R v Cunningham; R v Moarefi (No 6)
[2021] ACTSC 235
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Cunningham; R v Moarefi (No 6) |
| Citation: | [2021] ACTSC 235 |
| Hearing Date: | 17 September 2021 |
| Decision Date: | 21 September 2021 |
| Before: | Mossop J |
| Decision: | See [24] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Advance ruling application – where trial to be by jury – admissibility of phone records – unintelligible document – no expert evidence to explain the data – evidence of admission inadmissible against third party – |
| probative value outweighed by danger of being misleading or | |
| confusing – document inadmissible under s 135 of the Evidence | |
| Act 2011 (ACT) | |
Legislation Cited: | Evidence Act 2011 (ACT), ss 69(3), 71, 81, 83, 135, 138, 147(3) Telecommunications (Interception and Access) Act 1979 (Cth), s 180(2) |
| Cases Cited: | R v Williams-Savage; R v Sloane (No 2) [2021] ACTSC 137 |
| Text Cited: | Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 16th |
| ed, 2021) | |
| Parties: | The Queen (Crown) Christopher Cunningham (Accused) |
| Benjamin Moarefi (Accused) | |
| Representation: | Counsel |
| M Dyason (Crown) | |
| M Jones (Cunningham) A Haban-Beer with F Livingstone Clark (Moarefi) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) | |
| KG Criminal Law (Cunningham) | |
| Boxall Legal (Moarefi) | |
| File Numbers: | SCC 214 of 2019; SCC 270 of 2019 |
| SCC 215 of 2019 | |
| MOSSOP J: | |
| Introduction |
The Crown has sought an advance ruling on the admissibility of certain records provided by Telstra in relation to a mobile telephone number said to be associated with the accused Christopher Cunningham. The relevant portions of the telephone records which were sought to be admitted are from 5:55pm on 2 March 2019 until 2:45am on 3 March 2019. The shooting the subject of the charges against the accused is alleged to have occurred between 9:50pm and 9:52pm on 2 March 2019.
The document sought to be admitted is an Excel spreadsheet generated, in part, using data obtained from Telstra. It has been marked as exhibit 1 on the application. The Telstra data was obtained by the Australian Federal Police (AFP) pursuant to a request under s 180(2) of the Telecommunications (Interception and Access) Act 1979 (Cth). That request led to certain data relating to a
telephone number that ended in 018 being “pushed” to the AFP electronic
systems. This was done using the Telstra Phoenix interception management
platform to transfer data to the AFP “4Sight” application.
A staff member of the AFP then manipulated the data. The officer removed a number of columns of data that were not relevant to her analysis. She also added a column showing the likely user of the telephone number. The user was identified from police indices or enquiries, the details of which were not in evidence.
Objections to admissibility
Both accused, Mr Cunningham and Mr Moarefi, opposed the admission of the Excel spreadsheet.
Counsel for Mr Cunningham sought to exclude from any ruling the issue of the authorisations for the obtaining of access to the information from Telstra which arose out of the documents at pages 27, 29, 31, 45, 49, 56, 59 and 62 of the affidavit of James Melloy affirmed on 13 August 2021. It is not inappropriate to deal with the application for an advance ruling on that basis.
If the evidence was sufficient to establish telephone or possibly other forms of communication between Mr Cunningham and Mr Moarefi or Mr Cunningham and the complainant in the period surrounding the events giving rise to the charges, then that evidence would be relevant. That is because the Crown case asserted communications between Mr Cunningham and the complainant before and after the shooting and between Mr Cunningham and Mr Moarefi before the shooting.
Two fundamental issues raised by counsel for both accused related to the intelligibility of the document. The evidence led by the Crown was sufficient to establish how the underlying data was obtained from Telstra, received by the AFP and then put into an Excel spreadsheet by the relevant officer. However, no evidence was tendered or led that would explain the various entries in the Excel spreadsheet. It appeared to be assumed that some further explanation of the document might be given at trial. While that would be a possibility, it was an approach that was inconsistent with making an application for a pre-trial ruling that the document was admissible. That is because the ruling would be made in the absence of any explanation of the document and hence it would be more difficult for the Crown to establish its relevance and more difficult for the Crown to resist a submission that it should be excluded on the basis that it was misleading or confusing.
