Abdelmalek v Moore
[2022] VCC 728
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Appeals and Post Sentence Applications List
Case No. AP-19-1192
| LYDIA ABDELMALEK |
| v |
| DETECTIVE SENIOR CONSTABLE KELLIE MOORE |
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JUDGE: | Quin | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF JUDGMENT: | 26 May 2022 | |
CASE MAY BE CITED AS: | Abdelmalek v Moore | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 728 | |
REASONS FOR JUDGMENT
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | ||
| For the Prosecution |
HER HONOUR:
1This is an appeal against the decision by a magistrate made on 6 June 2019 finding eight charges against Ms Lydia Abdelmalek, the appellant, proven and the sentence that was imposed. The appellant was discharged at the Magistrates' Court in respect of Charges 1 and 8 and those charges weren't proceeded with in this appeal. Under s256 of the Criminal Procedure Act the appeal is conducted as a rehearing and is a de novo hearing. By the time the proceedings in this court were completed the evidence was much more detailed and technical than that heard by the magistrate.
2Given there is a current suppression order dated 4 July 2019 relating to identification of victims in this case I will include an Annexure A that sets out the names and then the title or initials of how that individual was identified in the course of these reasons. Charge 2 is stalking against Emma Smith[1]. Charge 3 is stalking against Emma Smith’s father. Charge 4 is stalking against Emma Smith’s sister.
[1] A pseudonym.
3Charge 5 is stalking against Emma Smith’s friend and work colleague. Charge 6 is stalking against Alexandra Wolf[2]. Charge 7 is that the appellant obtained a financial advantage by deception relating to conduct against Emma Smith. Charge 9 is against Jamie Jones[3]. And Charge 10 is the appellant engaged in deceptive conduct against Kim Du[4], a friend of Ellie Reynolds[5].
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
4The factual background in respect for this offending is what can only be described as extremely bizarre involving inter alia –
(i)The creation of fake personas referrable to acting personalities Lincoln Lewis and Danny Mack. The fake personas. Lincoln Lewis is an Australian actor and son of rugby legend Wally Lewis and Danny Mac is an English actor. The creation of the fake Danny Mac included the creation of a fictitious Michael Jason Smith who it was indicated by the creator used this name as an alias. These fake personas established or registered accounts on different platforms in those and other fictitious names. Communications with the fake personas were via Facebook Messenger, SMS, MMS, emails and messaging through other various applications.
(ii)Tricking individuals into thinking that they were legitimately communicating with and/or in an intimate relationship with Lincoln Lewis and/or Danny Mac. And engaging in what is more commonly called catfishing. As a consequence the fake persona was privy to personal details regarding the tricked individual relating to all aspects of their life including details regarding employment, family and friends. Further, the fake persona was in receipt of sexually explicit or intimate photos of the tricked individual.
(iii)Maintaining the identify of that particular fake persona over an extended period of time including by the incorporation of friend connections or work colleagues of both the tricked individual and of Lincoln Lewis and Danny Mac as part of the network of the fake persona. This involved the creation of even more fake personas or other made-up characters who as professed by the fake persona were part of their life or story at the relevant time.
(iv)The creation of other characters, stalkers who sent abusive threatening messages to those same tricked individuals armed with the knowledge that they had obtained through their catfishing conduct. Some of these were a fake persona of a friend or ex-boyfriend of the individual being tricked.
(v)Creation of email accounts, phone accounts or other communications whereby emails or other messages were sent between two fake personas and then forwarded to an individual the subject of stalking. Such forwarded messages to the individual were part of the stalking, making the recipient of the forwarded message fearful that Danny Mac was also being stalked.
(vi)In respect of Ellie Reynolds, the factual scenario was not so complex but still involves conduct including use of false phone numbers and provision of false information as part of the stalking conduct. That, in very very simple terms, is what this case is about. However the evidence to prove the identity of the appellant is each fake persona or stalker was voluminous. So much so the respondent's case and associated documentation was provided by way of files in an iPad, categorised in various ways including according to different phone numbers, email addresses, phone record checks and material with the analysis of the appellant's devices.
5The voluminous material in respect of the charges is sourced from Emma Smith Alexandra Wolf and other related parties together with analysis conducted by police of material located on devices found in the appellant's possession and validation of that data. In respect of Charges 2 to 6 it wasn't disputed that stalking had taken place against Emma Smith, her father, her sister, her friend and work colleague and Alexandra Wolf.
6As to Charge 7 it wasn't disputed the appellant had received a financial benefit. Rather the issues between the parties was whether the appellant had acted dishonestly. All elements of Charges 9 and 10 were in dispute. The issue between the parties in respect of all charges except 7 was identity. That is, had the prosecution proved beyond reasonable doubt the appellant was the person responsible for the stalking. The answer to this is not simple. With consideration of material relating to communications with victims and understanding:
(i)The mechanisms by which the stalking was carried out.
(ii)Tracing of the true identity of the character or characters involved, that is the author of texts, emails and messages or participating in chats and exchanges on a number of platforms engaged in with the victim.
(iii)Analysis of hundreds of thousands of records provided to police belonging to victims including screenshots of texts, chats and audio recordings. This material doesn't contain the full picture given that during some of the time the individual believed that they were in a legitimate relationship with the person they were communicating with. This material needs to be considered in conjunction of statements of the victim and their evidence.
