R v Alameddine (No 1)

[2025] NSWDC 255

District Court

New South Wales

Medium Neutral Citation:

R v Alameddine (No 1) [2025] NSWDC 255

Hearing dates:

7 April 2025

Date of orders:

7 April 2025

Decision date:

07 April 2025

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

The application by the defence to set aside the bench warrant issued by the list judge is dismissed. The bench warrant was validly issued.

Catchwords:

CRIME – EVIDENCE – Application to set aside bench warrant issued by list judge – s 194 of Evidence Act 1995 witness failed to attend proceedings – Attempt to serve subpoena in person - rules must be interpreted to give them effect ut res magis valeat quam pereat.

Legislation Cited:

District Court Rules 1973

Evidence Act 1995, s 194

Cases Cited:

Nil.

Texts Cited:

Nil.

Category:

Procedural rulings

Parties:

Crown – R (NSW)
Accused – Sonia Alameddine

Representation:

Counsel:
Crown – Ms Buck, K. (Solicitor Advocate)
Accused – Ms Wong, C.

Solicitors:
Crown – Office of the Department of Public Prosecutions (NSW)
Accused – Circle Bridge Legal

File Number(s):

2023/00216790

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: The accused, Sonia Alameddine, is charged with three counts in an indictment dated 7 April 2025.  The circumstances are adequately set out in Count 1.  That count is this:

“On 6 July 2023, at Redfern in the state of New South Wales, did break and enter the dwelling house of Daniel Costi, at [redacted] Young Street, Redfern, with intent to commit a serious indictable offence therein, namely intimidation, in circumstances of special aggravation, namely was in company with Joshua Hetaraka and at the time was armed with a dangerous weapon, namely a pistol".

2. As the pleading could be said to be duplicitous, the person who was armed with the dangerous weapon is, as I understand it, alleged to be Joshua Hetaraka not the accused.  The issue before me is whether the complainant, probably so‑called, has been validly served with a subpoena to give evidence.  Although the dwelling house is alleged to have been owned by Daniel Costi, he is not the complainant.  On 7 July 2023, Ben Igoe was staying at that unit in Redfern.  Mr Igoe is a friend of Mr Costi.  The entry to the Redfern unit complex at the ground level is always open.  Unit 6 is on the third and top level of that three‑storey building.  There is a single entrance to the Redfern unit which is a wooden door that is always locked. 

3. Joshua Hetaraka was not known to the complainant.  Sonia Alameddine was known to Mr Igoe.  They had met on a couple of occasions prior to the incident now in question, and their dogs had been on play dates together.  The Crown case is that Alameddine and Hetaraka were parties to a joint criminal enterprise to break into the Redfern unit and intimidate the occupant into paying to them money.  On the evening of 6 July 2023, Igoe was alone in the unit.  At about 10pm Alameddine knocked on the door to the Redfern unit three times and received no answer.  A minute later she knocked again.  On this occasion Igoe heard the knock at the front door. 

4. There had been no prior buzz from the intercom which is located at the general entrance to the building on the ground floor.  Igoe said, “Who is it”.  He heard a muffled female voice reply.  Igoe opened the door slightly; keeping the door latched.  He then saw it was Alameddine whom he knew, therefore he unlatched the lock and went to welcome her by hugging her.  Hetaraka was standing behind Alameddine and was wearing a face covering.  Hetaraka pulled a pistol out of his pocket and barged past Ms Alameddine, pushing the door open and going inside.

5. The complainant described Hetaraka as being in his mid to late 30s with dark hair gathered into a bun, and wearing a black jacket.  This interaction was captured on the Ring doorbell positioned at the front of the unit.  Mr Costi received a notification from his phone that there was movement at his flat, and Costi observed the live footage; both audio footage and video footage from the ring doorbell on his phone.  That caused him to call the police.  Inside the unit Alameddine said - presumably to Hetaraka - “No, wrong person, wrong person, it’s not who we are after.”  In the meantime, Hetaraka was rummaging through things in the unit, including Mr Igoe’s Louis Vuitton bag.  Whilst he was doing that there was a conversation going on in which Alameddine alleged that the owner of the unit was indebted to her in the sum of $16,000.

6. In the meantime, Mr Igoe was protesting that what was being rummaged through was not the property of Mr Costi, but his own property.  Alameddine then asked him this question:

“Can you call Dan? And find out where he is, and don’t say a word about what is going on.”

