R v Barakat (No 7)

[2016] NSWSC 1360

Supreme Court

New South Wales

Medium Neutral Citation:	R v Barakat (No 7) [2016] NSWSC 1360
Hearing dates:	11, 19, 23 September 2016
Decision date:	26 September 2016
Jurisdiction:	Common Law - Criminal
Before:	N Adams J
Decision:	The accused’s application to have the evidence of Ms Ahmad and the telephone records excluded is upheld.
Catchwords:	EVIDENCE - shooting murder – where call charge records and reverse call charge records indicate that accused was in the vicinity of the deceased’s home some weeks before the shooting – where deceased’s wife recalls seeing black Range Rover in vicinity of home four to six weeks before shooting – where dark blue Range Rover registered to accused - whether evidence capable of affecting the assessment of the probability of a fact in issue – evidence as to cell towers incomplete – evidence not relevant.
Legislation Cited:	Evidence Act 1995 (NSW), s 55
Category:	Procedural and other rulings
Parties:	Regina Mahmoud Barakat
Representation:	Counsel: P McGrath SC (Crown) D Dalton SC (Accused Barakat)   Solicitors: Solicitor for Public Prosecutions (Crown) Kiki Kyriacou Lawyers (Accused Barakat)
File Number(s):	2013/00327619
Publication restriction:	Nil

Judgment

1. On 7 September 2016, Mahmoud Barakat (“the accused”) pleaded not guilty before me to an indictment charging that on 12 July 2013 at Abbotsbury he did murder Ali Jammas (“the deceased”). At the same time David Younes (“Younes”) pleaded not guilty to being an accessory after the fact to that murder, but on 13 September 2016 the Director of Public Prosecutions directed that there be no further proceedings in relation to that count.

2. A number of pre-trial applications were determined prior to the empanelment of a jury on 20 September 2016.

3. On 11, 19, 23 September 2016, I considered an objection made by Mr Dalton SC, who appears for the accused, to material sought to be adduced in the Crown case regarding the sighting of a black Range Rover similar in appearance to one of two cars registered to the accused. The wife of the deceased observed a black Range Rover in a street around the corner from Thorpe Place in Abbotsbury, where the deceased resided, at around 12.30 - 1am four to six weeks before the shooting.

4. The voir dire was stood over part heard twice during the trial in order to permit the Crown the opportunity to obtain material from the Telstra Corporation Limited (“Telstra”) in response to matters raised by Mr Dalton. The last occasion on which evidence was led was Friday 23 September 2016, at which time the voir dire concluded. I reserved my decision over the weekend. It is anticipated that the Crown case will conclude either today or tomorrow. The Crown accepted that, even though Telstra had not answered all of its enquiries, the trial could not be delayed any further for that to be done.

The evidence of Ms Ahmad

5. The deceased was shot on 12 July 2013 at 12 Thorpe Place, Abbotsbury. The deceased resided at the end of the cul-de-sac of Thorpe Place. There are two means of entering Thorpe Place. The first is from Cowpasture Road and straight ahead down towards the end of the cul-de-sac. The only other way is from Elizabeth Street onto Hackett Drive and then winding around past another cross street and then left into Thorpe Place.

6. At the time of the shooting the accused owned a dark blue Range Rover with registration number CGC97F.

7. On 11 September 2013, the deceased’s wife Rose Ahmad made a statement to police. She stated that in either February or March 2013 the deceased took her out to dinner in the city. They left their home in Abbotsbury at about 7:30pm and arrived home at about 12:30am – 1am. The deceased was driving. When they turned into Hackett Road from Elizabeth Street, she and the deceased noticed a black Range Rover parked ahead on the other side of the road facing their direction. It was only about 500m from their home, near the roundabout at Rafter Crescent. The deceased slowed his vehicle as they approached the Range Rover. He wound down his window a bit. They could not see whether anyone was inside the vehicle as the windows were tinted. After about 30 seconds the deceased drove off and they did not talk about it anymore. Ms Ahmad stated at that time that she did not know anyone who owned a black Range Rover.

8. On 17 November 2014, Ms Ahmad made a further police statement. She stated that, on reflection, her observation of the black Range Rover occurred four to six weeks before the shooting. She told police that what made her notice the car in the first place was that it was parked on the other side of the road with its headlights on. Although there were other cars parked on the road as well, the black Range Rover was the only one with its headlights on. She stated further that, although in her first statement she indicated that she did not know anyone who owned a black Range Rover, she has since learned that a friend of the deceased’s named Fayaz Khan purchased one from money loaned to him by the deceased. She did not learn until recently that the vehicle he purchased was in fact a black Range Rover.