(iv)Results of telecommunication searches regarding phone numbers, SIM cards, IP addresses and other relevant information and whether links were established to the appellant.
(v)Examination of an extraordinary amount of data similar to or corresponding with records that had been provided or as described by victims or other parties that were located on devices in possession of the appellant.
(vi)Expert evidence regarding the data that was located on devices in the possession of the appellant including the accuracy and verification of that data.
(vii)The content of some of the material that arguably revealed the appellant's knowledge and unauthorised access to telecommunication records.
(viii)The appellant's account of her involvement with the victims. Her acquisition and use of various devices, timing and her knowledge of the records that were located on the various devices.
7The respondent relies on a number of pieces of evidence to prove the appellant is the individual behind the fake persona stalker. It can be divided into categories. One, evidence regarding Emma Smith’s provision of a flight discount to the appellant. Two, phone records and links to the appellant. Three, IP addresses, email addresses and communication platforms linked to the appellant. Four, evidence regarding receipt of a gift by Emma Smith. Five, evidence regarding payment by the appellant to SH. And six, other material located on devices in the appellant's possession.
8A coincidence notice was filed by the respondent and it was conceded the evidence relating to that was admissible. That is, that the course of conduct, particularly directed to Emma Smith, Alexandra Wolf and Ellie Reynolds, was so similar and internally consistent that it couldn't be conduct engaging coincidentally by different individuals not known to each other. This reasoning was another piece of evidence on which the respondent relied. A tendency notice was also filed, however I don't regard it necessary to rule either way in respect of that given my ultimate finding in respect of other pieces of evidence.
9The Crown case is that the evidence taken as a whole clearly establishes that it was one, the appellant who was behind the creation of the fake Lincoln Lewis who communicated with both Emma Smith and Alexandra Wolf and developed an internet-based intimate relationship with each of them. Two, the appellant who dishonestly benefited by being able to purchase a discounted air ticket for her brother, with Emma Smith believing the discount was for a friend of Lincoln Lewis. Three, the appellant who was behind the creation of fake Danny Mac and communicated with Emma Smith and Alexandra Wolf and developed an internet-based intimate relationship with each of them. Four, the appellant who through the use of information she'd gained from Emma Smith, Alexandra Wolf and others whilst being fake Lincoln Lewis or fake Danny Mac, and by the creation of other fake persona and fictional characters, stalked Emma Smith, members of her family, her friend and work colleague and Alexandra Wolf.
10That it was the appellant who through her own personal knowledge, given her friendship with Ellie Reynolds and Courtney McMillian[6], stalked Ellie Reynolds and engaged in fraudulent conduct against Kim Du. Further, the respondent submitted that there was no reasonable hypothesis on consideration of all the evidence consistent with the innocence of the appellant in respect of any of the charges. Given the issues identity, if I'm satisfied beyond reasonable doubt that the person behind the fake persona characters and stalkers is the appellant then the case regarding Charges 2 and 6 is proven. It follows that if I'm so satisfied that I would be also satisfied the appellant acted dishonestly and Charge 7 would be proven.
[6] A pseudonym.
11Similarly, if I'm satisfied the appellant was responsible for the conduct directed towards Ellie Reynolds and Kim Du, if I'm also satisfied beyond reasonable doubt that the conduct constituted intentional stalking of Ellie Reynolds and fraud against Kim Du then those charges will also become proven. I will attach the amended summary or prosecution opening for appeal and addendum both dated 11 June 2021 given the complicated facts involved in this offending. The purpose of doing so is to fully detail the stalking conduct and extended catfishing that each of the victims experienced, which apart from Charge 9, is not in dispute. The method of stalking or course of conduct directed to Emma Smith, her friend and family members, Alexandra Wolf and Ellie Reynolds, is set out in the summary.
12I won't repeat the details of all the stalking including some of the more bizarre aspects of that conduct, particularly in respect of Emma Smith. The summary also provides a logical method of dealing with the mountain of material before me and the complex factual scenario created by the use of multiple phone numbers, email address, social platforms and devices. Further, I was assisted by the preparation of documents that set out in table or summary form the evidence relating to phone numbers. See Exhibits G10 and H10. And each of the exhibits relating to records were located on devices that were found in the appellant's possession.
13An important part of the respondent's case was the discovery of a number of devices in the possession of the appellant. On 16 April 2016 a Toshiba laptop (the Toshiba), an Apple iPad (the iPad) and iPhone 4 were located at the appellant's address and seized by police. When arrested on 17 April 2017 police seized an Apple iPhone 6 that was in the appellant's possession. Screenshot of some of the relevant material located on the iPad and iPhone 6 were taken by police at that time. On 22 April 2021 police seized a Nokia and an Optus prepaid SIM card and a hard drive. These devices were located when the appellant's home was searched in respect of a matter unrelated to these charges. I will refer to all devices located in the appellant's possession at various times collectively as devices.
14The devices and SIM card were analysed by police and an expert digital forensic analyst from eCrime. Both the SIM card and devices were downloaded into relevant machine by police to enable data on them to be read and relevant reports were prepared. Much of this material was not available at the time of the Magistrates' Court hearing. There was unchallenged evidence from the expert that:
(a) from her investigation the data on the devices had not been comprised and appeared to have no red flags that suggested volumes of material had been dumped at any one time. Rather, her perusal was consistent with normal use of each device and it was unrealistic to think that the information could have been downloaded otherwise than in the individual instances as recorded by the data on the device; and
(b) that on each device there was a wealth of material relating to these charges and other material relating to the appellant.
