Crane v Director of Public Prosecutions

Section 74 and the prohibition on multiple release and detention applications

1. Section 74 relevantly provides: 74 MULTIPLE RELEASE OR DETENTION APPLICATIONS TO SAME COURT NOT PERMITTED (1) A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application. … (3) For the purposes of this section, the grounds for a further release application are - … (b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or (c) circumstances relevant to the grant of bail have changed since the previous application was made, or …
2. Having heard the submissions of counsel for both parties, I indicated that I would not refuse to hear the application. I was satisfied that the requirements of both sub-s 3(b) and (c) were engaged. In particular, I was satisfied that: 1. The conditions of incarceration are more onerous as a result of the of the COVID-19 pandemic and the precautions and protocols introduced by Corrective Services. This is a circumstance relevant to the grant of bail that has changed since bail was refused in February 2020. 2. The additional evidence tendered on the application (witness' statements, the deceased's criminal history and a map) constitutes material information that was not presented on the previous application. 3. The vacation of the trial date and the delay of the trial by a further ten months, resulting in a three-year delay between the charge and the trial, is also a relevant change in circumstances. I could not accept the Prosecutor's submission that Ierace J's observation at [37] that a possible three year delay was "regrettable" (itself a masterstroke of understatement), which was made in the context of Colin Crane's release application, denies this substantial additional delay of its quality as a change in circumstances relevant to the application for bail.
3. The Prosecutor referred to the judgment of Campbell J in R v Fallon [2017] NSWSC 1796 where his Honour said at [15]: "It is also well to emphasise the word "material" where it appears in the expression 'material information relevant to the grant of bail' in s 74(3)(b) and also in s 74(4)(a), for that matter. The additional information sought to be presented will be material if the applicant satisfies the court that the outcome of the previous release application might have been different had the additional information been presented then: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 353, by Mason CJ. This is an objective legal standard involving a mixed question of fact and law. It requires an understanding of the reasons for the refusal of bail and an assessment of whether the additional information might have made a difference to that result."
4. In considering that observation, it is important to appreciate the history of Mr Fallon's bail applications, a matter that Campbell J said was "well to bear in mind". Campbell J set out the brief history of release and detention applications at [5] - [7]: "[5] It is well to bear in mind that there have been seven previous bail applications made at different stages in the process. Three have been made in the Local Court and each has been refused. The latest of those applications was refused by Magistrate Andrews on 3rd October 2017. [6] Three previous bail applications have been made in this Court. On 8th June 2016, I refused bail; on 13th October 2016, Harrison J granted conditional bail (but the Court of Criminal Appeal allowed a detention application on 2nd November 2016); and Latham J refused bail on 14th February 2017. [7] It is relevant to record that Latham J permitted the applicant to make the application before her on the ground that the circumstances relevant to the grant of bail had changed because sequence 1 had been preferred against the applicant after the date of the Court of Criminal Appeal's judgment 'and the nature of the evidence underlying' the prosecution had changed. Part of that change in evidence was the service of a statement of an informant known for present purposes as "Witness X", dated 10th January 2017."
5. In deciding that the case did not satisfy the requirement in s 74(3)(b), Campbell J traced the history, and findings of relevant courts, by reference to the evidence of Witness X and its impact on the strength of the prosecution case. When Witness X "rolled" and agreed to give evidence against the applicant at trial, Latham J allowed a further application but still refused bail, assessing the prosecution case as strong; a similar finding that had been made by the Court of Criminal Appeal. By the time the matter came before Campbell J for a second time, the applicant relied on the assertion that Witness X failed to come up to proof when he gave evidence at the committal hearing. It seems the prosecution case was in more or less the same state as it was when Campbell J refused the earlier release application and the Court of Criminal Appeal allowed a detention application following the grant of bail by Harrison J.
6. It is obvious that the chronology in Fallon was far removed from the position that prevails in Mr Crane's present (second) application. Putting aside the refusal of bail in the Local Court, the applicant has made two applications to this Court and they were dealt with about 20 months apart, by which time circumstances had changed markedly.
