R v Nissen & Vanin - [2016] SADC 139

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NISSEN & VANIN
[2016] SADC 139
Reasons for Ruling of His Honour Judge Soulio
25 November 2016
CRIMINAL LAW - EVIDENCE
Evidence obtained by scientific instrument or process - admissibility of data downloaded from unidentified GPS tracking device.
Held - evidence excluded.
Evidence Act 1929 (SA) ss 53, 56; Evidence (Records and Documents) Amendment Act 2015 (SA) s 2; Uniform Evidence Act 1995 (Cth) s 146; District Court Criminal Rules r 49, referred to.
Paul Richard Ling v Police [1996] SASC 5856 (judgment delivered 14 November 1996); Petty v The Queen [1991] HCA 31; Police v Barber (2010) 108 SASR 520; Police v Henwood (2005) 92 SASR 15; Mehesz v Redman (No. 2) (1980) 26 SASR 244; Bevan v Western Australia (2010) 202 A Crim R 27; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v Bonython (1984) 38 SASR 45; Dastagir v The Queen (2013) 118 SASR 83; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd [2012] NSWCA 168; R v Perry (No. 2) (1981) 28 SASR 95; Holmden v Bitar; Crawford v Bitar (1987) 47 SASR 509; R v Ciantar; DPP v Ciantar [2006] VSCA 263, considered.

R v NISSEN & VANIN
[2016] SADC 139
Introduction

The accused Mr Nissen is charged with manufacturing a large commercial quantity of methylamphetamine, trafficking in a large commercial quantity of methylamphetamine, manufacturing methylamphetamine, and participating in a criminal organisation. The accused Mr Vanin is charged with participating in a criminal organisation.
The prosecution case is essentially based on circumstantial evidence. An important part of that evidence is said to be tracking device data relating to the location and movement of two motor vehicles, said to be associated with the accused, and at various times used by the accused.
The data was collected by a device asserted by the prosecution to contain an LEA-5 GPS engine, but which was otherwise unidentified. The principal police witness asserted a claim for public interest immunity privilege (‘PII privilege’) in declining to provide details of the device and the methods by which that device was deployed.
Each accused challenged the admissibility of the tracking device data, and sought an order excluding the evidence on the bases that no proposed witness was qualified to give the evidence, and that the prosecution was not in a position to identify the device used to obtain the data.
During the trial I made a preliminary ruling intimating that whilst I recognised the importance of the evidence to the prosecution case; on the basis of the material and submissions before me at that stage I would exclude the evidence.
I indicated that there may be a valid claim for PII privilege in respect of disclosure of some of the material referred to by the police witness in question. That claim had not been fully articulated. I suspected that it may be that upon reflection, sufficient material could be disclosed, without prejudice to police operations, to enable declarations to be prepared which addressed the foundation material required to enable evidence to be given in relation to the vehicle movements.
I provided counsel for the Director of Public Prosecution (‘DPP’) an opportunity to elicit further evidence. Further evidence was led. Thereafter I delivered an ex tempore ruling and ordered that the tracking device evidence be excluded.
Counsel for the DPP requested that the trial be adjourned. Ultimately I declined that application, but adjourned for a brief period to enable counsel for the DPP to take such action as he may be instructed, to bring an application before the Court of Criminal Appeal.
An application was made to the Court of Criminal Appeal seeking an order that I refer a question for consideration by the Court of Criminal Appeal, as to the exclusion of the evidence. The Court of Criminal Appeal made an order that the trial be stayed pending consideration of the application by the DPP.
Upon the further hearing of the DPP’s application the Court of Criminal Appeal requested that I set out detailed reasons for the ruling that that evidence should be excluded.
The Accused’s Application to Exclude Evidence
The applications by the accused to exclude the tracking device data were made on 31 March 2016 and 1 April 2016 pursuant to r 49 of the District Court Criminal Rules.