15For example, on the Toshiba it was clear there were a number of folders that when opened contained relevant material such as copies of Alexandra Wolf’s Optus bills or others with photos, though there were also folders that clear reference to material of the appellant. In respect of Emma Smith and related charges, at the outset I should indicate that in June/July last year, three weeks of court time was devoted to argument regarding the admissibility of statements and material provided by Emma Smith given her unavailability due to a tragic death. Ultimately it was conceded by counsel to the appellant that I could be satisfied this material was admissible as an exception to hearsay pursuant to the relevant provisions of the Evidence Act.
16As a general mark the evidence in respect of stalking Emma Smith was overwhelming commencing with the creation of the fake Lincoln Lewis and fake Danny Mac. Emma Smith provided thousands of screenshots and material to police from June 2011 until the conduct towards her finally stopped some years later. It wasn't until Victoria Police became involved and devices in the appellant's possession were seized, particularly the Nokia, that is right up until April last year, that much of the material that had been provided by Emma Smith could be matched with data and/or other incriminating material that was located on the devices. There was an incredible amount of material on the devices though this volume was explicable to some extent by material being duplicated on different devices particularly between the Toshiba laptop and the iPhone 4, and the iPhone 4 and iPhone 6. That material included an extraordinary amount of photos, videos, records of texts, chats and notes relating to the characters involved in this case, particularly Lincoln Lewis, Danny Mac, Emma Smith and Alexandra Wolf. It was material relevant both as part of catfishing to persuade Emma Smith of the authenticity of fake Lincoln Lewis and/or fake Danny Mac, and of the more threatening stalking behaviour associated with anonymous stalkers. The enormity of this behaviour cannot be overexaggerated and included as part of the catfishing the creation and sending of a fake magazine article about Danny Mac and Emma Smith sent to her.
17The creation of scenarios where Emma Smith thought Danny Mac had been assaulted and another time kidnapped. The use of an audio file with Lincoln Lewis's legitimate voice mail. Provision of a significant amount of intimate photos by Emma Smith in the context of her thinking she was in a legitimate relationship with either Lincoln Lewis or Danny Mac and gift exchanges. Forwarding of material between two fake accounts to Emma Smith suggesting Danny Mac was also being stalked. The provision of the discounted air ticket the subject of Charge 7 was also part of the catfishing behaviour.
18Much of the information obtained through this catfishing was then utilised by the stalker. The stalking conduct included threats relating to knowledge of and release of intimate photos of Emma Smith and other information regarding her mental health by the stalker and release of that material to her employer, family and friends. Knowledge of personal details and movements that was used by the stalker to instil fear in Emma Smith that they had private information about her and/or that she was being watched. Creation fake accounts in names of friends of Emma Smith and sending abusive messages to her or to Danny Mac who then forwarded them to Emma Smith. Conduct to raise concerns in Emma Smith that another employee of Virgin was responsible for the stalking of her or that complaints were being made regarding her work. This extended to the stalker pretending to be another employee of Virgin - - -
19FEMALE VOICE: Better now?
20MALE VOICE: Yeah, getting better. Yeah, yeah, thanks Lisa.
21HER HONOUR: I do not know how that happened.
22HER HONOUR: Thank you. This extended to the stalker pretending to be another employee of Virgin and speaking with another legitimate employee about Emma Smith and other work issues, accessing her office account. The stalking conduct directed towards Emma Smith included threats to her father and other family members. Additionally as part of the stalking of Emma Smith her family members were directly targeted, personally receiving relevant communications by various means from the stalker, including emails, Facebook messages, inclusion in chats referring to Emma Smith and provision of intimate material relating to her.
23Having familiarised myself with all of the material, it is apparent that Emma Smith was fearful and concerned as early as June 2011 when she first went to police and revealed she had provided her bank account details to an unknown person. It is obvious she experienced a high level of trust in Michael Smith as the relationship developed. Further, it is apparent to me that the person who was responsible for this incredibly cruel stalking behaviour was well aware of the significant impact that this conduct was having on her life and general wellbeing as time progressed over the months and ultimately years.
24The evidence in respect of stalking Alexandra Wolf was also voluminous, provided by her and then a significant amount of the material was located on the devices. The stalking was by way of the creation of and continuation of a relationship between the fake Lincoln Lewis and Alexandra Wolf through various means including messages, chats, audio, conversation and photos.
25The conduct engaged in was very similar to that directed to Emma Smith and involved some of the same characters. As time progressed Alexandra Wolf became more suspicious about the true identity of the fake Lincoln Lewis though she was then persuaded that person was Danny Mac. She was also concerned about the extent of information and explicit intimate material that she provided to the person when she became unsure of his true identity. As part of the catfishing the conduct included making of arrangements for meeting up and/or holidays and engaging in both phone and video conversations, development of an intimate relationship with Alexandra Wolf and provision by her of intimate pictures, insistence that he was Lincoln Lewis when challenged by her, advising Alexandra Wolf that there had been a complaint made about her at work, ultimately admitting he wasn't Lincoln Lewis but that his real name was Danny Green, an actor in the UK who Alexandra Wolf was told was friend with Lincoln Lewis.
