R v McCloskey; R v Hamalainen

1. [1]

   In the interests of brevity and without disrespect, I shall refer to the accused by their initials, RM and SH.

2. [2]

   In these reasons, the Court is dealing with a number of objections to the evidence sought to be relied upon by the prosecution.

Background

1. [3]

   The accused, RM and SH, are each charged on one indictment with murdering John Salafia on 23 June 2013 at Kings Point in New South Wales.

2. [4]

   The prosecution’s case as outlined in the Crown case statement was as follows:

3. [5]

   RM has pleaded not guilty. As disclosed in RM’s notice of defence response, RM’s case is that he is not guilty of the count on the indictment. He has put in issue the following facts and circumstances:

   1. (1)

      whether he murdered the deceased by shooting him; and

   2. (2)

      the truthfulness and reliability of the admissions allegedly made by him to witness RS 1591297, which are the admissions referred to in pars 44, 45 and 48 of the Crown case statement as well as the recorded admissions referred to in pars 46 and 47.

4. [6]

   SH has pleaded not guilty. His case, as disclosed in his notice of defence response, is that he was not involved in any joint enterprise to murder the deceased nor was he involved in organising the murder. Accordingly, SH has put in issue all the facts matters and circumstances going to whether he was involved in the murder of the deceased. In addition, SH contends that admissions made by RM are not admissible against him.

Rulings on evidence

1. [7]

   RM and SH object to pars 39, 40 and 43 which concern SH’s attitude towards the deceased prior to his death because of SH’s belief that the deceased was taking his drug trade, SH’s involvement in activity relating to drugs and SH ceasing to have anything to do with the deceased and another person because of the deceased’s association with that person who was associated with the Commancheros OMCG.

2. [8]

   Neither RM nor SH specifically addressed these objections in their written submissions. Nor were they addressed in oral submissions on 20 August 2019.

3. [9]

   The Crown’s written submissions indicate that this evidence is relied upon as going to motive which, it is contended, is a fact in issue in the proceedings and thus is relevant. Further, it was submitted that, if prejudice is caused by adducing evidence of uncharged criminal acts, it can be cured by appropriate directions.

4. [10]

   Under s 55(1) of the Evidence Act:

5. [11]

   Evidence that tends to establish a motive for murder may rationally affect the assessment of the probability of one or more elements of the murder offence charged and, consequently, such evidence is relevant: HML v The Queen (2008) 235 CLR 334 at [5]; [2008] HCA 16.

6. [12]

   The evidence in pars 39, 40 and 43 tends to establish that SH had a motive to murder the deceased and is, therefore, relevant. No other reason for not receiving the evidence has been relied upon.

7. [13]

   In so far as there may be some prejudice to SH or RM arising out of this evidence, it may be cured by the giving of clear and careful directions to the jury as to the limitations of the use that may be made of that evidence: R v Qaumi (No 14) [2016] NSWSC 274; 265 A Crim R 575 at [94].

8. [14]

   For these reasons, the evidence in pars 39, 40 and 43 of the statement of witness RS 1678789 of 24 August 2017 is admissible against RM and SH.

9. [15]

   RM objects to par 72 because it contains the out of court statement by SH, referred to in par 57 of the Crown case statement, that “I [am] sick of Johnny running around and that, [RM] and his crew are coming down to fix Johnny’”.

10. [16]

    RM submitted that the statement was of a narrative nature and could not be said to be in furtherance of the alleged common purpose “as the pursuit of such did not require nor was it advanced by allegedly telling RS 1678789 those things”. It was also contended in effect that the Crown was relying on the evidence of SH’s previous representation for a hearsay purpose because it was seeking to prove the existence of the joint criminal enterprise from the fact that could reasonably be supposed SH intended to assert by the representation. This was said to be contrary to the principles in Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 (Ahern) and Tripodi v The Queen (1964) 104 CLR 1 at 7; [1961] HCA 22 (Tripodi) and other authorities. Mr McMahon of counsel, who appears with Mr Vulpeanu for RM, also adopted the submissions on this topic of Mr Brady of Senior Counsel, who appears for SH.

