Director of Public Prosecutions v Alhassan (Rulings 1 to 5)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0047

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
MUSTAFA ALHASSAN	Accused

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	2–9 September 2024
DATE OF RULING:	18 September 2024
CASE MAY BE CITED AS:	DPP v Alhassan (Rulings 1 to 5)
MEDIUM NEUTRAL CITATION:	[2024] VSC 573

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Ruling 1

CRIMINAL LAW — Murder — Aggravated home invasion — Evidence — Admissibility of evidence of alleged admissions to covert operatives — Cell deployment of covert operatives followed by involvement of accused in multiple fictitious criminal scenarios — Evidence admissible — Tofilau v R (2007) 231 CLR 396; [2007] HCA 39 — Evidence Act 2008, ss 97, 98, 101.

Ruling 2

CRIMINAL LAW — Murder — Aggravated home invasion — Evidence — Admissibility of tendency and/or coincidence evidence relating to a subsequent planned home invasion — Tendency evidence inadmissible because evidence not strongly supportive of alleged tendency — Coincidence evidence admissible — Hughes v R (2017) 263 CLR 338; [2017] HCA 20 — Evidence Act 2008, ss 97, 98, 101.

Ruling 3

CRIMINAL LAW — Murder — Aggravated home invasion — Evidence — Admissibility of tendency evidence relating to sale of Berretta 962 shotgun to covert operatives — Tendency evidence admissible — Hughes v R (2017) 263 CLR 338; [2017] HCA 20 — Evidence Act 2008, ss 97, 101.

Ruling 4

CRIMINAL LAW — Murder — Aggravated home invasion — Evidence — Admissibility of evidence of alleged implied admissions in recorded police interview — Where, prior to first part of recorded interview, accused not permitted to speak to his father despite repeated requests — Whether police should have ceased interview to allow accused to speak to a legal practitioner — Evidence admissible — Evidence Act 2008, ss 90, 138 — Crimes Act 1958, s 464C.

Ruling 5

CRIMINAL LAW — Murder — Aggravated home invasion — Evidence — Hearsay evidence of an eyewitness account of the index home invasion — Whether eyewitness ‘unavailable’ — Evidence inadmissible because of police failure to take all reasonable steps to secure witness’s attendance at trial — Evidence Act 2008, s 65, Dictionary, Part Two, cl 4.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Raymond Gibson KC Ms Joanne Poole	Office of Public Prosecutions
For the Accused	Ms Sarah Keating Mr Liam McAuliffe	Gallant Law

HIS HONOUR:

INTRODUCTION

The accused, Mustafa Alhassan, is charged with aggravated home invasion and murder. It is alleged that he and several co-offenders (including Daniel Sisal and Mohamed Mohamed) forced their way into the home of Christopher Habiyakare at 31 Essex Street, Sunshine North on 24 August 2021 (‘the August home invasion’) and that, whilst at those premises, the accused fatally shot Habiyakare once in the chest.
Identity is in issue. The accused denies that he was one of the intruders. He is being tried alone, Sisal and Mohamed having already pleaded guilty to manslaughter on the basis that they were complicit in the homicide.
The accused objects to the admissibility of the following evidence:
·evidence of alleged admissions to covert operatives;
·evidence of tendency and/or coincidence relating to the accused’s alleged involvement in the planning of a subsequent home invasion in November 2021 (‘the November home invasion’);
·tendency evidence relating to the accused’s sale of a gun to a covert operative;
·evidence of alleged admissions by the accused in his recorded police interview;
·hearsay evidence of an eyewitness’s account of the August home invasion.
For the reasons given below, I rule that all but the tendency evidence in relation to the planned November home invasion and the hearsay evidence is admissible.
All section references below are to the Evidence Act 2008 unless otherwise indicated.

RULING 1

Background

It is convenient to deal firstly with the admissibility of the admissions allegedly made by the accused to covert operative 300 (‘300’) and covert operative 258 (‘258’) because the admissibility of other impugned evidence turns upon my ruling in relation to these admissions.
By way of background, as a result of lawfully intercepted conversations involving the accused, homicide detectives investigating Habiyakare’s death obtained evidence indicating the accused’s involvement in deception offences.
On 15 December 2021, police (not homicide detectives) successfully applied for a search warrant for the accused’s premises.
On 16 December 2021, the search warrant was executed and police found additional evidence of the accused’s involvement in deceptions. The accused was arrested for deception offences, taken to Melbourne West Police Station and placed in the cells.
Prior to police interviewing the accused in relation to the deception offences, two covert operatives, one of whom was 300, were deployed in the cell with the accused.
Later that day, all three were released from custody within a short time of each other and the covert operatives gave the accused a lift home. The covert operatives indicated they were associated with a criminal organisation and that, if the accused was interested, there might be some work for him. The accused provided them with his contact details.
From the next day onwards, 300 was in regular, if not daily, contact with the accused and involved him in numerous fictitious criminal scenarios for which the accused was well paid. The accused was led to believe that he would receive over $200,000 for his involvement in a major drug importation.
As well as the financial benefits that flowed to the accused, 300 made the accused feel that he was a loved member of a criminal ‘family’.
One scenario involved 300 telling the accused that he was attending the Police Forensics Centre to pay off a scientist. This prompted the accused to ask 300 whether, in the event that he had a big case which had ‘big forensics’, such evidence could be removed. 300 said he would have to speak to ‘Kosta’ (covert operative 258), the boss of the organisation, about it. The accused indicated he was prepared to talk to Kosta himself.
One week later, on 11 March 2022, the accused told 300 that he was involved in the August home invasion. In short, he indicated that he had entered the house, that he had a gun and that he shot the victim, although he said he only shot him in the leg.[1] He said one of his co-offenders subsequently shot the victim.
[1]See Summary of Prosecution Opening dated 1 February 2024, [143].
Later that day, in a room at Crown Casino, the accused also told Kosta (258) that he was involved in the August home invasion. In short, he again indicated that he had entered the house, that he had a gun and that he shot the victim in the leg, although he also said the shot may have only hit a couch. He said one of his co-offenders shot the victim a couple of times subsequently.[2]
[2]See Summary of Prosecution Opening dated 1 February 2024, [145].
I interpolate that there is no dispute that the victim was shot once in the chest. Eyewitnesses to the home invasion say that only one intruder was armed with a gun and only one shot was fired. There are no forensics that support more than one shot.
On 16 March 2022, the accused was arrested, interviewed and charged with the aggravated home invasion and the murder. In the recorded interview, he denied that he was involved in the August home invasion. When his admissions to 300 and 258 were put to him, he at first denied that he had made the admissions to them but then claimed that those admissions were false, based on information he had heard on the streets. He said his motivation for making false admissions was to get more pay from the criminal organisation.

Submissions

The accused submitted that the impugned admission should be excluded under ss 90, 137 and 138. It is appropriate to deal with these sections in reverse order.

Section 138

The accused submitted s 138 is engaged because, first and foremost, the cell deployment was illegal and/or improper. The search warrant in relation to the deception offence had an undisclosed, ulterior purpose — to advance the homicide investigation. Moreover, prior to the cell deployment, the accused was neither informed by investigating officials that he was a suspect in a murder investigation or cautioned in that regard, which was said to be a violation of his common law right to silence and a breach of Victoria Police’s undercover unit standard operating procedures (UUSOP).[3]
[3]The accused relied on Strickland v DPP (Cth) (2018) 266 CLR 325; [2018] HCA 53 for the submission that breach of operating procedures can constitute improper conduct for the purposes of s 138.
The accused also submitted that the corruption of an impressionable 18-year-old by involving him in multiple criminal scenarios and encouraging him to actually break the law by selling a firearm to an undercover operative, which is discussed in detail in Ruling 3 below, was illegal or improper.
As regards s 138(3) considerations, the accused submitted that:
(a)the probative value of the admissions was low because the admissions did not align with the known facts (eg, that the deceased was shot once in the chest);
(b)For the same reason the evidence of the admissions was not important;
(c)Murder is the most serious offence in the criminal calendar;
(d)The gravity of the illegalities or improprieties was high because they infringed the accused’s fundamental common law right to silence as well as the UUSOP;
(e)The illegalities or improprieties were deliberate;
(f)The accused rights under the International Covenant on Civil and Political Rights were not transgressed;
(g)It is unclear whether the relevant police will be disciplined;
(h)There is no evidence to suggest it would have been difficult to obtain the impugned evidence without impropriety.
The accused also submitted that the impugned admissions were unreliable for the same reason that he submitted that they were of low probative value and unimportant.

Section 137

With regard to s 137, the accused submitted that the probative value of the impugned admissions was low because they did not align with known facts (eg, the deceased was shot in the chest, not the leg). He submitted that their probative value was outweighed by the danger of the jury engaging in rank propensity reasoning.

Section 90

With regard to s 90, the accused submitted that it would be unfair to receive the evidence of the accused’s admissions to the covert operatives because of the alleged illegal and/or improper behaviour of the police towards a vulnerable 18-year-old. It was also submitted that the accused had been put at a forensic disadvantage: 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.