26He maintained that in Australia he used the name Michael Smith but in England used the name Danny Mac. The stalking conduct included a creation of a fake Facebook account Clayton Lee and contact by others re Daniel Otto and Emma Smith and other Virgin staff, creation of social media accounts in her name or similar with photos posted of her and her daughter, creation of a fake Carly Stenson email who was in true life Danny Mac's girlfriend and provision of messages there. Texts and Viber messages threatening to distribute intimate images of Alexandra Wolf and receipt of anonymous phone calls. Access to both Alexandra Wolf’s Optus and Apple accounts.
27Again having familiarised myself with all the material it is obvious Alexandra Wolf had a high level of trust in the fake Lincoln Lewis and when she challenged him he went to extraordinary measures to convince her that he was Lincoln Lewis and later Danny Mac. Further, it is also apparent the person who was responsible for this stalking behaviour was well aware of the impact this was having on Alexandra Wolf. The factual scenario around this offending in relation to Ellie Reynolds is different to that of Emma Smith and Alexandra Wolf, being directed towards someone who was previously a friend of the appellant and who was privy to information about her.
28The respondent's case in respect of stalking included an anonymous to Ellie Reynolds on Viber regarding her relationship with Emma Smith, anonymous WhatsApp message to Ellie Reynolds from a different number to that related to the first message, followed by receipt of multiple messages relating to sabotaging her wedding and her friendship with the appellant, engaging in conduct leading Ellie Reynolds to believe that she too or the appellant was receiving similar messages containing personal information about Ellie Reynolds, creating of a fake Facebook page in the appellant's name, steps taken to convince Ellie Reynolds and Courtney McMillian that all three of them were being stalked by other people known to them, registration of a phone number in Ellie Reynolds’ name, unauthorised use of Kim Du’s personal information. I can say at this stage that based on the evidence before me I am satisfied as alleged in Charges 9 and 10, the conduct amounted to stalking and that a fraud had been perpetrated using Kim Du’s material. What remains is proof of identity in respect of each charge and proof of intent in respect of the conduct with Ellie Reynolds.
29Dealing now with the connection of the appellant to the stalking behaviour. What commenced with Emma Smith reporting to police in June 11, the story regarding fake Lincoln Lewis and provision by her to police of her email details, Linkin, L-i-n-k-i-n L-e-w-i-s and phone numbers ending 589 and 208 evolved over the years. Soon after the initial report a connection with the appellant was established with payment by her of funds into Emma Smith’s bank account. By the time this investigation was completed it is fair to say there was an overwhelming amount of material which if accepted on its face, connected the appellant to all charges. The material also reveals the extraordinary steps that the person was prepared to employ to continue persistent stalking over the charged period.
30A great deal of time was spent in these proceedings going through the material located on the devices with reference to thousands of records, together with an interpretation and validation of that data. I do not propose to repeat that exercise given the relevant exhibits and reports prepared for each device that have been tendered in the proceedings. Each of the devices but particularly the Nokia seized in 2021, provided a tremendous amount of incriminating material against the appellant. Material located on the Nokia and other devices located in the appellant's possession supported the accounts provided by victims and provided a link that was not apparent at the beginning of the investigation to the appellant and various phone numbers, email addresses, information and other communication platforms revealed all present on devices at the time of analysis.
31It would be impossible to go through every single link to the relevant phone numbers or material in each device. Perusal of even the categories of records that were located on devices reveal connections to numbers and email addresses associated with victims and characters linked to the stalking. Ultimately it could not be disputed this material was on the devices at the time of examination by police. The respondent maintained that the data as revealed in each of the reports relating to the devices had been properly validated and relied on the expert opinion from digital analyst Cassandra Lindsay. Only limited aspects of her evidence was challenged. I note the evidence regarding of the time date record on the Nokia but otherwise the material was validated.
32The appellant has maintained a denial that she was responsible for any of the stalking behaviour and has provided some explanation in relation to the existence of the material on her devices. That needs to be considered along with all the other evidence. If I reject the evidence of the appellant then I disregard it, but I still have to be satisfied that the respondent has proven the case on the evidence that I do accept. I will now deal with the respondent's case. (1), purchase of a discounted ticket in June 2011. In respect of the chronology of events this purchase occurred early in the catfishing of Emma Smith by the fake Lincoln Lewis and ultimately when Emma Smith discovered he was fake was one of the reasons she first complained to police. Her motivation for her doing so related to her providing bank account details to the fake Lincoln Lewis via the Lincoln Lewis email.
33It was not in dispute that the flight had been booked for the appellant's brother, nor that the appellant had deposited the relevant funds into Emma Smith’s bank account. The respondent relies on the evidence of Emma Smith that she provided the discounted ticket at a time when she thought she was in a relationship with Lincoln Lewis and that the ticket was for a friend of his. When she realised it wasn't Lincoln Lewis she went to the police and reported that she had provided her bank details to the fake Lincoln Lewis via the Lincoln Lewis email, that she had been communicating with him via two phone numbers, one ending in 208 and one ending in 598.
34At the time of this hearing the prosecution were provided by defence with an email chain from 9 June 2011. I will there insert the terms of that email which I think is Exhibit C4. That email is consistent with the account provided by Emma Smith. Namely, that her dealings were all with Lincoln Lewis via the email account. The second category is phone numbers and links. The phone numbers, registration details and connection to the stalking behaviour in respect of each victim is contained in Exhibits G10 and H10. G10 sets out in diagrammatic form information obtained from telecommunications companies regarding the registered owner or subscriber details of each relevant number and the link to different victims.