7. Insofar as the passage quoted at [7] above, read in isolation, might suggest otherwise, I do not accept that for information to be "material" for the purpose of s 74(3)(b), it needs to be established that the information might have changed the mind of the original decision maker. The Prosecutor correctly and properly conceded this in the following exchange: "PROSECUTOR: Again, it [has not] reached the significance or reached the point where it would be material to his Honour's consideration. HIS HONOUR: Well, that raises a question that I have for you about the authority you cited on exactly what section 74 requires. PROSECUTOR: Yes. HIS HONOUR: You referred to Campbell J's decision in Fallon [2017] NSWSC 1796. PROSECUTOR: Yes, your Honour. HIS HONOUR: It is the language used there and the language you just used that might hint at the proposition that I need to do some analysis of how it would have impacted on the result in Ierace J's mind. That's not what section 74 is about, is it? PROSECUTOR: No, your Honour. HIS HONOUR: What I have to find is that there was material information relevant to the grant of bail that was not presented or that circumstances relevant to grant the bail have changed. They're really the two things that Mr Boland presents. PROSECUTOR: Yes. HIS HONOUR: Add to that a gloss that might have impacted on the result that Ierace J came to. PROSECUTOR: Yes. HIS HONOUR: I mean, it has to be material. Obviously, it has to be relevant. PROSECUTOR: Yes. HIS HONOUR: But the circumstances just have to have changed. Rather than, have to have changed in such a way that it would have impacted on the result. PROSECUTOR: In that material way, in the way your Honour referred to, yes. It's material that might have had some relevance to it. Yes. That's accepted." [1]
8. The applicant also relied on the unusual circumstance that both Colin Crane and James Crane were represented by the same legal representatives (solicitor and counsel) in the application resolved by Ierace J (James Crane is now represented by new and different lawyers and counsel). Given the availability of arguments on the facts and evidence available to James Crane that are potentially detrimental to Colin Crane's case, I accept that it is puzzling that both accused men were represented by the same lawyers. However, it is inappropriate that the applicants' choice of counsel and the ethical and forensic decisions made by their lawyers, be second guessed at this point. Mr Boland, who appeared for the applicant in the present application, was appropriately restrained and circumspect when interrogated on the issue. I am not convinced that this is a relevant change in circumstances for the purpose of s 74(3)(c) of the Bail Act, at least in the circumstances of this case. Further, as the Prosecutor demonstrated by reference to the bail judgment of Ierace J, his Honour treated the two release applications independently, even though they were conducted simultaneously and were disposed of in the same judgment and with the same outcome.

Show cause

1. By virtue of ss 16A and 16B(1)(a) of the Bail Act, the applicant is required to show cause why his continued detention is not justified.
2. Much has been written by the Court of Appeal, the Court of Criminal Appeal and single judges of this Court, as to the correct approach to be taken to an application in which the "show cause" requirement applies. [2] Successful detention applications in the Court of Criminal Appeal in murder cases demonstrate it is a substantial hurdle in such cases: see, for example, Director of Public Prosecutions (NSW) v Boatswain [2015] NSWCCA 185 and Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190.
3. While the intermediate appellate courts have emphasised that the two "stages" of the process - showing cause and unacceptable risk - must not be "conflated", it is clear that many factual matters may be relevant to both questions. The results in past cases also demonstrate that delay, of itself, will not often amount to satisfaction of the show cause test, but it remains a significant matter to be considered in determining that question: see, for example, Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [44] (per RA Hulme J, Hoeben CJ at CL and Wilson J agreeing). In Zaiter, it was emphasised that bail decisions of individual judges of this Court do not generally provide precedent for the outcome in a subsequent case, because each bail decision is a decision on its own facts: see the observations concerning the "doctrine of precedent" at [30] - [33]. As Beech-Jones J (as his Honour then was) later pointed out, the same limitations apply to decisions of the intermediate appellate courts in determining bail applications: see Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312 at [35].
