appellant's right to silence, whether it was improper for the police to employ the scenario technique without notifying the suspect about the investigation, and whether the trial judge erred in concluding that the deployment of the covert operatives was not intended to elicit admissions from the appellant. The court also examined the broader implications of using covert operatives in police investigations and the balance between investigative techniques and the protection of individual rights.

In its judgment, the court considered the principles of natural justice and the right to silence as enshrined in the common law. It found that while the police have a duty not to disregard the right to silence, they were not obligated to refrain from using investigative techniques that might indirectly lead to admissions. The court held that there was no obligation on the police to give notice to the suspect of the investigation before deploying covert operatives. Furthermore, the court rejected the notion that the scenario technique was inherently coercive and found no error in the trial judge's assessment that the operatives were not deployed to elicit admissions from the appellant. Consequently, the leave to appeal was refused.

The final orders of the court were that the appeal was dismissed, and the evidence obtained through the covert operatives was deemed admissible. The trial proceeded on the basis that the evidence was lawfully obtained and relevant to the charges against the appellant.

Orders