Counsel for the DPP complained that the proposed tracking device data had been disclosed to the accused for a considerable period prior to trial, and no issue been raised as to the admissibility of that data. I bear in mind the statement of the Court of Criminal Appeal in Paul Richard Ling v Police,[1] where Doyle CJ, citing Petty v The Queen,[2] said that the Crown must present the whole of its case foreseeing, so far as it reasonably can, any defence which an accused might raise, for the Crown will not be permitted, generally speaking, to adduce further evidence in rebuttal on any issue on which it bears the onus of proof, and further that an accused is entitled to put the Crown to proof on any issue without giving prior notice of the ground on which he intends to contest the issue.
[1] Paul Richard Ling v Police [1996] SASC 5856 (judgment delivered 14 November 1996).
[2] Petty v The Queen [1991] HCA 31.
The evidence proposed to be led by the DPP included data extracted from a tracking device installed upon a Mercedes vehicle, and a Toyota Aurion vehicle said to have been used by the accused Nissen. It appears that there was no direct evidence of Nissen being sighted in the Toyota Aurion.
The evidence was to be led through Detective Brevet Sergeant David Fahy (Det Fahy) and Senior Constable Patrick Miller (SC Miller). SC Miller installed the tracking device. His declarations do not identify the device, the means by which he installed the devices on the Mercedes and the Toyota Aurion, nor the date upon which he did so. SC Miller said in his declarations[3] that he later “captured the data obtained by that device” and produced excerpts of the data. He did not say, in his declarations, when he did so, or how he did so.
[3] Declarations of SC Miller dated 9 January 2014.
Det Fahy said that he had examined data obtained from a surveillance device installed under warrant, and that from that data he purported to identify occasions upon which the vehicle fitted with a tracking device had attended at certain locations.
He said that he was provided with raw data, being GPS coordinates, and that he had access to a computer program that allowed him to upload that raw data into that program so that he could view the data on a map. The data was based in some way upon satellite positioning technology. The data purports to set out the latitudinal and longitudinal coordinates of the tracking device, at specified times, and the speed of the vehicle to which the device was attached, at specified times.
Nissen complained that SC Miller had provided no information as to the nature and operation of the device used. A further specific complaint was that SC Miller deposed that the data was obtained “during Daylight Saving Time (‘DST’). However the tracking device was deployed when DST had ended.”[4] The data provided was altered by SAPOL to change the times appearing in the data.
[4] Declaration of SC Miller dated 7 July 2014.
Nissen further complained that:
Neither Fahy nor Miller provide any further information or elaboration than that set out above. Neither Fahy nor Miller identify, with any clarity, the provenance of the information they have apparently examined; nor any specialised knowledge or expertise that would enable them to interpret the information, nor any explication of the process of utilising any expert knowledge for the purpose of interpreting the raw data. Importantly, neither Fahy nor Miller provide any evidence capable of establishing that the tracking device was in good working order and was operating correctly throughout the period of its deployment on the Aurion.
On the application for an order ruling that the tracking device evidence was inadmissible, the accused complained that there was no evidence as to the nature of the tracking device, where exactly it was installed on the vehicle in question, how the tracking device worked, when the tracking device was removed from the vehicle, what dealings took place in relation to the tracking device thereafter, the manner in which the data was extracted from the tracking device, the identity of the person who extracted the data from the tracking device, any dealings with the data following extraction from the tracking device, the means by which Det Fahy accessed the data, and whether the data examined by Det Fahy was data from the tracking device in its original format, or whether it had been converted, altered, or interfered with in any way.
The Admissibility of Evidence Obtained by Scientific Instruments
As was put in argument, the relevance of real or documentary evidence is dependent on its authenticity and provenance. In order for evidence obtained through scientific or electronic devices to be admitted, it must be demonstrated that the device is able to produce accurate data, and was working correctly in the circumstances under consideration.[5]
[5] Police v Barber (2010) 108 SASR 520 at [151]-[153]; Police v Henwood (2005) 92 SASR 15 at [60].
Such preconditions to admission, generally speaking, can only be dispensed with where the device in question is in such widespread use, that its accuracy can be assumed as a matter of common experience.[6]
[6] Mehesz v Redman (No. 2) (1980) 26 SASR 244 pp 247-248 per King CJ.