Analysis

Section 138

With regard to s 138, I am not persuaded by the accused that there was any illegality or impropriety on the part of the police, covert or otherwise.
It was not suggested by the accused that the application for the search warrant was based on misinformation or that the power to arrest and detain the accused did not arise in the wake of the intercepted communications regarding the deceptions and the fruits of the execution of the search warrant on the accused’s premises. There was no obligation on the police to inform the magistrate who heard the application for the search warrant of the intended cell deployment vis-a-vis the murder investigation. That matter was irrelevant to the task before the magistrate.
300 and his controller, Detective Sergeant Harris, testified that the purpose of the cell deployment was a rapport building exercise. 300 was asked this question and gave this answer at a 198B hearing:
Q. What were you told by Michael Harris about what your role that day would be?
A [T]o… enter the cells at the Melbourne West police station…to speak- engage with the target, Alhassan… to gain rapport, establish a relationship…that could be furthered down the track…and that…the rapport building exercise was in relation to a murder investigation being undertaken[4]
[4]Transcript, 8 April 2024, 34.
The term ‘300’ used for such a cell deployment was a ‘bump’.[5]
[5]Transcript, 8 April 2024, 27.
This explanation of the purpose of the cell deployment has a number of things to commend it, beginning with common sense. First, prior to the cell deployment, a plan to involve the accused in scenarios was in place. Second, it was highly unlikely that the accused 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 accused 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 (some strained examples suggested by the accused were covert operative 318 commencing a discussion about fighting or saying repeatedly that the coffee would kill him) there is nothing that comes close to a de facto interrogation. As 300 testified, he did not ask one question of the accused during the cell deployment about the August home invasion.
Support for 300’s claim as to the specific purpose of the cell deployment is also to be found in a note made by Detective Senior Sergeant Simon Webb (to whom Harris reported) on 9 December 2021 on Interpose, a log confined to the Undercover Unit:
Investigators request covert operatives be utilised in a cold start to meet Alhassan in order to develop an initial rapport in cell environment. If sufficient evidence is obtained, Alhassan will be charged. In the event Alhassan doesn’t engage within the cell environment but agrees to ongoing contact with the covert operatives outside this environment, covert operatives will make contact via telephone and later in person to elicit admissions into Alhassan’s involvement, if any, in the death of Habiyakare.
Whilst this note refers to the possibility of the accused making admissions during the cell deployment, it clearly supports the view that the specific objective of the cell deployment was relationship building as part of a long term strategy.[6]
[6]The accused argued that I should draw an adverse inference from the prosecution’s failure to call Detective Senior Sergeant Webb (to whom Harris reported), Detective Inspector Nichols (to whom Webb reported) and Superintendent Tatter (to whom Nichols reported (see the accused’s written submissions dated 24 May 2021 at [201]). Given the materials (especially the recording of the cell deployment), which clearly indicated that the purpose of the cell deployment on 16 December 2021 was relationship building, it was sufficient in my view for the prosecution to have called 300 and 258, Harris, Poulton and the Informant.
It is true that just before 300 entered the cells, he recorded the following on his covert recording device:
Shortly we’ll be attending the cells at the Melbourne West police station. Here we intend to engage with the target Mustafa Alhassan to determine his involvement, if any, in relation to a murder that occurred sometime this year, . although also to further the relationship, gain rapport and to attempt to further that relationship outside the police cells.
This was seized upon by the accused as demonstrating that the purpose of the cell deployment was the obtaining of admissions from the accused to the homicide during the deployment. I interpret this recording as in no way inconsistent with 300’s testimony about the purpose of the cell deployment. What he mentions first here is the long term objective of the covert operation rather than the short term objective. Under cross examination, when challenged in connection with this recorded introduction to the cell deployment, 300 indicated that the objectives mentioned in the recording were ‘probably worded incorrectly’ and ‘should have been around the other way.’[7] He maintained his position that the cell deployment was a rapport building exercise. I consider his response credible, for the reasons already mentioned.
[7]Transcript of s 198B hearing, 8 April 2024, 38.
The accused submitted that the cell deployment was a breach of the UUSOP. The UUSOP states relevantly:
22 .CELL DEPLOYMENTS
…
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][8] 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. (underlining added)
[8]At my consent, and with the consent of the parties, the Chief Commissioner of Police provided me in a sealed envelope the information that was redacted here. Without revealing that information, I can say that it does not qualify in an any way the prohibition contained in the rest of sentence.
The accused submitted that the UUSOP were contravened because prior to the cell deployment, the accused had not been formally interviewed by investigating officials about the August home invasion and the deployment ‘relate[d] specifically to admissions’ to that home invasion. If the word ‘generally’[9] was used instead of the word ‘specifically’, the accused’s submission might have more traction. But, as already mentioned, I am satisfied that the specific aim of the cell deployment was relationship building and, consequently, the cell deployment did not ‘relate specifically to admissions’.
[9]Or the phrase “directly or indirectly.”
I also reject the accused’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.
Even if there was a breach of the UUSOP, which amounted to an impropriety as that term is to be understood in the context of s 138,[10] I consider that the balancing exercise that is integral to the application of s 138 favours reception rather than exclusion of the impugned evidence.
[10]That is, conduct which is “clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances”: Ridgeway v R (1995) 184 CLR 19, 37 per Mason CJ.
I accept the prosecution’s submissions that the probative value and importance of the impugned evidence is high. The admissions to 300 and 258 put the accused at the August home invasion, with a loaded gun , and, most significantly, firing that gun at the victim. Other evidence supports a finding that only one shot was fired during the home invasion. The partial non-alignment of the accused’s admissions with the objective evidence 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). These factors strongly militate in favour of receiving the evidence rather than rejecting it.
Assuming a breach of the UUSOP, I am satisfied that it was not deliberate, or even reckless, but inadvertent. The evidence of 300 and Harris to the effect that they believed a bump was permitted by the UUSOP strikes me as credible: the prohibition[11] is open to interpretation. 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.
[11]That is, “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.”

Accordingly, even if there was an impropriety, the desirability of receiving the evidence outweighs the desirability of excluding it.

Section 137

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 accused 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.

Section 90

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.[12] The fact that the accused 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 Tofilou — a Mr Clarke — was not formally interviewed by police prior to his admissions to covert operatives either. Moreover the accused 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 accused 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.
[12](2007) 231 CLR 396; [2007] HCA 39. The accused was not able to point to a single scenario case where the impugned evidence of admissions was excluded.

RULING 2

My next ruling — Ruling 2 — concerns the admissibility of tendency and coincidence evidence relating to another home invasion allegedly planned for November 2021. It is convenient to refer to this as ‘the November home invasion’ even though it is not alleged that it was carried out.

