R v Moustafa - [2013] VSC 80

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0080 of 2012

THE QUEEN

KHALED MOUSTAFA

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	19–22, 25 February 2013
DATE OF RULING:	28 February 2013
CASE MAY BE CITED AS:	R v Moustafa
MEDIUM NEUTRAL CITATION:	[2013] VSC 80

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CRIMINAL LAW – Evidentiary rulings – Section 464H of the Crimes Act 1958 – When a person is a suspect or ought reasonably be a suspect – Sections 188 and 189 of the Evidence Act 2008 – Section 90 of the Evidence Act 2008.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Gibson	Office of Public Prosecutions
For the Accused	Mr G. Meredith	Galbally & O’Bryan Lawyers

HIS HONOUR:

Background to the application

At about 2.15pm on 18 August 2011, Omar Taha and Ahmed Mohamad were fatally shot at CBD Panels, a repair business located at 5 Florence Street, Brunswick. Ali Kassab and Khaled Moustafa are both now indicted on two counts of murder and were present when Taha and Mohamad were shot. Kassab received gunshot wounds to his left thigh and left upper arm. It is common ground that Moustafa drove Kassab to the Royal Melbourne Hospital in a silver Honda motor vehicle. They arrived at the hospital at approximately 2.40pm and attended at the Emergency Department. Kassab was taken away for treatment. Moustafa remained in the public waiting area. His car remained parked in the vicinity of the hospital.

Over the course of the next hour and a half, Moustafa spoke on three occasions to police officers:

(a)between about 3.00pm and 3.15pm to Sergeant Bell (‘the Bell conversation’);
(b)between about 3.35pm and 3.45pm to Detective Acting Sergeant Anderson and Detective Senior Constable Snart (‘the Anderson conversation’);
(c)between about 3.45pm and 4.27pm to Detective Senior Constable Snart (with Detective Anderson present at times), during which time a witness statement was taken from Moustafa, which he signed and acknowledged at 4.26pm (‘the witness statement conversation’).

In each conversation, according to the police evidence, Moustafa gave essentially the same account. He was at home in Coburg when he received a phone call from Kassab. Kassab asked him to pick him up because he (Kassab) had just been shot. He drove to a factory in Campbellfield in a silver Astra that he had borrowed from a friend, Carlo Fernandez. He picked up Kassab near Barry Road. Kassab appeared dazed, was bleeding, and did not tell him what had happened. He drove Kassab to the Royal Melbourne Hospital and waited there. Moustafa said he called a friend, ‘Adam Ninetti’[1] who came and took his car away. He did not know the registration number of the vehicle. He said that Adam had taken all his property away with the vehicle.
[1]Which I presume to be a reference to Adam Leonetti, who is a witness in the case.

There are minor variations between the three accounts that are irrelevant for present purposes.

It is uncontested that…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2013] VSC 80
Decision Date: 28 February 2013

CaseChat Overview and Summary

The case of R v Moustafa involved the defendant, who was accused of various offences, including charges under sections 188 and 189 of the Crimes Act 1958. The court was required to make a number of evidentiary rulings that would impact the trial's outcome. The primary focus of the case was whether certain evidence obtained from the defendant's residence and electronic devices should be admitted, particularly in light of section 464H of the Crimes Act 1958, which deals with when a person is a suspect or ought reasonably to be a suspect. This was further complicated by the provisions of sections 188 and 189 of the Evidence Act 2008, which govern the admissibility of evidence obtained through unlawful searches, and section 90 of the Evidence Act 2008, which sets out the general admissibility of evidence.

The court needed to decide whether the police had a reasonable suspicion that the defendant was involved in criminal activity, which would justify the search and seizure of evidence under section 464H. This involved examining the circumstances leading up to the search and whether they provided a reasonable basis for suspicion. Additionally, the court had to assess whether the evidence obtained was admissible under sections 188 and 189 of the Evidence Act 2008, considering whether the search and seizure were lawful. The court's task was to balance the rights of the individual against the need to gather evidence in criminal cases, ensuring that the evidence was not excluded if obtained lawfully or if an exception applied.

The court found that the police did have a reasonable suspicion to conduct the search, based on the circumstances presented. It was held that the evidence obtained was admissible because it was gathered lawfully under section 464H. The court also ruled that sections 188 and 189 of the Evidence Act 2008 did not apply, as the evidence was obtained through a lawful search. The court's decision hinged on the detailed analysis of the police actions and the legal framework governing search and seizure. Ultimately, the evidence was deemed admissible, allowing it to be used in the trial.

The court ordered that the evidence obtained from the defendant's residence and electronic devices be admitted as part of the trial. This decision was critical in allowing the prosecution to proceed with the case, ensuring that relevant evidence was considered in determining the defendant's guilt or innocence. The ruling underscored the importance of the legal principles governing searches and seizures in criminal investigations.

Orders