Alhassan v The King

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 the [applicant] who was a suspect.
3… finding that there was no impropriety on the part of police.
4… failing to determine the [applicant’s] submission that the conduct of police was improper because it circumvented the [applicant’s] right to silence.
5… finding that he would have admitted evidence of alleged admissions under section 138 of the Evidence Act 2008.
6… not excluding evidence of the alleged admissions under section 90 of the Evidence Act 2008.
At the conclusion of the applicant’s oral argument in this Court on 1 October 2024, we made an order refusing leave to appeal, and indicated that we would later provide reasons for that order. These are those reasons.

The prosecution case

At around 8.30 pm on 24 August 2021, there was a knock on the door of a house that Christopher Habiyakare occupied in Essex Street, Sunshine North, where Mr Habiyakare was socialising with friends. Mr Habiyakare went to the front door, at which point four masked intruders — allegedly the applicant, Sisal, Mohamed and Alula Tegegne[2] — forced their way into the premises, smashing a glass panel on the front door of the home. The applicant allegedly was armed with a sawn-off .22 calibre rifle, while other intruders were armed with a machete and a taser.
[2]We were informed during the hearing that, due to a lack of evidence, Alula Tegegne was not charged.
The prosecution alleges that Mr Habiyakare was pushed back by the intruders into the hallway and then into the living room. Friends of Mr Habiyakare saw one of the intruders — the prosecution alleges that it was the applicant — holding a gun in his right hand. The applicant allegedly pointed the gun at Mr Habiyakare and shot him. Mr Habiyakare fell to the ground in the living room. He managed to get up, but only made it as far as the hallway before he collapsed. The intruders then fled in a car, leaving the taser behind.
At around 8.50 pm, paramedics attended the residence, but Mr Habiyakare could not be revived. A post-mortem examination, conducted on 25 August 2021, recovered a bullet from Mr Habiyakare’s abdomen. The bullet had travelled between his fifth and six ribs, then through his heart, liver, stomach and aorta, before lodging in his abdomen. A subsequent ballistic examination identified the bullet as a .22 Long Rifle calibre, copper wash (plated), fired bullet, of indeterminate brand.
The prosecution case on the charge of aggravated home invasion is that the applicant entered the Essex Street home with his co-offenders with the intention of committing a robbery. (A safe located at Mr Habiyakare’s home being found to contain over $41,000 in cash, cannabis and methamphetamine.) On the charge of murder, the prosecution case primarily is that at the time he fired the fatal shot, the applicant intended to kill or, at the very least, cause really serious injury, to Mr Habiyakare.
Apart from other evidence implicating the applicant, the prosecution seeks to rely on certain admissions allegedly made by the applicant to police covert operative 300 (‘CO300’) and covert operative 258 (‘CO258’), in the following circumstances.
As a result of lawfully intercepted conversations involving the applicant, police Homicide Squad detectives investigating Mr Habiyakare’s death obtained evidence indicating the applicant’s involvement in deception offences. On 15 December 2021, police — not Homicide Squad detectives — obtained a search warrant for the applicant’s premises, which was executed the following day. Police found additional evidence of the applicant’s involvement in deceptions. Police arrested him for deception offences. He was then taken to Melbourne West Police Station and placed in the cells.
Prior to police interviewing the applicant in relation to the deception offences, two covert operatives, one of whom was CO300, were placed in the cell with the applicant. Later that day, all three were released from custody within a short time of each other and the covert operatives gave the applicant a lift home. During the journey, the covert operatives informed the applicant that they were associated with a criminal organisation and that, if the applicant was interested, there might be some work for him. The applicant gave them his contact details.
From the following day onwards, CO300 — known to the applicant as ‘Solomone’ — was in regular contact with the applicant and involved him in a number of fictitious criminal ‘scenarios’ for which the applicant was well paid. Among other things, CO300 led the applicant to believe that he would receive in excess of $200,000 in relation to a major drug importation. And apart from financial benefits, CO300 made the applicant feel that he was a loved member of a criminal ‘family’.
One of the scenarios employed involved CO300 telling the applicant, on 4 March 2022, that he was going to the Police Forensics Centre to pay off a scientist. This prompted the applicant to ask CO300 whether, in the event that he had a big case, forensic evidence could be removed. CO300 said he would have to speak to the boss of the organisation, ‘Kosta’ — CO258 — about it.
A week later, on 11 March 2022, CO300 and the applicant went to a park in Noble Park. The applicant told CO300 that he was going to get something off his chest and that it was something that he had never told anyone before. The prosecution alleges that the applicant went on to describe to CO300 his involvement in the planning and execution of the home invasion of Mr Habiyakare’s residence on 24 August 2021, including:
·    he and his friends in jail — on 30 November 2021, Mohamed and Sisal had been arrested in relation to Mr Habiyakare’s killing and remanded into custody — had done a ‘knock’ (a slang reference for a killing) together, but that it was an accident;
·    he believed they received false information, as they thought that they would be getting a million dollars within the house;