35H10 provides a guide to the phone numbers and material provided by victims and related matters discovered on the devices. None of this material was disputed. Some of it showed a clear link between the appellant and the victim, whilst some of the numbers did not on their face have a link to the appellant. It was not until material contained on the devices was examined that links could be established in respect of each of the phone numbers with the appellant.
36As indicated, I do not propose to go through each of the phone numbers and links discovered in the course of the investigation. However, to gain some insight into the stalking behaviour I note, in respect of Emma Smith and related charges the stalker utilised at least 11 different phone numbers, some of which were registered to the appellant and others to characters associated with the stalking. As to the conduct directed to Alexandra Wolf, at least five different phone numbers were utilised, some of them the same as those used with Emma Smith. Some of those numbers relate directly to the evidence of the appellant and I will make specific reference to those where relevant. Phone numbers ending 598 and 689 were registered in the appellant's name and she admitted using both of them. 598 commenced on 5 April 2010 and 689 commenced on 25 November 2011.
37Both of these numbers were utilised in communications as Michael Smith with Emma Smith. 689 was utilised in communications as Michael Smith with the private investigator hired by Emma Smith and as fake Lincoln Lewis with Alexandra Wolf and also Mila Rogers[7]. Relevant to the timeframe provided by Emma Smith and Alexandra Wolf, on the Nokia was an audio file of Lincoln Lewis's voice message as well as L-i-n-c being saved in context with Lincoln Lewis's real number ending 667. Photographs of Lincoln Lewis, Danny Mac, numerous intimate pictures of Emma Smith, along with other photos of her but also personal photos relating to the appellant. There was a message sent to the Nokia with a screenshot from Emma Smith’s phone revealing Michael Jason Smith as the contact with a photo of Danny Mac and a message from Emma Smith asking the recipient is this you. This is in context of Emma Smith’s material trying to understand who Danny Mac was.
[7] A pseudonym.
38The contacts also had seven different Emma Smith numbers and accompanying descriptions, all of which were associated with Emma Smith and had Daniel Otto and Johnny Ruffo's name and number recorded. There were hundreds of SMS and MMS messages, many of which corresponded with material that had been provided by Emma Smith to police years earlier and though the MMS provided the relevant to and from number, the SMS records only provided the two number. Relevant to Alexandra Wolf’s material in evidence, a contact was saved referrable to Alexandra Wolf’s number. There were audio conversations with Alexandra Wolf and SMS messages to the Nokia from her. Also saved in the contacts was Mila Rogers’ number and SMS messages to the Nokia from Mila Rogers directed to the fake Lincoln Lewis in August 2013. MMS messages sent from the Nokia to the 598 number and an emotive sent from the Nokia to the 6689 number.
39There were also contacts described as new ending in 208 and 150, both relevant as numbers who contacted Emma Smith. There was material on that iPhone 4 and iPhone 6 in respect of the phone numbers 598 and 689. That revealed communications between Emma Smith and Michael Smith, multiple contacts with Alexandra Wolf, an iMessage chat with Mila Rogers and Lydia on 23 May 2013 as herself, along with other personal communications between the appellant, family and friends.
40Perhaps some of the most incriminating evidence relating to the number ending 244 - sorry, was the evidence relating to the number 244, given its connection to the stalking conduct of victims unrelated to each other. The No.244 was registered in the name of Lincoln Lewis on 8 August 2012. An SMS located on the Nokia indicated that date as the commencement of the use of that number on it. In a web trace check it related to the period between 27 December 12 and 9 January 13. The number used in the Nokia to call Emma Smith on 1 January and to call other unrelated numbers on the 5th and 8 January appeared. Additionally there was a call from the Nokia on 7 April 2014 using this number. Linked to this number there was material provided by Emma Smith including over a thousand screenshots of abusive stalking messages and Viber messages.
41Material provided by Alexandra Wolf regarding contact with the fake Lincoln Lewis, provided by Emma Smith’s sister and brother-in-law of contact with stalkers including an intimate picture with an abusive message sent to Emma Smith and her brother-in-law via Viber and in the iPhone 6 the contact was saved with the relevant number and name referencing Emma Smith’s brother-in-law. There was material provided by Emma Smith’s sister as the number in which she received abusive calls, provided by Emma Smith’s friend and work colleague of material with Viber messages as revealed in the iPhone 4 using the 244 number. There was material showing Viber contact with the 327 number referred to below. This was used in connection with numbers connected to the appellant, that is, 327 saved as a Danny number and MAMJ Smith regarding communications with Emma Smith. That is, 244 sends messages to 327, some of which were forwarded to Emma Smith.
42On the Nokia related to this number there were two MMS messages from Alexandra Wolf and two MMS messages from Mila Rogers relating to the fake Lincoln Lewis. The initial contact with Ellie Reynolds was a record relating to a Viber message sent from this number and there were messages that referred to threats directed to Emma Smith’s father, along with screenshots suggesting that access to his Optus account had been gained. On devices this number is saved on the iPhone 4 and Toshiba as stalkers and on the iPhone 6 but with no name referrable to the contact. On the iPhone 6 there's a conversation with Mila Rogers as herself with this 244 number. The SIM card in respect of the 244 was located by police in the appellant's possession in April 21. There is a record on the SIM indicating the number is that of the phone ending 244 and also indicates that it is a MI number.
