Ku-ring-gai Council v John David Chia (No 14)

[2018] NSWLEC 186

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ku-ring-gai Council v John David Chia (No 14) [2018] NSWLEC 186
Hearing dates:	14 November 2018
Date of orders:	16 November 2018
Decision date:	16 November 2018
Jurisdiction:	Class 5
Before:	Robson J
Decision:	See [19]
Catchwords:	EVIDENCE – criminal trial – prosecutor seeks to adduce summary evidence of phone records obtained by subpoena – whether evidence properly categorised as summary evidence or expert evidence – whether expert evidence required – defendant objects to inclusion of location data – whether the Court can use location data in the absence of expert evidence
Legislation Cited:	Evidence Act 1995 (NSW) ss 50, 69, 76, 79, 136, 137
Texts Cited:	Coutts and Selby, “Problems with Cell Phone Evidence tendered to ‘prove’ the location of a person at a point in time”   Coutts and Selby, “Safe and Unsafe Use of Mobile Phone Evidence”
Category:	Procedural and other rulings
Parties:	Ku-ring-gai Council (Prosecutor) John David Chia (Defendant)
Representation:	Counsel: T Howard SC with N Hammond (Prosecutor) C Steirn SC with D Beaufils (Defendant)   Solicitors: HWL Ebsworth Lawyers (Prosecutor) Dentons Australia Pty Ltd (Defendant)
File Number(s):	2016/00293131

Judgment

1. On the afternoon of day 22 of these Class 5 proceedings (Tcpt, 14 November 2018, p 1328(36-43)), Mr Howard, senior counsel for the prosecutor, sought to read the affidavit of David Thomas Gunter, affirmed 13 November 2018. Mr Gunter is a solicitor with the firm retained by the prosecutor. His affidavit contains, inter alia, a summary form of voluminous business records that were produced pursuant to five subpoenas, four of which were issued by the defendant and one by the prosecutor, to Telstra Corporation Limited (‘Telstra’) for mobile phone records. Mr Steirn, senior counsel for the defendant, initially objected to the whole of the affidavit but, as noted below, subsequently objected only to parts thereof.

2. By way of background, I note three matters concerning the evidence already before the Court. First, there is evidence of various instances of mobile phone contact between witnesses for the prosecution James McKenzie and Craig Edgar, and between Mr Edgar and the defendant. Secondly, Mr McKenzie and Mr Edgar were cross-examined about their telephonic contact using a summary record of mobile phone data prepared by the defendant (MFI 13) (at Tcpt, 1 November 2018, p 919(24) – p 924(21). Thirdly, in a record of interview of the defendant, dated 5 February 2015, the defendant on a number of occasions spoke about the potential of having been overseas, interstate or outside Sydney at times relevant to this matter.

3. In his affidavit, Mr Gunter deposes that, as a result of the five subpoenas issued to Telstra, the documents were produced in the form of three spreadsheets each in portable document format (pdf). The documents produced effectively comprise over 23,000 pages of data in raw form. The subpoenas had sought records of all calls made from and to, and records of all SMSs sent or received from, mobile phone numbers belonging to each of Mr Edgar and Mr McKenzie. Having reviewed the phone records and having satisfied himself that each mobile phone call and SMS text was accompanied by information indicating the mobile phone numbers concerned, the date, duration, and at times the location of “the person making the call or sending the SMS and the person receiving the phone call or SMS”, Mr Gunter then prepared three specific summary tables in relation to the communications between Mr McKenzie, Mr Edgar and the defendant over various time periods. The first was a summary of Mr McKenzie’s contact with Mr Edgar; the second was a summary of Mr Edgar’s contact with the defendant; and the third was a summary of Mr McKenzie’s contact with the defendant and Mr Edgar.

4. The prosecutor seeks to rely upon these three discrete tables which are said to be summaries of the raw material and calls in aid s 50 of the Evidence Act 1995 (NSW) (‘Evidence Act’) to adduce the evidence in the form of the summaries of the raw material produced by Telstra (presumably on the basis that it would not otherwise be possible conveniently to examine the evidence because of the volume and complexity of the documents).