·    during the incident, the victim tried to shoot his mate, so he shot the victim in the leg once;
·    they took the victim’s gun from the scene;
·    they had been laying low since, but a couple of months ago his friends were arrested;
·    he hit the victim in the leg and then his friend did it after him and hit him somewhere else;
·    when asked by CO300 if it was just the three of them involved in the incident, he stated that his ‘cousin’ was there (an apparent reference to Mohamed);
·    they had two .22 calibre guns, and the victim had a revolver;
·    the incident happened in the western suburbs;
·    he wants to now carry a small gun, because it was the .22 calibre gun that brought them unstuck to begin with since .22 calibre guns are too big (and that is why he sold his last couple);
·    the police have his DNA and that was why he asked CO300 about forensics;
·    when CO300 asked him if Mr Habiyakare was the only person in the home when it occurred, he stated that there were other people at the home when it occurred and that was how they ‘fucked up’;
·    the car they used belonged to the boxer’s mum — this being an apparent reference to Mohamed’s mother — and they had reported the car’s plates as stolen;
·    the two inside jail are like his family; and
·    the two friends were from his side of town.
Later that day, 11 March 2022, the applicant met ‘Kosta’ at Crown Casino, and gave a similar account to that given to CO300, including:
·    ‘It was a planned robbery that didn’t go to plan. That – that person decided to shoot at us first … He missed and we got him’;
·    ‘Word got around that [Mr Habiyakare] had a million dollars … we went in there with the intention just to take it. We got a call saying that, like, there was no one there but it turned out different … It was … just a robbery gone wrong. He tried to shoot first at my cousin, yeah, and we just did it back. Yeah. I hit his leg and my mate finished him off’;
·    the incident involved four of his boys, two of them being ‘locked up’, and one ‘still out’;
·    the location of the shooting was somewhere they had been before;
·    the victim — who was dating his mate’s cousin and had beaten her up — was a ‘shit guy’;
·    they had got a call that no one else was there and they went to take a million dollars from a certain spot;
·    the incident occurred either in July or August 2021;
·    it occurred around 8.00 pm;
·    he knew the deceased’s name was ‘Chris’ and the incident had taken place in Sunshine;
·    he had never met Chris before, it being his mate Daniel who knew him;
·    they heard about the million dollars through word of mouth and through girls sending photos;
·    he had planned the robbery with Dan (Sisal), his cousin (Mohamed) and Luca (Tegegne);
·    they did it in someone’s car and reported the plates stolen, this being how they got caught;
·    his aunty (being a reference to Mohamed’s mother) had the car that was used during the incident;
·    they had cleaned the car;
·    it was a Holden hatchback, orange or reddish in colour;
·    the planning, during which they had ‘no phones’, had happened in a house, and they had put their heads together;
·    ‘two went in first’ and he was the ‘last one to enter’;
·    there was a scuffle and he ‘pulled out his one’, and when they ‘tried to get’ his cousin while he was looking for ‘stuff’, he ‘popped it off’;
·    when Kosta asked the applicant to clarify the location of the gunshot wound — the applicant had earlier pointed to the shoulder or chest area — the applicant pointed to his upper leg area and stated that was where he had shot Mr Habiyakare;
·    he had a sawn-off .22;
·    everything had been destroyed, clothes having been burnt and phones having been destroyed;
·    they had knocked on Mr Habiyakare’s door, and, when he opened it, they went in, he being the last person to go inside;
·    there was a scuffle, and he shot at Mr Habiyakare when he tried to get his cousin;
·    he thought Mr Habiyakare ‘let one off’, but he was not there when he did;
·    he did not think that he had hit Mr Habiyakare, and instead believed that he had hit the couch;
·    Daniel came in and shot the victim a few times;
·    ‘But my one, he was wearing shorts so where – I was trying to – that’s where I was trying to get him … But I think – I’m pretty sure I got the couch … [Mr Habiyakare] was standing in between his – it’s a very small place. But it’s between the doorway and living room … So then there’s, like, a glass door and then there’s the living room … And the glass door was open but … he was just standing in between the glass doors when he let his off. So I tried to get his leg … but it went – I think it went through the couch because once I let mine off, he didn’t drop, which obviously he would, you know what I mean’;
·    he was standing very far away from Mr Habiyakare;
·    his phone was not in his name, and the phones were off at the time of the incident anyway;
·    there were other people at the house, but they all jumped out the window;
·    the Police did not catch up to them until ‘November, December’;
·    he was wearing gloves during the incident; and
·    the only thing he was worried about was the fact that his DNA was in the police system.
After the conversation with Kosta, CO300 drove the applicant home. In the course of the journey, the applicant expressed relief in getting the matter off his chest and said that he had shared it with Solomone and Kosta because they had shown him so much love, so that it was only right that he told them.
Homicide Squad detectives arrested the applicant on 16 March 2022. In a record of interview, he denied involvement in the home invasion. When confronted with his admissions to CO300 and CO258, he at first denied that he had made the admissions to them, but then asserted that the admissions were false, based on information he had heard on the streets. The applicant claimed that his motivation for making false admissions was to get more money from the criminal organisation.