11. [17]

    The Crown submitted that the representation by SH was tendered not as to the truth of the utterance but as to the fact that the utterance was made in order to establish that the agreement or joint criminal enterprise, referred to in the Crown case statement, had been entered into. It was contended that, used in this way, the evidence was not being led for a hearsay purpose. In this regard, the Crown relied upon the High Court’s decision in Ahern, as well as the observations by Whealy J in R v Baladjam [No 19] [2008] NSWSC 1441 at [55], [62] and [70] and the authorities there referred to.

12. [18]

    Additionally, in supplementary submissions provided with leave, it was submitted that SH’s representation went to participation by RM in the joint criminal enterprise, and was admissible on the basis that it was uttered in furtherance of the common purpose inherent in the enterprise. In particular, it was submitted that what was said could be categorised as part of an “arrangement”, as that term is used in Tripodi at 7. Finally, it was submitted that “[w]hat might distinguish this utterance from being merely narrative is that it was made by SH to [the witness] in the context of the apparent need for the Subaru to be burnt out the next night.”

13. [19]

    If the evidence in par 72 were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue, namely whether there was a joint criminal enterprise as alleged by the Crown and SH’s and RM’s participation in it. Thus, the evidence is relevant.

14. [20]

    However, under s 59(1) of the Evidence Act:

15. [21]

    The relevant part of par 72 contains a representation made previously by SH and consequently, by operation of s 59(1), it is not admissible to prove the existence of the fact that it can reasonably be supposed that SH intended to assert by the representation, namely that RM and his crew were coming down to fix Johnny, unless there is some applicable exception to the hearsay rule.

16. [22]

    The Crown relies on, among other things, s 87(1)(c) of the Evidence Act as the basis for contending that par 72 is admissible against RM.

17. [23]

    Section 81 of the Evidence Act provides:

18. [24]

    Accordingly, if SH’s previous representation is taken to be an admission by RM, it will not be inadmissible by operation of the hearsay rule.

19. [25]

    Section 87(1) of the Evidence Act relates to admissions made with authority and relevantly provides:

20. [26]

    In determining whether it is reasonably open to find SH’s previous representation was in furtherance of a common purpose (whether lawful or not) that SH had with RM, it is necessary to have regard to the evidence of the context in which that representation as made. In this case that context is principally found in the surrounding paragraphs 58 to 71 and 74 to 86 of the statement of witness RS 1678789, to which no objection has been taken by RM.

21. [27]

    Paragraphs 58 to 71 contain evidence that: the witness was involved with SH in acquiring a Subaru car; he was instructed by SH what to do with the car after it was acquired; he was then instructed to assist others to move the car; he carried out those instructions; during the process of moving the car, the witness was told by others that the car was to be burnt the following night.

22. [28]

    Paragraphs 74 to 86 contain evidence that: after the witness mentioned to SH what he had been told about the car being burnt, SH told him to go and meet RM and show him where the car was, which he did; when the witness met RM, he asked the witness to make sure there was fuel in the car; SH gave the witness a similar instruction; the witness was also instructed by SH to take out a drum to the location of the car; the witness obtained the fuel and the drum and took it out to the car.

23. [29]

    Other context for the representation in par 72 includes that the representation is said to have been made after SH and RM had met in Sydney and before RM came down to the Ulladulla region and before the deceased was killed.

24. [30]

    In the circumstances, I am satisfied that it is reasonably open to find that the SH’s representation in par 72 that “[RM] and his crew are coming down to fix Johnny” was made as part of the arrangements implementing the joint criminal enterprise. It can be seen as an explanation given to the witness so that the witness would have a better understanding of whom he was to meet, what he was required to do and why he was required to do it. Accordingly, it is reasonably open to find that the representation was made in furtherance of the common purpose between SH and MR inherent in the joint criminal enterprise, as alleged by the Crown.

25. [31]

    By operation of s 87(1)(c), the representation by SH in par 72 is to be taken to be an admission by RM and thus falls within the exception in s 81(1) to the hearsay rule.

26. [32]

    The remainder of par 72 provides the necessary context for the representation and is relevant.

27. [33]

    It is not necessary at this point to consider the other basis upon which the Crown relied to establish that par 72 is admissible against RM.

28. [34]

    For these reasons, par 72 of the statement of witness RS 1678789 of 24 August 2017 is admissible against RM.