9. The Crown Prosecutor advised that there is evidence that, on one occasion, police pulled over the black Range Rover registered to the accused. Fayaz Khan was driving the vehicle and the accused was a passenger in it.

10. Although the registration certificate from Road and Maritime Services (“RMS”) for the accused’s Range Rover describes it as being blue in colour, the evidence was that it was a dark blue. A police officer who observed it during the day described the vehicle as black.

11. Mr Dalton stated that there is evidence that Fayaz Khan purchased the vehicle from the accused at some point. Evidence of the date of the sale was not provided on the voir dire.

The telephone records

12. In order to support its case that the black Range Rover observed by Ms Ahmad was the accused’s Range Rover and that he was in Hackett Drive conducting some form of surveillance at the relevant time, investigating police obtained the accused’s telephone records for the four to six week period prior to the shooting.

13. At the time of the shooting the accused was using two mobile telephone services. He was carrying on an extramarital affair with Eleena Bakhos. One of his two mobile telephone services ended with the numbers “575” (“the 575 service”). The accused used that service to speak with his wife and other people. The second mobile telephone service ended with the numbers “655” (“the 655 service”) and was used predominantly to communicate with Ms Bakhos.

14. The telephone records show that there were only two occasions during the four to six week period prior to the shooting that the accused was anywhere near the deceased’s Thorpe Place address. Neither of them was at 12.30-1am. There is a Telstra cell tower on Cowpasture Road, which is 3-4 kilometres from Thorpe Place. The telephone records suggest that, on 20 June 2013, the accused was in the vicinity of that cell tower for about 10 minutes, from 9.13-9.23pm. They also suggest that, on 24 June 2013, he was in the vicinity of that cell tower for about five minutes from 11:43pm.

15. It was not suggested that somebody else was using the accused’s telephones during this time. It was accepted by Mr Dalton that, if the accused’s telephone services were being used during that time, they were being used by the accused.

The accused’s movements on 20 June 2013

16. Putting together the records from each of the accused’s two telephones the records show his contacts and movements as follows between 9pm and 10pm on 20 June 2013:

Time		Service	Type	Cell Tower
20:59:46		375	Originating SMS	Milperra UWS Horsley Rd
21:08:59		375	Originating SMS	Prestons Cedar Rd
21:10:50		375	Originating SMS	Prestons Yarrawa Street
21:11:54		375	Originating SMS	Hoxton Park
21:13:03		375	Originating SMS	Green Valley Cowpasture Rd
21:13:52		655	Terminating SMS	Green Valley Cowpasture Rd
21:16:52		375	Originating SMS	Green Valley Cowpasture Rd
21:23:11		375	Call (64 seconds)	Green Valley Cowpasture Rd
21:35:23		655	GPRS	Hammondville W/Board
21:41:44		655	GPRS	Hoxton Park
21:41:44	655		GPRS	Hoxton Park
21:41:52	655		Originating SMS	Hoxton Park
21:42:21	655		Terminating SMS	Hoxton Park
21:43:07	655		GPRS	Green Valley Cowpasture Rd
21:43:07	655		GPRS	Green Valley Cowpasture Rd
21:43:12	655		GPRS	Green Valley Cowpasture Rd
21:43:12	655		GPRS	Milperra M5 Motorway
21:46:49	375		Originating SMS	Prestons Yarrawa Street
21:50:30	375		Originating SMS	Casula 560 Hjme Hwy
21:51:13	375		Originating SMS	Casula 560 Hjme Hwy
21:52:01	375		Originating SMS	Liverpool Rose St
21:52:59	375		Originating SMS	Liverpool Rose St
21:53:59	375		Originating SMS	Liverpool GSM MC1-SW Cnr Hume Hwy & M5
21:55:03	375		Originating SMS	Moorebank Greenhills Ave
21:56:21	375		Originating SMS	Moorebank Centenary Ave
21:57:20	375		Originating SMS	Hammondville W/Board
21:58:37	375		Originating SMS	Hammondville W/Board
22:00:08	375		Originating SMS	Hammondville W/Board
22:01:30	375		Originating SMS	Milperra UWS Horsley Rd