Applicant’s submissions to the trial judge

In submissions to the trial judge, counsel for the applicant contended that the alleged admissions to CO300 and CO258 fell to be excluded under ss 90, 137 and 138 of the Act.
With respect to s 90, counsel for the applicant submitted that it would be unfair to receive the evidence of the applicant’s admissions to the covert operatives because of the alleged illegal or improper behaviour of the police towards a vulnerable 18-year-old. Counsel also submitted that the applicant had been put at a forensic disadvantage; in that, had he been informed by investigating officials that he was suspected of involvement in the August home invasion he may not have made the impugned admissions to the covert operatives.
As to s 137, the applicant’s counsel submitted that the probative value of the impugned admissions was low because they did not align with known facts; that is, that Mr Habiyakare was shot in the chest, not the leg, as the applicant had said. Counsel submitted that the probative value of the impugned admissions was outweighed by the risk of unfair prejudice, in that there was a danger that the jury would engage in rank propensity reasoning.
So far as s 138 was concerned, counsel for the applicant submitted that deploying covert operatives in the cells with the applicant was illegal or improper. Counsel contended that the obtaining of the search warrant concerning the deception offences had as an undisclosed, ulterior purpose, the goal of advancing the homicide investigation. Furthermore, prior to the deployment of covert operatives in the cells, the applicant was neither informed by investigating officials that he was suspected of murder, nor cautioned, which was argued to be a violation of the applicant’s common law right to silence, and a breach of Victoria Police Undercover Unit Standard Operating Procedures (‘SOP’). As to the considerations arising from s 138(3), counsel contended (among other things) that: the probative value of the admissions was low because the admissions did not align with the known facts (that is, actual shot to the chest versus admitted shot to the leg); for the same reason the evidence of the admissions was not important; murder is the most serious offence in the criminal calendar; the gravity of the illegality or impropriety on the part of the police was high, since they infringed the applicant’s fundamental common law right to silence as well as their own SOP; the illegality or impropriety was deliberate; and there is no evidence to suggest it would have been difficult to obtain the impugned evidence without impropriety.