4. With those limitations in mind, it is nevertheless worth repeating certain observations about the relevance of delay that have been made in some past cases. In R v Kugor [2015] NSWCCA 14, Hoeben CJ at CL (RA Hulme J and RS Hulme AJ agreeing) said at [35]: "A matter of concern to the Court is the delay likely to be experienced by the respondent before these matters are finalised in court. He has already spent 6½ months in custody and if the Crown's application were granted, on the most optimistic estimate he would spend a further 9 months in custody before this matter could come to trial in the Campbelltown District Court. As was fairly conceded by the Crown, the time in pre-trial custody might well be longer. It is a very serious matter to deprive a citizen of liberty for such a long period of time when he has not been convicted of any offence. This is particularly so when such custody will be served under conditions of 'protection' which are more onerous than those experienced by the normal prison population."
5. In Zaiter, to which I have already referred, it was said at [42] - [44]: "[42] Counsel for the respondent accepted the evidence placed before the Court by the Crown which was to the effect a trial would likely be listed in the District Court sometime after June 2017. However, he contended that there was no certainty as to this. If, for example, committal to the District Court for trial was not imminent as the Crown expects, or if there was severance of any of the various charges, it could be that the matter would not be finalised until 2018. He submitted that such a delay was a substantial factor supporting his submission that bail should be allowed. [43] There seems a reasonable prospect of a trial occurring in the third, or at worst fourth, quarter of 2017. Quite obviously that is a significant time since the respondent was refused bail on his arrest in January 2016. The delay until now has largely been a product of the time taken for the prosecution to compile and serve its brief of evidence but it has apparently been contributed to by the respondent changing his legal representation. There has otherwise been nothing that could be regarded as preventable or the fault of the prosecution. The prospective delay between committal and trial is unremarkable with the current heavy caseload pending in the District Court. [44] The delay in this matter is concerning and is an important factor in the ultimate determination."
6. The words of Sperling J in R v David Peter Cain (No.1) [2001] NSWSC 116; (2001) 121 A Crim R 365 at [9] continue to resonate, even today where delays of two years in the determination of indictable cases have become all too frequent: "[9] As to the interests of the applicant, he has a legitimate claim to be at liberty to go about a lawful life and to be with his family pending trial. He has been in custody for over a year. I am told by the Crown that the present charges might not come to trial but a further year. The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights."
7. In the present case, the delay in the applicant's trial resulted from a matter completely outside of his control. It was an example of one of the many impacts on the criminal justice system of the COVID-19 pandemic: see, for example, the cases collected in footnote [21] to my judgment in Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186 at [47]. [3] The delay of over two years was, to use the kinds of adjectives often employed by judges in this context, "troubling" and "concerning". Once the trial date was vacated, and the delay between arrest and trial blew out to three years, the delay became a matter of real concern and a significant factor, albeit perhaps not a determinative one, in considering whether the applicant had shown cause why his ongoing detention is not justified.
8. Further, the conditions of incarceration are more onerous at this time, a result of the necessary, but highly restrictive measures, implemented by Corrective Services. These measures, and their impact on inmates, are set out in the affidavit of Mr Mahon dated 6 October 2021 and the annexures thereto which was read in the applicant's case on bail. The personal impact of the restrictions is described by the applicant's fiancée Kathryn Needham in her affidavit dated 3 September 2021.
9. In Mr Crane's case, there is also a significant medical issue because of his age and a number of medical conditions that are described as "co-morbid" with COVID-19. These include his cardiac condition (paroxysmal atrial ectopics) causing chest pain and palpitations, his obesity and fatty liver, Crohn's disease, sleep apnoea and, other symptoms which may be associated with the above conditions, including sudden bouts of unconsciousness and shortness of breath. These are conditions which would always have some relevance to a release application but they are even more potent in light of the pandemic. It is true, as the prosecutor points out, that Mr Crane has received two doses of the vaccine and receives medical treatment while in custody, but the fact remains he is more vulnerable as a result of his medical conditions. Neither of the vaccines currently in common use in Australia has a 100% success rate in preventing the disease, and neither provides a fail-safe precaution against sudden death or serious medical complications should a vulnerable person contract the virus.
