R v Myers (No 2)

[2022] ACTSC 194

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Myers (No 2)
Citation:	[2022] ACTSC 194
Hearing Date:	27 July 2022
Decision Date:	27 July 2022
Before:	Mossop J
Decision:	See [28]
Catchwords:	CRIMINAL LAW – EVIDENCE – Admissibility of telephone call
containing admission of alleged offending and Cellebrite
extraction reports – new evidence disclosed by Crown in days before trial – consideration of s 137 of the Evidence Act 2011 (ACT) – probative value of evidence not outweighed by danger of unfair prejudice to the accused – Cellebrite extraction report not inadmissible – ruling on telephone call deferred pending further
submissions
Legislation Cited:	Evidence Act 2011 (ACT), s 138, 192A
R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56
Cases Cited:
R v Myers (No 1) [2022] ACTSC 188
Parties:	The Queen (Crown)
Thomas Myers (a pseudonym) (Accused)
Representation:	Counsel
B Morrisroe (Crown) R Baldeo (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown) Hugo Law Group (Accused)
File Number:	SCC 61 of 2022
MOSSOP J:

1.       The accused is charged with one count of aggravated robbery. On 7 March 2022 the matter was committed for trial in the ACT Supreme Court. On 7 April 2022 the case statement was filed. On the working day before the trial was due to commence, 22 July 2022, substantial additional material was served upon the accused. Relevant to the present application is:

(a)	a telephone call involving the accused recorded while he was on remand at the Bimberi Youth Justice Centre on 20 July 2021; and
(b)	Cellebrite extraction reports from a mobile phone seized from the accused and

the complainant’s mobile phone.

2. The accused has sought a ruling under s 192A that the evidence be excluded pursuant to s 137 of the Evidence Act (2011) (ACT).

3.       The principal issue in the trial is likely to be identification. As disclosed in the case statement, the Crown case of identification was based upon the evidence of the complainant who recognised the accused at the location of the offence based upon the

photograph from his Facebook profile and evidence of the accused’s fingerprints and

palm print on the complainant’s vehicle.

4.       The conversation recorded at the Bimberi Youth Justice Centre involved the accused saying words to the effect of:

Accused: They get my fingerprints taken in the 9th of August.

Relative: Oh yeah, what’s that for?

Accused: For, um, grievous bodily harm, aggravated robbery. We robbed this cunt and he was on the roof and then we done a drift and he fell off the roof while we were going like 150.

Relative: What the fuck? Huh, are you serious?

Accused: Yes.

Relative: You’re an idiot (indistinct). So you left him on the roof?

Accused: Yes.

5.       The conversation in which those words were spoken was initially with his mother but this portion of the conversation may have been with another relative. The statement made corresponds to the allegations in the Crown case. The evidence indicates that while this telephone call, along with approximately 100 others had been recorded as a result of a police request, it had not been listened to until shortly before it was disclosed to the prosecution and the accused.

6.       Thus while recorded a year earlier, it was only provided to the accused the day before the trial and in circumstances where he practically was unable to take any steps to respond to it. The evidence does not establish that the approximately 100 other calls recorded by the police had been listened to or how long they are.

7.       The Cellebrite reports include the following information that the Crown would rely upon;

(a) calls from the complainant’s phone to a telephone number which other evidence

would establish was associated with the accused on the day of the offence;

(b)	an entry showing that a person with the name of the accused was added as a contact of the complainant in 2020, some eight months before the offence occurred;
(c)	an entry showing that a search for an address close to where the offending occurred was made from the phone seized from the accused on the day of the offence;
(d)	an entry identifying a Facebook Messenger communication between a person

with the accused’s name and another person which identified the accused as

“(owner)”; and

(e) an entry appearing to show that various pieces of software associated with Snapchat were installed on the mobile phone seized from the accused.

8. Section 137 provides that the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the

defendant. This is a mandatory provision indicated by the word “must”. Unfair prejudice

does not arise simply because the evidence strengthens the Crown case against the
accused.

9. Unfair prejudice in s 137 (like “prejudicial effect” in s 101 and “unfairly prejudicial” in s 135) conveys the idea of “harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way”: R v Bauer (a pseudonym)

[2018] HCA 40; 266 CLR 56 at [73]. That might be because the jury might give the evidence more weight than it deserved, or that the evidence would be misused by the jury in some other unfair way.

10. I accept the submission by counsel for the accused that the reasons for the late disclosure are not relevant to the question arising under s 137. The relevant enquiry relates to the consequences of the admission of the evidence for the accused. Thus, one must look at whether or not because of the late disclosure there is a risk that the evidence will be given undue weight or otherwise misused by the jury.

11.     As between the two categories of evidence, the considerations are different. However, the fundamental point is that the accused has, by reason of the late disclosure, been denied the opportunity to take further steps to investigate the material or obtain evidence that might respond to the material.

12.     In relation to both categories of evidence, no evidence was led as to the steps that would have been taken had the information been disclosed earlier. The court was, therefore,

left with counsel’s submissions as to what might have been done in order to respond to

the material.