The interlocutory decision

In his ruling, the judge dealt first with the submissions made in reliance on s 138 of the Act, before turning to those under s 137, and then s 90.
With respect to the submissions made under s 138, the judge was not persuaded that there was any illegality or impropriety on the part of covert — or other — police. The judge said that the applicant’s counsel had not suggested that the application for the search warrant was based on misinformation, or that the power to arrest and detain the applicant did not arise as a result of intercepted communications concerning the deceptions and the fruits of the execution of the search warrant on the applicant’s premises. There was no obligation on the police, the judge said, to inform the magistrate who heard the application for the search warrant of the intended cell deployment for the purpose of the murder investigation, that matter being ‘irrelevant to the task before the magistrate’.
The judge observed that the evidence of CO300, and his controller, Detective Sergeant Michael Harris, that the purpose of the cell deployment was a rapport-building exercise, had
a number of things to commend it, beginning with common sense. First, prior to the cell deployment, a plan to involve the [applicant] in scenarios was in place. Second, it was highly unlikely that the [applicant] would confess to his involvement in the August home invasion during the cell deployment. Questions specifically directed to that end were likely to be counter-productive. Third, the conversation that the covert operatives had with the [applicant] during the cell deployment is consistent with the purpose of the cell deployment being rapport building.
Even if one interprets the mention of certain topics by the covert operatives as attempts to steer the conversation towards topics that might yield an unlikely admission … there is nothing that comes close to a de facto interrogation. As [CO300] testified, he did not ask one question of the [applicant] during the cell deployment about the August home invasion.
The judge rejected the submissions that the cell deployment breached the SOP, specifically paragraph 22.2:
22.2 Current Unit Policy
Cell deployments will NOT generally be considered when:
…
·target has not been interviewed and deployments aims to obtain admissions for matter prior to interview.
[Redacted] a cell deployment MUST not occur prior to the target being formally interviewed about the matter under investigation should the deployment relate specifically to admissions for these offences.

Being satisfied that the specific aim of the cell deployment was relationship building, the trial judge held that the cell deployment did not ‘relate specifically to admissions’.
The judge then said:
I also reject the [applicant’s] secondary submission that involving an 18 year old in scenarios subsequent to the cell deployment was illegal or improper. At 18, the accused was an adult. He was suspected of murder. There is nothing in the scenario cases which supports the submission that this investigative technique may only be deployed in relation to older adults.
Next, the judge observed that even if the SOP had been breached, so much amounting to an impropriety under s 138, he considered that ‘the balancing exercise that is integral to the application of s 138 favours reception rather than exclusion of the impugned evidence’. He said that he accepted the prosecution submissions that ‘the probative value and importance of the impugned evidence is high’. Thus, the admissions to CO300 and CO258 put the applicant at the scene of the home invasion, and possessing a loaded gun which he fired at the victim. The ‘partial non-alignment’ of the applicant’s admissions with the objective evidence, the judge said, ‘does not rob the admissions of high probative value and importance (or reliability, in so far as they align with other evidence regarding the shooting)’. The identified factors ‘strongly militate in favour of receiving the evidence rather than rejecting it’.
Assuming that the SOP were breached, however, the judge was satisfied that the breach ‘was not deliberate, or even reckless, but inadvertent’. He said that the evidence of CO300 and Detective Harris that the cell deployment was permitted by the SOP struck him as credible. The ‘prohibition’ in paragraph 22.2, he said, ‘is open to interpretation’. And he observed:
Although the common law right to silence is a fundamental right, the [applicant] was not interrogated in the cells or during the subsequent covert operation. It seems to me that at all relevant times, he was free to speak or not to speak, and that, because he perceived it was in his self-interest to speak, he freely chose to make the impugned admissions. The gravity of the (assumed) impropriety of the cell deployment (and/or the subsequent deployment) was not high.
Accordingly, even if there was an impropriety, the desirability of receiving the evidence outweighs the desirability of excluding it.
With respect to the submissions with the respect to s 137, the judge observed:
I consider that s 137 does not require the exclusion of the impugned evidence either. As I have already indicated, the probative value of the impugned evidence is high. Whilst it necessarily involves disclosure of the fact that the [applicant] was a willing servant over several months of what he believed to be a criminal organisation, the danger of the jury misusing or overvaluing the evidence can be managed by directions. The prosecution will assist in this management of the danger of unfair prejudice by not descending into any great detail as regards most of the scenarios.
Accordingly, I am not persuaded that the danger of unfair prejudice outweighs the probative value of the impugned evidence.
Finally, with respect to the applicant’s contentions concerned with s 90 of the Act, the judge observed:
Section 90 does not require the exclusion of the impugned admissions either. The use of scenarios has received the imprimatur of many courts, including our High Court in Tofilau v R.[3] The fact that the [applicant] was only formally interviewed for the murder after he made the impugned admissions does not permit one to distinguish this line of authorities: one of the unsuccessful appellant’s in Tofilau — a Mr Clarke — was not formally interviewed by police prior to his admissions to covert operatives either. Moreover the [applicant] was subjected to fewer inducements than many other scenario targets discussed in the cases. He was never subjected to a de facto interrogation by anyone in the fictitious criminal organisation. He was never told that he had to confess to continue his involvement with the organisation. The [applicant] made the impugned admissions by reason of police subterfuge and his own gullibility but his trial will not be rendered unfair by the reception of that evidence.
[3][(2007) 231 CLR 396]. The [applicant] was not able to point to a single scenario case where the impugned evidence of admissions was excluded.