Of instruments the accuracy of which cannot be assumed as a matter of common experience, King CJ said in Mehesz v Redman (No. 2):[7]
In the case of other instruments, evidence is required of the trustworthiness of that type of instrument in general and of the correctness of the particular instrument. The evidence of the trustworthiness of that type of instrument in general may be supplied by the expert who uses it and who can testify as to its acceptance as a reliable instrument in his field of science. The accuracy of the particular instrument will ordinarily be proved by those who use and test it.
[7] Mehesz v Redman (No. 2) (1980) 26 SASR 244 p 248.
The Western Australian Court of Appeal, in Bevan v Western Australia,[8] held that evidence from a police officer who extracted data from a mobile phone, but who had no specialised knowledge or expertise in data recovery, was inadmissible as the process of data extraction was not generally accepted as an accurate scientific process.[9] There Blaxell J said, of scientific instruments which are not considered indisputably reliable and accurate, that they must be shown by admissible evidence to possess such characteristics. He went on to say:[10]
Once it is established that an instrument is accurate (whether by way of the presumption or by specific evidence) there must also be evidence that it was operated properly on the particular occasion in question. With simple procedures (eg the reading of a thermometer) this presents no difficulty. With other more complicated procedures, it is usually necessary to prove the training, experience and competency of the operator, as well as the fact that the instrument was correctly operated on the particular occasion.
[8] Bevan v Western Australia (2010) 202 A Crim R 27.
[9] In a subsequent decision of Bevan v State of Western Australia [2012] WASCA 153 (delivered 9 August 2012) the court, by a majority, admitted evidence extracted from a mobile phone, but in circumstances where the accuracy and reliability of the data extraction mechanism was the subject of evidence by a police officer trained as a computer systems engineer, who also held a diploma in computer systems and componentry, and who had undertaken additional training on data extraction techniques.
[10] Bevan v Western Australia (2010) 202 A Crim R 27, per Blaxell J at [31]-[32].
In considering evidence extracted from small scale digital devices, the tracking device being such a device, the learned authors of Expert Evidence said:[11]
Obtaining and interpreting digital evidence from such devices carries with it significant challenges due to variability in design and the accelerated upgrade cycle associated with such devices. Unlike general purpose computers, these devices have not been designed with interoperability in mind, and accordingly, a wide variation occurs in their architectural and structural underpinnings. A consequence of this variation is that forensic techniques must regularly be varied or redeveloped entirely to address the variations.
…
This situation has resulted in this subfield adopting practices and techniques which significantly depart from traditional principles adopted in the storage forensics field. For example many evidence extraction techniques fail to meet the completeness principle by failing to extract deleted data, and the principle of maintaining evidence immutability is violated by overwriting po[r]tions of the data while acquiring a larger copy of the system. This “weakening” of principles is based on pragmatism and reflective of a shift in the wider digital forensic discipline to acknowledge completeness and immutability as ideals rather than requirements.
[11] Thomson Reuters, Expert Evidence, vol 6 (at Service 62) [101.620].
The learned authors described the field as being in a constant game of catch up with new technologies. By way of example they cite Ayers & Jansen,[12] on the topic of mobile phone forensics tools as saying:[13]
They typically have limitations in both the breadth of the devices supported and the depth of evidence recovered. Subtle errors may also be encountered in their use. For example, a data item displayed on screen may vary from the same item appearing in a generated report. Practice and experience with a tool can normally compensate for such problems and procedures can be adapted accordingly. Occasionally, new versions of a tool may fail to perform as well as a previous one.
This highlights the pivotal role of the expert in identifying the limitations of techniques and tools employed and interpreting the significance of evidence in light of those limitations.
[12] Authors of Guidelines on Cell Phone Forensics (National Institute of Standards and Technology, 2007).
[13] Thomson Reuters, Expert Evidence, vol 6 (at Service 62) [101.620].
As the learned authors of Expert Evidence observed:[14]
Any conclusion which has its origins in digital evidence may be subject to failure, if not properly founded in fact and scientific testing. False positives are conclusions based on hypotheses which should have been refuted but were not. False negatives are conclusions which should have been reached but were not. Such failures may be caused by faults in any stage of forensic investigation.