17. The telephone records show the accused’s telecommunications being picked up by the Cowpasture Road cell tower as follows: at 9:13:03pm he sent a text message, at 9:13:52pm he received a text message, and at 9:16:52pm he sent a text message. Then, at 9:23:11pm he made a telephone call that lasted 64 seconds. These four communications were all picked up by the Cowpasture Road cell tower. The accused is next recorded accessing data and sending and receiving a text message in Hammondville at 9:35pm and at Hoxton Park at both 9:41pm and 9:42pm. He is then recorded as accessing data from his telephone in Cowpasture Road, Green Valley at 9:43:07pm and 9:43:12pm, but at exactly the same time (9:43:12pm) he is also recorded as accessing date from his telephone at Milperra on the M5 Motorway some considerable distance away, casting some doubt on the accuracy of the GPRS positioning.

Telephone records 24 June 2013

18. The telephone records for both telephones on 24 June 2016, less than three weeks before the shooting, disclose the following:

Time	Service	Type	Cell Tower
23:16:47	375	?	Bankstown W/Board
23:20:25	655	Terminating SMS	Yagoona Smith St
23:38:57	655	Originating Call (20s)	Green Valley Green Valley Rd
23:43:22	375	Originating SMS	Green Valley Cowpasture Rd
23:44:27	375	Originating SMS	Green Valley Cowpasture Rd
0:06:20	655	Originating Call (22s)	Villawood Lowana St
0:14:51	375	VM	?
0:29:13	655	Terminating SMS	Bass Hill Shopping Plaza Hume Hwy
0:30:11	655	Terminating SMS	Bass Hill Shopping Plaza Hume Hwy

19. Again, these records show that the accused’s telephone calls and text messages were picked up by a cell tower in Yagoona (close to where he lives) at 11:20:25pm. At 11:38:57pm, he makes a 20-second telephone call in the vicinity of the cell tower on Green Valley Road, Green Valley. That cell tower is only 2.7km from Thorpe Place. Less than five minutes later, the Cowpasture Road cell tower (3.4 km from Thorpe Place) picks up two text messages being sent at 11:43:22pm and 11:44:27pm. By 12.06am (22 minutes later), he is recorded as being in Villawood some distance away.

20. The records for 20 and 24 June 2013 set out above are the only two occasions in the six weeks before the shooting when the accused is recorded as using his telephone services anywhere in the vicinity of Thorpe Place in Abbotsbury.

21. The Crown relies upon these records to support the Crown case that the black Range Rover observed by Ms Ahmad a few blocks from her home four to six weeks before the shooting at 12.30-1am was the accused’s vehicle and that he was conducting surveillance in it at the time.

22. Mr Dalton objected to the Crown’s reliance upon the cell tower references contained in the telephone records to prove the accused’s movements in the absence of evidence from a Telstra representative describing how the cell towers pick up the relevant telecommunications and also indicating the location of all cell towers in the relevant area.

The Telstra evidence

23. Adam Gelfe gave evidence on the voir dire by way of audio-visual link from Melbourne on 23 September 2016. He is the manager of the law enforcement liaison section of Telstra. He has been employed in that section for approximately 10 years. The law enforcement liaison section provides Telstra customer information to courts when required by law. He has given evidence in court on many occasions explaining records maintained by Telstra.

24. Mr Gelfe gave evidence that when a mobile telephone handset is activated by sending or receiving a call or SMS the telephone service seeks out a Telstra base station or cell tower (the terms are interchangeable) through which the communication is transmitted. This includes downloading data from the Internet. When data is downloaded it is described on the telephone records as “GPRS”, which is an acronym for General Packet Radio Service.

25. Base stations used by Telstra are generally named according to their location. Any individual Telstra cell tower or base station may consist of more than one or more antennae pointing in different directions. Mr Gelfe made enquiries about the cell tower on Cowpasture Road, Green Valley and ascertained that it has three antennas. The cell tower has a 360° field of operation, which means that each antenna covers a segment of approximately 120°. He made enquiries regarding the telephone call from the 375 service at 9:23:11pm on 20 June 2013 that was picked up by the Cowpasture Road cell tower. He was able to say that the antenna for that particular call was pointed south. That is, away from the address where the deceased was residing at that time. He had not performed the same examination in relation to other communications as at the time of giving his evidence.