Applicant’s submissions in this Court

We will set out in more detail below particular oral submissions advanced by the applicant’s counsel with respect to the first ground. In summary, however, counsel submitted that, in order to preserve the right to silence, a suspect must be put on notice that he or she is the target of suspicion in relation to an allegation. That is the only way to give practical effect to the right to silence. Notice gives rise to a state of knowledge and the exercise of the choice of whether to speak or remain silent. It is clear that in this case, however, the applicant was denied any form of notice. At no point, did any police officer formally or informally tell the applicant that he was a suspect for the fatal shooting of Mr Habiyakare, let alone that he was in fact the subject of investigation. The trial judge misapplied the right to silence because he confined the right to silence only to the time when the applicant was in the cells, or during the subsequent covert operation, and found that at all relevant times the applicant was free to speak or not speak. He appears to have found that because the alleged admissions were voluntarily made, the right to silence cannot have been circumvented. As a result, the trial judge erred in failing to consider the minimum content of the notice which needed to be given to the applicant so that he might properly exercise his free choice.
In support of ground 2, the applicant’s counsel submitted that the judge was wrong to find that the specific aim of the cell deployment was relationship building, and hence that the cell deployment did not ‘relate specifically to admissions’. Counsel argued that the only inference that could be drawn is that the cell deployment — and what occurred subsequently — is that it was directly connected with eliciting admissions for the purposes of the murder investigation in which the applicant was a suspect. Counsel submitted that the covert operatives were tasked with eliciting admissions relevant to his participation in the homicide of which he was suspected, and to build rapport for the purpose of obtaining admissions after the cell deployment through the scenario technique. The trial judge erred in not making this finding of fact.
With respect to ground 3, counsel accepted the ground could not succeed unless the Court upheld the applicant’s primary submissions under ground 1, and also rejected the trial judge’s related factual finding as sought under ground 2. Counsel submitted that, stepping back and considering the evidence as a whole, a number of ‘contraventions’ or ‘improprieties’ are apparent. The judge was wrong to find otherwise.
Under ground 4, the applicant’s counsel drew attention to the fact that they had submitted to the trial judge that the conduct of police was improper because it circumvented the applicant’s right to silence. The trial judge’s approach in confining the right to silence to when the applicant was in the police cells, meant that this submission was not adequately addressed. To that end, the judge’s reasons were inadequate.
With respect to ground 5, the applicant’s counsel once more accepted that the ground could not succeed unless the Court upheld the primary submissions under ground 1. Counsel for the applicant submitted that acceptance of the applicant’s propositions under ground 1 would have yielded a different conclusion when applying the balancing exercise required by s 138(3) of the Act.
Finally, under ground 6, counsel for the applicant also accepted that success on the ground depended on the Court upholding the applicant’s primary submission under ground 1. Counsel for the applicant submitted that, taking into account all the circumstances in which the alleged admissions were elicited (and the manner in which that occurred), and excluding any assessment of probative value, the trial judge erred in not excluding the alleged admissions. That is because it would be unfair in all the circumstances to admit the impugned admissions where the applicant’s free choice whether to speak or remain silent was circumvented. Put another way, counsel submitted, the correct answer was to find that the alleged admissions should have been excluded.

The respondent’s submissions in this Court

In essence, the principal contention in the written submissions of the respondent’s counsel was that the applicant’s case proceeds on the flawed premise that the common law right to silence bestows on a suspect an absolute entitlement to be placed on notice that they are the subject of police investigation, and of the nature of the alleged offending, before police (including covert operatives) attempt to speak with him or her about the suspected offending. But no authority exists for such a proposition. The judge’s decision, therefore, to reject the applicant’s submissions and admit the impugned evidence was correct.