5. Mr Steirn objects to the affidavit (apart from par 4) primarily on the basis that acceptance of the material should be the subject of expert evidence as to how the data (from the raw material) is to be (or has been) interpreted. Further, the attempt to adduce the material on the last day of the trial means that the defendant has not had time to take instructions from any expert. His primary position is that the material is inadmissible because of ss 76 and 79 of the Evidence Act. Apart from questioning the relevance of the material to be relied upon, he specifically objects to the aspects of the material that indicate the location of the defendant (or more specifically the location of the defendant’s mobile phone) at the time of the communications.

6. Mr Steirn provided to the Court two papers or articles, each authored jointly by Professor R P Coutts and Mr H Selby, and titled “Problems with Cell Phone Evidence tendered to ‘prove’ the location of a person at a point in time” and “Safe and Unsafe Use of Mobile Phone Evidence” respectively, which became Exhibits 6VD3 and 6VD4 on the voir dire. The provenance of these articles, their dates, and precise publication details are unclear though Mr Steirn noted that 6VD4 bears the wording “Public Defenders Criminal Law Conference 2009” and that 6VD3 was on the New South Wales Legal Aid website. It is clear that the authors are academics as Professor Coutts is associated with the University of Adelaide and Mr Selby, with the Australian National University Law School. Having read the papers, it is clear that the papers consider and analyse various difficulties that may be encountered in criminal trials resulting from the inaccurate use of mobile phone records, particularly “location information”.

7. Mr Steirn also submits that because the material has only been very recently received by the defendant, he has been unable to receive proper instructions (and that contact had sought to be made with Professor Coutts). Further, he submits that “the material is a complete departure from the (prosecutor’s) opening and is in those circumstances unfair for that reason”.

8. Mr Howard submits first, that the Telstra records are admissible as business records pursuant to s 69 of the Evidence Act and therefore it follows that a summary of those records is admissible, being neither opinion evidence nor expert evidence. He submits that Mr Gunter has not sought to interpret the material and the bulk of the material was produced by Telstra consequent from the defendant’s four subpoenas. He further submits that Mr Steirn has cross-examined various witnesses relying upon mobile phone records (see Tcpt, 1 November 2018 p 919-924) and that contrary to the defendant’s position, notice had been given that the prosecutor intended to produce “summary” evidence and, as such, it can come as no surprise. He refers to his comments (at Tcpt, 1 November 2018, p 922(45-46)) where he indicated that the prosecutor was preparing a summary and that the records were “voluminous”.

9. In response to Mr Steirn’s concerns specifically in relation to the location material, Mr Howard submits that the prosecutor wishes to use evidence of “location” and it is relevant because in Exhibit 24 (a record of interview of the defendant, dated 5 February 2015), the defendant spoke about the possibility that he was overseas, interstate, or otherwise outside Sydney at relevant times. The prosecutor seeks to rebut any such proposition by showing that during the period when certain calls were made and SMSs sent and received, the defendant (or, at any rate, his phone) was generally in the locality of Sydney. The prosecutor does not seek to use the location evidence for any other purpose, that is, not to pinpoint where precisely within Sydney the defendant was at the time of the telephonic contacts. As such, Mr Howard submits that there is no need for expert evidence to consider the raw data and the position is not similar to the various scenarios and concerns dealt with in the papers by Professor Coutts and Mr Selby.

10. Mr Howard was content for the Court to admit the location evidence subject to a restriction on its use pursuant to s 136 of the Evidence Act that the location evidence could not be used for any purpose save for showing that the defendant’s phone was in the locality of Sydney at the times indicated in Tables B and C annexed to the affidavit.

11. In response, Mr Steirn submits that the defendant some years ago (referring to the record of interview of 5 February 2015, Exhibit 24) made assertions as to his movements and the prosecutor has failed until day 22 of the hearing to seek to adduce any evidence to meet this. He submits that, in the circumstances, the new material is unfairly prejudicial and is likely to be misleading or confusing, and would result in undue waste of time, placing emphasis on ss 136 and 137 of the Evidence Act.