26. Mr Gelfe gave evidence that the fact that it was the Cowpasture Road cell tower which picked up the call at 9:23:11pm does not mean that it was the closest tower to the accused at that time; it simply means that it was the cell tower with the strongest signal. Factors that affect whether or not the closest cell tower to a handset has the strongest signal include whether there are any obstructions between the handset and the towers, such as buildings or trees, and the volume of traffic. It could also be affected by the handset itself; for instance, whether or not the handset is old or new and how strong its battery is at the relevant time. A particular cell tower may be inoperable at any given time.

27. With telephone calls it is possible for a cell tower to “hand-off” transmission of a call to another cell tower during the course of the transmission. Each handset is in “constant negotiation” with Telstra’s network and the network will make decisions as to which cell tower is best equipped to handle any particular call. An SMS message is slightly different, as it is a single action. Mr Gelfe was unaware of any occasion where an SMS had been successfully handed off and changed base station during its transmission.

28. Mr Gelfe agreed that the accused’s telephone records for 20 June 2013 indicate that the mobile telephone handset was moving through a number of geographical locations during that period. He indicated that the records were consistent with a change in signal strength causing the base stations to change. Referring specifically to the 64-second telephone call at 9:23:11pm on 20 June 2013, Mr Gelfe agreed that it was possible that that call could have been handed off to another tower. That tower might not be recorded in the telephone records. That is, if the accused moved into the vicinity of another cell tower during his call, that would not be reflected in the telephone records.

29. Turning to the records for 24 June 2013, they show that there was no usage of the 375 service for a 10 hour period from 11:44:27pm until the following morning. Mr Gelfe indicated that that would be consistent with the handset’s being turned off, being on and not being answered, or being outside of range such as in the boot of a car preventing a signal transmitting.

30. Mr Gelfe confirmed that he examined only the telephone call on 20 June 2013 at 21:23:11pm. For example, he did not examine which antenna on the Green Valley Road cell tower, which is the cell tower closer to the premises of the deceased than that on Cowpasture Road, picked up the telephone call made at 11.38.57pm on 24 June 2013.

31. In cross-examination, Mr Gelfe agreed with Mr Dalton that a handset can be close to one tower yet actually be transmitting to a tower further away but said that this can only occur if it is in the right direction for the antennae on the more distant tower. Mr Gelfe agreed that there are other towers closer to the premises at 12 Thorpe Place than the cell towers in Cowpasture Road and Green Valley Road in Green Valley. Mr Gelfe gave evidence that he had no information in respect to any of those towers but that it was possible to obtain it. He stated that he could give evidence of the physical location of those cells, but not whether they had the strongest signal. He did not have this information immediately to hand.

32. Mr Gelfe indicated that he was not able to say what the coverage of each particular cell tower was.

33. Turning to the GPRS evidence, Mr Gelfe gave evidence that a GPRS record indicates the location at the start of such a connection. If one first accesses date in one’s car at Liverpool, for example, continues to access it as one travels some distance away, it may well be still recorded as having come through the Liverpool base station. Unless the IP address has been disconnected so that the phone is physically detached from the Telstra data network, it will continue to report back to the cell tower where it was first connected.

34. Mr Gelfe was not able to indicate where the cell tower in Milperra recorded at 9:43:12pm on 20 June 2013 was located.

Other evidence on the voir dire

35. The Crown tendered a map showing the part of south-west Sydney that includes both Thorpe Place and the address of David Younes in Yagoona. On the map were also marked some, but not all, of the relevant cell towers described in the records set out above. The two statements of Ms Ahmad were tendered on the voir dire, but she was not called to give evidence.

The Crown submissions

36. The Crown submitted that the evidence of Ms Ahmad about the sighting of the black Range Rover, evidence of the vehicle registered to the accused, and the evidence of the accused’s telephone records were linked. The Crown’s position was that, if the telephone records could not be linked to the sighting of the black Range Rover by Ms Ahmad, than the relevance of her evidence would fall away.

37. The Crown Prosecutor described the relevance of the evidence as being that, in a circumstantial case, it is another small matter to be put to the jury. That is, the accused was the registered owner of a car similar to that described by Ms Ahmad and the telephone records cannot exclude that he could have been in that car on either 20 June or 24 June 2013, as they show that he was in that area. He submitted that Ms Ahmad’s observation cannot be excluded as being irrelevant; it forms part of the “mosaic” and is thus capable of bearing on the facts in issue in the case.