Background

Evidence of planning a November home invasion

The evidence in relation to the November home invasion is summarised in the summary of prosecution opening as follows:
109. Between 17-28 November 2021, Sisal devised a plan to commit a home invasion in Maribyrnong with a friend by the name of ‘Joshua’, Mohamed and Alhassan.
110. On 17 November 2021, Joshua told Sisal that there would be a minimum of 20-25 thousand dollars at the house. The pair agreed to meet up and talk more about it. Joshua stated the proposed home invasion needed to be executed within the next three days. Joshua stated there might be a couple people in the house, but he would go in before and then they would “hit it” twenty minutes later.
111. On 18 November 2021, at around 8:35PM, Sisal told Mohamed, whilst they were in the Astra, that he had a “lick” [a reference to theft/robbery] on a house in Maribyrnong and that he was going to find out everything about it. Sisal stated that they had a “kilo.” Sisal was then dropped off in the Maribyrnong area.
112. Later that evening, at around 9:33PM, Mohamed was in the car with Sisal. In relation to the Astra, Mohamed said, “It’s the ultimate getaway vehicle, zero to 100 in three seconds.”
113. At 9:55PM on 21 November 2021, Sisal told Mohamed that he was going to do a job and had got his mate to “sus” the place out. Sisal told Mohamed that he could wait down the road.
114. At 11:42PM, Sisal had a telephone conversation with Alhassan. During that phone call, Sisal spoke to Alhassan about his plan relating to the house in Maribyrnong. Sisal told Alhassan that he might need him to keep watch. Alhassan responded, “Yeah, sweet.” Sisal also asked Alhassan to bring a gun[13], just in case. Alhassan replied, “Ah, sure.”
[13]The word ‘gun’ was not used. The words ‘tool’ and ‘habad’ were used. The prosecution, relying on the Urban Dictionary, say those words mean ‘firearm’ or ‘gun.’
115. On 22 November 2021, at 9:21PM, Sisal and Alhassan continued to devise their plans to commit a home invasion in Maribyrnong. Sisal stated that he did not want Alhassan to be there but indicated that he would “chop him in” if it went well. Sisal asked Alhassan to get him a firearm[14]. Alhassan stated that he had stored one at his friend’s “crib.” Alhassan also agreed to source some ammunition[15] for Sisal. However, at 9:47PM, Alhassan said that he could not get a hold of his friend. At 9:58PM, Alhassan told Sisal that he could not get it that night, and that it would have to be the following day. Sisal told Alhassan that this is why he needed to keep it local.
[14]The word ‘firearm’ was not used. The word ‘things’ was used. Referring to a ‘lick’ that he had ‘happening… tonight or tomorrow night’, Sisal said to the accused “I might need to borrow one of your things”.
[15]The word ‘ammunition’ was not used. The word ‘babies’ was used. The prosecution say ‘babies’ means ammunition. It does not rely on the Urban Dictionary for this interpretation.
…
119. On 23 November 2021 at 10:53AM, Sisal asked Alhassan if “That shit is ready.” Alhassan said that he would call a friend by the name of Mohamed Izaz. Sisal asked Alhassan if “There [were] already babies [referring to ammunition] with it.” Alhassan replied, “Yeah.”
120. At 10:56AM, Sisal spoke with Izaz and arranged to collect the firearm from Izaz after school.
…
123. At 10:39PM, Sisal spoke to ‘Joshua’ regarding the proposed home invasion in Maribyrnong. They made further plans regarding weapons and discussed whether they should use a car.
124. At 10:59PM, Sisal had conversations with Alhassan and Izaz to enable him to obtain the firearm[16].
125. At 8:39PM on 26 November 2021, Sisal and Alhassan had several conversations regarding firearms and ammunition. Sisal told Alhassan that he had “something to load up yeah, it’s going to take time, we got to suss out the place today, we got to be patient.”
126. At 9:55PM, Alhassan discussed getting babies (referring to ammunition)with a male in his presence.
127. At 10:25PM on 28 November 2021, Sisal spoke with Alhassan about the firearm[17]. Sisal stated the “lick” was ready to go.
128. On 30 November 2021, Mohamed and Sisal were arrested in respect of their involvement in Habiyakare’s killing and were remanded into custody.
[16]The word ‘firearm’ was not used.
[17]The word ‘firearm’ was not used.
It should be noted that during these intercepted conversations, firearms and ammunition were never mentioned by name. It is the prosecution case that references to ‘tools’ and ‘habad’ were code or slang for firearms (reliance was placed on the Urban Dictionary) and ‘babies’ was code or slang for ammunition. The prosecution is not calling expert evidence in relation to the meaning of these terms.

Tendency and Coincidence Notices

In its revised tendency notice of 4 September 2024, which refers to the evidence summarised above, the prosecution described the alleged tendency this way:
[a tendency] to have a particular state of mind and act in a particular way, namely a willingness to engage in preparatory acts with Mohamed Mohamed and Daniel Sisal in the furtherance of a joint agreement to commit home invasions in the western suburbs of Melbourne with the intention to steal from the homes therein, involving the use of weapons, a loaded firearm and a getaway car (the ‘home invasion tendency’);
The prosecution states in its notice that the home invasion tendency evidence bears upon the following fact in issue:
whether the accused entered into an agreement, arrangement or understanding with Mohamed and Sisal to commit a home invasion at 31 Essex Street in Sunshine North on 24 August 2021 involving the use of weapons, a loaded firearm and a getaway car;
In its coincidence notice dated 21 July 2023, which identifies the first event as the circumstances surrounding the August home invasion and the second event as the circumstances surrounding the planning of the November home invasion, the prosecution contends that:
The coincidence evidence relates to whether Alhassan, Mohamed and Sisal entered into an agreement, arrangement or understanding to commit a home invasion at 31 Essex Street in Sunshine North … on 24 August 2021.
The coincidence notice identifies the similarities between the two events as follows:
52.1The two events were planned within two months of each other;
52.2The homes were both located in the western suburbs of Melbourne (Sunshine North and Maribyrnong);
52.3Both homes were private dwellings, which were, or believed to be, occupied at the time;
52.4The target homes either contained, or were believed to contain, a significant amount of money (in the range of $20,000-$40,000);
52.5The purpose of the home invasions was to steal from the homes;
52.6The accused men planned, on both occasions, to be in possession of weapons and a loaded firearm during the commission of the home invasions;
52.7The accused men planned to use a getaway car to assist in the commission of the home invasions; and
52.8The accused men were in regular communication with each other during the planning of both events.
The coincidence evidence notice goes onto state that it is improbable that the first event was committed by someone or people other than the accused men (that is, the accused, Sisal and Mohamed).

Submissions

The accused submitted that in relation to the November home invasion, intercepted conversations to which he was not a party could not be used against him. As regards the conversations to which he was a party, the accused submitted that they did not support the inference that the accused must have been aware that a home invasion was being planned. Taken at their highest they only showed that the accused was willing to source some ammunition for Sisal.[18] What the accused thought Sisal wanted the ammunition for is unclear. The accused submitted that the interpretation of certain terms by the prosecution — eg ‘lick’ for home invasion, ‘tools’ and ‘habad’ for firearms and ‘babies’ for ammunition — was not based on expert evidence but mostly on the Urban Dictionary.[19] These words could have other meanings.
[18]See the accused’s written submissions dated 4 September 2024 at [20 (e), (f), (h), (i), (j), (k)] but compare [22] of those submissions which begins “It is accepted that the November event involved the sourcing and intended use of a firearm.”
[19]Transcript, 4 September 2024, 237–238.
It was submitted that both the tendency and coincidence evidence lacked significant probative value. What probative value they had was outweighed by the danger of unfair prejudice. There was a real risk of rank propensity reasoning which directions could not cure.
The prosecution submitted that both the tendency and coincidence evidence had significant probative value when assessed in the context of the other evidence which put the accused at the scene of the August home invasion. The prosecution would not be leading evidence of the details of the fictitious criminal scenarios so the danger of unfair prejudice would be reduced. Any residual danger of unfair prejudice could be cured by directions.