7. There were further conversations between the three in the flat.  At around 10:13pm police arrived at the flat.  Constable Forsberg yelled, “Police!” and the door was immediately shut.  At that point Hetaraka took off his jacket and put it in the lounge room and disposed of the firearm.  Police then told the occupants of the unit to exit the flat.  The first person to do so was Mr Igoe who left with his hands on his head.  He was followed by Ms Alameddine who closed the door behind her.  20 seconds later Hetaraka opened the door and left the unit.  Hetaraka and Alameddine were both arrested and taken to Mascot Police Station.  At around 1:30am another member of the constabulary searching the flat located a loaded firearm on a shelf in the kitchen cabinet at the Redfern unit.  The loaded firearm was a 9-millimetre Parabellum Calibre CZ Model 75 self-loading pistol.  The firearm had a magazine inserted into it containing five cartridges.

8. The matter is listed for trial today.  Earlier today the list judge issued a warrant for the arrest of Mr Igoe.  This is an application by the defence to set aside the warrant.  The current officer‑in‑charge (“OIC”) of this investigation is Detective Senior Constable (“DSC”) Jay Opie.  On 13 January 2025, a subpoena to give evidence was signed on behalf of the Director of Public Prosecutions (“DPP”) by Shelley Cluff, of the DPP office that required the appearance this morning at 9:30am of Mr Igoe.  On 7 February 2025, DSC Opie attended Mr Igoe’s current address, which is known to police, and spoke to a young man who identified himself as “Will” who is Mr Igoe’s flatmate.  Will confirmed that Igoe resided at that location, but he told the DSC that he was not at home at that time.

9. There was also a dog at the location which DSC Opie recognised as the dog known as Snickers, which is Mr Igoe’s dog and had been at the address in Young Street, Redfern at the time of the offence now in question.  The DSC left a copy of the subpoena with Will at the location.  Later that day Mr Igoe responded to an email sent by Detective Sergeant Andrew Pincham, which was copied to DSC Opie.  Mr Igoe stated he wished to withdraw his statement, and he did not wish to be contacted by police again.  Exhibit CC is a series of emails passing between Mr Igoe and police.  The initial email was sent by Detective Sergeant Andrew Pincham on 8 January 2025, at 3:01pm.  That said this:

“Hi Ben,

Can you please give me a call relating to the Joshua Hetaraka, charges for the incident that occurred at Young Street, Redfern on 6 July 2023. 

The OIC: Detective Alex Townend is currently not at work.

I just need to seek your opinion on a plea offer.

Your listed mobile numbers are not connecting.  You can call me [phone number redacted].

Thanks.”

10. On 3 February, Detective Senior Constable Opie sent this email to Mr Igoe at 2:03pm:

"Hi Benjamin,

I hope you are well. 

I am the new officer‑in‑charge of this matter, taking over from Constable Alex Townend.

Can I ask you what your concerns are regarding the matter?  Obviously, the offence was serious with a firearm being involved, and your evidence is very important to the case.

Unfortunately, as you have signed a statement, I have an obligation to the Court to make efforts to place you before the Court, so I have to contact you further.

Regards."

11. On the same day, Monday, 3 February 2025 at 2.09pm, that is, some six minutes later, Mr Igoe sent this email to DSC Opie:

"And I am within my rights to withdraw the statement which I now have so please do not contact me again about this.  I have withdrawn my statement because I want nothing to do with it. 

Ben."

12. On 6 February 2025, DSC Opie again attended Igoe's address and knocked on the door and rang the doorbell.  There was no answer nor any sign of activity.  He left his business card on the door with his contact details.  On 7 February 2025, the DSC received another email from Igoe, simply saying, "Statement withdrawn, thanks".  He thought that that was in response to his attendance at his address on the day before. 

13. On 28 February 2025, and also, 18 March 2025, the DSC attended Igoe's residence, but there was no answer to his knock at the door, nor any sign of activity.  On 22 March 2025, he again attended the address and a male answered the door who identified himself as a friend of Mr Igoe.  The DSC asked to speak to Igoe and the male said he would check if Igoe was at home.  He did that whilst attempting to keep the door mostly closed in order as the DSC believed, to obscure his view into the unit.