29. [35]

    RM and SH object to par 94 of the statement of witness RS 1678789 of 24 August 2017. That paragraph records the witness’s evidence of instructions given to him by SH, actions taken by him, words he spoke to a third person, Milo, and Milo’s reaction as directly observed by the witness. Those actions and words are then reported on in a conversation between the witness and SH. The evidence, see par 60ff and to which no objection has been taken, is that Milo is the person from whom SH bought the Subaru car before the deceased was killed. That car was the car which the witness positioned in the bush, to which the witness took RM and which was burnt after the deceased was killed.

30. [36]

    No written or oral submissions were made specifically in relation to this paragraph.

31. [37]

    If the evidence in par 94 were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue, namely whether there was a joint criminal enterprise as alleged by the Crown including SH’s participation in it by buying the car and providing it to RM for use in carrying out the attack on the deceased and SH’s consciousness of guilt in having done so. Thus, the evidence is relevant under s 55.

32. [38]

    Paragraph 94 contains direct, observational evidence of instructions, actions and words spoken. The evidence is not relied upon to prove the existence of facts that can reasonably be supposed that the persons intended to assert by the various representations in that paragraph. The Crown seeks that it be admitted because it is relevant for a purpose other than proof of the asserted facts in that the words spoken and actions taken provide a basis for inferring the matters identified in the preceding paragraph.

33. [39]

    Section 60(1) of the Evidence Act provides:

34. [40]

    Led for the non-hearsay purpose identified above, the evidence is relevant and admissible under the exception in s 60(1) to the hearsay rule.

35. [41]

    Thus, par 94 of the statement of witness RS 1678789 of 24 August 2017 is admissible against RM and SH.

36. [42]

    RM objects to par 101 which contain a previous representation by SH that “[RM] went too far and shot Johnny”. This is the admission referred to in par 58 of the Crown case statement.

37. [43]

    RM relied upon the same submissions as were made in relation to par 72 which have been set out more fully above.

38. [44]

    The Crown submitted that the representation by SH was tendered not as to the truth of the utterance but as to the fact that the utterance was made. From the fact of utterance was made, it was submitted that, without relying on the truth of what was uttered, it could be inferred that the joint criminal enterprise had been entered into. It was contended that, used in this way, the evidence was not being led for a hearsay purpose. The Crown relied upon the High Court’s decision in Ahern at 93, as well as the observations by Whealy J in R v Baladjam [No 19] at [55], [62] and [70], among others.

39. [45]

    If the evidence in par 101 were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue, namely whether there was a joint criminal enterprise as alleged by the Crown including RM’s participation in it by killing the deceased. Thus, it would be relevant and admissible unless excluded by another provision of the Evidence Act.

40. [46]

    The relevant words in par 101 are, however, a previous representation made by SH. Under s 59 evidence of such representation is not admissible to prove the existence of a fact that it can reasonably be supposed SH intended to assert by the representation. In the case of par 101, it can reasonably be supposed that SH intended to assert that RM went too far and shot the deceased. Accordingly, it would not be admissible to prove that fact, in the absence of some exception to the hearsay rule.

41. [47]

    Rejection under s 59 of the Evidence Act of such a representation that is a later narrative of past events and that is not an admission under s 81 is consistent with the High Court’s decision in Tripodi where it was held at 7:

42. [48]

    The High Court went on to note, also at 7, that directions, instructions, arrangements and utterances accompanying acts may be “admissible when they are given by one of several acting in preconcert with the prisoner and are given in furtherance of the common design.” This latter basis of admissibility is now reflected in s 87(1)(c) of the Evidence Act, but it is not relied upon by the Crown in the present instance.

43. [49]

    Accordingly, unless the Crown can establish some other basis of admissibility, the evidence in par 101 will be inadmissible against RM. At this point, the Crown relied on what was said by the High Court in Ahern at 93-4 (applied in R v Masters (1992) 26 NSWLR 450 at 461) and the comments of Whealy J in R v Baladjam [No 19], especially at [70].

44. [50]

    In Ahern, it was held at 93:

45. [51]

    I do not understand the passage from the judgement of a Whealy J R v Baladjam [No 19] at [70], relied upon by the Crown, to establish a different approach. There, his Honour said:

46. [52]

    These passages appear to me to be reflected in the operation of ss 59, 60, 81 and 87(1)(c) of the Evidence Act. If the evidence in par 101 is relied upon to prove the truth of what is asserted, then it will not be admissible, unless it is an admission. If the evidence in par 101 can be admitted because it is relevant for a purpose other than proof of the asserted facts, a non-hearsay purpose, the exception to the hearsay rule in s 60 of the Evidence Act will be engaged and par 101 will be admissible.