Analysis

The home invasion tendency

Two issues arise at the outset. First, is it open to find that a home invasion was being planned in November 2021? Second, is it open to find that the accused was a party to that conspiracy?
In relation to the first question, a review of all the relevant intercepted conversations leaves no doubt that a home invasion was being planned in November 2021 by Sisal and others. ‘House’ is mentioned in several of the conversations, including in conversations involving the accused.[20] Regard may properly be had to all the relevant intercepted conversations for the purpose of answering this first question. But even if regard is only had to the conversations involving the accused, the answer to this question is still ‘Yes, a home invasion was being planned in November 2021’.
[20]See Call No 6126, p 3; Call No 6678, p3; Call No 6883, p3.
As to whether the accused was a party to that conspiracy, the submission that the accused would not have understood from his conversations with Sisal that a home invasion was being planned cannot withstand scrutiny. In Call No. 6678 on 21 November 2021 at 23.42, Sisal tells the accused that it is in ‘Maribyrnong’ and that he might want the accused to ‘keep watch’ but from a distance and to ‘bring a tool’. Sisal also says ‘I don’t wanna bring the habad to the house…I want it far away[.] [I]f anything does happen, you can come running.”[21] In Call No. 6883 on 22 November 2021 at 21.21, Sisal explains how ‘we’re gonna wait for the guy’s ex missus to leave the house’.[22]
[21]Page 3, underlining added.
[22]Page 3, underlining added.
But, having said that, there are a number of obstacles to inferring from the intercepted conversations all aspects of the alleged tendency. At this stage, it is convenient to break the tendency down into the following elements:
1.   a willingness to engage in preparatory acts in the furtherance of a joint agreement to commit home invasions;
2.   in the western suburbs of Melbourne;
3.   with Daniel Sisal and Mohamed Mohamed;
4.   with the intention to steal from the homes therein;
5.   [and] involving:
5.1 the use of weapons; and
5.2 a loaded firearm; and
5.3 a getaway car.
An inference in relation to element 1 is open. Specifically, it is reasonable to infer from the conversations involving the accused that the preparatory act he was willing to engage in was the provision of weapons to the would be home invader or invaders. The fact that the alleged tendency is based effectively on one event does not preclude an inference as to the alleged tendency. The authorities indicate that one event can evidence a tendency.[23]
[23]Dempsey v R [2019] VSCA 224 at [103]; Reeves v R [2013] VSCA 311 at [56]; cf Larsen v DPP (Cth) [2010] VSCA 335 at [32].
But having said that, it seems to me, in relation to element 2, somewhat strained to infer from a single event — involvement in preparatory acts for a planned home invasion in Maribyrnong, that the accused had the alleged tendency vis a vis the ‘western suburbs’. It is just as plausible that he had a tendency to undertake preparatory acts in furtherance of conspiracies to commit home invasions wherever a suitable house happened to be located around Melbourne by members of his gang.
In relation to element 3, there are no intercepted conversations between the accused and Mohamed regarding the planned November home invasion and no conversations between the accused and Sisal where Sisal indicates Mohamed will be involved. It seems to me that is not open to conclude that the accused was even aware of Mohamed’s involvement in the conspiracy with respect to the planned November home invasion. Having regard to this deficiency in the evidence, the tendency evidence only supports a tendency for the accused to be a party to a conspiracy to commit an armed home invasion with Daniel Sisal (and possibly others mentioned in conversations between Sisal and the accused such as Mohamed Isaz, also known as ‘M-Dots’.[24]
[24]See Call No. 6678 on page 1: Sisal: where’s M-Dots? Alhassan: Here’s (sic) with me.
See also Call No. 6904 on page 2: Sisal: Bro, can M-Dots grab it?
See also Call No. 6962 on page 1: Sisal: ...I’ll call M-Dots, yeah? Alhassan: Yeah, yeah, yeah.
See also Call No. 6964 page 1: Sisal: Hey, M-Dots. Izaz (aka M-Dots): yeah; Sisal: … did G-Loud
(aka Alhassan) tell you what’s up or no? Izaz: This - yeah.
The evidence of the intercepted conversations is more than sufficient to justify element 4.
In relation to element 5, there is no difficulty with element 5.1. It is clear from the conversations involving Sisal and the accused that the use of such terms as ‘tools’, ‘habad’ and ‘babies’ referred to weapons, not something innocent. But, as regards element 5.2, I do not consider that the definition of those words in the Urban Dictionary provide a sound basis for concluding that those words referred to firearms and ammunition.[25] The Urban Dictionary is a website (urbandictionary.com) that provides the meaning of slang terms, words and phrases. It is a user generated platform that allows anyone to submit a definition as well as an example of its use. Once published, the definition and example are subject to thumbs up, thumbs down or flag for review. The more popular a definition is the more prominent it will be for that word. Definitions are not subject to any expert review or even a review by Urban Dictionary, as stated in its Terms of Service: ‘[t]he Company does not and cannot review all Content published to the Website or created by users accessing the Website, and is not in any manner responsible for the content of any Content or the activities of any such users.’ Consequently, the tendency evidence only supports a tendency or willingness on the accused’s part to engage in preparatory acts (namely, the supply of weapons) in furtherance of a conspiracy to commit an armed home invasion. As regards element 5.3, there are no references in the conversations involving the accused and Sisal to the use of a getaway car. Even though the use of a getaway car may have been anticipated (given the scale of the planned heist and the use of weapons), it is speculation whether the accused understood that to be the case.
[25]Notwithstanding the concession in the accused’s written submissions dated 4 September 2024 at [22] that “It is accepted that the November event involved the sourcing and intended use of a firearm”.
On this analysis, the tendency which is open on the evidence is the following tendency:
1.   a willingness to engage in preparatory acts in the furtherance of a joint agreement to commit home invasions;
2.   …;
3.   with Daniel Sisal (and possibly others);
4.   with the intention to steal from the homes therein;
5.   [and] involving:
5.1      the use of weapons.
Does the evidence of this narrower tendency have significant probative value in relation to whether the accused was a participant in the August home invasion? It will be recalled that the High Court in Hughes v R[26] said that the analysis of whether tendency evidence has significant probative value involves two steps. First, does the evidence strongly support the tendency? Second, does the tendency strongly support the fact in issue, which, in this case, is identity — that is, whether the accused was one of the home invaders in the August home invasion. Whilst in relation to the second question, one should assess the strength of the tendency evidence not in isolation but in combination with other evidence which is probative of the fact in issue, the first question requires one to focus solely on the evidence of the tendency. Does that evidence, considered in isolation, strongly support the existence of the tendency? Whilst, given the state of the authorities, it would be wrong to think that one event can never strongly support a tendency, one instance of a willingness to engage in preparatory acts for a planned home invasion does not strike me as strong evidence of the alleged tendency. Accordingly, I am not satisfied that the tendency evidence of the home invasion has significant probative value. It is therefore excluded by s 97(1).
[26]In Hughes v R (2017) 263 CLR 338; [2017] HCA 20 at [41], the plurality said:
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

The coincidence evidence

I turn then to the coincidence evidence. The prosecution relies on alleged similarities between two events namely, the August home invasion and the planned November home invasion, to prove that the accused was a party to the August home invasion. Based on these alleged similarities, the prosecution submits that it is improbable that the accused was not involved in the August home invasion.
Let me begin my analysis by commenting on each of these alleged similarities.
Regarding similarity 5.1 (ie, ‘the two events were planned within two months of each other’), the two events were actually planned within three months of each other, not two months, but they are still temporally proximate.
Regarding similarity 5.2 (ie, ‘the homes were both located in the western suburbs of Melbourne (Sunshine North and Maribyrnong),’ the relevant suburbs are geographically proximate, only separated by Avondale Heights.
Regarding similarity 5.3 (ie, ‘both homes were private dwellings, which were, or believed to be occupied at the time’), it is reasonable to infer from the evidence in relation to both events , including the use or proposed use of weapons, that the parties to both home invasions contemplated that a person or persons would be at the target homes at the time of the home invasions;
Regarding similarity 5.4 (ie, ‘the target homes either contained, or were believed to contain, a significant amount of money (in the range of $20,000-$40,000’), investigators ascertained that Habiyakare had over $40,000 cash in his safe and ‘Joshua’ told Sisal on 17 November 2021, that there would be a minimum of $20-25,000 in the target house.
Regarding similarity 5.5 (ie, ‘the purpose of the home invasions was to steal from the homes’), I note that the charge of aggravated home invasion in respect of the August home invasion does not exclusively refer to an intention on the accused’s part to steal. It refers to an intention to assault or steal.[27] In those circumstances, this alleged similarity should be disregarded.
[27]As far as I am aware, nothing was stolen in the August home invasion although the shooting of Habiyakare and the desire to make a quick getaway thereafter may explain that.
Regarding similarity 5.6 (ie, ‘the accused men planned, on both occasions, to be in possession of weapons and a loaded firearm during the commission of the home invasions’), I accept that weapons were to be utilized in the November home invasion but I am not satisfied — for the reasons given above — that a firearm was to be utilized. Accordingly I disregard the reference to a loaded firearm in similarity 5.6.
Regarding similarity 5.7 (ie, ‘the accused men planned to use a getaway car to assist in the commission of the home invasions’), the offenders used Mohamed’s mother’s Astra for the August home invasion but in relation to the November home invasion, Sisal and Joshua seemed to settle on a plan to use an Uber (!) as a getaway car.[28] Whilst that might be considered a significant difference, it still involves the use of a getaway car but I should add that the use of a getaway car for an armed home invasion is a very commonplace similarity.
[28]Call No 7145, p23.
Regarding similarity 5.8 (ie, ‘The accused men were in regular communication with each other during the planning of both events’), this is obviously a similarity of far greater significance, although it could be more appropriately expressed to avoid the mistake of assuming what the prosecution are trying to prove, namely, that the accused was involved in the August home invasion. I have already referred above to communications between Sisal and the accused and Sisal and Mohamed vis a vis the planned November home invasion. In relation to the August home invasion, the prosecution summary of opening summarises evidence of extensive contact[29] between those three on the night in question immediately before and after the home invasion.[30]
[29]By ‘contact’ I include their phones being together, pinging off the same mobile network towers, as Mohamed’s Astra travelled to Sunshine North and back.
[30]See the summary of prosecution opening at [30]–[35], [37]–[41], [45]–[48], [62]–[67], [71]–[72], [77]).
Viewed in isolation, these similarities between the two events do not make it improbable that the participants in the August home invasion involved persons other than the accused. To use a football analogy, as I did in discussion, where you have a team list of more than 18 players, the fact that a particular player participated in some games during the home and away season does not mean he will necessarily be picked for the finals and vice versa. Based on the intercepted conversations regarding the November home invasion Sisal appears to have a few extra ‘players on his team list ‘ that he can call upon (for example ‘Joshua’ and ‘M-Dots’ aka Mohamed Izaz. ). I ask, rhetorically, why is it improbable that the accused may not have been picked for the team for the August home invasion and another player picked instead?
But the probative value of coincidence evidence is not to be assessed in isolation. It is not in dispute that the accused confessed to the covert operatives that he was involved in the August home invasion; in other words, that he was one of the August home invaders. What is in dispute is whether that was a true confession. The accused makes out in his recorded police interview that what he told the covert operatives about the August home invasion was a lie, based on information he picked up ‘on the streets’, and that it was a lie told to help him move up the ladder of the criminal organisation and get a bigger pay day. The coincidence evidence, when considered in combination with his admissions to the covert operatives, is ‘influential’ or ‘important’[31] in countering the accused’s defence in his recorded police interview. Considered in combination with other evidence that points to the accused’s involvement in the August home invasion, the coincidence evidence assumes significant probative value.
[31]IMM v R (2016) 257 CLR 300; [2016] HCA 14, [46].
I have not overlooked the fact that the role allegedly played by the accused in the August home invasion is greater than the role he allegedly played in the planned November home invasion. In the former, his alleged role was home invader. In the latter, a weapon(s) supplier. It is no doubt the case that more than a few criminals who might undertake the latter role would baulk at the former but that dissimilarity does not deprive the coincidence evidence of significant probative value. The quality of the similarities, especially similarity 5.8, satisfy the test of significant probative value.
I am also of the view that the probative value of the coincidence evidence substantially outweighs the danger of unfair prejudice. True it is that evidence of involvement in a conspiracy to commit an armed home invasion in November is evidence of seriously bad character but it is not as inflammatory as, say paedophilia or domestic violence, and it is my view that directions can adequately address the danger of unfair prejudice so that the jury neither misuses or overvalues the evidence. As regards the risk of the jury overvaluing the evidence, l think the jury will have no difficulty appreciating, after listening to counsel’s arguments and my directions, that it does not necessarily follow that because the accused may have been prepared to supply weapons in relation to the November home invasion that he was prepared to play a much greater role in relation to the August home invasion.
Accordingly, I rule that the coincidence evidence is admissible.