12. Mr Steirn further points to a number of “problems” with the various tables prepared by Mr Gunter and refers to “a number of entries” where the descriptor “no data” appears adjacent to entries referring to contact made with each of Mr McKenzie, Mr Edgar and the defendant under the reference to “Location” in the tables. Referring to those entries in the table where the note “no data” appears, he submits that this material is unintelligible without recourse to expert evidence. He submits that, in a criminal case, this material cannot be relied upon in any intelligent or probative way. He again refers to the articles by Professor Coutts and Mr Selby regarding suggested difficulties with “actual coverage area of a cell” and other concerns with the use of mobile phone data.

13. Mr Howard submitted that, contrary to Mr Steirn’s position, the material available to the Court in particular a letter dated 2 October 2018 from Telstra to the Registrar of the Court which accompanied the material produced in response to the subpoenas (Exhibit 6VD1), containing “Explanation Notes – Telstra Network Call Data”, provides assistance and understanding as to how the data has been compiled. This, according to Mr Howard, provides appropriate understanding of the material under “location” in the summaries later prepared by Mr Gunter. By way of example, Mr Howard noted the references to “Start Location” shows the location of the base station, usually in metropolitan Sydney, which Mr Howard submits, excludes the possibility that the call was made outside of Australia, NSW or the greater Sydney region.

14. Mr Howard submits that in the circumstances, particularly the fact that the defendant used its own summary data for cross-examination of a number of the prosecutor’s witnesses and the fact that Mr Gunter’s material had been provided to the defendant two days before, means that there is no material prejudice to the defendant. Finally, Mr Howard submitted that if the Court did not accept the prosecutor’s arguments that the Court could limit the use of the material pursuant to s 136 of the Evidence Act, a summary of the records could be produced with the references to location redacted.

15. Having considered the material in Mr Gunter’s affidavit and the correspondence from Telstra that accompanied the material produced to the Court, I consider that the evidence attached to Mr Gunter’s affidavit does not attempt to interpret the data received in the Telstra subpoenas, but rather summarises it. In those circumstances, I do not consider there is anything about the document which would make it inadmissible under ss 76 or 79 but I do note the concern expressed by the defendant in relation to the probative value of the evidence and the risk of unfair prejudice without an expert’s interpretation.

16. However, I am satisfied that concerns in relation to the probative value of the material and unfair prejudice are cured by an appropriate restriction pursuant to s 136 of the Evidence Act that the location data not be used for any purpose other than establishing that the defendant’s phone was within Sydney at the times and dates shown in the tables produced by Mr Gunter. The risks associated with the use of such material articulated by Professor Coutts and Mr Selby relate to using location data to attempt to “pinpoint” a location in circumstances where the location data may be reflective of base load capacity at a particular receptor rather than the geographic proximity of the phone.

17. Notwithstanding those shortcomings, geographic proximity is not irrelevant to the location data. Whilst it is not forensically accurate to an extent that it is appropriate to be used to determine whether someone was at a particular location, the prosecutor properly does not intend to rely upon it for that purpose.

18. Finally, whilst I accept that relevance is established, that the Telstra documents are business records and that the summaries and tables are properly created from the raw material such that expert opinion is not required, I also note that despite his primary submissions, Mr Steirn ultimately had little concern in relation to the “dates, times and duration” of data in the tables (Tcpt, 14 November 2018, p 1360(40-44)) but maintained a “real problem” with location “in any way, shape or form”.

19. In all the circumstances I read the affidavit of Mr Gunter made 13 November 2018 subject to the restriction pursuant to s 136 of the Evidence Act noted in par [16] above that the “Location” data in Tables A, B and C annexed to the affidavit are not to be used for any other purpose than establishing that the defendant’s phone was within Sydney at the time and dates otherwise recorded in the tables.

**********

Decision last updated: 19 November 2018