Director of Public Prosecutions v Lo (Ruling No 6)
[2018] VSC 818
•6 April 2018
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE | NOT RESTRICTED |
CRIMINAL DIVISION
S CR 2017 0114
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YU TUNG LO |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4, 5 April 2018 |
DATE OF RULING: | 6 April 2018 |
CASE MAY BE CITED AS: | DPP v Lo (Ruling No 6) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 818 |
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CRIMINAL LAW – Application to adjourn trial – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Borg Ms J Warren | Office of Public Prosecutions |
| For the Accused | Mr M Cahill SC Ms K Rolfe | Paul Vale Criminal Law |
HER HONOUR:
Introduction
This proceeding has been the subject of five evidentiary rulings, four of which were provided to the parties on 29 March 2018, with the first ruling being made on 11 December 2017.
The trial has been listed to commence April 4 this year.
Procedural history
The original trial date was Monday, 27 November 2017. However, on Thursday, 23 November 2017, the Crown applied for an adjournment and the Crown’s adjournment request was supported by the Defence. The Crown had sought a neuropsychology assessment of co-accused AB from Dr Evrim March. This assessment and report was sought following a Basha examination of AB and the plea and sentencing of AB. AB has an acquired brain injury (‘ABI’) as a result of a motor bike accident in his early adulthood. Dr James Belshaw, forensic psychiatrist, commented on the impact of the ABI on AB’s judgment and decision-making in a report filed in his Defence on his plea of guilty to murder. Dr March had been retained by the Crown to assess AB’s neuropsychological functioning and comment on the contribution of his ABI to his behaviour in carrying out the shooting. The question of AB’s suggestibility or capacity to misapprehend communications he had with Lo was of interest to both the Crown and the Defence and considered relevant to whether Lo’s conduct intentionally encouraged AB to shoot Hogan.
The report of Dr March was received by the Crown on 16 November and filed on 17 November. Whilst not giving much support to significant ongoing neuropsychological contribution from the ABI to AB’s day-to-day decision making, Dr March considered that further assessment of AB’s personality could be undertaken by a psychologist in order to uncover whether the ABI had resulted in impacts on his personality functioning.[1]
[1]Report of Dr March dated 13 November 2017, 11.
It was as a result of the report of Dr March that the Crown, with the consent of the Defence, sought an adjournment of the November trial date to obtain the psychological assessment suggested by Dr March. The trial date of 27 November was vacated and the Crown retained Dr Matthew Barth, psychologist. Dr Barth indicated that a report could be completed by the beginning of February.
At this time, the Defence had consulted their own neuropsychologist, Dr Loretta Evans, to consider the report of Dr March. The Defence emphasised the importance of the evidence of AB’s cognitive functioning, indicating that his possible suggestibility and whether he might be inclined to distort the meaning of messages he received from Lo would be a serious issue in the trial.
Court convened on 27 November, further legal argument took place on other matters, and the trial date was refixed for Monday, 12 February 2018. A ruling on the matters argued on 27 November was handed down on 11 December 2017.
On Thursday, 8 February, two working days before the trial was set to commence, the Court received a report from Dr Barth. On Friday, 9 February, the Court received a tendency notice and a hearsay notice from the Defence, as well as written submission on exclusion of evidence and a request to cross-examine Dr Barth on a Basha. The Court also received a Notice of Additional Evidence from the Crown containing, among other things, an abbreviated report of information extracted from AB’s iPhone 5S and an amended summary of Crown opening.
In court on 12 February, the Defence indicated that they had sought the advice of Dr Dion Gee in response to the report of Dr Barth. It was indicated that Dr Gee wanted to see AB himself before responding to the report of Dr Barth, but it was not known at that point whether the Defence would seek to file a report from Dr Gee. The Defence requested a short adjournment in order to give Dr Gee the time to interview AB.
The Crown at that stage raised the possibility that it may not be feasible to commence the trial in February depending on how the Defence decided to proceed with Dr Gee, and in light of significant evidentiary issues raised by the Defence that the Crown required time to consider.
Of the further evidential issues that arose, one related to the admissibility of Call Charge Records (‘CCRs’) from the phones of AB and Lo. On 12 February, the Crown indicated that they were in possession of a USB with 20,000 telecommunications messages which were provided to the Defence, in addition to a 100-page abbreviated report that was also provided to Defence in August last year. Whilst some evidence of electronic communications were already included in the depositions, on 9 February, the Crown filed a Notice of Additional Evidence that included stored communications reports from Yu Tung Lo and AB, and an abbreviated report of AB’s iPhone 5S mobile phone download.