10. I have considered the competing submissions of the parties concerning the strength of the prosecution case. I have considered, but do not have time to reproduce or summarise, the prosecution case statement (part of Exhibit A tendered by the Director) or the statements of Luke Cannon, Nikki Tedder and Erin Roper (part of Exhibit 1 and relied on by the applicant). The prosecutor submits the case against the applicant is "reasonably strong" while Mr Boland submits "the [prosecution] case on 'murder' might be assessed as decidedly weak".
11. The case against the applicant is a circumstantial one, but one that has considerable force, at least in giving rise to an inference that the applicant was acting in concert with some, or all, of the co-accused. The applicant was not present when the deceased was brutally bashed to death by four men, with whom both Crane brothers had associations, including through the Rebels Motorcycle Club. However, the evidence demonstrates the applicant was in telephone communication with the (alleged) co-offenders immediately before a number of relevant meetings and, critically, before the assault of Clint Starkey on 5 April 2017. He was also present, or nearby, a meeting that took place at the Mangrove Mountain General Store on 3 April 2017.
12. The applicant was in contact with his brother and Simon Rodden, the man who drove the deceased to the murder scene shortly before the incident. The CCTV footage capturing the assault that led to Mr Starkey's death suggests that those involved had an immediate intention to inflict (at least) grievous bodily harm. The footage, which I reviewed in chambers at the invitation of the Prosecutor, showed that Mr Rodden and Mr Starkey at the service station and in the attached shop for some time before two cars pulled up. Mr Rodden seemed to be aware of the presence of CCTV cameras because he mouthed an obscenity at one of the cameras while he was inside the shop. His actions at that time might lead to the jury to infer that he was stalling to keep Mr Starkey at the scene. After the attendant closed the shop, two cars pulled into the service station and four men quickly approached Rodden's car and pulled Mr Starkey onto the ground and set upon him. It was a brutal assault. A man I understand to be Guy Robertson stomped on his head while he was lying defenceless on the ground.
13. The evidence will also establish contact between the applicant and other participants in the aftermath of the assault and death of Mr Starkey. This includes intercepted calls in which the applicant expressed his displeasure at one offender providing an induced statement to the police.
14. The prosecution will invite the jury to infer that during a six minute phone call between the applicant and Simon Rodden (who was at the local Memorial Club at the time), the applicant was seeking Mr Rodden's assistance to find the deceased and take him to a location where he would be assaulted. The prosecution will rely on a text message sent by Mr Rodden shortly after he left the Club in which he told the applicant he was "going to the servo now". The assault took place a short while later at the Caltex Service Station at Peats Ridge. Mr Rodden drove the deceased to the location and the group of assailants, with various connections to the Rebels, arrived around five to ten minutes later.
15. The evidence also demonstrates that the deceased was expressing, in strong language, his intention to harm or kill Colin Crane. It was submitted that he had a reputation in the area for the use of guns and his criminal history was relied on in support of that contention. However, that submission fell away to a degree when it was pointed out by the Prosecutor that few of the charges on the deceased's criminal history resulted in convictions. There is also a limited amount of evidence, as I understand it, supporting the submission that the deceased's reputation was well-known. On the other hand, there seems to be clear evidence of threats by the deceased directed to Colin Crane at about the relevant time. These included a direct threat to kill him by "sniper" fire from the top of the hill. There is also evidence that a number of people, including Colin Crane's partner, the manager of the local club and an employee of that club, took those threats seriously. This evidence cuts both ways. On the one hand, it may provide Colin Crane and the applicant with a motive to engage their associates from the Rebels to do harm to Mr Starkey. On the other hand, it might give rise to innocent explanations for the flurry of communications around the relevant time. As Mr Boland said in his submissions on the bail application, in light of those threats it is hardly surprising that Colin Crane, his brothers and others were keen to know exactly where Mr Starkey was and that he was not in a location where it was possible for him to carry out the threats he was making at the club. It was in this last regard that the map tendered on the application had some relevance.