RULING 3

Background

My next ruling — Ruling 3 — concerns the admissibility of tendency evidence relating to the sale of a Berretta 692[32] shotgun by the accused to covert operatives on 23 February 2022 and his indication at that time that he was also willing to sell two .22 shotguns to them.
[32]Depositions, 574.

The tendency notice

The prosecution’s amended tendency notice of 4 September 2024 states, relevantly, that the tendency sought to be proved was a tendency of the accused to ‘ act in a particular way, namely to illegally procure and possess firearms (the ‘firearm tendency’). The notice indicates that the relevant evidence of the alleged tendency is summarised in paragraphs 137 to 139 of the summary of prosecution opening, which I will set out below. In its notice, the prosecution submitted that this tendency went to the following facts in issue:
(a)whether the accused entered into an agreement, arrangement or understanding with Mohamed and Sisal to commit a home invasion at 31 Essex Street in Sunshine North on 24 August 2021 involving the use of weapons, a loaded firearm and a getaway car; and
(b)whether on 24 August 2021 the accused possessed and/or carried and discharged the firearm which killed Chris Habiyakare.

Habiyakare shot with a .22

The summary of prosecution opening refers to the fact that Habiyakare was shot with a .22:
86. The bullet found in Habiyakare’s abdomen was examined by Leading Senior Constable Paul Griffiths, a Firearm and Tool Mark Examiner.
87. LSC Griffiths identified that the bullet was a .22 Long Rifle calibre, copper wash (plated), fired bullet, of indeterminate brand.
…
101. On 29 October 2021, Kuoch Ater (an associate of the accused) was arrested by Police. At the time, Ater was in possession of a sawn-off .22 calibre single barrel rifle. He was also in possession of .22 calibre ammunition and a fired cartridge case.
102. On 30 October 2021, Sisal told Alhassan that he needed two ‘22’s’ (being a reference to .22 firearms). Alhassan replied that he would see what he could do.
103. On 2 November 2021, the rifle seized from Ater was examined by LSC Paul Griffiths from Victoria Police’s Ballistics Unit. LSC Griffiths observed that the rifle was a .22 Long Rifle calibre, Sportco brand, bolt action, repeating rifle. The rifle barrel had been sawn-off, and the serial number on the barrel had been removed. The timber butt stock had also been shortened and shaped to form a pistol grip. The overall length of the rifle was 362 millimetres.
104. LSC Griffiths compared the rifle with the fired bullet that had been removed from Habiyakare’s body during the post-mortem examination. LSC Griffiths conducted a series of comparison between the bullet recovered from Habiyakare’s body and the rifle seized from Ater. LSC Griffiths concluded that the fired bullet that had been recovered from Habiyakare’s body had been fired from the rifle that was seized from Ater.

Lead up to and sale of gun

The summary of prosecution opening says this about the lead up to and sale of the Beretta 692 to the covert operatives:
137. On 21 February 2022, Alhassan told Solomone that they[33] all messed around with .22 calibre guns and that they would chop them down…Alhassan told Solomone that he had a long arm beretta and that he was planning to sell it. Alhassan stated that he wanted to sell it for $8000. Solomone told Alhassan that Covert Operative 258, who went by the name of ‘Kosta,’ might want to buy the gun. Kosta had been portrayed to Alhassan as the ‘boss.’
138. On 23 February 2022, at 9:36AM, Solomone contacted Alhassan and asked if he could get the firearm off him and stated that he had the money ready. At 9:48AM, Alhassan contacted an associate and asked him if the firearms were there. The associate replied, “Yes, except for the socks [referring to ammunition].” Alhassan then organised to collect the firearm from his associate.
139. At 10:46AM, Solomone picked up Alhassan in his car. Alhassan said that they could collect the gun and directed Solomone to an address in Kensington. Upon arriving in Kensington, Alhassan got out of the car and collected the gun. He returned to the car, carrying a black duffle bag. At around 11:15AM, Alhassan and Solomone met up with Covert Operative 346, who went by the name, “Kofi.”[Covert operative 346) Alhassan sold the firearm to Kofi for $8000. Alhassan stated that he had a couple of sawn-off 22’s, in his possession, which he was happy to sell for more money.
[33]A reference to him and his friends.
In the transcript of the conversation between the accused and 300 on 21 February 2022 (Transcript 57 , p83-85), it is clear that it is only after the accused indicated that he had a Beretta which he was planning on selling that 300 suggested he consider selling it to Kosta.
In the transcript of the conversation between the accused and Kofi on 23 February 2022, Kofi asks the accused if he’s got any more guns and the accused tells Kofi that he also has a cut down double barrel Baretta.[34]
[34]Transcript 50, 28.
In the transcript of the conversation between the accused and 300 on 23 February 2022, the accused indicates he has two sawn off 22s that he would also be happy to sell.[35] The accused indicates that he had previously sold a rifle too.[36]
[35]Transcript 50, 61–63.
[36]Transcript 50, 61.

Submissions

In written submissions, the accused submitted that the sale of the Beretta to an undercover operative was improperly procured because 300 first suggested the idea of the accused selling the Beretta.[37] In discussion, when taken to the relevant transcript of the conversation between the accused and 300, the accused retreated from that submission,[38] focusing instead on the fact that it was 300’s suggestion that the accused sell it to Kosta.
[37]Accused’s written submissions, 24 May 2024, [13].
[38]Transcript, 5 September 2024, 34.8.
The accused submitted that the firearms tendency evidence lacks significant probative value (s 97) and, alternatively, its probative value does not substantially outweigh the danger of unfair prejudice.[39]
[39]Transcript, 5 September 2024, 344–358.
Having regard to the two stage test described in Hughes for assessing whether tendency evidence has significant probative value, the accused indicated that whilst the impugned evidence might strongly support the existence of the alleged tendency,[40] the tendency did not strongly support the fact in issue — whether he was one of the home invaders and, more importantly, whether he was the home invader who fatally shot the deceased. Consequently the tendency evidence does not have significant probative value.
[40]At Transcript, 5 September 2024, p 346, counsel for the accused referred to the two stage test in Hughes for assessing whether tendency evidence has significant probative value and submitted, in relation to the first stage: I don’t think that we can stand or submit that that evidence in relation to that event would [not] support that as a concept the procuring and possession of a firearm. It’s made very clear in relation to that conversation about our client’s comments to the undercover operative about his capacity and plans to sell that firearm.” The word “not”, which I have included in brackets, does not appear in the transcript but it is clear from the passage taken as a whole that it should have been.
As regard the danger of unfair prejudice, and in particular the potential misuse of the evidence, the accused submitted that the tendency evidence was not merely bad character evidence. It was evidence of the illicit possession and sale of firearms which was likely to engender in the jury a strong antipathy towards the accused, given community views about firearm related violence. The eliciting of background evidence regarding the lead up to and the sale of the Beretta would also invite rank propensity reasoning. The accused submitted that there was also a risk that the jury would overvalue the evidence in that it did not necessarily follow that because he had a tendency to possess firearms that he was more likely to have been a participant in the home invasion and fired the fatal shot.

Analysis

Section 97

With regard to s 97, the accused rightly conceded that, so far as the first stage of the assessment of probative value was concerned, the tendency evidence strongly supports the alleged tendency to illegally procure and possess firearms. The evidence was not limited to one firearm: he told 300 that he also had two .22 shotguns that he was willing to sell and that he had previously sold a rifle.
Does the alleged tendency — to illicitly procure and possess firearms — also strongly support the existence of the facts in issue, in short, that the accused was a party to the August home invasion and that he discharged the firearm that killed Habiyakare? If the tendency evidence is considered in isolation, the answer would be no: as mentioned there are likely to be many illicit handlers of firearms who have not used them to carry out home invasions themselves. But, in relation to the second stage of the application of the test in Hughes for assessing probative value, the tendency evidence is not to be viewed in isolation. When the tendency evidence is viewed in combination with the admissions to the covert operatives regarding his participation in the August home invasion and the coincidence evidence relating to a planned November home invasion, the firearms tendency evidence can be seen as an important piece of the evidentiary puzzle which significantly advances the prosecution case that he was the fatal shooter.[41]
[41]I note that the High Court said in Hughes v R [2017] HCA 20; (2017) 263 CLR 338 at [39] that, where identity is the issue (as here), “the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence” (which is not this case) but in TL v R (2022) 275 CLR 83; [2022] HCA 35, a murder case where identity was the issue, the High Court considered [39] of Hughes and interpreted it as only requiring close similarity when “there is little or no other evidence of identity”([30]),which is not this case.