43There was also evidence from Queensland police that a point of sale check had been done in respect of this SIM card. That is well before the Nokia and the SIM card were discovered in April 21. Although there was some criticism of this record that had been produced I accept it was as a result of an inquiry made by him relating to that SIM and that the SIM was purchased at a Target store in Epping. Further, or additional phone numbers utilised in the stalking behaviour is set out in G10 and H10. In respect of each number there is evidence to link the appellant both to the victim and to material located on her devices, whether that be by notes recording details of relevant individuals, contacts as saved in her devices or other records.
44The evidence relating to each of these phone numbers sourced from the victims, telecommunications companies and analysis of devices illustrate a significant part of the respondent's case to establish links to the appellant with the stalking conduct. The next category of evidence is email links. There is also a great deal of material and advices regarding email addresses and accounts set up in names of characters associated with the stalking using those email addresses. Again I do not propose to detail all the relevant exchanges or material save to say that there was evidence that in respect of the relevant IP addresses and linked email accounts it revealed the IP address used to register the Michelle 1989 address was registered on 2 February 2010 in the appellant's brother's name from the home address where the appellant resided and that on 2 December 2011 an email with the Danny Green address was registered using the appellant's home address.
45According to the Optus representatives these leases were current at the relevant times. Those email addresses are both related to stalking conduct directed towards Emma Smith and Alexandra Wolf, particularly in relation to their connection to their work and threats associated with their employer. Emails from the Michelle address were received by Emma Smith’s father and related to her. These became progressively more abusive. Emma Smith’s sister also received emails from this address. Both Emma Smith’s father and sister received emails with photos of Emma Smith attached with accompanying threats. Additionally material located on the iPhone 4 and iPhone 6 revealed the Danny Green account was used to log on to a Voxer account under the name of Linc Clay and using an email address related to Alexandra Wolf stalking.
46On the devices was located a number of user accounts logged into various social media platforms but connected to the appellant, that is, like TV Junky email, but also with email addresses relating to Danny Mac, Carly Stenson, Havana Brown, Michael Smith and many of the other characters utilised during the stalking conduct. Material was also located on the devices relating to these fake Facebook accounts and also the fake Facebook account created in names similar to that of Alexandra Wolf. (4), Evidence regarding the package. Included as part of the respondent's case was evidence from Emma Smith that she received a parcel from Michael Smith. She provided screenshots of photographs that she had taken on receipt of the package. This occurred in June and July 2012.
47That material revealed: (1), number items being sent to her including related to Mickey Mouse, a pet name that she had for Michael Smith. (2), tracking details for a parcel ending 094 sent from Lalor and for a parcel ending 090 sent from Lalor. The parcel ending 090 indicated sender details as LA, that being the appellant's initials, with the 327 number and the appellant's family post office box. It is unclear if one of the photos relates to this same 090 package, however the dangerous goods declarations on one of the boxes is signed by MJ Smith. There is reference in screenshots provided by Emma Smith relating to the 598 number at the relevant time with Emma Smith saying, 'Thanks for the package.'
48There is evidence from Emma Smith’s sister indicating she recalled her sister receiving packages containing chocolates and teddy bears. In respect of the 327 number, on the same day as the appellant changed the number ending 689 the 327 number is registered to Michael Jason Smith, 2A Jury Court, Keilor, a fake address. The start date is 25 November 2011 and an end date 8 September 2012. There is an overwhelming amount of material of contacts between Emma Smith and Michael Smith in screenshots that were provided to police by Emma Smith, the content of which included details re her employment and movements. There are records of text messages, phone calls and WhatsApp messages. This number is saved in Emma Smith’s contacts as different names as revealed in screenshots of messages with terms of affection and abusive names presumably depending on Emma Smith’s perception of the relationship at that time.
49There is also contact with Alexandra Wolf in a screenshot provided by her to police. On the Nokia an MMS, SMS was located indicating a message, 'Welcome to Optus', with the number ending 327. It has the commencement date 25 November 2011. There is a message to Emma Smith saved as Bubz, B-u-b-z, a video message on 30 November 2011 and an audio message on 6 December 2012 from the 327 number. Located on the appellant's iPhone 4 and iPhone 6 is a Tango chat between Danny with the 327 number and Emma Smith. There are 404 messages between 31 January 2013 and 17 July 2013. There are Viber messages on the iPhone 4 from Danny, 327 with Emma Smith. There is also an undated Viber message from 327 to Alexandra Wolf.
50Access to Optus. When Emma Smith and Alexandra Wolf attempted to change their numbers to stop the stalking they both became aware that someone unauthorised was accessing their Optus accounts. As a result Emma Smith’s father contacted Optus regarding Emma Smith’s account and was informed there was a person accessing her account that day on four occasion. He was informed the person using had an IP address related to Swinburne University. At that time the appellant was attending that university. In respect of Alexandra Wolf, between 10 April 2014 and 29 May 2014 an unknown person attempted to access her Optus account 16 times.
51That person had an IP address registered to the appellant's brother linked to the address where the appellant lived. In conversation with Alexandra Wolf the fake Lincoln Lewis spoke of hacking Emma Smith’s phone. In conversation with Courtney McMillian and in the context of them investigating the conduct directed towards Ellie Reynolds, the appellant revealed a process of fooling Optus into obtaining personal details of the account holder. There was also incriminating material regarding access to Optus chats on the devices. Payments of funds to Alexandra Wolf. The appellant admits to paying funds to Alexandra Wolf’s account.