16. The inferences to be drawn will be a matter for the jury and it will be for the prosecution to exclude all inferences inconsistent with the applicant's guilt.
17. My assessment, on the limited material available is that the case against the applicant is tenable if not strong. I do not accept Mr Boland's submission that it is a weak prosecution case. However, in relation to the murder charge, it is far from overwhelming. When Mr Rodden was first spoken to, he told the police "it was supposed to be a touch up but that was way more than a fucking touch up". One possible outcome at the trial, and one that would be consistent with that statement by Mr Rodden, is that the jury could return a verdict of manslaughter on the basis that the applicant was party to an agreement to assault but did not foresee the possibility that the assailant(s), or any one of them, would act with a murderous and specific intention. It is also possible that the jury will not be satisfied to the criminal standard that the applicant was a party to the joint criminal enterprise.
18. The Prosecutor will also rely on derivative liability, asserting that the applicant was an accessory before the fact. However the same issues arise as the above with the case if framed or conducted in that alternative matter.
19. I have considered the applicant's criminal history, ties to criminal organisations (that is the Rebels) and his family and community ties. These matters, while also relevant to an assessment of risk, must also be taken into account in determining whether the applicant has shown cause why his detention is not justified.
20. I am satisfied on the balance of probabilities that Mr Crane has shown cause why his detention is not justified. This finding is largely based on (i) the extensive delay resulting from the vacation of his trial date, (ii) the conditions of incarceration, (iii) his age, medical conditions and his particular vulnerability to the COVID-19 virus, and (iv) his alleged role in the enterprise and the potential flaws in the prosecution's circumstantial case against him. In that last regard, he is in a very different position to his brother (Colin) and to those alleged to have been present at the scene at the time of the assault that led to Mr Starkey's death.

Bail concerns and an assessment of risk

1. That is not the end of the matter as the judgment of Beech Jones in Mawad [4] demonstrates. It is necessary to undertake an assessment of risk for the purposes of ss 17- 19 of the Bail Act.
2. The Prosecutor pointed to a number of bail concerns and I am satisfied that the following bail concerns exist under s 17 of the Bail Act: 1. A risk that the applicant will fail to appear due to the likely sentence that will be imposed if he is convicted; 2. A risk that he will commit a serious offence; 3. A risk that he represents a danger to the safety of individuals within the community; and 4. A risk that he will interfere with witnesses.
3. The question is whether, in light of the catalogue of matters to be considered under s 18 of the Bail Act, those concerns constitute unacceptable risks.
4. I am not satisfied there is an unacceptable risk that the applicant will fail to appear. He has extensive community ties and his criminal history does not support the proposition that he is a flight risk. He is also in a position to offer substantial security should he fail to appear. This includes the deposit of $2,500 in cash by his fiancée Kathryn Needham, and a secured promise by Ms Needham's father to forfeit $150,000 should the applicant fail to appear.
5. In relation to the other bail concerns, I have considered the applicant's criminal history closely. I do not accept that it is a "minor" criminal history but it is far from the worst I have encountered. The most recent offences involving actual violence (an assault occasioning actual bodily harm) took place ten years ago and was dealt with by way of a fine and a bond. There was a stalking/intimidation offence in 2016 which again, was dealt with by a bond. The only really serious cases of violence involved a series of offences dealt with in the Sydney District Court in 1987 and resulted in a relatively short gaol sentence. That was more than thirty years ago. The applicant is now in his mid-fifties with a variety of health conditions. His record does not suggest that he has breached conditional liberty in the past or that, in spite of his associations with the Rebels, he has demonstrated a consistent pattern of disobedience to the law.