38. The Crown Prosecutor submitted that the vehicle being in the street at that hour was sufficient to cause the deceased concern such that he stopped and looked at it for some seconds before moving on. Although there may well be other vehicles regularly in the neighbourhood, that does not reduce the probative value of the evidence.

39. The Crown Prosecutor submitted that he had attempted to put all of the telephone records before the Court, but conceded that the inquiries were not as yet complete. He conceded that there may be evidence that could bear on admissibility that is not before the Court, but that that was not for want of trying. This included evidence as to from what direction other calls, including that from the Green Valley Road late on the night of 24 June 2013, came.

36. It was submitted that, although there may be other towers closer to 12 Thorpe Place, there was no recording of transmissions through any such towers. He conceded that the towers recorded in the telephone records may not necessarily be the closest tower, but those with the best signal strength.

37. The Crown Prosecutor conceded that there was no evidence before the Court or available from Ms Ahmad as to where on Hackett Drive she observed the car with the headlights on, beyond that which was contained in her statement.

38. I raised with the Crown Prosecutor the difficulty of admitting the evidence in its current incomplete form. The evidence was that only one telephone call had been checked by Mr Gelfe to ascertain from what direction it had come vis-a-vis the three antennae on the Cowpasture Road cell tower. It was likely that the jury would ask questions about the direction from which the other relevant calls were made, especially the 20-second call at 11:38:57pm on 24 June 2013, which was picked up by the Green Valley Road cell tower. That tower was only 2.7km from 12 Thorpe Place. I asked whether the fact that there were unanswered questions could impact on the relevance of the material before the jury. The Crown Prosecutor submitted that the questions are currently unanswerable given the time remaining in the trial. He repeated that Ms Ahmad’s evidence and the evidence of the telephone records “rise and fall on being able to be linked”.

39. He noted that the trial had already been delayed at various times so that this evidence from Telstra could be obtained and that my ruling was now sought on the basis of the evidence currently available.

Defence submissions

44. Mr Dalton submitted that the evidence had no relevance. In support of that proposition he relied upon the following factors.

45. First, the evidence of Ms Ahmad is that the observation was made between 12:30am and 1am in the morning. She was not cross-examined about that time to suggest that it may have been earlier. Mr Dalton also submitted that Ms Ahmad was not able to indicate in what area of Hackett Drive she observed the vehicle to be. No enquiries were made with police as to whether anyone had a friend or relative visiting them who left at that time.

46. Second, the evidence is that there are other cell towers closer to 12 Thorpe Place, Abbotsbury than those picking up the accused’s telecommunications. There was no evidence before the Court as to whether they were operable at the relevant time.

47. Third, the evidence of Mr Gelfe was that just because a tower picks up a signal does not mean that it is the closest tower to the person using the mobile telephone.

48. Fourth, Mr Gelfe could not give any estimate as to the distance from which a cell tower is able to pick up a telecommunication nor even how many towers could be bypassed with respect to the relevant grid.

49. Fifth, in relation to the entries for GPRS activities on 20 June 2013 one entry recorded data being accessed on Cowpasture Road at 9:43:12pm and then another recorded data being accessed at 9:43:12pm through the cell tower on the M5 motorway at Milperra, some distance away. This showed that the records were unreliable. There was no evidence before the Court as to where that cell tower was in Milperra, but it is a number of suburbs away from Green Valley and much closer to Yagoona, where the accused was then residing. Not only is it a considerable distance away, but it has apparently bypassed numerous towers.

50. Sixth, there is no evidence before the Court that establishes that either of the accused’s two handsets were ever north of the Cowpasture Road tower in the direction of 12 Thorpe Place Abbotsbury; the only evidence is that he was south of it.

51. As for the records for 24 June 2013, Mr Dalton pointed out that there is evidence in the Crown case that it takes 22 minutes to drive from 12 Thorpe Place in Abbotsbury to Yagoona at 10am in the morning obeying traffic rules. The telephone records show the handset heading south-west rather than north after it is picked up by the Green Valley Road cell tower at 11:38:57pm on 24 June 2013. The records show the accused driving away from the direction of Thorpe Place after coming close to it, not towards it.

52. Mr Dalton also relied upon the fact that there is no evidence before the Court as to which antenna was picking up any of the relevant calls on 24 June 2013. Mr Dalton submitted that there was simply insufficient time for Ms Ahmad’s observations to have been of the accused, as the records show that he was travelling south in the direction depicted by the telephone records.