Section 101

Turning to s 101, whilst the firearms tendency evidence is evidence of seriously bad character, I do not consider that it is so inflammatory that the jury would fail to heed directions that they must not decide the case based on prejudice against the accused or engage in rank propensity reasoning. As regards the danger of the jury overvaluing the evidence, they should have no difficulty grasping the point to which I have already referred, namely, that just because the accused may have been willing to illicitly procure and possess firearms does not mean he would necessarily be willing to participate in an armed home invasion and shoot someone. Consequently, I am satisfied that the significant probative value of the firearms tendency evidence substantially outweighs the danger of unfair prejudice to the accused.

Sections 138, 137, 90

As regards s 138, the purchase of the Beretta 692 from the accused was a controlled operation. There is no suggestion that it was not a properly authorised operation under the Crimes (Controlled Operations Act) 2004: thus, the covert operatives were not acting illegally. True it is that it led to actual criminal conduct on the accused’s part (unlike his involvement in the scenarios) but, in the circumstances, encouraging the accused to sell the gun was not improper. I expect the community would applaud the covert operatives for getting a working firearm off the streets. Even if there was some impropriety (which I do not accept), it was low level and given the significant probative value of the evidence, the desirability of the reception of the evidence outweighs the desirability of rejecting it.
As regards s 137, I have already found, when applying s 101, that the probative value of the firearms tendency evidence substantially outweighs the danger of unfair prejudice.
As regards s 90, in all the circumstances, I see no unfairness to the accused in the reception of the evidence having regard to what I have already indicated about the legitimacy of the controlled operation.

RULING 4

Background

My next ruling — Ruling 4 — concerns the admissibility of evidence of alleged implied admissions in the accused’s recorded police interview. It is the prosecution case that the accused told lies in his recorded police interview which constitute incriminating conduct. An incriminating conduct notice has been served.

Record of Interview

The summary of prosecution opening at [149] summarises what the accused told the police in his recorded interview (which was in two parts) as follows:
(a)That he did not know anyone named Daniel and knew lots of Mohamed’s (Q/A 18);
(b)That he denied any knowledge of, or involvement in, the murder of Habiyakare (Q/A 16);
(c)When the covert operation was disclosed to him, he denied making the admissions to Solomone or Kosta (Q/A 58-59, 84-89);
(d)He eventually suggested that he had made it all up from what he had heard on the streets to get an early payday (Q/A 66, 89, 95);
(e)He denied ever saying that he shot at Habiyakare with a .22 calibre firearm and stated that he had never seen a .22 in his life (Q/A 98, 99, 167); and
(f)When it was suggested to him that his account to the covert operatives perfectly matched the circumstances of Habiyakare’s killing, Alhassan responded that his account did not perfectly match (Q/A 103).
The accused was arrested on 16 March 2022 at Docklands by DSC Fryters, the informant, at approximately 10.55am. He was cautioned and told his rights. DSC Fryters asked him if he understood his rights to which he said yes. She also asked him whether he wished to exercise any of his rights to which he said ‘I want to call my Dad’. She told him that police would arrange for him to speak to his Dad. The accused was taken to Melbourne West Police Station where he was later interviewed by DSC Fryters and DSC Ferguson.
During the day other Homicide detectives were trying to locate and arrest another suspect named Alula Tegegne in relation to the murder. Police in the custody area at Melbourne West were advised by Fryters that he was not to be permitted any calls until further notice.[42] DSC Fryters was advised of Tegegne’s arrest at approximately 4.45pm. At 4.47pm, DSF Fryters facilitated a call by the accused to his father. This was the first time the accused was allowed to speak to his father on 16 March 2022, notwithstanding several requests by him throughout the day to speak to his father.
[42]Transcript of s 198B hearing, 10 April 2024, 290.
The first part of the recorded interview (Q & A 1 -121) ran from 11.41am to 11.55am. At the outset, the accused was cautioned and given his rights. The questions and answers in the first part of the interview included the following:
Q7Now, you said earlier that you want to speak to your dad when I arrested you, but we’ve spoken and you said you’re happy to start the interview without speaking to him. Is that correct?
ACorrect.
Q 8Yeah. Is there any other rights that you wish to exercise?
ANo.
Q 9No, O.K.
AJust continue the interview.
The interview was suspended at 11.55am.
Part two of the interview (Q &A 122-228) commenced at 5pm and concluded at 5.20pm. The questions and answers in the second part of the interview included the following:
Q 123Yeah, thank you, O.K. I’ve just gotta reconfirm that you understand your caution and rights. So you do not have to say or do anything, but anything you do say or do may be given in evidence. Do you understand that?
AMm’hm.
Q 124And you understand you still have the same rights, to speak to a friend or relative, to a - - -
AMm’hm.
Q 125- - - legal practitioner or the consular office. Do you wish to exercise any of those rights?
ACould I see anyone as of this current moment?
Q 126Sorry?
ACan I see anyone of - as of this current moment?
Q 127Can you see anyone?
AYeah.
Q 128You can speak to - and you agree that you’ve spoken to your dad, you’ve had a brief phone conversation with him?
ANo comment.
Q 129O.K. So you spoke to your dad, you provided the phone number - I won’t read it out - Ahmed. And you’ve had a - a conversation with him while you were in the cells there a couple of minutes ago, that call was at 4.47. Who else did you want to speak to?
ANo-one I guess, yeah.
Q 130You have a right - if you want to speak to a legal practitioner you can. Your dad knows where you are now, so do you want to speak to anyone else?
ANo.

Section 198B hearings

At a s 198B hearing on 10 April 2024, DSC Fryters explained why she did not let the accused call his father on 16 March 2022 until 4.47pm:
I had a belief that if he spoke to his father, that it would very quickly spread through his cousin who lived at the address in Roseberry Street, 22 Ascot Vale, straight to Mr [Tegegne] , who we had members out in the field attempting to locate. Mr [Tegegne] had already indicated with Mr Alhassan on telephone intercepts that he wished to flee, um, was talking about fleeing interstate. Um, he was part of the group with, um, Mr Alhassan and his cousin, Mohamed Isaz. I believed that that contact would have been made very quickly and we would have lost an opportunity to apprehend Mr [Tegegne].[43]
…
Mr [Tegegne] is closely associated with Mr Mohamed Isaz who resides in the family units. Um, there’s active family talk on Mr Alhassan’s TIs that when his younger brother was arrested, that was actively talked about. I had no doubt that the arrest of Mr Alhassan would be talked about within his family and that would provide an opportunity for Mr Isaz to, within seconds, notify Mr Tegegne and then he would flee.[44]
…
I [had] a belief that Mr, Mr Ahmed Alhassan would not have kept it to himself. He would have notified his family that his son was in custody for murder.[45]
[43]Transcript of s 198B Hearing, 10 April 2024, 279.
[44]Transcript of s 198B Hearing, 10 April 2024, 284.
[45]Transcript of s 198B Hearing, 10 April 2024, 290.
At the s198B hearing, the Informant was asked about the conversation the accused eventually had with his father and whether she overheard the father saying he would organise a solicitor to ring the police station to assist him:
And did you hear then the conversation of the arranging for a solicitor to ring the police station to assist him?---No, because the, the purpose of the phone call was to inform Mr Ahmed Alhassan that Mr Alhassan was in custody and that was the purpose of the limitations of the phone call and that’s what I recalled.[46]
[46]Transcript of s 198B Hearing, 10 April 2024, 292.