The first matter raised as to the intelligibility of the document was that there was
no explanation for the column headings “Date”, “Time”, “A Party”, “B Party”, “Duration” and “Direction”. Examination of the raw data (in a file which was in
evidence on the application but not itself part of the evidence which the Crown sought to have ruled admissible at the trial) allows the inference that the date and time entries referred to Australian Eastern Daylight Time. While, having seen similar records, it is possible to speculate about the likely meaning of the other headings and the content of the records under them, they were not explained in the evidence.
The second matter raised involved the interpretation and intelligibility of particular entries within the spreadsheet which demonstrated that the lack of explanation of the entries was a matter of real significance. The data from Telstra was identified
as being “Call Associated Data”. It was not made clear in the evidence whether
the data related only to voice calls or to other forms of traffic between two identified telephone numbers. This lack of evidence became significant in a way that I will refer to in a moment.
10. The spreadsheet also included columns headed “A Party Likely User” and “B Party Likely User”. In these columns, the telephone numbers provided by
Telstra had been matched by the officer of the AFP to particular identified persons. This matching exercise was contested, particularly by Mr Moarefi, because an appropriate evidentiary basis had not been established. While I will return to that issue later in these reasons, for the moment I will refer to the entries as though they accurately recorded the identity of the person using the telephone.
So far as intelligibility was concerned, a number of different types of confusing entries were identified.
12. First, there were entries which appeared to show telephone calls from Christopher Cunningham to Christopher Cunningham. If that record related to a voice call, it appears to be a logical impossibility. The entry was not explained by the evidence put forward by the Crown on the application.
13. Second, there were multiple occasions where there were entries for traffic between two numbers which, if they were voice calls, would overlap with each other. For example, the entry on 2 March 2019 at 18:55:53 appears to show a telephone call between Christopher Cunningham and Kylie Carpenter for 37 minutes and 14 seconds. However, the entry on the same day commencing at 18:56:06 shows a telephone call between the same persons for five seconds. Further, there are three other subsequent entries for what appeared to be telephone calls which would fall within the 37-minute period of the first call. If all entries were telephone calls, then this is a logical impossibility. If not all entries were telephone calls and some were other forms of traffic, it is not clear what they were. Entries of this type were not explained by the evidence put forward by the Crown on the application.
Third, there are entries identified as being Mr Cunningham and a “B Party Likely User” identified as “#N/A”. These entries appeared to be regularly repeated
throughout the spreadsheet. The duration of these transactions was, in each case, 15 minutes. Entries of this type were not explained by the evidence put forward by the Crown on the application.
These difficulties were not isolated ones but were spread through the document in a way that made it very difficult to understand what the document actually recorded. It is possible that had expert evidence been led to explain these entries, then there may well have been a reasonable explanation for the entries, having regard to the nature of the traffic recorded by Telstra and the electronic recording systems that it had in place. However, no such expert evidence was led in support of the application.
Counsel for both Mr Cunningham and Mr Moarefi submitted that because of these issues, the evidence should be excluded under s 135 of the Evidence Act 2011 (ACT) on the basis that its probative value was substantially outweighed by the danger that the evidence might be misleading or confusing.
In my view, the submissions on behalf of each accused should be accepted. The document in its present form and read in light of the evidence put forward on the application is confusing and potentially misleading. That is because: there is no explanation of the meaning of the entries; having regard to the operation of the Telstra call associated data recording system, it is not clear what traffic over the Telstra system the entries relate to; and various of the entries (including entries of significance for the Crown case) suffer, on their face, from the logical or intelligibility problems outlined earlier. Given the difficulties with the understandability of the evidence, it cannot be said that the probative value of the evidence is significant. Given that the evidence relevant to explaining the document has not been led on this application and it is not possible to say what, if any, evidence to explain the document would be led if it was ruled admissible at this stage, I reach the conclusion that the probative value is substantially outweighed by the danger that the evidence might be misleading or confusing.