53. Mr Dalton submitted that the records only went to the six-week period beforehand; if in a 12-month period the records show the accused only being in the vicinity of Thorpe Place in the three weeks before the shooting and never before, then they may have some relevance. The fact remains that these records simply show that the accused briefly drove in the vicinity of Thorpe Place twice in the previous month. The area happened to be about 20 minutes from his home in Yagoona.

Consideration

54. The question for determination is whether the evidence of Ms Ahmad in conjunction with the telephone records is capable of establishing that the accused was conducting some form of surveillance in his black Range Rover in the vicinity of the deceased’s home at 12.30am - 1am three to four weeks before the shooting of the deceased. If the evidence had that capacity it would be relevant within the meaning of s 55(1) of the Evidence Act 1995 (NSW).

55. When the Crown first sought to lead this evidence it relied upon the telephone records on 24 June 2013 in particular. The telephone records for the 375 service taken on their own show that the last cell tower that day to pick up usage of that mobile telephone by the accused was on Cowpasture Road, 3.4km from the premises at 12 Thorpe Place Abbotsbury, at 11:44:27pm. There was then no use on that telephone for 10 hours until the following morning. This evidence was consistent with the Crown’s submission that there could have been surveillance during that time. It was also completely consistent with the evidence of Ms Ahmad. As the evidence stood at that time, I would have permitted it to have been led as being relevant as part of a circumstantial case.

56. The difficulty for the Crown is that further enquiries revealed that the accused’s second telephone number, the 655 service, was being used after that time and was not in the vicinity of the Cowpasture Road cell tower. Contrary to the initial Crown submission that it was consistent with surveillance at that time, it shows that the accused could not have been in the area any time after midnight that day and certainly not at the time that Ms Ahmed observed the vehicle between 12.30am and 1am.

57. A further difficulty for the Crown is that, following Mr Dalton’s objection to the Crown’s reliance upon cell tower evidence as being conclusive as to location, the Crown obtained further evidence from Mr Gelfe concerning the relevant cell towers that weakened that evidence further and also revealed that it is incomplete. Unfortunately, in the time available to it, Telstra was not able to provide sufficient details to answer all of the questions that arose concerning the cell tower evidence. It is of particular concern that there is no available evidence as to from what direction the call picked up by the Green Valley Road cell tower at 11:43pm on 24 June 2013 came.

58. The Crown has obtained the records for the six-week period prior to the shooting and I understand that there is evidence that the accused used both of his telephones on a regular basis during that time. In fact, one of the circumstances relied upon by the Crown at the trial is that on the morning of the shooting (12 July 2013), both of the accused’s mobile telephones were turned off or not used and appear to have been left at his home in Yagoona. The Crown relies upon this as being something unusual on the basis that the accused constantly used his telephones.

59. I have had regard to the fact that the Crown case is a circumstantial one and that a piece of evidence may have only minimal significance on its own, but nonetheless form part of the mosaic of the case overall. I have also taken into account the fact that the threshold test for relevance is a low one. Despite this, and having regard to all of the evidence put before me, I have formed the view that the evidence in its current form is not relevant and hence inadmissible. I have come to this conclusion for the following three reasons.

60. First, none of the telephone records support the Crown case that one of the persons in the black Range Rover observed by Ms Ahmad parked in a street around the corner from where she lived at 12.30am - 1am in the morning on a date four to six weeks before the shooting could have been the accused conducting surveillance. Ms Ahmad was not questioned as to whether she could have been wrong about the time. It may be that she is quite adamant that it could not have been earlier than 12.30am - 1am. There was no evidence on the voir dire to suggest that it could have been an hour or so earlier. Nor was I provided with any supplementary statement from her in which she resiled from her earlier statements that her observation took place at 12.30am - 1am. In these circumstances I must make my determination based on the evidence of Ms Ahmed as it stands. On this basis, whatever Ms Ahmed saw at that time, it could not have been the accused as the telephone records do not put him in that area at 12.30am - 1am on any date in that four-six week period. That renders the evidence irrelevant to the facts in issue in this trial.

61. Second, even if, hypothetically, there were some basis to accept that Ms Ahmad could be wrong about the time and it could have been an hour or so earlier (even though there was no direct evidence before me on the voir dire to support this assumption), that left 24 June 2013 as being the only possible date linking what Ms Ahmed saw with the accused within an hour or so. The records for 20 June 2013 are three to three and a half hours out, time-wise, and thus could not relate to the event described by Ms Ahmad. The records for 24 June 2013 place the accused in the same part of south-west Sydney as 12 Thorpe Place an hour or so earlier than that described by Ms Ahmad. However, the records are consistent with the accused’s having driven through the area, possibly some distance away from 12 Thorpe Place, rather than remaining in the area for any period of time undertaking surveillance.

