Cullen v State of New South Wales

[2006] NSWSC 685

CITATION:	Cullen v State of New South Wales [2006] NSWSC 685
HEARING DATE(S):	23 June 2006
JUDGMENT DATE :	23 June 2006
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
EX TEMPORE JUDGMENT DATE:	06/23/2006
DECISION:	Downloading permitted, on conditions.
CATCHWORDS:	PROCEDURE - Supreme Court's inherent jurisdiction to advance administration of justice, including in lower courts - permitting downloading and copying of information stored in electronic control units of motor vehicle involved in fatal accident - conditions for downloading and copying to occur
PARTIES:	Darryll Gregory Cullen - First Plaintiff Katherine Cullen (by her tutor Lyndie Flockhart) - Second Plaintiff State of New South Wales - First Defendant The Commissioner of Police - Second Defendant
FILE NUMBER(S):	SC 2855/05
COUNSEL:	A Martin SC - Plaintiffs M Leeming - Defendants
SOLICITORS:	Carneys Lawyers - Plaintiffs Crown Solicitor - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

FRIDAY 23 JUNE 2006

2855/05 DARRYLL GREGORY CULLEN & ANOR v THE STATE OF NEW SOUTH WALES & ANOR

JUDGMENT – Ex Tempore

1 HIS HONOUR: This matter arises from a fatal traffic accident. In that accident a motor vehicle owned by the first plaintiff and driven by the second plaintiff was involved, and the death of one of the passengers in the first plaintiff's car resulted.

2 The motor vehicle was impounded by the police, and has been kept at the Mona Vale police station. It is a Peugeot 206cc. On the plaintiffs’ application, McDougall J made an order on 10 May 2005, which prohibited the defendants (who are in effect the police) from downloading or copying software or data contained in the Electronic Control Unit (“ECU”) of the vehicle. As well, there was an injunction restraining the defendants from permitting Peugeot Australia Ltd, or any of its representatives, to download or copy the software or data in the Electronic Control Unit, or from accessing, inspecting, or examining the motor vehicle.

3 At that time, one of the plaintiffs’ fears was that there had been a defect in the vehicle which was connected with the motor accident and that Peugeot Australia might be tempted to alter data contained in the Electronic Control Unit which showed that the defect was involved in the accident.

4 The matter came before me as Duty Judge on 11 July 2005, and, by consent, I made orders which varied McDougall J's orders. I will not set out the precise terms of that variation here. On 19 June 2006 Windeyer J, by consent, made a further variation of those orders.

5 There has been some downloading of data from the Electronic Control Unit of the vehicle. I gather that the plaintiffs assert that there might be some deficiency in the manner in which that downloading occurred. As that question might arise in some forthcoming criminal proceedings, it is preferable that I say nothing more about it, as it is not necessary for me to decide it for the purpose of this application.

6 Initially, the second plaintiff, when charged with a criminal offence concerning the accident, pleaded not guilty, but came to plead guilty after some of the data which had been obtained on one of the downloads - which the plaintiffs now assert was defective - was obtained. The second plaintiff was sentenced following that plea and has appealed to the District Court. That appeal is due to be heard on 10 July 2006. At that hearing the second plaintiff proposes to seek the court's leave to withdraw her plea, and contest all issues.

7 The Director of Public Prosecutions, for reasons which I need not go into, has decided that it will not rely upon the data which was obtained in the previous downloading. The police now seek two alternative orders. One is a declaration that the variation which was made to the order on 19 June 2006 is not qualified by a requirement that the plaintiffs and defendants first mutually agree a time, place and methodology.

8 That order is one which was made by consent, and extrinsic evidence can be looked to to clarify ambiguities in consent orders. Here, the background to the application was that the defendants wished to have Mr Nicholas Allan carry out a downloading of the data in the electronic control units, using software which is approved by Peugeot for that purpose. Mr Allan is an employee of the Australian distributor of Peugeot vehicles. At the time that Windeyer J made the variation, Mr Allan proffered to the court certain undertakings, the gist of which was that any data he obtained would be kept quarantined from Peugeot.

9 I am not persuaded that the correct construction of the order is that the qualification introduced by Windeyer J was not qualified by a requirement that the plaintiffs and defendants first mutually agree a time, place and methodology. Thus, I decline to make the first declaration which is sought.

10 An alternative application of the defendants is that the court order that a further download by Mr Allan of software data, or other information contained in the vehicle, take place at Mona Vale police station at 9.30am Monday 26 June 2006, in accordance with a particular methodology described in Mr Allan's affidavit, sworn 9 July 2005, using the Peugeot Planet System software.

11 That affidavit sets out in some detail the procedure by which downloading of data in ECUs can be carried out. It makes clear that the car does not have just one ECU, but has numerous ones - there is one relating to the engine, another relating to the ABS system, and others relate to other functioning parts of the vehicle.

12 There is evidence, from Mr Wyatt, an expert who has general experience with vehicle Electronic Control Units, that there is a risk that any download of data or software could alter data in the ECU. He says that he is not satisfied that Mr Allan will be using proper methodology if he downloads data or software from the vehicle, because he (Mr Wyatt) is not supplied with any information concerning the process which Mr Allan proposes to use.

13 The plaintiff’s solicitors posed four questions to the defendants’ solicitors by a letter sent on 20 June 2006, namely:

“1. Please specify the “information stored by the vehicle’s electronic control units” which Mr Allan proposes to download and copy?
2. Please identify which of the vehicle’s electronic control units Mr Allan proposes to access, including the make and model.
3. Please identify the make, model and serial number of all of the equipment which Mr Allan proposes to use, including computer hardware and software.
4. How does Mr Allan propose to download the information using the Peugeot Planet Interface and the Peugeot Planet System? Please set out, in sequence, each and every specific step which Mr Allan proposes to take in the performance of the download and copying of the information.”