47. [53]

    In the present case as far as RM is concerned, the Crown is not relying on s 87(1)(c) of the Evidence Act and is effectively submitting that par 101 can be admitted for a purpose other than proof of the asserted facts. It is difficult, however, to see what that other purpose is. The only relevant purpose of SH’s prior representation being admitted against RM appears to be to establish that there existed a joint criminal enterprise between SH and RM that involved RM shooting the deceased. If that is so, then SH’s previous representation in par 101 is being admitted because it is relevant for the purpose of proof of the facts intended to be asserted by the representation and, consequently, it would not fall within the exception in s 60(1) and would be excluded under the hearsay rule.

48. [54]

    The Crown’s position appears to be that the jury could infer, without relying on the truth of the facts asserted in that representation, that RM was involved in the joint criminal enterprise with SH and that he shot the deceased as part of that joint criminal enterprise. But, if the truth of the assertions was not relied upon, it is difficult, if not impossible, to see how that inference could be drawn. The words are a narrative of a past event. The mere fact of utterance of the words, apart from their truth, does not, in my view, provide a basis for any inference relevant in these proceedings. In other words, if par 101 is not being used for a hearsay purpose, it does not appear to be relevant, within s 55 of the Evidence Act.

49. [55]

    Similar reasoning was applied by N Adams J in R v Azari (No 7) [2018] NSWSC 1680 at [45]-[47] where her Honour concluded, at [47]:

50. [56]

    If Whealy J’s comments in R v Baladjam [No 19] referred to above are to be understood as applying, in the way that the Crown contends, so that the evidence in par 101 is admissible against RM, it appears to me to be inconsistent with ss 59 and 60 of the Evidence Act and the High Court’s approach in Ahern.

51. [57]

    Thus, the evidence in par 101 is either not relevant under s 55, if it is not relied upon to prove the facts asserted in SH’s representation, or it is inadmissible under the hearsay rule in s 59, if it is relied upon to prove the asserted facts, because the exception to the hearsay rule in s 60 does not apply and the evidence does not amount to an admission by RM under ss 81 and 87(1)(c) of the Evidence Act.

52. [58]

    On this basis, par 101 of the statement of witness RS 1678789 of 24 August 2017 is inadmissible against RM.

53. [59]

    RM objects to par 109 which contains evidence concerning a conversation, at which RM was not present, between SH and the witness about what the witness should say if he spoke to the police and in particular that he was not to say anything about the Subaru, RM or anything that SH and the witness had done in the days leading up to the deceased’s murder.

54. [60]

    As I understood it, the parties relied upon their submissions already made in relation to other paragraphs. The Crown contended that it was admissible as in accordance with its submissions concerning Ahern and Baladjam [No 19] referred to above, as it was not relied upon for a hearsay purpose.

55. [61]

    The word “representation” is defined in Dictionary at the end of the Evidence Act as including an implied representation. Accordingly, the evidence excluded by s 59 includes evidence of a previous implied representation made by SH to the extent that it is relied upon to prove the existence of a fact that it can reasonably be supposed that SH intended to assert by that representation. Paragraph 109 appears to me to be relevant, within s 55, to the extent that the paragraph contains an implied representation by which SH intended to assert that he and RM were involved in the joint criminal enterprise involving the Subaru and the killing of the deceased. Notwithstanding the hearsay rule, the paragraph is admissible against SH as an admission, under s 81 of the Evidence Act. The exception to the hearsay rule established by ss 81 and 87(1)(c) was not said to apply in RM’s case. The only exception implicitly relied upon by the Crown was that in s 60 of the Evidence Act.

56. [62]

    The exception to the hearsay rule in s 60 does not, in my view, apply in RM’s case. The purpose of leading this evidence against RM is in order to have the jury draw the inference that RM was involved in the joint criminal enterprise involving the Subaru and the killing of the deceased. The evidence in par 109 does not appear to be relevant for any other purpose concerning RM. Thus, par 109 would not be being admitted against RM because it is relevant for a purpose other than proof of a fact that it can reasonably be supposed that SH intended to assert by the implied representation. Accordingly, it does not fall within the s 60 exception to the hearsay rule.

