Director of Public Prosecutions v SA & Ors (Ruling No 3)
[2023] VSC 389
•10 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0258
S ECR 2022 0260
S ECR 2022 0262
S ECR 2022 0264
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| SA PM QM SY | Accused |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 July 2023 |
DATE OF RULING: | 10 July 2023 |
CASE MAY BE CITED AS: | DPP v SA & Ors (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 389 |
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CRIMINAL LAW – Ruling – Pre-trial – Admissibility of cell tower data – Whether probative value of cell tower data is outweighed by prejudice to accused – Evidence Act 2008 (Vic) s 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill with Mr J Manning | Office of Public Prosecutions |
| For SA | Mr J Desmond with Ms M Brown | KPT Legal Pty Ltd |
| For PM | Ms S Lacy with Ms D Price | Stary Norton Halphen |
| For QM | Ms J Saunders | Ajak Wolan & Associates |
| For SY | Ms A Cannon | Chester Metcalfe & Co |
HER HONOUR:
The accused SY, QM, PM and SA are each charged with the murder of Declan Cutler (‘the deceased’) at Reservoir on 13 March 2022.[1]
[1]Where necessary or appropriate pseudonyms have been used throughout this ruling in accordance with Children, Youth and Families Act 2005 (Vic) s 534.
The charge is to be the subject of a judge-alone trial before me, commencing in mid-July 2023. I rely on my earlier rulings for further relevant background in this matter.[2] One of the accused, SA, challenges the admissibility of the telecommunications evidence that the prosecution proposes to lead at trial.
[2]DPP v SA & Ors (Ruling No 1) [2023] VSC 387; DPP v SA & Ors (Ruling No 2) [2023] VSC 388.
For the purpose of this ruling, the prosecution relies on the following telecommunication evidence:
(a) bundle of 18 statements of Aleksander Lolic, Optus Technical Specialist;[3]
[3]Exhibited during pre-trial argument as Exhibit P17.
(b) statements of SC Tori Dorling, Tactical Intelligence Operative with the Crime Intelligence Group – Homicide Squad dated 2 June 2023[4] and 23 June 2023;[5] and
(c) reports of Dr Matthew Sorell, Senior Lecturer in Telecommunications Engineering at the University of Adelaide[6] dated 14 June 2023 and dated 22 June 2023.[7]
(‘Telecommunications evidence’)
[4]Exhibited during pre-trial argument as Exhibit P18.
[5]Exhibited during pre-trial argument as Exhibit P19.
[6]Dr Sorrell is also an Adjunct Professor of Digital Forensic Sciences at the Tallinn University of Technology, Estonia, and is Chief Technology Officer, Director and a Senior Consultant of Digital Forensic Sciences Australia.
[7]Exhibited during pre-trial argument as Exhibit P20.
Mr Lolic, Dr Sorell and SC Durling gave viva voce evidence at s 198B hearings before me on 29 and 30 June 2023.
The Telecommunications evidence includes: data extracted from the mobile phone handsets of some of the accused through the Cellebrite or AXIOM programs; call charge records (‘CCR’); event-based monitoring (‘EBM’) data; cell tower reports; and photographs, maps, videos, and other representations of the above raw data, produced by the prosecution.
The Telecommunications evidence is sought to be adduced by the prosecution to establish that the accused were in the vicinity of the crime scene before, during and after the alleged offending and, by extension, that they participated in the offending.
Relying on s 137 of the Evidence Act 2008 (Vic) (‘Evidence Act’), SA submits the Telecommunications evidence is inadmissible. Section 137 of the Evidence Act states:
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
‘Probative value’ of evidence is defined in the Evidence Act as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.[8] A piece of evidence is not imbued with probative value simply by virtue of its importance to the prosecution case,[9] however it is SA who bears the onus of proof to establish that the probative value of the Telecommunications evidence is outweighed by the risk of unfair prejudice.[10]
[8]Evidence Act 2008 (Vic) Pt-1, Dictionary.
[9]R v Volpe [2020] VSCA 268, [70] (‘Volpe’).
[10]R v DG; DG v R [2010] VSCA 173, [54].
The plurality of the High Court in IMM v R stated in relation to the extent of probative value that:[11]
[47] …the requisite probative value of the evidence is not spelled out in s 137. It requires the “probative value” of the evidence to be weighed against the danger of unfair prejudice to the defendant. This again requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue.