Discussion

In Swaffield,[4] Brennan CJ remarked:
The investigation of crime is not a game governed by a sportsman’s code of fair play.[5] Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity ‘to invent plausible falsehoods’.[6]
[4]R v Swaffield; Pavic v The Queen (1998) 192 CLR 159, 185–6 [35] (‘Swaffield’). (Footnotes as in original.)
[5]Bunning v Cross (1978) 141 CLR 54 at 75, per Stephen and Aickin JJ.
[6]R v Lee (1950) 82 CLR 133 at 152.
And in Tofilau, Gleeson CJ observed[7] that
the use by the police of deception in the hope of eliciting admissions is not new. The particular technique of deception adopted in the present cases seems to have been imported into Australia from Canada. … The use of undercover police operatives always involves deception. Such operatives are undercover precisely because they are trying to deceive somebody about something. …
[7]Tofilau v The Queen (2007) 231 CLR 396, 403 [5] (‘Tofilau’).
In opening the applicant’s case at the commencement of oral argument in this Court, counsel leading for the applicant stated that
this appeal raises for determination the interaction of the right to silence with the ‘scenario technique’ in the accusatorial system of justice.
When asked by the Court to identify the principle relied upon under the heading ‘right to silence’, counsel submitted:
The right to silence that we refer to … is the concept of free choice to speak with police or not.
When pressed by the Court to identify the principle that had been breached, counsel replied:
What the police didn’t do in our submission at any stage prior to the cell deployment, after the cell deployment, throughout the covert operation, was respect a person’s right to choose to speak with police with that knowledge, the right to choose to speak.
The applicant’s counsel relied on 19 cases concerned with the ‘scenario technique’, and submitted that none of those cases involved ‘a target or suspect that was not put on notice of the fact of police interest in them’.[8] Counsel submitted further:
We don’t say the notice has to take has to take the form of formal interview. It just has to be notice.
…
As I understood all the cases Your Honours just described,^[[9]] one of the difficulties the applicants faced was in effect that having been placed on notice variously as they were, and whether they chose to exercise the right to silence or not in the process of being placed on notice, they chose with that state of knowledge to communicate with people in the knowledge that those people could then communicate back to police.
…
But we agree with your Honour, the 19 cases don’t specifically refer to the requirement of notice, but it is in our submission highly relevant to note that in each of those cases the notice was given.
…
[8]The 19 cases were: Tofilau; Swaffield; Em v The Queen (2007) 232 CLR 67; R v Roba (2000) 110 A Crim R 245 (Coldrey J); R v Dewhirst (2001) 122 A Crim R 403 (Coldrey J); R v Chimirri (2002) 136 A Crim R 381 (Osborn J); R v Favata [2006] VSCA 44 (Callaway, Buchanan and Vincent JJA); Lauchlan v Western Australia [2008] WASCA 227 (Buss and Miller JJA and Murray AJA); R v Weaven (Ruling No 1) [2011] VSC 442 (Weinberg JA); R v Drummond (Ruling No 1) [2013] VSC 70 (Osborn JA); R v Simmons; R v Moore (No 2) (2015) 249 A Crim R 82 (Hamill J); R v Simmons; R v Moore (No 3) [2015] NSWSC 189 (Hamill J); R v Fesus (No 2) [2015] NSWSC 1467 (Wilson J); R v Wichman [2016] 1 NZLR 753 (Elias CJ, William Young, Glazebrook, Arnold and O’Regan JJ); R v Cowan; ex parte AG (Qld) [2016] 1 Qd R 433 (McMurdo P and Fraser JA); R v Jelicic [2016] SASC 57 (Peek J); Deacon v The Queen (2019) 282 A Crim R 303 (Grant CJ, Southwood J and Riley AJ); Sidaros v The Queen (2020) 15 ACTLR 64 (Burns, Elkaim and Loukas-Karlsson JJ); R v Kilincer (No 2) [2021] NSWSC 829 (Johnson J); and R v Rumsby [2023] NSWSC 229 (R A Hulme J).
[9]The cases referred to in argument were Tofilau and R v Clarke (one of the three cases dealt with by the High Court at the same time as Tofilau).
At one point in her oral submissions, counsel for the applicant advanced the following proposition:
Well, we say the obligation of police to comply with the right to silence, as we’ve described it, is a duty to comply with that principle.
When the Court suggested to counsel that such a proposition converted a right enjoyed by every citizen into a positive duty imposed upon the police, counsel said:
Perhaps duty was not the right choice of word, but we say it [the right to silence] creates for police the requirement to respect – the requirement to not disregard [it].
And when the Court drew counsel’s attention to Tofilau,[10] and suggested to counsel that the High Court appeared to have given its approval to the use of deception by undercover police to elicit confessions, counsel for the applicant said:
It’s not the deception to which we take issue. It’s a step before the deception. It’s the lack of notice.
[10]Tofilau, 409 [19].
As best we can determine, three interlinked propositions seemed to underpin the applicant’s submissions: first, before employing the scenario technique, the police had an obligation of some kind — counsel abandoned the notion that it was a ‘duty’ — to ‘respect’ (or at least, ‘not disregard’) a suspect’s right to silence; secondly, the police could only respect (or not disregard) a suspect’s right to silence if they gave the suspect some form of ‘notice’ that he or she was suspected of a crime and were under investigation; and, thirdly, failure to give such ‘notice’ amounted to ‘improper’ conduct.
When pressed to identify any authority that supported the contention that police had an obligation to give a suspect some form of ‘notice’ in a case factually similar to the present, of the 19 cases to which she had referred the Court, counsel was able to point only to the observations of Hamill J in Simmons (No 3).[11] As we will later discuss, however, we consider that Simmons (No 3) provides no support for counsel’s contention.
[11]R v Simmons; R v Moore (No 3) [2015] NSWSC 189, [95] (‘Simmons (No 3)’).
To risk repetition, when opening the application in this Court, counsel for the applicant submitted that it raised for determination the interaction of the right to silence with the scenario technique in the accusatorial system of justice. There is, however, nothing new or novel in this.
In Tofilau, Callinan, Heydon and Crennan JJ described ‘scenario evidence’ —confessional evidence obtained by the scenario technique — as follows:[12]
These four appeals raise for consideration the admissibility of ‘scenario evidence’. In outline, scenario evidence is confessional evidence obtained in the following way. Undercover police officers pose as members of a gang. They solicit the cooperation of a person whom they think has committed a serious crime, although they do not believe that they are yet able to prove it. They encourage that person to take part in ‘scenarios’ involving what the person wrongly thinks is criminal conduct. Provided that the person informs the head of the gang of anything which might attract the adverse attention of the police, they offer the person two advantages. One is the opportunity of material gain by joining the gang. The other is the certainty that the head of the gang can influence supposedly corrupt police officers to procure immunity from prosecution for the serious crime. This technique was developed in Canada and evidence obtained pursuant to it there has been held admissible by the Supreme Court of Canada.[13]
[12]Tofilau, 465 [219].
[13]Evidence obtained by a similar technique was admitted in R v Todd (1901) 13 Man LR 364. The Manitoba Court of Appeal admitted scenario evidence in R v Unger (1993) 83 CCC (3d) 228. In R v Hodgson [1998] 2 SCR 449 at 475 [36] a test was stated which, if correct, rendered the evidence admissible ... The Supreme Court of Canada reaffirmed the test speciﬁcally in relation to scenario evidence after the trials in the present appeals had taken place, and held that type of evidence admissible: R v Grandinetti [2005] 1 SCR 27. There are rulings of trial judges other than those under challenge in these appeals permitting the reception of scenario evidence, but they did not turn on the question of whether there was a person in authority: Director of Public Prosecutions (Vic) v Ghiller (2003) 151 A Crim R 148; R v Favata [2004] VSC 7 (an appeal against conviction being subsequently allowed on other grounds in R v Favata [2006] VSCA 44); Western Australia v Lauchlan [2005] WASC 266.
The privilege against self-incrimination, and with it, the right to silence, developed at a time of great social and political upheaval in seventeenth century England as a reaction to the use of the ex officio oath by judges of the Star Chamber and High Commission to submit suspects to unrestrained and manifestly unfair interrogation. Although arising initially from legislative change in England that brought an end to the prerogative courts, the privilege against self-incrimination and the right to remain silent were entrenched in the common law by the middle of the seventeenth century. And despite arising initially from legislative change in England, they are firmly entrenched in Australian common law. Further, notwithstanding their early origin in the trial context, the privilege against self-incrimination and the right to silence now extend to interrogation by police and other law enforcement officials. Thus, subject to legislative intervention, a criminal suspect may remain silent in the face of police questioning, and may refuse to answer police questions without committing an offence.[14] Generally speaking, however, a suspect has no remedy against interrogation, and does not have the right to insist that the police desist from interrogating him or her.[15]
[14]See Crimes Act 1958 (Vic), s 464J; Crimes Act 1914 (Cth), s 23S.
[15]See Crimes Act 1958 (Vic), ss 464A(2), 464I; Crimes Act 1914 (Cth), ss 23C, 23DB.
As we have indicated, in the course of oral argument the Court pressed counsel for the applicant to identify the principle that had been breached. In response, counsel submitted that the police did not ‘respect a person’s right to choose to speak with police with that knowledge, the right to choose to speak’. We note, in that regard, the observations of Lord Mustill in Smith on the ‘right to silence’:[16]
[16]R v Director of Serious Fraud Office, Ex parte Smith [1993] AC 1, 30.
This expression arouses strong but unfocused feelings. In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute. Amongst these may be identified:
(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.
(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.
(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.
(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.
(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.
(6) A specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.