57. [63]

    In summary, as against RM, the evidence in par 109, is either irrelevant, to the extent that the truth of the implied representation is not relied upon, or is sought to be used against RM for a hearsay purpose and consequently the exception, in s 60 of the Evidence Act, to the hearsay rule does not apply. No other exception to the hearsay rule is said to be applicable in the case of RM.

58. [64]

    For these reasons, par 109 of the statement of witness RS 1678789 of 24 August 2017 is inadmissible against RM.

59. [65]

    RM objects to par 22 which contains evidence of representations made by SH almost a year and a half after the deceased was killed that SH “got [RM] to do it, and a couple of guys from Sydney came down” and concerning why SH did it and that “It had nothing to do with me [SH] I didn't do it.” These are the admissions referred to in par 53 of the Crown case statement.

60. [66]

    In my view, these representations fall into the same category as those in par 101 of the statement of witness RS 1678789 of 24 August 2017 and par 22 which contains these representations is inadmissible against RM for essentially the same reasons, which it is not necessary to repeat here.

61. [67]

    For these reasons, par 22 of the statement of witness RS1633171 of 27 April 2016 is inadmissible against RM.

62. [68]

    RM and SH object to pars 25 and 30 which contain evidence SH’s attitude towards the deceased prior to his death, because of statements made by the deceased concerning SH’s son and because of SH’s beliefs as to the deceased and Steve going around bashing people.

63. [69]

    There was an indication in the written material before the Court that par 30 was objected to by SH on the ground that it was opinion evidence. No oral submissions were made on this topic.

64. [70]

    The evidence in par 25 provides a background to par 26, to which objection has not been taken. Both pars 25 and 30 are relied upon by the Crown as establishing SH’s motive in wanting the deceased killed. For the reasons given earlier in relation to pars 39, 40 and 43 of the statement of witness RS 1678789 of 24 August 2017, the evidence in pars 25 and 30 of the statement of witness RS 1591297 of 2 August 2017 is relevant, within s 55 of the Evidence Act.

65. [71]

    The conversations are not relied on for the truth of what was asserted but for the fact that the words were uttered and the inferences that can be drawn from that fact. In relation, in particular, to par 30, this records a representation by SH made to the witness. If the evidence that these words were uttered was accepted, an inference could be drawn as to SH’s state of mind going to motive. Thus, evidence of the previous representation is sought to be admitted for a purpose other than proof of an asserted fact and is admissible under the exception in s 60(1) to the hearsay rule. Further, the evidence in pars 25 and 30 does not appear to be, nor is it relied upon as, opinion evidence.

66. [72]

    Accordingly, the evidence in pars 25 and 30 of the statement of witness RS 1591297 of 2 August 2017 is admissible against RM and SH.

67. [73]

    SH objects to pars 71 to 87 which contain the admissions by RM referred to in pars 44, 45 and 46 of the Crown case statement and material providing context and background to those admissions.

68. [74]

    Paragraphs 77, 78 and 85 contain out of court representations by RM made more than 3 years after the deceased was killed not in the presence of SH. The evidence is mostly a narrative of past events with some comments on RM’s present situation. Paragraph 82 contains a similar representation by RM identifying the “two blokes” who were with him when they went to Johnny’s. Paragraph 84 contains references to the recording of the conversation summarised in par 85.

69. [75]

    These representations and the recording of the representations referred to in pars 84 and 85 fall into the same category as par 101 of the statement of witness RS 1678789 of 24 August 2017 and are inadmissible against SH for essentially the same reasons given above in relation par 101 of that statement.

70. [76]

    For these reasons, pars 77, 78, 84 and 85 of the statement of witness RS 1591297 of 2 August 2017 are inadmissible against SH. In so far as the recordings referred to in pars 86 and 87 contain similar representations they are also inadmissible against SH.

71. [77]

    SH objects to par 95 which contains evidence relating to a conversation between the witness and RM which was apparently recorded using a listening device on 12 June 2016. This is the conversation referred to in par 47 of the Crown case statement and concerned the car used when the deceased was killed.

72. [78]

    The reasoning above in relation to pars 77 to 87 of this statement is similarly applicable in relation to par 95 and establishes that par 95 is not admissible against SH.