[11](2016) 257 CLR 300, [47] (French CJ, Kiefel , Bell and Keane JJ) (‘IMM’).
SA submissions
Counsel for SA objected to the admissibility of the Telecommunications evidence on the basis that the probative value of the evidence is ‘slight’ and that there is a danger of unfair prejudice,[12] enlivening s 137 of the Evidence Act.
[12]Volpe, [70].
It was submitted that in applying the test contained in s 137(2), it is appropriate for the trial judge to consider issues relating to the validity and reliability of expert evidence in ‘performing the role of gatekeeper in resolving issues of scientific reliability at the threshold’.[13] In this regard, it was submitted that the court is permitted to consider factors bearing on the cogency of an opinion in determining the extent to which a rational fact-finder could regard the evidence as affecting the probability of the existence of a fact in issue. This includes whether or not the validity of the propositions upon which the expert opinion is based has been demonstrated, including:
[13]Tuite v R [2020] VSCA 318, [114].
(a) the validity of the methods by which the data was obtained and compared;
(b) the nature of the expert’s qualifications; and
(c) the extent to which the process of reasoning involved in forming the expert opinion has been disclosed.[14]
[14]T363.19–25 (3 July 2023).
Counsel for SA made submissions regarding approximately 40 factors – many of which overlap – that may impact the validity of the propositions underlying the expert opinion evidence sought to be adduced by the prosecution vis a vis the Telecommunications evidence. Namely that:
(a) the CCRs do not show where the calls originated from;
(b) the CCRs are not within Mr Lolic’s expertise, meaning he can only assume the accuracy of the CCRs;
(c) technical characteristics of cell tower sites may affect signal strength, such as maintenance and repairs, traffic, and environmental factors;
(d) a detailed analysis has not been undertaken to determine if any maintenance or repairs were impacting the individual cell towers, or to determine where the relevant vectors overlap;
(e) Mr Lolic cannot produce the source data underlying the Telecommunications evidence;
(f) the data is not capable of determining the precise location of the phone alleged to be SA’s phone;
(g) the possibility that Dr Sorell was influenced by unconscious bias as a result of watching the video referred to at 4.1.3.6 of his report dated 14 June 2023; and
(h) there are no public documents that can validate the error rates in the database records of the Telecommunications evidence.
Having regard to all of the above, and the fact that Dr Sorell accepted the proposition that it is possible, albeit improbable, that SA’s phone was outside the vector during the impugned timeframes, counsel for SA submitted that the Telecommunications evidence has limited probative value. It was conceded that, taken at its highest, the Telecommunications evidence suggests that SA’s phone was connecting to various cell towers at various times. However, it was submitted that this is not tantamount to a conclusion that SA was either in a particular location or physically proximate to the cell tower sites identified by Mr Lolic and Dr Sorell in the various documents they respectively produced.[15]
[15]T367.16–26 (3 July 2023).
In relation to the probative value of the Telecommunications evidence, counsel for SA ultimately submitted that:
(a) absent the validation records upon which the opinion of Dr Sorell is based, the probative value of the evidence is ‘slight;’
(b) absent evidence addressing the multitude of factors capable of impacting upon the cell tower location evidence and then discounting these numerous factors in the critical hours of 12 and 13 March 2022, the inference that SA’s phone was in the relevant areas with the other accused’s phones is speculative; and
(c) the opinions of Mr Lolic and Dr Sorell based on ‘assumed’ facts must be identified and proved in some other way.
Counsel for SA submitted that there is a danger of unfair prejudice in this case in that the expert opinion evidence may be given more weight than it deserves. Counsel for SA pointed to the appellate decision of Tuite v R,[16] in which the Court of Appeal held:
[to] prevent unfair prejudice of that kind, it is essential that the reliability of expert evidence be established to the court’s satisfaction under s 137 before it is led. We have concluded that the touchstone of reliability for this purpose is proof of appropriate validation, both of the underlying science, where necessary, and of the particular methodology being employed.[17]
… it follows … that the focus of attention for the purposes of assessing the reliability of scientific evidence should be on proof of validation. Ideally, there should be proof of both in-house validation and independent external validation.[18]
[16][2015] VSCA 148, [11], [102].
[17]T369.19–29 (3 July 2023).
[18]T369.31–370.5 (3 July 2023).