6. It is also to be observed that the current incident, whatever involvement the applicant had, took place in the very peculiar circumstance of the deceased man making serious threats against a member of the applicant's family. That situation seems very unlikely to arise again during the period of remand.
7. While the concern identified by the prosecutor (and investigating police) that the applicant may interfere with witnesses is a real one, there is no evidence that he attempted to do so from the time others began to be arrested for their involvement in (or cover up of) the murder, which was in October 2017, and the time the applicant went into custody, which was 30 April 2019. . There is nothing to suggest he has used his Rebels' connections to attempt to interfere with the investigation since he was taken into custody.
8. The bail conditions proposed are strict and include a curfew and various other conditions calculated to mitigate the risks and concerns identified. I would impose more stringent conditions and, if requested, allow enforcement of those conditions if sought by the prosecutor.
9. Having considered the various relevant matters under s 18, I am satisfied that, with the imposition of such stringent conditions, there are no unacceptable risks for the purposes of s 19 of the Bail Act.
10. For those reasons, the release application is allowed and bail will be granted on the following conditions: 1. The applicant is to appear at his trial in the Supreme Court at Sydney on 23 May 2022 and at such other time and place as required. 2. He is to be of good behaviour. 3. He is to reside at 24 Lakala Avenue, Springfield NSW 2250 ("the bail residence") 4. He must report to the Gosford Police Station daily between the hours of 8:00am and 6:00pm. 5. He is not to leave the bail residence between the hours of 7:00pm and 7:00am, except in the case of a medical emergency. 6. He is not to enter the suburb of Mangrove Mountain NSW 2250. 7. He is not to leave the state of New South Wales. 8. He is not to apply for any new passport or travel document. 9. He is not to go within 500 metres of any international points of departure. 10. He is not to make contact in any way, directly or indirectly, except through his lawyers, with any person he knows is or may be a prosecution witness at his trial or in any associated criminal proceedings. 11. He is not to contact in any way, directly or indirectly, except through his lawyers, any co-accused or any person who has been charged with any offence arising out of the death of Clint David Starkey. 12. He is not to have any contact, apart from through his lawyers, with any person he knows to be a member of the Rebels Outlaw Motor Cycle Club or any other Outlaw Motor Cycle Club. 13. He is to use and possess one (and one only) mobile telephone and is to provide details of this device (including telephone number, subscriber details and handset IMEI number) to the police officer in charge of the investigation within 24 hours of his release. 14. He is to use only one laptop or tablet and is to provide details of this device to the officer in charge within 24 hours of his release. 15. The applicant is to consent to the police inspecting his mobile telephone, laptop or tablet and provide necessary passcodes etc to allow such inspection, provided always the police have reasonable grounds to suspect that the applicant has used such devices to breach these bail conditions. 16. One acceptable person is to deposit the sum of $2,500 in cash and enter an agreement to forfeit that sum if the applicant fails to appear in accordance with his bail undertaking. 17. One acceptable person is to enter an agreement to forfeit the sum of $150,000.00 if the applicant fails to appear in accordance with his bail undertaking and is to deposit acceptable security in that sum.
11. The applicant is to present himself/ herself at the front door of his residential premises at the direction of any police officer to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy.

Endnotes

1. Tcpt, 14/10/2021, pp 19 - 20.
2. See, merely to scratch the surface of the cases decided on the subject: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83, Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47, R v Kugor [2015] NSWCCA 14, Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173, Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227, Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247, Director of Public Prosecutions v Hourigan [2017] NSWCCA 170, Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314, Director of Public Prosecutions (NSW) v Hing [2017] NSWCCA 325, Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232 and JM v R [2015] NSWSC 978.
3. See, also, Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232, Rakielbakhour v DPP [2020] NSWSC 323 and Doudar v Director of Public Prosecutions (NSW) (unrep, Supreme Court (NSW), R A Hulme J, 17 April 2020) at [34] (cited at length in Doudar v R [2021] NSWCCA 37 at [19].
4. Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2024