Counsel for both accused also submitted that prejudice would arise from the fact that the authorisation to obtain the telephone data would require disclosure to the jury that Mr Cunningham was a suspect of police prior to 2 March 2019. That submission was based on the propositions that the authorisation would be sought to be proved by the Crown by way of evidentiary certificate which would indicate that the authorisation for disclosure of the telephone data was made on 6 February 2019, weeks prior to the date of the offence on 2 March 2019. These submissions were misconceived. If the material was admitted as a result of the present application, there will be no necessity for the jury to receive evidence about the basis upon which the information was obtained. The document could simply be tendered as a result of it having been ruled to be admissible. So far as the jury is concerned, the fact that police have access to telephone records would be a matter which would be unlikely to give rise to any suspicion on the part of the jury. If, for reasons of which I am not presently aware, it may lead the jury to speculate as to why police have access to telephone records for the purposes of the current proceedings, they can be given a direction and there is no reason that a direction would not be effective to avoid any prejudice.
Counsel for Mr Moarefi submitted that there was no material that established that the registered user of the number said to be associated with Mr Cunningham was in fact associated with Mr Cunningham. Mr Cunningham had made an admission that he used the identified phone number which was registered in the name of Matthew Lambert. However, there was no evidence apart from that admission to establish a link between that telephone number and Mr Cunningham. Counsel pointed out that if any admissions have been made by Mr Cunningham in relation to his use of the Lambert name or the Lambert phone then that admission was not admissible against Mr Moarefi. That was the consequence of the operation of s 83 of the Evidence Act. That provides that s 81 of the Evidence Act does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party. Mr Moarefi is a third party for the purposes of this provision. Notwithstanding that this point was clearly made in the written submissions made on behalf of Mr Moarefi, counsel for the Crown had no
answer to it. I accept that it precludes the use of Mr Cunningham’s admission
against Mr Moarefi because the hearsay rule prevents the evidence of
Mr Cunningham’s previous representation being admissible to prove the
existence of the fact that he asserted by that representation.
Counsel for Mr Moarefi made a submission that the use of the material the subject of the authorisation under s 180(2) of the Telecommunications (Interception and Access) Act was an impropriety under s 138 of the Evidence Act. This submission was only developed in a limited way. Counsel submitted that because the evidence had been obtained from Telstra pursuant to an authorisation obtained prior to the incident in question and not targeted at her client, it amounted to an impropriety for the police to permit that information to be used against Mr Moarefi. No specific statutory provision limiting the use of information or any case law was referred to. I do not accept the submission. Nothing was pointed to that confines the use of the information to the purpose identified under the terms of the Telecommunications (Interception and Access) Act request or that would make it otherwise improper for the police to make use of the information in relation to a non-target person.
Counsel for Mr Cunningham also raised the possible operation of s 69(3) and s 147(3) of the Evidence Act. In response, counsel for the Crown referred to s 71 of the Evidence Act. Unfortunately, counsel for Mr Cunningham had not raised the operation of these sections in her written submissions. Given that they were not raised in written submissions and hence the respective arguments were not articulated in detail by the parties and having regard to the conclusions that I have otherwise reached, it is not necessary to express any concluded opinion on the operation of these provisions. I note, however, that these provisions are unlikely to exclude the admission of the underlying Telstra data even when it has come into the possession of the AFP, so long as it can be proved that it has not been relevantly modified in the process: see Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 16th ed, 2021) at [EA.69.240] and [EA.147.60].
The end result is that the evidence is not admissible against either accused because, pursuant to s 135 of the Evidence Act, I refuse to admit it. Additionally, and independently of the inadequate factual foundation laid to explain the meaning of the entries in the spreadsheet sought to be tendered, it is not admissible against Mr Moarefi because of the absence of any evidence admissible against him that the number ending in 018 is a number that was available to be used by Mr Cunningham at the relevant time.
At least so far as Mr Cunningham is concerned, the evidence has been rendered inadmissible because of the inadequate evidentiary foundation laid for its admission and the form in which it was sought to be admitted. Evidence of machine generated data obtained from telecommunication providers clearly can be admitted if a proper evidentiary foundation is laid. R v Williams-Savage; R v Sloane (No 2) [2021] ACTSC 137 is a recent example of a case in which such evidence was admitted.
| Order | |
| 24. | The order of the Court is: |
1. The spreadsheet which is Exhibit 1 is ruled to be inadmissible at the trial of Christopher Cunningham and Benjamin Moarefi on the charges on the indictment dated 20 February 2020.
I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.
Associate:
Date: 20 October 2021
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