Counsel for SA submitted that the weight to be given to the Telecommunications evidence is capable of being overvalued, even in a judge-alone trial. It was further submitted that for any weight to be given to the Telecommunications evidence, the fact-finder must assume the accuracy of the source records, for which there is no evidence. Finally, counsel for SA submitted that the unfair prejudice arises because the defence is precluded from testing the accuracy and validation of the records, as the prosecution has not obtained and disclosed these foundation documents, underpinning Mr Lolic’s evidence and the expert opinion evidence of Dr Sorell sought to be adduced by the prosecution.
Counsel for SA submitted that the unavailability of the source data upon which the expert opinion is based renders the probative value of the evidence identifying SA as present and involved in the offending, taken at its highest, ‘simply unconvincing’.[19]
[19]IMM.
It was submitted that because the accuracy of the Telecommunications evidence is assumed, the probative value is weak. It was further submitted that the inability to cross-examine Dr Sorell as to the validation of error rates, produces a palpable forensic disadvantage to SA incapable of being cured.
Having regard to these factors, counsel for SA submitted that the balancing exercise required by s 137 favours exclusion.[20]
[20]T370.24–27 (3 July 2023).
Prosecution submissions
Counsel for the prosecution submitted that the Telecommunications evidence comes in various parts, including:[21]
[21]T371.8–16 (3 July 2023).
(a) the mobile phone handsets of the four accused;
(b) data extracted by way of Cellebrite and AXIOM reports;
(c) CCR data;
(d) the EBM data;
(e) photographs;
(f) maps;
(g) videos; and
(h) expert analysis conducted by Dr Sorell.
It was submitted that the Telecommunications evidence cannot be viewed in isolation. It must be viewed in its totality and in combination with all other evidence that is sought to be adduced and relied on by the prosecution.[22]
[22]T371.17–20 (3 July 2023).
The prosecution submitted that the relevant fact in issue in SA’s trial is identification. That is, it was SA who was present at the scene of, and involved in, the alleged offending. In this regard, it was submitted that the Telecommunications evidence has significant probative value. It was further submitted that the Telecommunications evidence is consistent with other evidence that the prosecution seeks to rely on.[23]
[23]T371.20–26; T372.1–3 (3 July 2023).
Counsel for the prosecution submitted that the Telecommunications evidence tracks the movements of SA from the Western Suburbs of Melbourne to the Northern Suburbs of Melbourne, namely, to Reservoir, where the alleged offending occurred. It was submitted that it tracks SA as remaining at the scene of the alleged offending for the duration of the alleged offending, and then departing.[24]
[24]T371.27–31 (3 July 2023).
Counsel for the prosecution submitted that when assessing the significant probative value of the evidence, it must be taken at its highest, meaning that I must assume it is credible and reliable.[25] It was submitted that there is nothing to suggest otherwise in relation to this case.[26]
[25]IMM, [14].
[26]T372.15–17 (3 July 2023).
In terms of unfair prejudice, it was submitted that the onus is on SA to show that there is a danger of unfair prejudice and that the unfair prejudice outweighs the significant probative value.[27] Counsel for the prosecution submitted that evidence is not unfairly prejudicial merely because it inculpates an accused; there must be some identifiable feature that the fact-finder would give undue weight.[28]
[27]T373.17–21 (3 July 2023).
[28]T373.21–24 (3 July 2023).
Counsel for the prosecution submitted that many of the concerns regarding unfair prejudice, in terms of the risk of overstating or overvaluing expert evidence, can be alleviated, albeit not eliminated, in a trial proceeding by judge alone.[29]
[29]T373.24–27 (3 July 2023).
It was submitted that it is the totality and sequence of the Telecommunications data that gives it the significant probative value and militates against the hypothetical scenario of there being maintenance work or some other environmental factors interfering with the cell towers at the relevant times that SA’s phone connects with the towers.[30] Counsel for the prosecution submitted that while Dr Sorell accepted that it is possible that maintenance works or other environmental factors could impact the Telecommunications evidence, he was not able to accept the hypothesis on the basis that it is ’extraordinarily unlikely’.[31]
[30]T374.11–18 (3 July 2023).
[31]T376.1–2 (3 July 2023).
Counsel for the prosecution submitted that the source data underlying the Telecommunications evidence has been disclosed and that the witnesses who produce that data are capable of being called by the defence.[32]
[32]T378.7–29 (3 July 2023).