14. The male had gone further inside the unit and the DSC heard muffled conversation.  He then returned and told the DSC that Igoe was not at home.  The DSC began to ask if Igoe could contact him when a voice spoke to him through the doorbell intercom.  The detective senior constable believed that that was Mr Igoe's voice as it sounded like recordings he had heard of Mr Igoe's voice that had been captured on body worn video cameras attached to police uniforms at the time of the offence. The voice that the detective senior constable heard was to the effect of, "Sorry, I'm not home". 

15. This has an air of incredibility about it.  The DSC then said into the intercom, "Ben, you have Court on 7 April at the Downing Centre".  However, the voice did not respond again.  He then spoke with a voice loud enough, he believed, that would be audible through the intercom to the person that was inside the unit.  A copy of the subpoena was again left on the threshold of the open door of the unit. 

16. On 28 March 2025, he again attended the address and spoke to "Will", Mr Igoe's flatmate.  The flatmate told him that Igoe had left the premises earlier that day, and he did not know when he would return.  The DSC asked Will to ask Igoe to contact him to discuss the matter, but the DSC had not heard from Igoe at the time he made his statement on 4 April 2025. 

17. Part 53, Rule 20 of the rules of this Court governs service of subpoenas.  It is this:

"(1)  a subpoena must be served on the person named in accordance with this rule. 

(2)  service of subpoena may be effected: 

(a)  by handing it to the person, or

(b)  if the person is an inmate of a correctional centre, by handing it to the officer in charge of the correctional centre or by sending it by post or facsimile or other electronic transmission to the officer in charge at the correctional centre, or

(c)  if a person is a police officer or a public officer, by sending it by post or facsimile to the person's business address; or

(d)  if the person is a police officer or public officer, by sending it by electronic communication to the person's business email address; or

(e)  if the person is not a police officer or a public officer, by sending it by post or facsimile to the person's residential address, or

(f)  if the person is not a police officer or a public officer, by sending it by electronic communication to the person's email address; or

(g)  with the consent of the relevant legal practitioner, by leaving it at the relevant legal practitioner's address for service or by sending it to the address by post or facsimile or by sending it to the legal practitioner's email address for the service by electronic communication. 

(3)  If, on tender of a subpoena, the person refuses to accept it, it may be served by putting it down in the person’s presence after the person has been told of the nature of the subpoena.”

18. Section 194 of the Evidence Act 1995 is this:

“194   Witnesses failing to attend proceedings

(1)  If a witness fails to appear when called in any civil or criminal proceedings and it is proved that he or she has been duly bound by recognisance or served with a summons or subpoena, the court may—

(a)  order the witness to show cause at those or later proceedings why execution of the recognisance or an attachment for disobedience to the summons or subpoena should not be issued against the witness, or

(b)  if it is proved that the non-appearance is without just cause or reasonable excuse and that the witness will probably be able to give relevant evidence in the proceeding, issue a warrant to bring the witness before the court to give the evidence.

(2)  Matters may be proved under this section orally or by affidavit.

(3)  On return of an order to show cause under this section the court may deal with the case in the same way as the Supreme Court would deal with an order to similar effect made by that Court.

(4)  In this section, recognisance includes a bail acknowledgment within the meaning of the Bail Act 2013.”

19. The subpoena could have been served by sending it by post to Mr Igoe’s known residential address. Rather than using that means of communication commonly these days called “snail mail,” and hazarding the fact that it might be left merely in a posting box or inserted through a slot in the door, or thrown under a door the police went to the addressee’s home personally and sought to communicate with the person to be served, Mr Igoe.  That was a much more efficient and effective method of doing the same thing in sending it by post.  The only rational inference to be drawn from the evidence is that on 22 March 2025, Mr Igoe was present at his residence and therefore whoever it was that answered the knocking at the door went inside to find out whether he was at home.  When a person is at home those who remain at home generally know whether another resident is inside or outside the residence.  That person went and spoke with somebody who clearly advised that he did not wish to interact with the person at the front door. 

20. Clearly someone was talking through the intercom at the front door, talking back to DSC Opie.  The only rational inference to be drawn is that was Mr Igoe.  The subpoena was left on the threshold of the residence which is just as good as the throwing it underneath the front door; a method of serving post if there be no postal box at a residence.  I am confident that the witness has been served validly in a method designed to ensure that he was aware of what his obligations were. That is the whole point of the rules, and the rules must be interpreted to give them effect ut res magis valeat quam pereat.  To interpret the rules in any other fashion would in my view be perverse. 

21. I am satisfied that the bench warrant issued by the list judge has been validly issued.

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Decision last updated: 27 October 2025