Voir Dire

The accused, his father and DSC Fryters gave evidence on a voir dire.
The accused, whom agreed he had been interviewed three times by police prior to the interview on 16 March 2022, testified that he thought he could only exercise his rights after the interview, not at the time he was informed of his rights . He agreed that he understood throughout that he could say ‘No comment’ to questions if he wanted to.
He testified that when he spoke to his father, his father said he would organise a lawyer for him. He thought the lawyer would attend the station and sit in on the interview with police. When he said to police in the second part of the interview, ‘Can I see anyone as of this current moment’ he said was referring to the lawyer. He assumed from the police response to that question that the lawyer that his father said he was going to organise had not arrived at the police station and that he didn’t then ask any questions about speaking to a lawyer because he just wanted to get the interview over and done with.[47]
[47]Transcript, 2 September 2024, 18.
Under cross examination, the accused agreed that he was born in Australia and that he speaks English well.[48] He agreed that he’d been interviewed by police three times prior to the murder interview and he did not dispute that in two of those interviews he’d been asked whether he wanted to exercise his rights before the interview proceeded. He agreed that police did not tell him in the murder interview that he could not exercise his rights until after the murder interview. Most importantly, he agreed that he declined to exercise his rights because he’d been waiting around a long time and he wanted the interview over with.[49]
[48]Transcript, 2 September 2024, 25.
[49]Transcript, 2 September 2024, 44.
Relevantly, the accused’s father testified that he may have told his son during the phone call at 4.47 that he would organise a lawyer for him.
The Informant indicated, as she had done at the s198B hearing, that the reason she didn’t allow the accused to contact his father until 4.47 was because Tegegne had not been arrested and she was concerned that he would be informed via the family/ Tegegne’s cousin that the accused had been arrested for murder and that Tegegne would then flee. DSC Fryters also testified that she could not recall the father saying during the phone call at 4.47 that he would organise a lawyer to attend the police station for the interview.

Legislative Framework

A final point by way of background. S464C of the Crimes Act 1958 provides:
464C Right to communicate with friend, relative and legal practitioner
(1) Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she–
(a) may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and
(b) may communicate with or attempt to communicate with a legal practitioner (whether the term legal practitioner or lawyer is used)—
and, unless the investigating official believes on reasonable grounds that—
(c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or
(d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed—
the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication.
(2) Subject to subsection (1), if a person wishes to communicate with a friend, relative or legal practitioner, the investigating official in whose custody the person then is—
(a) must afford the person reasonable facilities as soon as practicable to enable the person to do so; and
(b) must allow the person’s legal practitioner or a clerk of the legal practitioner to communicate with the person in custody in circumstances in which as far as practicable the communication will not be overheard.
(3) This section also applies to any questioning or investigation in accordance with an order made under section 464B(5) or any questioning conducted by consent under section 464B(11), unless Part IC of the Crimes Act 1914 of the Commonwealth applies.
(4) This section does not apply to questioning or investigation in connection with an offence under section 49(1) of the Road Safety Act 1986. (underlining added).

Submissions

The accused submitted that the recorded police interview should be excluded under s 138 and s 90. He submitted that the investigating officials breached s 464 C of the Crimes Act 1958 by not permitting him to speak to his father on request prior to the interview on 16 March 2022 and by ‘failing to cease the interview so that [he] could speak with a lawyer.’[50]
[50]See accused’s written submissions dated 24 May 2024, [188(c)].

Analysis

In my view neither s 138 or s 90 have any application.

Not permitting contact with father until 4.47pm

I am not persuaded on the balance of probabilities that there was a breach of the accused’s right to contact a friend or relative to inform them of his whereabouts. I see no reason to doubt the veracity of the Informant’s explanation, which was supported by the evidence of Detective Sergeant Poulton, for not permitting the accused to call his father earlier in the day, given the undisputed fact that within two minutes of being advised that Tegegne was in custody, the Informant facilitated a call by the accused to his father. I consider that there were reasonable grounds for her belief that once the accused’s father learned his son was in custody for murder, the news would spread rapidly within the family, thereby coming to the attention of Tegegne’s cousin who lived with members of the family. There were reasonable grounds for the belief that the cousin would then inform Tegegne and that Tegegne would flee. Tegegne had previously discussed such a course with the accused.[51]
[51]See the summary of prosecution opening dated 1 February 2024 at [131] where this appears: “At 7:51PM on 13 December 2021, Tegegne phoned Alhassan from someone else’s phone. Tegegne said he did not want to call Alhassan from his usual phone number. Tegegne stated, “I reckon niggas should gap it bro, I reckon GM’s [referring to Mohamed] talking my nigga, I think that’s the best thing to do, plan to go interstate.” Alhassan replied “What difference is that going to make?” Tegegne responded, “Have fun before niggas get done.”

Not facilitating contact with a lawyer

I am not persuaded either that the accused did not understand that he could speak to a lawyer prior to the interview proceeding. He was informed of his rights at the commencement of the interview, he indicated that he understood those rights and he was asked whether he wished to exercise any of those rights (see Q8 and Q125). Although the Informant did not say ‘Do you wish to exercise any of those rights before the interview proceeds’, the accused agreed under cross examination that he had been so informed in two previous police interviews when given his rights. On his own admission, the accused was born here and speaks English well. I infer that he did not exercise his right to speak to a lawyer, not because he wrongly thought he could only speak to a lawyer after the interview, but because, as he admitted under cross examination, he just wanted the interview over and done with.

RULING 5

Background

My final ruling — Ruling 5 — was actually given on 9 September 2024. At that time I gave brief oral reasons for ruling that the hearsay evidence of Mayur Chopra’s eyewitness account of the home invasion was inadmissible. I said I would provide written reasons later, which I do now.

Chopra’s police statements

Chopra, who was visiting Habiyakare when the home invasion occurred, made three statements to police. He made written statements to SC Ashleigh Thompson on the night of 24 August 2021 and to DLSC Kerryn Makin on the afternoon of 25 August 2021. He also participated in a significant witness recording on 29 August 2021 with Constable Schalken.
In summary, Chopra told police that he was present at the time of the home invasion. He indicated that there were more than two masked home invaders, one of whom had a gun. Another of the intruders had a ‘big blade.’ The one with the gun had blacker skin than the other guys, like ‘Sudanese black’. He saw this guy point the gun at Habiyakare. He heard Habiyakare say ‘Woah, woah. You’re going to shoot me? or something like that.’ At paragraph 25 of his first statement, Chopra said this:
The guy with the gun looked to me like he was hesitating while still holding the gun to Chris , but then I saw him shoot the gun. I heard it. It didn’t sound like what I expected. It wasn’t loud, it was like a cracker. I only heard one bang.
After the bang, Chopra saw Habiyakare, who had been standing when he was shot, ‘on his back in the hallway and moving his legs’ at which point Chopra ran out of the house and got away.

Voir Dire

SC Ashleigh Thompson and DSC Fryters gave evidence on a voir dire. It is not necessary to refer to Thompson’s evidence.
DSC Fryters indicated that she was advised on 25 August 2021 that Chopra was on a student visa that was due to expire on 30 August 21. He was deported on 1 February 2022. She took no steps to prevent him leaving the country. She was not sure if she knew of Criminal Justices Visa at the time. Chopra had advised police that he was applying for an extension of his visa: DSC Fryters received an email from DLSC Kerryn Makin on 25 August to that effect. It was not until 1 May 2024 that she was advised by Interpol of Chopra’s contact details in India. In May 2024, she made contact with him and he indicated he was not willing to travel to Australia to give evidence in person at the accused’s trial but he was willing to give evidence via video link. She was advised by the OPP in May 2024 that even for a video link, a Mutual Assistance Request to Indian authorities would be required which would take 6 months.

Statutory Framework

I note that Clause 4 of Part 2 of the Dictionary of the Evidence Act 2008 defines ‘unavailability’:
4 Unavailability of persons
(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if–
(a) the person is dead; or
(b) the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence; or
(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or
(d) it would be unlawful for the person to give the evidence; or
(e) a provision of this Act prohibits the evidence being given; or
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or
(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success(underlining added)
(2) In all other cases the person is taken to be available to give evidence about the fact.

Submissions

The prosecution submitted that hearsay evidence could be given of Chopra’s statements under s 65(2)(b) and/or s65(2)(c). The prosecution submitted that he was unavailable pursuant to Clause 4 (f) in that all reasonable steps had been taken by the prosecution to secure Chopra’s attendance without success.
The prosecution relied on the following chronology of events:
TABLE - Chronology of steps taken to locate/secure attendance of Chopra

Date/Time Action Source

24/08/21 Fryters made aware during briefing that Fryters 05/03/24 [3].

Chopra had presented at Sunshine Police Station at 10:02pm and a statement was

being taken from him.

25/08/21
00:35am
Fryters advised by other officers that Chopra had made a statement, provided a DNA sample and his clothing, and

provided a mobile number ending in 478.
Fryters 05/03/24 [4].

25/08/21

6:05pm

Fryters notified that Chopra has made a further statement and facefit images, and that Chopra was in Australia on a student visa that was expiring that month, but that he was putting an application in to

extend it.
Fryters 05/03/24 [5].

26/08/21

And 27/08/21
Phone calls between Fryters and Chopra on 478 to arrange appointment for Chopra to meet with a member from the Crime Identification Unit. Fryters 05/03/24 [6].

29/08/21
Chopra meets with member from Crime

Identification Unit.
Fryters 05/03/24 [7].

30/08/21 Chopra’s visa expires. Fryters 05/03/24 [17].

23/10/21

2:08pm

Fryters makes further call to Chopra on

478. Call went to voicemail. Fryters leaves

a voicemail message.

21/02/22

9:23am

Fryters calls Chopra on 478. Call unanswered – phone rings out. Fryters immediately repeats call – call diverted to a voicemail in a foreign language.