Having regard to the totality of the evidence, the prosecution submitted that the Telecommunications evidence contains significant probative value and that there is no identifiable prejudice that would result in me giving the evidence greater weight than it properly bears.[33]
[33]T374.1–4 (3 July 2023).
Consideration
The first consideration here is determination of the probative value of the Telecommunications evidence. Probative value is ordinarily assessed in reference to the entirety of the evidence to be adduced in the proceeding.[34] As this case is proceeding as judge-alone, my determination is confined to consideration of what has been put before the Court by the parties.
[34]Aytugrul v The Queen (2012) 247 CLR 170, [30]; IMM, [45].
The prosecution contends that what is in dispute in SA’s trial is identification. The Telecommunications evidence is sought to be adduced to support an assertion that SA was: travelling with the other accused from the Western suburbs of Melbourne to the Northern suburbs of Melbourne around the time the alleged offending took place; was at the location of the alleged offending for the duration of the offending; and departed from the scene afterwards.[35] It was submitted that the prosecution seeks to adduce further evidence during the trial which ‘marries up’ with these propositions.[36]
[35]T371.20–31 (3 July 2023).
[36]T372.1–4 (3 July 2023).
At this stage of the proceeding and taken at its highest, I consider that the Telecommunications evidence has significant probative value. The Telecommunications evidence goes to a key issue, namely, SA’s whereabouts at the time of the murder. It is evidence which may directly or indirectly go to proving this fact. The Telecommunications evidence will form part of the matrix of evidence the prosecution will rely upon to establish this fact in issue relevant to SA.
The second consideration is whether the Telecommunications evidence would occasion unfair prejudice to SA, which would outweigh the probative value of the evidence if admitted.
It was submitted by counsel for SA that the relevant prejudice with which s 137 is concerned is the possibility that the source data underpinning the Telecommunications evidence is inaccurate because there are no error-rate reports available. Counsel for SA relied on Makita (Australia) Pty Ltd v Sprowles[37] as supporting the proposition that when expert opinion evidence is tendered and is to be admitted it must be established that there is an expert field of knowledge and any assumed facts relied upon by an expert must be proven in some other way.[38]
[37][2001] NSWCA 305.
[38]T368.26–T369:16 (3 July 2023).
I note that the possibility of error in the underlying source data was put directly to Dr Sorell by counsel for SA during cross-examination in a s 198B procedure before me on 30 June 2023. Dr Sorell maintained that there is a theoretical possibility that the data is inaccurate, and that there is a possibility of interference with the cell tower signals. However, Dr Sorell considered such a possibility to be so remote that ‘it’s extraordinarily improbable’ and therefore was not able to accept the proposition as a working hypothesis.[39]
[39]T352.26–31 (30 June 2023).
The fact that the evidence may have flaws is not itself a prejudice. Nor is the fact that the evidence is strongly probative of the prosecution case. Potency and prejudice should not be conflated. Where the flaws in the evidence can clearly be identified by the tribunal of fact, in this case, a judge sitting alone, then they are unlikely to give rise to any significant prejudice. Indeed, many of the concerns raised by SA may go to the ultimate weight to be given to the Telecommunications evidence but do not necessarily generate unfair prejudice.
Further, this is a judge-alone trial; it does not involve a jury. Consequently, the risk of evidence being used for an impermissible purpose or erroneously given undeserved significance is militated by the fact that as a judge sitting alone I am equipped with the training and experience required to keep prejudicial material in proper perspective.[40]
[40]R v Droudis (No. 13) [2016] NSWSC 1350.
To find that Dr Sorell was influenced by unconscious bias in reaching his conclusions would require me to find that Dr Sorell does not have the specialised knowledge to enable him to give the opinions about the Telecommunications evidence generally. Noting that Dr Sorell’s qualifications were not challenged, I consider that Dr Sorell is qualified to give the expert evidence sought by the prosecution.
In any event, the prejudice which is said to arise from the Telecommunications evidence is cured by the availability of Dr Sorell to give evidence at trial at which time he can be cross-examined on the source materials he has relied on to reach his conclusions. It is for the Court to ultimately determine whether or not to accept the assertions made by the prosecution through the Telecommunications evidence.
Section 137 requires the Court to weigh the assessment of the probative value of the evidence against the prejudice that may be occasioned by admitting the evidence. In exercising this obligation I am persuaded that the probative value of the evidence sought to be led outweighs the danger of unfair prejudice to SA. The Telecommunications evidence is admissible.
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