13.     In relation to the Bimberi telephone call, that is, on its face, highly probative and likely to be accepted by the jury as highly probative. It is in quite explicit terms and was made in the context of a conversation with a relative.

14.     Had the evidence been disclosed earlier, counsel for the accused said that the accused

would have taken steps to obtain and listen to all other recordings made of the accused’s

conversations at Bimberi. The evidence was that the monitoring of calls was requested
on 22 July 2021 and that the relevant call was provided on that date.

15.     There were subsequent recordings of other telephone calls made between July and November 2021. Those other telephone calls would be examined by the representative of the accused in order to explore whether there was an evidentiary basis for a submission that what was said either reflected a recounting of allegations which had been put to the accused rather than admission of his actual conduct or whether there was some other basis to undermine the reliability of the admissions.

16.     The probative value of the material is, as I have indicated high. It is certainly likely to be accepted by the jury and given a great deal of weight. The difficulty is that because of the late disclosure the accused has been denied an opportunity to obtain and investigate the contents of other telephone calls made by the accused which might cast a different light upon the admission.

17.     Because the content of those calls is unknown, the risk arises that there is something there which is presently unknown but which alters the complexion of the admission. In the case of proceedings against an adult, this consideration would be less because the adult would be likely to be able to provide some instructions about the content of the other calls. While there remains a possibility that this may be done in the present case (in a prosecution involving a minor), it is less likely to be an adequate substitute for examination of the calls. While at present, having regard to the terms of the statements made in the recorded telephone call, it would appear unlikely that there will be such material. There is a danger that such material exists and that in the absence of the opportunity to put that material before a jury there is a risk that the evidence would be seen as an unqualified admission of the offending.

18.     Having regard to the date of the telephone call, close to the beginning of the period of

monitoring, it’s unlikely that monitored calls substantially remote from the subject

telephone call will shed light on the content of the subject call. Therefore, it is unlikely that the spectre of a necessity to examine or listen to calls over the whole of the period, July to November 2021, is an accurate picture of what would be required on behalf of the accused.

19. In applying s 137 I am obliged to consider the extent to which the danger associated with admitting the evidence may be reduced by some other action including adjourning the proceedings. At an earlier stage of the proceedings and before identification of the precise evidence sought to be admitted, I refused an application by the Crown to adjourn the trial over the opposition of the accused: see R v Myers (No 1) [2022] ACTSC 188.

20.     Before I rule on the admissibility of this material I will need to consider whether it is practical to adjourn the proceedings for a short period in order to allow investigation of the content of the other telephone calls reasonably proximate to the subject call. That consideration is affected by the fact that the proceedings are unlikely to be completed this week in any event and the state of the court lists next week.

21.     There is also a further application to exclude the evidence and it is probably appropriate that I hear that application as that will determine the issue of admissibility of this evidence on a different basis.

22.     In relation to the Cellebrite extraction reports, the evidence put before me was an extract of the content of those reports.

23.     The statement of the police officer who did the extractions was not put before me. I proceed on the basis that that officer will be able to give some explanation of the process by which the extraction is made and the content of the different components of the extraction of the report. The different aspects of the report to be tendered appear likely, in combination with the likely evidence of the officer who performed the extraction to be

able to be readily understood by the jury. They are limited strands in the Crown’s

circumstantial case.

24.     However, they have probative value in that they show a pre-existing connection between the complainant and the accused, contact between the complainant and a telephone number associated with the accused, the content of a search made on the phone seized from the accused and an entry from Facebook Messenger consistent with the phone being that of the accused. They also show some software having been installed on the phone. In the absence of actual evidence describing the categories within the Cellebrite reports it is difficult to make an assessment of the risk of unfair prejudice.

25.     Speaking generally, however, the entries appear to be relatively self-explanatory and not matters where any expert evidence is likely to be able to qualify their probative value. The exception to that may be the association between the name of the accused and the

word “(owner)” in the Facebook Messenger communication. The meaning of that entry

is not apparent on its face and in those circumstances whether or not there is a risk of unfair prejudice will depend upon the content of the officer's evidence about its meaning.

26.     Otherwise, in relation to other entries there does not appear to be a significant risk of unfair prejudice because the extracted data is unlikely, after appropriate and relatively straightforward cross-examination, to be misunderstood or to be given inappropriate weight by the jury.

27. In summary, except for the Facebook Messenger entry just mentioned, the entries sought to be relied on by the Crown have significant probative value and that probative value is not outweighed by the danger of unfair prejudice. Whether or not the Facebook Messenger entry should be excluded under s 137 cannot be determined until after the relevant witness has given evidence.

28.     The orders that I make are therefore:

1. The evidence on pages 85, 3668, 990 and 795 of the Cellebrite downloads are not inadmissible pursuant to s 137 of the Evidence Act 2011 (ACT).

2.       No ruling is made in relation to page 82 of the extract.

3.       Any ruling in relation to the Bimberi telephone conversation is deferred pending further submissions.

I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

Date: 2 August 2022