R v Karaali (No 6)

[2023] NSWSC 234

Supreme Court

New South Wales

Medium Neutral Citation:	R v Karaali (No 6) [2023] NSWSC 234
Hearing dates:	1 March 2023
Date of orders:	1 March 2023
Decision date:	01 March 2023
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The parties are not to adduce further evidence regarding the second IMEI number identified in the call charge records and the proceeding continue on the previously assumed basis relating to the phone associated with the accused
Catchwords:	CRIMINAL PROCEDURE — trial — late identification of fact relating to telephonic evidence — whether further evidence ought to be adduced to clarify fact — whether any unfairness to parties
Category:	Procedural rulings
Parties:	Abdul Karaali (Accused) Rex (Crown)
Representation:	Counsel: P Hogan (Crown) IH Wallach (Accused) Solicitors: Director of Public Prosecutions (NSW) (Crown) TNL Law (Accused)
File Number(s):	2020/61211
Publication restriction:	Not to be published until the completion of the trial

EX TEMPORE JUDGMENT

1. I have given a number of interlocutory decisions in this matter and my second decision, given after a lengthy Basha inquiry last year, concerned aspects of the telephonic evidence to be led in the Crown case. I will not go over that ground again, I will simply restate for the purpose of these reasons that Mr Karaali is charged with the murder of Mr Houllis. He denies he was involved in that event on 14 February 2020 and has pleaded not guilty. The Crown case against him is entirely circumstantial.

2. In basic factual terms, the question is whether he is the second man depicted in Exhibit A, a compilation of CCTV footage which depicts two men assaulting Mr Houllis in circumstances which led to his death on 17 February 2020. The identity of the first man is known, and I need not say more about that now.

3. A central feature of the Crown case has always been, from the outset, telephone records relating to the use of a SIM card that can be connected with Mr Karaali to communicate with the first person, a Mr Hamdach, at around the time that Mr Houllis was fatally assaulted.

4. There is other evidence concerning that matter including evidence, contested evidence, of an expert nature about the location and operation of the antenna fixed to mobile phone network base stations and what the information recorded in that regard says about the location of a phone connected to particular antennas. I have heard evidence, as have the jury, of course, from two experts about those matters.

5. The case has proceeded on the common basis that the SIM card is a SIM card associated with Mr Karaali and used in a telephone handset that also can be associated with him by other evidence. Indeed, it is conceded for the purpose of the trial that a handset recovered by police on the execution of a search warrant at his residence following his arrest on 25 February 2020 is his handset, that he was using on 14 February. The plan for today included calling Sergeant Catto-Pitkin, a police technical officer, to give evidence about the Cellebrite downloads obtained from that handset that was seized by investigating police.

6. In preparation for that evidence today, I am informed by the learned Crown Prosecutor, and I implicitly accept, that his close examination of the call charge records (“CCR”) relating to the SIM card, which itself has never been recovered, demonstrates that, at the critical time, on 14 February 2020, the SIM card which had been in the recovered handset appears to have also been used in a different handset as demonstrated by a different IMEI number showing up on the call charge records at that time. Because the telephone number associated with the SIM card remains the same, the telephone number shown in the CCRs for outgoing calls does not change.

7. The Crown concedes that he had not paid close attention previously to the IMEI numbers. Anyone familiar with these call charge records, as perhaps most telephone subscribers may be these days, will appreciate that they are a broadsheet format with much disparate information. In any event, Mr Crown concedes that he should have noticed this, perhaps, earlier, but as he was preparing for today, he had what I styled as a light bulb moment and picked up the change in IMEI number whilst the telephone number for outgoing calls remained the same. There is an available inference from that, as the IMEI number is associated with the handset and not necessarily the telephone service, that the SIM card was removed from one handset and inserted in another on 14 February 2020.

8. In accordance with his duty of fairness and disclosure as a Crown Prosecutor, Mr Crown immediately informed Mr Wallach of learned counsel for the defence of this additional information that had been revealed to him by his close inspection of the CCRs. Given this change in his appreciation of the facts, Mr Crown had wished to obtain some further information from Sergeant Catto-Pitkin about IMEI numbers and about the change.

9. When the matter resumed this morning Mr Wallach made it quite clear to me that this was new material, which caught him by surprise. He had not picked up the change of IMEI numbers in the CCRs which was potentially prejudicial to the accused. He could not meet any new evidence about this topic that might be sought to be elicited from the police officer.

10. Although I suggested the switch of handsets is a factor which could favour Mr Karaali and might help create a doubt in the mind of the jury, Mr Wallach pointed out to me that was not the only inference that may be open to the jury and that there was a prospect that the jury, even properly instructed, might think a switch of handsets reflected poorly on the accused, even though the other handset has not been recovered. He did not apply for an adjournment or for a discharge of the jury, but made it quite clear to me that his submission was the case should continue on the previous assumed basis that there had been no switch of handset.

11. When I raised that matter with Mr Crown he saw no difficulty with proceeding in that way, although felt an obligation to disclose what seemed to be the truth.

12. I formed the view there were two questions here, not necessarily leading to the same answer. The first question was undoubtedly that Mr Crown having realised the change was duty‑bound to draw it to the attention of the defence and he did so. The second question is whether it is incumbent upon him to obtain evidence about that matter, I infer for the purpose of explaining it and its possible significance.

13. However, it seemed to me the second answer posited by the Crown did not necessarily follow from the first. These are adversarial proceedings. The parties choose the ground upon which the case will be fought. While accuracy, exactitude and, dare I say, the truth are important matters they are not necessarily determinative of the proper way forward in the interests of the due and proper administration of justice. I offer as an example of that consideration that juries are told that they are not the seekers of the truth; they are not to conduct their own investigations in an attempt to ascertain what they regard as the truth. They are told they are judges and that they are to decide the case according to the issues as defined by the parties and on the basis of the evidence led by the parties, at least so far as they accept that evidence.

14. In my judgment, given that both experienced counsel agree the matter can still be presented as was intended without unfairness to either side it is not necessary that I, as trial judge, insist upon further investigations being undertaken or further evidence being produced to explain what now appears to be something which has been latent in the material that was gathered during the investigation. Indeed, for me to do so would be an abrogation of my obligation as a trial judge in a criminal trial. I am well satisfied the matter can proceed on the ground already chosen by the parties and the case can continue - may I put it this way, if somewhat infelicitously - as though the light bulb had never been illuminated.

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Decision last updated: 16 March 2023