14 Ms Ludlow, solicitor for the defendants, has had a conversation with Mr Allan, of which she gives detail in an affidavit of 23 June 2006, which seeks to provide answers to those questions. Her affidavit reports those answers as follows:

“4. The information stored by the vehicle's electronic control units Mr Allen proposes to download and take a copy of all of the information stored in the vehicle's electronic control units ("ECUs").
5. Which of the vehicle's electronic control units proposed to be accessed. Mr Allen proposed to access all of the ECUs. Those ECUs are accessed via the Built-in Systems Interface within the vehicle. The most important ECUs are the Engine ECU, the Transmission ECU, the ABS ECU, the Instrument cluster ECU, the Comm 2000 ECU and the Airbag ECU.
6. The equipment that will be used. Mr Allen will use a standard laptop, on which is installed Peugeot's software known as "Peugeot Planet System". That computer will be connected to the vehicle through a USB cable, on one end of which is a proprietary interface, made by Actia, known as the "Peugeot Planet" or "PP" Interface. This is the interface which physically connects with the vehicle. The interface changes signals from the ECU into language that can be understood by the software.
7. The steps that will be taken. Mr Allen will connect the computer to the vehicle. He will run the Peugeot Planet System software. That software will enable him to access in turn each of the ECUs sought to be accessed. For each ECU, he will download all of the data from that ECU into the memory of the laptop.”

15 Mr Wyatt gave evidence before me today. He regards the information which has been supplied in Ms Ludlow's affidavit as still inadequate. Concerning the first question, he says that there is information of different types which can be obtained from the ECUs, and that the types of information which will be obtained are not identified. I am not persuaded that that is a particularly cogent objection, given that Mr Allan's proposal is to take a copy of all the information stored in the ECUs.

16 As well, the answer which is given to the second question is not one which Mr Wyatt regards as adequate. When the previous attempt to download data occurred, it seemed that it was not possible to communicate with the Electronic Control Unit relating to the ABS system and he is concerned that Mr Allan does not say how he proposes to communicate with that particular ECU or obtain data from it. I do not regard the answer which has been given as one which involves Mr Allan saying that he will successfully communicate with all the ECUs, just that he will endeavour to do so.

17 No objection is taken to the answer to the third question. The answer to the fourth question is also objected to, on the ground that it does not specify a procedure at all. There are, it seems, a variety of types of interrogation of the ECU which can be engaged in by the software, and Mr Wyatt is concerned that it is not stated which of those varieties of interrogation will be engaged in. One type of interrogation can, I gather, obtain one type of data, another type of interrogation can obtain another type of data. In my view it is reasonably clear that what Mr Allan proposes to do is to engage in all types of interrogation, so as to retrieve all of the information which he can.

18 There is, it appears, an ability, when interrogating an ECU, to delete error codes which have been recorded in it. Further, it is possible to delete data which has been recorded in it. What an ECU records is the output of different sensors connected to operating parts of the vehicle. Mr Wyatt gives evidence that there is a possibility that those sensors might not accurately record the information they are supposed to record, and that the inaccurate information would be then transferred to the ECU. There is, it seems, a greater risk that the information recorded from sensors will be inaccurate when a vehicle has been involved in an accident than when it has not. One way of checking whether a reading contained in an ECU is an aberrant reading is to see whether it is consistent with other readings, concerning other parameters, which were obtained. If data were to be deleted, this method of checking for aberrant readings would not be available.

19 It is not, however, possible for data to be contained in the ECU to be altered, so that, for example, a reading which says that a motor vehicle was travelling at 50 kilometres per hour at one time is changed so that it becomes a reading that the car was travelling at 70 kilometres per hour at the same time.

20 It is, in my view, necessary to bear in mind the purpose for which the order was granted. It was granted in the court's inherent jurisdiction to take steps to advance the administration of justice, including in lower courts. It was initially aimed at preventing the tampering with evidence.

21 The purpose of the exercise of that jurisdiction, however, is that the evidence ultimately be available. That the second plaintiff’s appeal is due to be heard on 10 July next is relevant to this.

22 There is an inherent risk that the process of examination will miscarry. In deciding whether one ought permit any such examination to take place, one needs to consider the extent of the risk which has been demonstrated, and how significant that extent of risk is.

23 I am not persuaded that the inevitable risk involved in the conducting of any examination of data, like this downloading process, is such that it should not take place at all. However, it seems to me that a more closely defined regime than that which the defendants seek should be ordered.

24 I order that further download may be made by Mr Nicholas Allan of software, data or other information contained in the vehicle take place at Mona Vale police station at 9.30am Monday 26 June 2006, in accordance with the methodology described in Mr Allan's affidavit sworn 9 July 2005, and in accordance with the process described in the affidavit of Christa Anne Ludlow, 23 June 2006, paragraphs four to seven inclusive, using the Peugeot Planet System software. I note that in conducting that examination Mr Allan will be bound by the undertaking which he has previously given to the court, concerning the results not being made known to Peugeot. I direct that any such examination take place only in accordance with the following additional requirements:

1. That no data be deleted from any Electronic Control Unit in the vehicle.

2. That the entire process of obtaining data be video taped and a copy made available to the plaintiffs.

3. That no objection be taken to the presence of Mr Wyatt and any legal representative or representatives of the plaintiff during the entirety of the downloading process.

4. That a copy of all downloaded information obtained be provided to the plaintiffs.

5. That Mr Allan prepare and make available to the solicitors for the plaintiffs a report of each and every step taken in downloading the information.

6. That the video taping which is conducted be such as to show continuously the read out of the screen of the computer which interrogates the Electronic Control Units.

25 I grant liberty to apply on very short notice.

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