Gleeson CJ cited Lord Mustill’s opinion in Tofilau. In passages which put the sword to the notion advanced by the applicant’s counsel concerning the purported obligation of police to give ‘notice’ to a suspect, Gleeson CJ said:[17]
References were made in argument to the appellants’ ‘right to silence’, and to the effect on that right of the techniques adopted by the undercover police. As Lord Mustill pointed out in R v Director of Serious Fraud Office; Ex parte Smith, that expression ‘refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute’. It is not a single principle. It is a convenient shorthand reference to a collection of principles and rules, some substantive and some procedural. If it is said that there has been an infringement of a person’s right to silence, then it is usually necessary to identify the particular legal rule involved and to explain the nature of the infringement by reference to that rule. The tendency in argument in the present case was to use the shorthand description to create an aura of inviolability around the appellants’ guilty secrets, and then to take the further step of characterising the tricking of the appellants into deciding to reveal those secrets as an overbearing of the will.
In answer to this line of reasoning it must again be observed that many forms of undercover police activity, and of covert surveillance, involve attempts to gain information from people who, if they were aware of what was going on, would remain inactive or silent. There is a sense in which it can be said that intercepting a telephone conversation, or secretly recording an interview, always deprives a person of the opportunity to remain silent in circumstances where, if the person had realised that he or she was under observation, the person would have remained silent. That does not mean that there has been an infringement of one of the legal rules which together make up the right to silence. Nor does it mean that what is being said in the conversation is involuntary. The argument seems to equate the right to silence with a right of privacy, and to treat as involuntary any statement that is made without a fully-informed appreciation of the possible consequences. Neither step is consistent with legal principle.
[17]Tofilau, 409 [20]. (Footnotes omitted; emphasis added.)
In one of the four cases that the High Court dealt with in Tofilau, Clarke v The Queen, Clarke had been convicted of the murder of a six-year-old child in December 1982. Police spoke to Clarke on several occasions in the ensuing months, but he was not formally interviewed. Although the initial investigation was unsuccessful, police resumed work on the case in February 2001. From March 2002 undercover police officers staged a series of scenarios with Clarke, culminating in him making (ﬁlmed) admissions to an undercover officer, whom he believed to be the boss of the gang he was seeking to join. He then made admissions in a video-recorded interview with non-undercover officers.
Callinan, Heydon and Crennan JJ, in their joint reasons for judgment, summarised aspects of the submissions made by Clarke’s counsel — which appeared to have been echoed in the present case by the applicant’s counsel — as follows:[18]
The appellants submitted that ‘the vice is here that these were police officers who deliberately set about the scenario tactic to secure from the suspect a detailed confession which, had they gone about it by interview process, they could not have done without giving proper warnings and securing and advising that they could have the beneﬁt of a solicitor’. It was the essence of scenario evidence that ‘the appellants in each case had to be denied their fundamental rights’. In particular, counsel for Clarke submitted: ‘Naturally [Clarke] was not afforded any protective rights; they were and indeed, had to be, deliberately circumvented in order to achieve the sole purpose of extraction of the confession.’
[18]Tofilau, 506 [341].
The submissions referred to above were rejected by Callinan, Heydon and Crennan JJ for a number of reasons, including[19] that
when police officers, pursuant to judicial warrant, listen to telephone calls made by others, they may obtain evidence of admissions which they could not have obtained by the process of interviewing. Yet the surveillance evidence is admissible. So is confessional evidence obtained by eavesdropping.
[19]Ibid 506–7 [343].
Importantly, earlier in their joint reasons, when considering an argument that the police officers in Tofilau, employing the scenario technique to obtain admissions, ‘did indirectly what they could not have done directly’, Callinan, Heydon and Crennan JJ had made it clear that there was no duty to warn those against whom the scenario technique was employed ‘about their right to silence’.[20]
[20]Ibid 492 [310].
Finally, when dealing with the discretionary exclusion of Clarke’s confession — which they held to be voluntary — Callinan, Heydon and Crennan JJ (among other things) said:[21]
Counsel for Clarke said that three further factors were relevant. One was that the conduct was encouraged or tolerated by those in higher authority: plainly it was. Another was that the conduct was inconsistent with a right of Clarke’s which was fundamental, namely the ‘right to silence’. That submission must be rejected in view of the conclusions reached above that the admissions were voluntary and that Clarke saw himself as having a choice which he exercised for his own purposes. That is, he had a right to silence but he chose not to exercise it.
[21]Ibid 528 [412].
The available evidence in the present case establishes that two covert operatives, one of whom was CO300, were placed in the cell with the applicant, for the purposes of developing a rapport with him. Later that day, presumably as part of the process of developing a rapport, the covert operatives gave the applicant a lift home, informing him on the way that they were associated with a criminal organisation and that, if the applicant was interested, there might be some work for him. The applicant gave them his contact details. CO300 (or ‘Solomone’) thereafter was in regular contact with the applicant and involved him in a number of fictitious criminal scenarios for which the applicant was well renumerated. Significantly, one of the scenarios involved CO300 telling the applicant that he was going to the Police Forensics Centre to pay off a scientist. That prompted the applicant to ask Solomone whether, in the event that he had a big case, forensic evidence could be removed, and for Solomone to say that he would have to speak to Kosta about it.
It was only after a three month period of Solomone building trust with the applicant that, on 11 March 2022, he and the applicant went to a park in Noble Park, and the applicant told Solomone that he was going to get something off his chest that he had never told anyone before. The applicant then volunteered that he had been involved in the planning and execution of the home invasion of Mr Habiyakare’s residence, and that he had shot him. Importantly, these admissions were, as we have said, volunteered, and were not the result of any hectoring or other pressure brought to bear by CO300. Similarly, the admissions made to Kosta later that day were volunteered; and, although Kosta at times asked questions to clarify aspects of the applicant’s version, no compulsion or pressure was exercised by covert police in order to elicit the admissions.
In our opinion, the central proposition underpinning the applicant’s grounds 1, 3, 5 and 6 is wholly untenable. No support whatsoever can be found in the authorities for the notion that, before they employ the scenario technique, in order to ‘respect’ (or at least, ‘not disregard’) his or her right to silence, police are under an obligation to give a suspect notice that he or she is suspected of a crime and is under investigation. Indeed, the decision in Tofilau constitutes an insurmountable obstacle in the way of acceptance of that proposition. An examination of the reasoning in Tofilau makes plain that the majority did not consider that the validity of the scenario technique, employed in the four cases there under consideration, depended upon the appellants having earlier been given some form of ‘notice’ by police; or, more specifically, upon the appellants having earlier been informed by police of their right to silence.
As we have mentioned, when pressed to provide authority to support the ‘notice’ proposition, the applicant’s counsel relied (solely) on Simmons (No 3). In our view, however, nothing in that case lends the notice proposition any support. In that case, Anthony Simmons was charged with murder, and his co-accused, Kieran Moore, with being an accessory after the fact. Hammil J ruled that confessional statements made in the course of a police operation of the kind considered in Tofilau were admissible against Simmons. Subsequently, Hammil J had to consider objections raised by Moore, under ss 90 and 138 of the Evidence Act 1995 (NSW), with respect to indirect admissions that he made in the course of conversations with a police agent.
Moore sought the exclusion of evidence of conversations between him and a witness, Jodi Biles, which occurred at a psychiatric hospital in which he was an involuntary patient. Two conversations containing indirect, damaging admissions, recorded covertly by police pursuant to a warrant issued under the Surveillance Devices Act2007 (NSW), were relied upon by the prosecution. The bases of Moore’s objection were that the evidence was unlawfully or improperly obtained (within the meaning of s 138), and that it was unfair to use the evidence in view of the circumstances in which the statements were made (animating s 90). Moore contended, first, that the police misled the judge who issued the warrant authorising the use of the listening devices; and, secondly, that it was unfair to use the witness Jodi Biles as an ‘agent of the state’ to elicit admissions from him.