73. [79]

    Accordingly, par 95 of the statement of witness RS 1591297 of 2 August 2017 and the recordings of the conversation referred to in that paragraph are inadmissible against SH.

74. [80]

    SH objects to par 101 which contains representations RM made when SH was not present, 4 years after the deceased was killed, to the witness to the effect that SH was close to being locked up for murder and other activities of SH as well as an instruction to the witness to tell SH to go to Finland and keep his mouth shut.

75. [81]

    The reasoning set out above in relation to representations concerning the conduct of a co-accused and instructions given to a witness in par 109 of the statement of witness RS 1678789 of 24 August 2017 is similarly applicable to par 101 of this statement.

76. [82]

    For those reasons, par 101 of the statement of witness RS 1591297 of 2 August 2017 is inadmissible against SH.

77. [83]

    RM objects to pars 102 and 104-106 which contain conversations between the witness and SH, which took place 4 years after the deceased was killed, and which refer to a recorded conversation on 3 July 2017 between SH and the witness. RM was not present during these conversations.

78. [84]

    The reasoning set out above in relation to par 101 of the statement of witness RS 1678789 of 24 August 2017 and in relation to similar conversations and recordings of conversations above, is applicable also in relation to pars 102 and 104-106 to the extent that they are sought to be admitted against RM.

79. [85]

    For those reasons, pars 102 and 104-106 of the statement of witness RS 1591297 of 2 August 2017 and any recordings of the conversations referred to in those paragraphs are inadmissible against RM.

80. [86]

    RM objects to par 103 which contains evidence of a conversation between RM and the witness and refers to a recorded conversation on 3 July 2017 between RM and the witness concerning a conversation the witness had with SH. That conversation arose out of instructions RM gave to the witness as recorded earlier in par 101. RM has not objected to par 101.

81. [87]

    The evidence in pars 101 and 103 is relevant under s 55 in that if it were accepted it could rationally affect (directly or indirectly) the assessment of the probability of the existence of facts in issue, including RM’s participation with SH, in the joint criminal enterprise alleged. It is thus admissible unless excluded under s 59, no other basis of objection having been identified.

82. [88]

    To the extent that some of the evidence in par 103, and the recording of the conversation, is evidence falling within s 59, it amounts to an admission made by RM and is admissible against him, under s 81 or is relied upon for a non-hearsay purpose and is admissible under s 60.

83. [89]

    On this basis, par 103 of the statement of witness RS 1591297 of 2 August 2017 is admissible against RM.

Summary

1. [90]

   In summary, the rulings are:

   1. (1)

      Paragraphs 39, 40 and 43 of the statement of witness RS 1678789 of 24 August 2017 are admissible against RM and SH.

   2. (2)

      Paragraph 72 of the statement of witness RS 1678789 of 24 August 2017 is admissible against RM.

   3. (3)

      Paragraph 94 of the statement of witness RS 1678789 of 24 August 2017 is admissible against RM and SH.

   4. (4)

      Paragraph 101 of the statement of witness RS 1678789 of 24 August 2017 is inadmissible against RM.

   5. (5)

      Paragraph 109 of the statement of witness RS 1678789 of 24 August 2017 is inadmissible against RM.

   6. (6)

      Paragraph 22 of the statement of witness RS1633171 of 27 April 2016 is inadmissible against RM.

   7. (7)

      Paragraphs 25 and 30 of the statement of witness RS 1591297 of 2 August 2017 are admissible against RM and SH.

   8. (8)

      Paragraphs 77, 78, 84 and 85 of the statement of witness RS 1591297 of 2 August 2017 and the recordings of the conversation referred to in those paragraphs are inadmissible against SH.

   9. (9)

      Paragraph 95 of the statement of witness RS 1591297 of 2 August 2017 and the recordings of the conversation referred to in that paragraph are inadmissible against SH.

   10. (10)

       Paragraph 101 of the statement of witness RS 1591297 of 2 August 2017 is inadmissible against SH.

   11. (11)

       Paragraphs 102 and 104-106 of the statement of witness RS 1591297 of 2 August 2017 and any recordings of the conversations referred to in those paragraphs are inadmissible against RM.

   12. (12)

       Paragraph 103 of the statement of witness RS 1591297 of 2 August 2017 and any recording of the conversation referred to in that paragraph are admissible against RM.