62. Third, the current state of the Telstra evidence is incomplete in a number of important respects. This means the records are not currently in a state in which they could go to the jury in any event. The evidence of Mr Gelfe is that there are other cell towers closer to 12 Thorpe Place, Abbotsbury than those picking up the accused’s movements on 20 and 24 June 2013, but no available evidence as to whether they were operable at the relevant time. If they were in operation and did not pick up telecommunications from the accused that would give rise to the inference that he was not as close to Thorpe Place that night as the records might otherwise suggest.

63. Nor is it known how close or far away the accused could have been from the Cowpasture Road and Green Valley Road cell towers and still be able to have his telecommunications picked up by those cell towers. Mr Gelfe was simply unable to provide this evidence.

64. Significantly, there is no evidence before the court as to which antenna was picking up the call from the Green Valley Road tower at 11:38:57pm on 24 June 2013. If there were evidence that it was the antenna facing away from Thorpe Place in Abbotsbury, then again Mr Dalton may have been able to establish that it was unlikely that the accused went anywhere even close to Thorpe Place at all on that night. If, on the other hand the evidence was that the antenna closest to Thorpe Place picked up the call, that still would not overcome the fact that there are other cell towers closer to 12 Thorpe Place the details of which are currently unknown. These all are matters about which the jury would necessarily speculate in the absence of the outstanding evidence.

65. As they currently stand, the records suggest that even if Ms Ahmad were wrong about the time and what she saw was in fact an hour or so earlier (at 11.43pm) there would appear to be insufficient time for the observations she made to have been of the accused, as the telephone records are consistent with the accused travelling south on a major road in a direction away from 12 Thorpe Place at that time.

66. The high point of the relevance of the telephone records is that, if Ms Ahmed is wrong about the time, then in their current incomplete form they suggest that at 11:38:57pm on 24 June 2013 the accused was in the vicinity of the Green Valley Road Tower and by 11:43:22pm he was picked up using his telephone in the area of the Cowpasture Road cell tower. It is possible that he remained in that area for a minute until 11:44:27pm. He is next recorded as using his telephone as 12:06pm in the vicinity of the cell tower on Lowana Street in Villawood, some distance away. The evidence suggests that he may have been in the general area of Hackett Drive, Abbotsbury, possibly some kilometres away, for a period of minutes that evening. It would be an extraordinary coincidence if the few minutes that he may have been in the general area happened to be the precise time that Ms Ahmad and the deceased saw him in a street 500m from where they lived as they drove past on their way home (again, presuming Ms Ahmad to be wrong as to the relevant time).

67. For all of the above reasons I do not propose to permit the evidence to go before the jury. As a final observation, I note that the relevance of the observations of Ms Ahmad as being consistent with some form of surveillance was not strong in any event. Even if the telephone records did not tend to disprove that the accused could have been in the car observed by Ms Ahmad, it was a somewhat curious form of surveillance in any event. I accept the Crown submission that the presence of the vehicle in a nearby street at that late hour must have piqued the interest of the deceased in some way as it led him to slow his vehicle to look at it. He did not say anything to Ms Ahmad about this, so it is unclear why he considered it worth stopping for.

68. The fact remains that the car was not parked in Thorpe Place nor in any position from which you could observe their home. It was parked 500m away, two corners away from where the deceased resided, facing in a direction away from the deceased’s home with the headlights on. On the maps and evidence before me, it would not be possible to observe the deceased’s premises from where the car was parked even if it were not facing away from Thorpe Place. This leaves the only relevance being that the vehicle was waiting to see which route Ms Ahmad and the deceased travelled home. Had they driven home using the Cowpasture Road entrance that night, the person in the black Range Rover could not have seen them. Despite these shortcomings concerning the position of the vehicle, as stated above, I would have permitted the evidence to have been before the jury had the telephone records shown the accused to have been in the area at the relevant time.

69. For all of the above reasons I am of the view that the evidence in its current state is inadmissible.

orders

70. The accused’s application to have the evidence of Ms Ahmad and the telephone records excluded is upheld.

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Decision last updated: 09 December 2016