On 6 March, the Defence filed submissions that they had objections to the admissibility of specific items from the CCRs and the extraction records, and addressed those submissions in oral argument before me on 8 March. The Defence at that time said that they would like an opportunity to speak to the informant about the discrepancy in the records and the means of data extraction.
The focus of the controversy became four SMS messages sent on 23 May, the day before the murder, at 12.52.34 pm, 12.53.04 pm, 12.53.37 pm and 12.53.50 pm, from Lo’s phone to AB’s phone. These messages were reflected in the CCRs but there was an absence of data extracted from the relevant phone handset that could reveal the content of the messages. In his police statement and his evidence on the Basha examination, AB had said that in a message sent by Lo that day, Lo had told him that ‘I need to kill someone, Breanna is not safe’. The Crown alleged that evidence from the CCRs supported AB’s claim of receiving the message from Lo about the threat to AB’s daughter. The Defence submitted that the CCRs should not be admitted because of the risk of unfair prejudice due to the fact that a jury might place too much weight on the CCR evidence in the absence of confirmatory data or evidence of message content being available from the phone handset. This was the subject of Ruling No 5.[2]
[2]DPP v Lo (Ruling No 5) [2018] VSC 150 (29 March 2018).
Further pre-trial submissions on a range of matters were filed by the parties throughout the month of February and into March. The Court convened to hear argument on 15, 16, 19, 22, 26, 27, 28 February and 1, 8, 15 March. On 29 March, I handed down four rulings on various evidentiary matters including a ruling on the admissibility of the electronic communications evidence with the expectation that the trial would proceed immediately following the Easter holiday. I held that the CCRs were admissible as evidence that four SMS messages were sent to AB’s phone on 23 May, from the accused’s phone. A new trial date was fixed for April.
I listed the matter for mention on 4 April with the expectation that a jury would be empanelled on Thursday, 5 April.
The locked iPhone 4S
The Crown’s position until recently was that, although the iPhone 4S that belonged to AB was unable to be unlocked by police, therefore preventing the cross-matching of the phone handset data from that phone with the CCRs, the CCR evidence was still able to provide some support for AB’s contact he had with Lo on the day he returned home from Vietnam, 23 May 2016. The CCR evidence corroborated AB’s evidence that he received a text message from Lo that day even though there was no phone download data reflecting the sending of text messages by Lo to AB before 2.00 pm on 23 May 2016, nor any evidence as to the content of any such messages.
As a result of questions raised by the Defence in written submissions dated 6 March, and in subsequent oral argument about the reason why the four messages were reflected in the CCR data but were not accessible in the phone download information, Detective Scharper provided two additional statements in which he attempted to explain the presence or absence of data obtained from phone handsets, SIM cards and the CCR records of phone service providers and apparent inconsistencies in what was available from those sources.[3] Questions raised by the Defence about the adequacy of the statements provided by the informant on these matters, led Detective Scharper to seek further assistance from E-Crime to see whether a suitable person within E-Crime could provide relevant expertise.
[3]Statement of DSC Glen Scharper, deposed to on 23 February 2018; Statement of DSC Glen Scharper, deposed to on 14 March 2018. Filed by the Crown on 14 March 2018.
As a result of these inquiries, on 28 March 2018 it came to the attention of Detective Scharper that there was a new avenue which had just become available to E-Crime in the previous fortnight enabling an otherwise PIN locked iPhone 4S to be unlocked and data retrieved. If this method was employed, there was a strong prospect that the presence of the four text messages would be revealed. This might include the content of those messages.
On 3 April 2018, the Crown filed an affidavit from the informant Detective Scharper setting out the new information gleaned from E-Crime along with an email foreshadowing that the Crown would seek to adjourn the trial.
Detective Scharper gave evidence before me on 4 April 2018. The effect of his evidence was that police had retrieved both of AB’s iPhones when he was arrested: an iPhone 4S and an iPhone 5S. AB refers to both of these phones in his first police statement. One was described as a black iPhone 4S and the other is described as a white iPhone 3S, however it was clarified by the Crown, who have both phones, that this appeared to be an error by AB as to the exact model number of the two phones. For clarity, the newer black phone is understood to be an iPhone 5S, and the older white phone is the iPhone 4S.