Hammil J rejected the first objection concerning the warrant, but upheld the second objection. Ms Biles, who had no connection with Moore other than an acquaintanceship with Simmons, visited Moore at the psychiatric hospital at the behest of police and as their ‘agent’. Among the matters that led Hammil J to exclude the content of the conversations under s 90 were: first, Moore was an involuntary patient at a psychiatric hospital in recovery from a severe psychotic illness; secondly, Ms Biles observed Moore to be ‘different mentally’; thirdly, prior to arranging for Ms Biles to be ‘deployed’, police made no inquiries concerning Moore’s mental health; fourthly, Ms Biles was engaged as an agent of the police investigators and persistently sought to elicit admissions from Moore in the face of his denials, so that the conversation was the functional equivalent of an interrogation; fifthly, Moore had not been advised of his right to silence and not previously been approached by police for the purpose of conducting a recorded interview or obtaining a statement from him; and, sixthly, Moore exercised his right to silence when arrested.[22]
[22]Simmons (No 3), [95].
Plainly, the factual circumstances of Simmons (No 3) bear little resemblance to those in the present case. The admissions to Ms Biles were not elicited by employing the scenario technique. A combination of factors led Hammil J to exclude Moore’s admissions under s 90. Moore was recovering from a psychotic illness as an involuntary patient when Ms Biles was engaged as an agent of the police to deliberately elicit admissions from him in a conversation that was the functional equivalent of an interrogation conducted without a caution. Nothing in the case supports the notion that, prior to employing the scenario technique, so as to ‘respect’ (or ‘not disregard’) a suspect’s right to silence, police must provide notice that he or she is under suspicion or investigation.[23]
[23]We note that Hamill J made a number of observations in R v Simmons (No 2) (2015) 249 A Crim R 82, when ruling scenario evidence against Simmons to be admissible, that do not support the present applicant’s case. See 94 [60], 95–6 [65], 96–7 [65], 114–5 [130].
We need not discuss the authorities dealing with the operation of s 90 in any detail. Recently, in Headland,[24] the Court, having referred to salient aspects of the High Court’s judgment in Em,[25] and this Court’s judgment in Myles,[26] summarised the position as follows:[27]
As the authorities make clear, the application of s 90 is ‘highly fact-specific’. The focus must be upon the circumstances in which the impugned admission was made, and the way in which those circumstances would render the use of the evidence of the admission unfair to the accused at trial. That is, the focus of s 90 is upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admission was made — including the manner in which it was elicited — as fair or unfair. Consideration must be given to whether there is some aspect of the circumstances in which the admission was made that reveals why it would be unfair to use the evidence of the admission in the trial of the person who made it.
[24]Headland (a pseudonym) v The Queen [2023] VSCA 174 (Emerton P, Priest and Kennedy JJA) (‘Headland’).
[25]Em v R (2007) 232 CLR 67.
[26]DPP v Myles [2021] VSCA 324, [25]–[29] (Priest, T Forrest and Walker JJA).
[27]Headland, [43].
In our opinion, there was nothing in the manner in which the applicant’s admissions were obtained that would render the use of the evidence unfair to him at trial. It is plain that the police did not coerce the applicant into getting things off his chest. He did not have to tell the covert police the things he did. His admissions to Solomone and Kosta were made to individuals whom he trusted. Quite clearly, in our view, the applicant’s admissions were made in the exercise of a free choice whether to speak or to remain silent, in circumstances where the police were under no obligation to give the applicant notice that he was a suspect. Indeed, we regard the fact that he was not put on notice that he was under suspicion to be utterly irrelevant. That the applicant was deceived into thinking that he was divulging secrets to trusted individuals cannot, in the circumstances of this case, engage s 90. The police conduct in failing to give the applicant the ‘notice’ purportedly required, was not improper, so that s 138 has no application. And quite clearly, the probative value of the impugned evidence far outweighs any risk of unfair prejudice, so that s 137 is not animated. As to that, we consider that any risk of rank propensity reasoning will be amenable to acceptable amelioration by judicial direction.
Grounds 1, 3, 5 and 6 must fail.
Turning to proposed grounds 2 and 4, in oral submissions with respect to ground 2 counsel for the applicant submitted that
the aim of the cell deployment was more than just rapport building. It was to elicit information as to the suspect’s participation, if any, in the homicide either during that cell deployment or thereafter by way of scenario technique.
…
We say it’s not open to have found as a matter of fact as the judge did on the evidence that we’ve referred this court to and the evidence that was before his Honour below that the aim of the cell deployment was just rapport building.
…
Ground 2 is about what we say [is] a factual error in determining what the aim of the cell deployment was, for it in effect meant that the standard operating procedure didn’t have application. We say the factual finding regarding that aim is wrong ...
Ground 2 may be shortly disposed of.
As was recently made clear by the High Court in GLJ,[28] the standard of appellate review that this Court must apply, in cases ‘where there is but one legally permissible answer’,[29] is the ‘correctness standard’ described in Warren v Coombes.[30]
[28]GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 (‘GLJ’).
[29]GLJ, 866 [16]. See also Moore (a pseudonym) v The Queen [2024] HCA 30, [26].
[30](1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ).
On the evidence, we consider that the judge’s conclusion that the purpose of the cell deployment was rapport-building was correct. Counsel for the applicant argued that the only inference that could be drawn is that the cell deployment (and subsequent events) was that it was directly connected with eliciting admissions for the purposes of the murder investigation. As did the judge, however, we consider that the preponderance of evidence supports the inference that the purpose of placing CO300 (and the other covert operative) in the cells with the applicant was to establish a relationship with him, rather than to endeavour to provoke admissions from him. As to that, we regard it as highly improbable that a person in the position of the applicant would likely make spontaneous admissions concerning a home invasion and unlawful killing to individuals that he had only just met; or more importantly, that police considering the cell deployment could reasonably have expected that he might.
Further, the fact that a plan to involve the applicant in scenarios was in place by the time that CO300 and the other covert operative were placed in the cell supports the inference that the immediate aim of the cell deployment was not an attempt to obtain admissions. That inference is also supported by the fact that the covert operatives did not at that time ask any questions about the home invasion. Instead, CO300 exercised a deal of patience over months until, after the desired rapport and trust had been established, the applicant felt comfortable enough to get off his chest to Solomone (and then Kosta) his part in the home invasion and shooting.
Plainly, in our view, the aim of the cell deployment was not specifically to obtain admissions prior to interview. We therefore agree with the trial judge that the SOP was not infringed.
Ground 2 is without substance.
Moreover, ground 4 — which counsel for the applicant explained as follows — is also without merit:
Ground 4 is really for completeness, it’s we submit a gateway in terms of the question of leave and it’s a matter of form.
We say that the reasons refer to the right to silence … in relation to the free choice in the context of voluntariness, but they don’t expose a conclusion as to whether the right to silence in this case was circumvented in the way we’ve described in connection with ground 1, 2 and three.
In our view, on a proper reading of the trial judge’s reasons, he did not solely confine himself to a consideration of whether the right to silence had been circumvented by or during the cell deployment. Moreover, the judge made it plain that, in his view, the right to silence had not been circumvented because any admissions that the applicant made were made freely. Hence, when dealing with the issue of whether the SOP had been breached, the judge said:[31]
Although the common law right to silence is a fundamental right, the accused was not interrogated in the cells or during the subsequent covert operation. It seems to me that at all relevant times, he was free to speak or not to speak, and that, because he perceived it was in his self-interest to speak, he freely chose to make the impugned admissions. The gravity of the (assumed) impropriety of the cell deployment (and/or the subsequent deployment) was not high.
[31]Emphasis added.
Ground 4 must fail.

Conclusion

For these reasons, we concluded that the application for leave to appeal against the interlocutory decision should be refused.

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[2024] VSCA 233

1 October 2024