52The respondent relies on the evidence of Froggatt and Alexandra Wolf in respect of this. That included the taped conversation between Alexandra Wolf and the fake Lincoln Lewis. Alexandra Wolf had told the fake Lincoln Lewis that she had broken her phone and needed money to repair it. The appellant deposited $200 into her account and that conversation is recorded. This was part of a ruse devised by Alexandra Wolf to try to ascertain the identity of the stalker. In addition to the evidence as summarised as above there was as significant amount of material in the appellant's devices which are accepted as being entered on it by her, clearly linked her to the stalking conduct.
53Some of the more unusual records included a record of a WhatsApp conversation between Diane Williamson[8] and a person pretending to be another employee, with the latter trying to obtain information regarding staff and Emma Smith. Some of the text in this conversation is repeated in messages sent to Emma Smith. Audio recordings of conversations between Alexandra Wolf and the fake Lincoln Lewis and audio recordings of Emma Smith, analysis of the protected My Photos app on the iPhone though conducted on the i6, revealing, (1), photos of the appellant attempting to access the app and inputting the incorrect PIN between 6 October 12 and 12 November 13 and the protected material itself in that file. That is thousands of photos relating to this case and other photos relating to the appellant's family, all protected by the use of a PIN known to the user.
[8] A pseudonym.
54Located on the Toshiba, a video record taken in the appellant's bedroom of a YouTube item showing Emma Smith on holidays with an ex-boyfriend, a character utilised as part of the fake persona in conduct towards Emma Smith. Each of the steps taken to create the fake article about Danny Mac, as revealed on the Toshiba. Communications with Mila Rogers as part of the fake Lincoln Lewis and as the appellant, both linked to the 244 number. The respondent's case in respect of talking Ellie Reynolds relies on evidence of both her and Courtney McMillian in relation to the details of the conduct directed to them and involvement with the appellant in the investigation of the conduct. The respondent also relies on the link between the appellant and the 244 number with this being related to the first Viber message Ellie Reynolds received.
55Another phone number connected to the stalking conduct was registered in the name of Ellie Reynolds ending 894. Ellie Reynolds received messages from this number relating to her wedding plans, purchase of her home and threats directed to herself, Courtney McMillian and the appellant. In notes located on the iPad there is a note that records the name and address connected to the registration details of this number which is dated 18 November 2015, the date this number commenced. Material located on devices included transcripts of WhatsApp conversations with Courtney McMillian. Details relating to stalking conduct in respect of Emma Smith and others including reference to Emma Smith’s address and provision by the appellant of a copy of a warrant, a document that the appellant gained access to as part of the whole stalking investigation in 2016, and provided to her by her sister around the time at which she presents or provides that to Courtney McMillian.
56I turn then to the appellant's account. The appellant's case was that she was not involved in stalking any of the victims. In respect of Emma Smith their friendship commenced when Emma Smith provided the discounted ticket and this was arranged through the fake Lincoln Lewis. Their first contact was via an email and from then on she had had Emma Smith’s phone number. She had numerous contacts with Emma Smith in 2011 through texts, phone calls and email. There are about 30 texts between August 2011 and January 12 and about 10 phone calls, one of which was for about 30 minutes but others on average 10 to 15 minutes. She maintains she did not receive the texts from Emma Smith that were contained in the Lantern report in October and November 2011. These relating to the Danny Mac kidnapping situation, but that she thought that they were sent to her by accident so she did not respond.
57Communications were by email regarding the flight as she had some queries to raise with Emma Smith. The appellant provided then a relevant email exchange. I will similarly insert that relevant email. That she spoke with Emma Smith after the ticket had been provided about topics that included Emma Smith being an international air hostess and able to purchase duty free goods, that she received from Emma Smith a block of chocolate in that context, that the only package that Emma Smith received from her contained Marvellous Creations chocolate. This was in July 2012 and before this there were communications between them regarding the chocolate. There was contact between them up until about May 2013 regarding when the Backstreet Boys concert occurred but then there was no contact again by Emma Smith until 2015. In relation to the payment to Alexandra Wolf, she maintained that she wanted to give Lincoln Lewis who at that time she thought was real, money for the acting advice that he had been providing her.
58He suggested she give it to a friend of his who is a single mother and that is the reason why she deposited the money into Alexandra Wolf’s bank account. In respect of Lincoln Lewis, she maintained that she too was fooled, that she thought she was communicating with him and it was not until 31 August 2014 that she discovered he was fake via a message she saw on Lincoln Lewis's Twitter. It was then she looked up Alexandra Wolf on Facebook and downloaded photos of her. The appellant gave evidence regarding the devices and phone numbers that was very difficult to comprehend. As best I can understand in respect of the devices and numbers, she maintained that she bought the Nokia on 9 June 2015. When she bought the Nokia she put in the SIM relating to the 208 number. This was the SIM she maintained that was found with the Nokia in 2021.
59She maintained that she was contacted sometime in 2010 on Facebook Messenger and by an anonymous phone caller regarding fraudulent emails and the use of the 208 number. She discovered this number was registered in her name. She maintained that she did not do anything about it at that time but that later in 2012 she was contacted by Sandy Gorji who was asking her to pay back the money that she had paid on her behalf on a pre-paid account connected to this number in the appellant's name. It was after this that the appellant attended at Optus and was informed that the 208 number was active in her name, that she could cancel it, or if the number was not used within a six month period she could obtain a replacement SIM and have the 208 number given she provided legitimate identification.