AB deposed in his first statement dated 19 April 2017 that when he was in Vietnam he damaged the black iPhone [5S]. He was therefore using the white iPhone [4S] when he arrived back from Vietnam.[4] When he turned on the iPhone 4S in Melbourne, he discovered an SMS from Lo with the content referred to above. He then telephoned Lo on the 4S, and she verbally expanded on the threat to Breanna posed by the alleged paedophile, saying that she was staying with this man, and that he had photos of AB’s daughter having copied photos of AB’s daughter from her phone onto his phone, and that he knew where AB lived and could rape and kill his daughter.
[4]AB arrived back in Melbourne at 6.00 am on 23 May 2016.
AB’s first statement provided confirmation of the relevant mobile phone number and service provider for his two phones, stating that he took the black iPhone 5S to be repaired the same day that he returned from Vietnam and went for lunch for about two hours while waiting for the repair. He still had the use of the white iPhone 4S whilst awaiting completion of the repair. After the repair, he then transferred the SIM card back to the repaired iPhone 5S and began using it instead of using the iPhone 4S from about 2.00 pm that day.
His recollection was that the SMS message about Breanna was received that morning between 9.00 am and 11.00 am, possibly 10.00 am. All communications that he had with anyone via iPhone after the repair of the black iPhone 5S occurred on the repaired phone up until the shooting of Hogan. He said he received a series of SMS, WeChat or WhatsApp messages from Lo between 4.00 pm and 5.00 pm about her not feeling safe and making reference to inappropriate behaviour by the housemate towards her.
At the time of his arrest and until the provision of his first statement, AB had declined to provide password assistance to the police to facilitate access to his two iPhones but he did so on 19 April 2017 stating that this would ‘hopefully enable them to access the phones.’
AB said in his 12 June 2017 statement that he shot Hogan under the belief that Hogan would harm his child and that he decided to give up his freedom to protect his daughter because Lo had convinced him that his daughter’s life was in danger, and that Lo had been sexually assaulted by Hogan and needed AB’s help.
Attempts to download the data from the iPhone 4S
The informant testified before me on 4 April that he had not personally attempted to access the data on either of AB’s two phones but he had supplied the two phones to E-Crime so they could attempt to do so.[5]
[5]Lo’s phone had also been recovered but she had allegedly deleted data from her phone.
His affidavit deposed that the CCR’s for AB’s mobile phone service confirm that between 10.00 am and 1.45 pm on 23 May 2016, the handset for the iPhone 4S was being used, and between 6.00 am and 2.00 pm that day the CCRs show six entries: the four SMS messages from Lo’s phone to AB’s phone referred to in Ruling No 5 which occurred between 12.52 pm and 12.53 pm that day,[6] and two phone calls from AB’s phone to Lo’s phone at 1.43 pm and 1.45 pm. Both of AB’s phones were locked when seized by police. E-Crime had managed to perform a download of AB’s iPhone 5S (IMEI xxx 690) which contained AB’s SIM card at the time it was seized. This phone was accessed using AB’s passcode. The dates and times found in the download of data from that phone (the 5S) match with the relevant CCRs.
[6]Depositions 1384.
However, the older phone (the 4S) was unable to be accessed as it was in lockdown mode. The AFP were also engaged to attempt to access the locked iPhone 4S but they also failed to do so.
The new means of accessing iPhones after lockdown
Following information about the new unlocking option discussed on 28 March, the informant was told by E-Crime analyst Mr Dautcehajic on 30 March (Good Friday) that an unlocking process is now available by seeking assistance from an overseas company. However, the company will not divulge how they are able to access or unlock the phone, or what program they use to do so. However, if the unlocking procedure is successful this would allow full analysis of the iPhone 4S data stored on the phone.
Detective Scharper gave evidence that he was told by E-Crime that the process of unlocking the phone would take one month, and then the phone would be returned to Victoria Police for download analysis. In light of a pressing workload, and because of the process on analysis to be employed it would take another three months for Victoria Police to complete the analysis.
Request for further clarification
The Court sought further information to be provided directly by E-Crime, about the procedure foreshadowed by the Crown for the unlocking of the phone, in terms of the length of time the phone would be outside the control of Victoria Police, the manner in which Victoria Police could manage continuity of the exhibit and the likely delay involved. The matter was therefore adjourned until 5 April for further evidence.