Fryters tasks another member to make enquiries with immigration. Fryters informed that Chopra had left Australia on 01/01/22 and his visa had expired on

30/08/21.

Fryters 05/03/24 [15]

– [16].

21/02/22
10:04am
Fryters sends sms to Chopra on 478 requesting that he contact her by phone

or email.
Fryters 05/03/24 [17].

21/02/22
Fryters sends email to Chopra requesting

contact (never receives a reply).

Fryters 05/03/24

[18].

25/04/22
Fryters contacts AFP requesting

assistance to locate Chopra in India.

Fryters 05/03/24

[19].

26/04/22
AFP (India) replies to Fryters, advising that they would make enquiries (noting that assistance from Indian authorities would require a mutual legal assistance request).

Further call made to Chopra – unidentified male answered. Further email sent to Chopra – delivered but not read.

Matter to be raised with Central Bureau
Fryters 05/03/24 [20]-[22].

of Investigations – failing which a request to be made with Interpol or mutual legal assistance request would have to be

made.

14/07/22
Fryters emails Interpol Canberra requesting assistance locating Chopra in

India.
Fryters 05/03/24 [23].

11/08/22
Interpol Canberra confirms that it has forwarded the request to Interpol New Delhi, advising that timeframes for such

requests ‘can be extensive’.
Fryters 05/03/24 [24].

10/01/23
Fryters sends follow up email to Interpol Canberra with witness summons for Chopra in relation to committal hearing

attached for service.
Fryters 05/03/24 [27].

24/01/23
Fryters sends follow up email to Interpol Canberra with witness summons for Chopra in relation to committal hearing

attached for service.
Fryters 05/03/24 [26].

12/02/23
Interpol Canberra confirms summons paperwork forwarded to Interpol New Delhi, noting that timeframes for such

requests can be extensive.
Fryters 05/03/24 [27].

23/01/24
Fryers sends further email to Interpol Canberra requesting update on request to locate Chopra. Interpol Canberra respond same day to advise that they had received no response from Interpol India but had sent an urgent follow up. Interpol Canberra note difficulties with locating

people in India.
Fryters 05/03/24 [28].

01/05/24
Interpol Canberra advised Fryters that Interpol India have located Chopra.

Chopra contact details provided.
Fryters 13/08/24 [3].

06/05/24

10:04pm

Fryters sends Chopra email asking if he is willing to travel to Australia to give evidence (noting his costs would be

paid).
Fryters 13/08/24 [5].

15/05/24
Fryters has further phone conversation with Chopra. Chopra advised he needs a few days to discuss possible travel to Australia with his family and will email

back.
Fryers 13/08/24 [6].

27/05/24 Fryters sends Chopra a follow up email. Fryers 13/08/24 [7].

04/06/24
Fryters sends Chopra a further email. Chopra replies via email that he is not

able to attend as a witness in Melbourne.
Fryters 13/08/24 [8].

The prosecution submitted that the issue turned on what steps the police had taken since 1 May 2024 when Chopra’s whereabouts in India were ascertained. It was submitted that all reasonable steps had been taken from that time onwards. It was conceded that the police failed to obtain a Criminal Justice Visa for Chopra in 2021 and failed to check whether he had applied for a visa extension but submitted that this was of no moment: the issuing of a visa extension would not have prevented him from leaving the country if he had wanted to.

Analysis

As regards my analysis, I am content to adopt what I said on 6 September when rejecting the prosecution submission that Mr Chopra was ‘unavailable’. For the sake of convenience, I repeat those comments here:
Obtaining a Criminal Justice Visa for Mr Chopra was a reasonable step that ought to have been taken once the informant was made aware that his student visa was going to expire at the end of August. The failure of the informant to ascertain whether Mr Chopra had put in the application for an extension of his student visa, as he claimed he was intending to do, is also, in my view, relevant. The failure to confirm that he put in that application compounds the failure to obtain a Criminal Justice Visa for him. The relevant test in clause 4 of the Part 2 of the dictionary of the Evidence Act requires police to take all reasonable steps, all reasonable steps, and it seems to me that in this case, the police did not do so. I am not satisfied by the prosecution that all reasonable steps were taken. It seems to me that the steps that were taken were belated and remedial and they do not negate the failures at the outset. Although Mr Chopra is not a witness who identifies the participants in the home invasion, he is a significant witness because he was there at the home invasion and the relevant offence is murder. The authorities in relation to unavailability make it clear that the more significant the witness, the greater the burden upon the prosecution to …pass the test of the unavailability[52] and, in my view, they have not done that here. Consequently, the hearsay evidence of Mr Chopra is caught by the exclusionary hearsay rule and is inadmissible.
[52]Rossi v R [2012] VSCA 228 at [26]; ZL v R [2010] VSCA 345 at [32].

Date/Time	Action	Source
24/08/21	Fryters made aware during briefing that	Fryters 05/03/24 [3].
Chopra had presented at Sunshine Police Station at 10:02pm and a statement was being taken from him.
25/08/21 00:35am	Fryters advised by other officers that Chopra had made a statement, provided a DNA sample and his clothing, and provided a mobile number ending in 478.	Fryters 05/03/24 [4].
25/08/21 6:05pm	Fryters notified that Chopra has made a further statement and facefit images, and that Chopra was in Australia on a student visa that was expiring that month, but that he was putting an application in to extend it.	Fryters 05/03/24 [5].
26/08/21 And 27/08/21	Phone calls between Fryters and Chopra on 478 to arrange appointment for Chopra to meet with a member from the Crime Identification Unit.	Fryters 05/03/24 [6].
29/08/21	Chopra meets with member from Crime Identification Unit.	Fryters 05/03/24 [7].
30/08/21	Chopra’s visa expires.	Fryters 05/03/24 [17].
23/10/21 2:08pm	Fryters makes further call to Chopra on 478. Call went to voicemail. Fryters leaves a voicemail message.
21/02/22 9:23am	Fryters calls Chopra on 478. Call unanswered – phone rings out. Fryters immediately repeats call – call diverted to a voicemail in a foreign language. Fryters tasks another member to make enquiries with immigration. Fryters informed that Chopra had left Australia on 01/01/22 and his visa had expired on 30/08/21.	Fryters 05/03/24 [15] – [16].
21/02/22 10:04am	Fryters sends sms to Chopra on 478 requesting that he contact her by phone or email.	Fryters 05/03/24 [17].
21/02/22	Fryters sends email to Chopra requesting contact (never receives a reply).	Fryters 05/03/24 [18].
25/04/22	Fryters contacts AFP requesting assistance to locate Chopra in India.	Fryters 05/03/24 [19].
26/04/22	AFP (India) replies to Fryters, advising that they would make enquiries (noting that assistance from Indian authorities would require a mutual legal assistance request). Further call made to Chopra – unidentified male answered. Further email sent to Chopra – delivered but not read. Matter to be raised with Central Bureau	Fryters 05/03/24 [20]-[22].
of Investigations – failing which a request to be made with Interpol or mutual legal assistance request would have to be made.
14/07/22	Fryters emails Interpol Canberra requesting assistance locating Chopra in India.	Fryters 05/03/24 [23].
11/08/22	Interpol Canberra confirms that it has forwarded the request to Interpol New Delhi, advising that timeframes for such requests ‘can be extensive’.	Fryters 05/03/24 [24].
10/01/23	Fryters sends follow up email to Interpol Canberra with witness summons for Chopra in relation to committal hearing attached for service.	Fryters 05/03/24 [27].
24/01/23	Fryters sends follow up email to Interpol Canberra with witness summons for Chopra in relation to committal hearing attached for service.	Fryters 05/03/24 [26].
12/02/23	Interpol Canberra confirms summons paperwork forwarded to Interpol New Delhi, noting that timeframes for such requests can be extensive.	Fryters 05/03/24 [27].
23/01/24	Fryers sends further email to Interpol Canberra requesting update on request to locate Chopra. Interpol Canberra respond same day to advise that they had received no response from Interpol India but had sent an urgent follow up. Interpol Canberra note difficulties with locating people in India.	Fryters 05/03/24 [28].
01/05/24	Interpol Canberra advised Fryters that Interpol India have located Chopra. Chopra contact details provided.	Fryters 13/08/24 [3].
06/05/24 10:04pm	Fryters sends Chopra email asking if he is willing to travel to Australia to give evidence (noting his costs would be paid).	Fryters 13/08/24 [5].
15/05/24	Fryters has further phone conversation with Chopra. Chopra advised he needs a few days to discuss possible travel to Australia with his family and will email back.	Fryers 13/08/24 [6].
27/05/24	Fryters sends Chopra a follow up email.	Fryers 13/08/24 [7].
04/06/24	Fryters sends Chopra a further email. Chopra replies via email that he is not able to attend as a witness in Melbourne.	Fryters 13/08/24 [8].

[2024] VSC 573

18 September 2024