60She maintained that she got that replacement SIM in 2013 and that all of the incriminating messages and material on the Nokia came over the network when she put the SIM in the Nokia which she purchased in 2015. She also gave evidence of her Apple ID being hacked and that were apps on her devices that she had not downloaded, particularly in respect of Viber at the relevant time. She maintained that this was consistent with material on the devices that revealed the purchase date as being after the time those Viber messages were sent.
61She went to Apple regarding her concerns about her iPhone 4 and got a new iPhone 4 on 18 November 2011. She reported the issues with her iPhone 4 and someone logging into her Apple Cloud ID and that's when she got the new phone. That the iPhone 6 was restored as new on 22 March 2017. She obtained this when the iPhone 4 and Toshiba were in custody of the police. In relation to the Toshiba and backup of the iPhone 4, this was done in 2011, 2012 and 2015. She recognised it was possible the material came from the iPhone 4 but she was not aware that all this material was on the Toshiba. She was unable to say how all of the material got on either the iPhone 4 or iPhone 6.
62In respect of Ellie Reynolds, at the time that she was engaged to Courtney McMillian, she was having or had a relationship with Jamie Jones. Courtney McMillian wanted to find out who had been sending the messages to Ellie Reynolds and when Courtney McMillian could get close to finding out, Ellie Reynolds pressured her, that is the appellant, to distract investigation and do things so that Courtney McMillian would not find about her previous relationship. She admitted she engaged in the conduct but denied it was done to stalk Ellie Reynolds. Rather it was to protect Ellie Reynolds and to assist her in keeping relationship with Jamie Jones a secret from Courtney McMillian. As to my analysis, I reject much of the evidence of the appellant. I found her account confusing, inconsistent and that she was deliberately evasive when challenged as to her responses in the record of interview, or regarding the contents of some of the documents. Further, when parts of her evidence is considered against events that were going on at that time as revealed in the material on the devices, her account does not make sense.
63Some aspects are worth mentioning. Her account of her relationship with Emma Smith was contrary to the account that she provided in her records of interview where clearly she explains that she only had the one contact. That was through Lincoln Lewis and that she did not have the phone or text messages contact with her. It's inconceivable that Emma Smith would make a complaint to police in the terms that she did if the account that had been provided by the appellant were true. I view the appellant's account as an attempt to fit in with the overwhelming evidence relating to both her receipt of the discounted ticket, details recorded on the package and other conduct directed towards Emma Smith.
64As to the evidence regarding the SIM 208 and Nokia, this was inconsistent with her responses in her record of interview where she denied ownership of knowledge of the 208 number. Her evidence of the material being on the replacement SIM was contrary to the evidence provided by the Optus representative that all SIMs provided were clear. It was at odds with the rejection by the Optus representative of the concept of material being able to be transferred through that mechanism or devices over the network. The telecommunication records do not record the appellant resuming the use of the number 208 when it was, as the appellant described, reactivated. There was evidence at that time the number was allocated to another unrelated name.
65Further, there was evidence that was undisputed to the relevant witness that the SIM located in 2021 related to the 244 number not the 208 number. The expert gave evidence regarding storage on the Nokia. Her analysis was that almost all of the material was stored on that device and placed there contemporaneously by the user. It was not stored on the SIM or memory card. On the Nokia the material was located in an order that was consistent with what witnesses had provided in their accounts. Similarly the expert evidence the material on the Toshiba, iPhone 4 and iPhone 6 had been validated was not challenged. In respect of Ellie Reynolds, the most incriminating evidence relates to the appellant's conversations with Courtney McMillian.
66In particular provision of Emma Smith’s address for Courtney McMillian to look up as a possible sender of the messages, giving Courtney McMillian information that she maintained she'd obtained from police regarding personal details of Jamie Jones and others and informing Courtney McMillian that police had confirmed with her that Jamie Jones was responsible for the stalking and had executed a warrant at Jamie Jones’ house. This last piece of information was followed up with the appellant obtaining a copy of a warrant that had related to a search for her house in 2016 from her sister, then changing the details to show Courtney McMillian. The appellant's evidence of this portion of the conversation relating to the warrant was not legitimate or had somehow been put in the record whereas the tracts around it had occurred was farcical.
67Material located on the appellant's iPhone 6 including notes, photos and screenshots of material relating to Kim Du demonstrate the appellant used the Telstra service and created a false document to gain access to Kim Du’s personal details from Telstra including her home address. This was an overwhelming case presented by the respondent. A massive effort has been put in by those involved in the investigation and the references I have made to some of the evidence does not do justice to the minutiae of detail that was ultimately presented. It's inconceivable that with all this material, particularly that discovered on the Toshiba, that the appellant was unaware of the existence of it.
68Further, the data is consistent with the use of devices by the appellant for ordinary tasks and recording of personal information and photos and appear within that same data, is so much of the material related to the stalking. On the basis of evidence I am satisfied the appellant was responsible for the stalking behaviour and that there is no reasonable alternative or hypothesis consistent with her innocence. I also find the appellant engaged in stalking behaviour against Ellie Reynolds with the intention to harm Ellie Reynolds, to make her feel frightened or apprehensive, or that her conduct was likely to have that effect. I find therefore each of the charges proven. Is there anything alleged Ms Moran?
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