R v Karaali (No 8)

[2023] NSWSC 237

Supreme Court

New South Wales

Medium Neutral Citation:	R v Karaali (No 8) [2023] NSWSC 237
Hearing dates:	22 February 2023
Date of orders:	22 February 2023
Decision date:	22 February 2023
Jurisdiction:	Common Law - Criminal
Before:	Campbell J
Decision:	The Schedule of Telephone Records admitted as Exhibit C.
Catchwords:	EVIDENCE — voluminous telephone records in summary form — whether inapt to adduce prior to expert evidence regarding telecommunications — whether presentation of designated telecommunications cell towers in summary form is prejudicial — direction to jury to limit use
Legislation Cited:	Evidence Act 1995 (NSW) ss 50, 136, 137
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

JUDGMENT

1. On 22 February 2023, I admitted Exhibit C over the objection of Mr Wallach of counsel for the accused (75.45–87.5T).

2. Exhibit C, in a spreadsheet or schedule form, is a summary of various phone records providing a suite of information about telephone communications, either voice or text, involving Mr Sami Hamdach, Mr Houllis (the deceased), Ms Loubna Kawtharani (Mr Hamdach’s partner), Mr Karaali (the accused) and Mr Karaali’s partner.

3. Exhibit C was tendered as a summary under s 50 Evidence Act 1995 (NSW). There was no question before me that the schedule was a summary of many documents, certainly two or more, and that the conditions otherwise stipulated by s 50(2) had been satisfied. While the full argument is recorded in the pages of the transcript for 22 February 2023 to which I have referred, I think it fair to say that Mr Wallach’s real objection was to information attributing each telephone used for each communication to a specifically nominated “cell tower”, or telecommunication network base station. A central part of the prosecution’s circumstantial case relates to these telephone records. By them the Crown seek to prove, for present purposes, communication between Mr Hamdach and Mr Karaali on 13 and 14 February 2020 and their general geographical location at the time of the communication. Specifically, the Crown by reference to Exhibit C wished to invite the jury to infer that both Mr Hamdach and Mr Karaali were in the general vicinity of the Wakeley IGA carpark and at the corner of Goulburn Place and Bulls Road, Wakeley when the serious assaults on Mr Houllis which led to his death were inflicted.

4. So far as Mr Karaali is concerned, this is in furtherance of the Crown case that he is “the second person” shown on the CCTV footage (Exhibit A) of the assaults, there being no question that Mr Hamdach is “the first person”. As the argument was refined it became apparent to me that Mr Wallach’s objection related to the risk of the jury misusing the information about the location of base stations and forming a firm view about the likely whereabouts of Mr Karaali at material times before hearing explanatory expert evidence. Mr Wallach argued thatmatter “opens up a misrepresentation of what the evidence may be, and certainly opens up unfair prejudice to the accused”. The context for this last submission was an expectation that the telecommunications experts would concede that while a mobile telephone will usually connect with the strongest available signal emitted by an antenna attached to a base station, that base station is not necessarily the closest base station to the mobile phone for a variety of reasons.

5. I have no doubt in my mind that the s 50 conditions were satisfied, that the evidence was otherwise relevant and prima facie should be admitted.

6. To the extent to which there was a possibility that the jury could form firm conclusions about the probative value of the attribution of Mr Karaali’s mobile devices to nominated or specified base stations, I was not satisfied that s 137 of the Evidence Act had been engaged. At the same time, given the expectation that the contents of Exhibit C would be explained by expert evidence, I considered it prudent at the point of admission to limit the use the jury could make of Exhibit C itself under s 136 Evidence Act. The substance of my longer direction was in the following term (91.33T):

“You are not to use this document and, in particular, the designated location of the cell towers contained within the document, as evidence of the location of the mobile phone said to be connected to it. You are not to make use of it in that way because you’re going to hear…detailed expert evidence about how cell towers operate and what is their range and what connection between a mobile device and a cell tower indicates about their relationship.”

7. Order:

1. The Schedule of Telephone Records admitted as Exhibit C.

Decision last updated: 17 March 2023