On 5 April, Mr Tim Hewitt, Digital Forensic Manager of the Digital Crime Squad (E-Crime), was called by the Crown in closed court. [REDACTED], he estimated it would take up to four months to have the phone unlocked, a data download completed and then an analysis performed on the downloaded data.
He gave evidence that the analyst’s notes reveal that the phone would be in lockdown for approximately 24 million minutes (approximately 43.7 years). This could be as a result of either too many failed PIN entries or remote locking of the phone. He was asked to clarify the methods foreshadowed for conveying the locked iPhone 4S to the foreign service provider and the methods that could be employed to assure continuity of the exhibit.
For the purposes of this ruling, I do not need to detail the methods of safe transport or the evidence of possible procedures employed by the foreign company other than to state that it appears that the process of having the phone unlocked is likely to take up to one month, even if the phone is taken to the foreign company by police personnel. [REDACTED].
He also stated that it would take up to three months to perform a full analysis of the data download, which would be necessary for E-Crime to answer all questions that might arise from what appears or does not appear in the data download. Whilst the time estimate of three months after unlocking allows for a full analysis of the data, a lesser time might be possible without that full analysis being performed. The presence or absence of SMS messages to the iPhone 4S on 23 May, in the time frames referred to in the CCRs, should be able to be seen as soon as the raw data download is performed.
It was difficult for the witness to give best and worst-case scenarios because each forensic extraction case is unique. [REDACTED].
Matters to be considered in assessing the adjournment request
The Crown requests the adjournment in circumstances where the Defence will highlight the absence of corroboration of AB’s account as to the paedophile story being used by Lo to induce him to kill Hogan. Evidence corroborating AB’s account about the threat posed to Breanna would lend powerful support to the credibility of the account given by AB. Also, if the Crown did not make every effort to endeavour to obtain the phone handset data, their failure to do so might undermine the probity of the CCR evidence as evidence supporting AB in the eyes of a prospective jury. The Crown also considers that they are bound by obligations of fairness to attempt to secure the evidence whether it assists them or not.
The Defence submits that the unlocking of the iPhone 4S should be pursued forthwith because the absence of corroborative content on the iPhone 4S would be powerful evidence capable of impeaching AB’s credibility about the SMS messages and about Lo’s need to kill Hogan and about the paedophile story. However, the Defence raises concerns about the length of time foreshadowed for the process to be conducted and submit that an adjournment in excess of approximately two months would be oppressive, given that the accused has been in custody on remand for 22 months.
The Defence are in favour of an adjournment until a date in June 2018 for the unlocking of the phone and the download of the data to be pursued.
The Defence were asked whether they would argue that the evidence obtained from the unlocked phone was inadmissible on the basis of the opacity of the unlocking process if the evidence turned out to be unfavourable to the Defence but reserved their position. Both parties declined to address the Court on the question of the prima facie admissibility of the evidence obtained by a partially opaque method in circumstances where continuity of the phone’s handling could potentially only be affirmed to E-crime. Both parties said the question of admissibility could only be considered once it was determined whether any relevant evidence became available after the unlocking was attempted.
Notwithstanding possible continuity concerns, both Ms Borg and Mr Cahill strongly submitted that the interests of justice supported the grant of an adjournment to enable obtaining data from the iPhone 4S by sending the phone to the foreign service provider. Mr Cahill submitted that the high probability that relevant material could be obtained was the overriding factor, especially in light of the possibility that the evidence could be exculpatory. He noted that the focus of the data download from the Defence viewpoint was narrow, being the text messages sent on 23 May 2016. An adjournment until June should be countenanced to enable this evidence to be obtained.
Accordingly, I am obliged to determine whether an adjournment should be granted in the interests of justice in order to allow both parties the opportunity to present their case as fully as necessary within the limits of the law.[7] Although lead counsel for the Crown has indicated that she will not be available until October 2018, that cannot take precedence as such a delay would be oppressive. Ms Borg conceded that despite her lengthy involvement in the matter, this factor may have to cede to the importance of a timely trial date.
[7]McColl v Lehmann (1987) VR 503.
In circumstances where the evidence is clearly highly relevant and could materially assist either the Crown or the Defence, and both parties agree that the evidence should be obtained, adjournment for a reasonable period is desirable. I cannot overlook the prospect that material from the data download from the iPhone 4S might help to exonerate the accused. I take into account in making this decision the history of previous adjournments and the period the accused has spent on remand. The decision to adjourn is not one taken lightly by the Court. I will discuss the precise date for the trial to be refixed on 9 April when court reconvenes.
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