Faults are the making or missing of evidentiary sources, content, relationships, context, timing, ordering, location, consistencies and inconsistencies, and can occur at any stage of the investigative process. Faults do not always result in failures; however, where faults are relevant to the operant hypotheses in a matter, the effects of such faults must be considered to ensure failures do not result.
[14] Thomson Reuters, Expert Evidence, vol 6 (at Service 62) [101.700].
The Need for Proof
As was put on behalf of the accused, neither the device, which had not been properly identified, nor the data apparently recorded by the device, had been established by the evidence to be a generally accepted scientific or electronic device, nor one which was correctly installed, operated and interrogated.
There was no material before me, and I am unable to find, that the tracking device is “an instrument … so well known that its accuracy may be assumed as a matter of common experience”.
Expert Evidence
As is well established, in order for expert evidence to be admissible, it must be demonstrated that the evidence goes to matters in which there is a field of specialised knowledge capable of assisting the court in resolving the issues between the parties, and further: there must be an identified aspect of that field in which the witness demonstrates his expertise by virtue of study, training or experience; the opinion to be proffered must be based on the specialised knowledge of the expert; the facts or assumptions on which the opinion is based must be identified and proved; and the expert must explain how his opinion, based upon his specialised knowledge, applies to the facts.[15]
[15] See Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85] per Heydon JA; R v Bjordal (2005) 93 SASR 237.
In R v Bonython,[16] King CJ described the general rule as to admissibility of expert evidence, in the following terms:
… A witness may give evidence only as to matters observed by him. His opinions are not admissible. One of the recognized exceptions to this rule is that which relates to the opinions of an expert. This exception is confined to subjects which are not, or are not wholly, within the knowledge and experience of ordinary persons. … On such subjects a witness may be allowed to express opinions if the witness is shown to possess sufficient knowledge or experience in relation to the subject upon which the opinion is sought to render his opinion of assistance to the court. Before allowing a witness to express such opinions, the judge must be satisfied that the witness possesses the necessary qualifications, whether those qualifications be acquired by study or experience or both. …
[16] R v Bonython (1984) 38 SASR 45 p 46.
The determination of the admissibility of expert evidence requires a two stage inquiry. The first is whether the subject matter of the evidence forms part of a recognised field of knowledge that, if spoken to by a suitably qualified witness, would assist a trier of fact in the resolution of the issues in dispute.[17] If the subject matter of the evidence is beyond the ordinary experience of the trier of fact, and the body of knowledge relied upon by the witness is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, the subject matter may be a proper one for expert evidence.[18] On the other hand, if the prospective evidence of a witness involves nothing more than an attempt to put from the witness box, the inferences and hypotheses upon which a party’s case depends, the admissibility of the evidence is contraindicated.
[17] Dastagir v The Queen (2013) 118 SASR 83 at [46]-[47].
[18] Dastagir v The Queen (2013) 118 SASR 83 at [46].
The second stage of the inquiry, is to determine whether the witness possesses expertise in the relevant field of knowledge, such as to make the expression of an opinion by the witness, of some value to the trier of fact. There must be a correlation between that expertise, and the subject matter of the evidence, such that the expression of opinion can be linked with the specialised knowledge.
In the present case, on the basis of the declarations upon which the DPP proposed to rely in resisting the application to exclude the tracking device data, neither SC Miller nor Det Fahy qualified as experts. Indeed SC Miller deposed, in response to a request regarding the accuracy of tracking data supplied by him during his investigation, that he was “not an expert in GPS theory”, nor was he “qualified to comment on the specific technology contained within the tracking device”.[19] His experience was confined to the installation, use, management and retrieval of surveillance devices and the data generated by them. He said that during the investigation he retrieved raw GPS data from the relevant devices and forwarded that data to the investigating officer, Det Fahy.
[19] 2 page addendum declaration of SC Miller dated 4 April 2016.

The next step, when considering admissibility of expert evidence, relates to the identification of the facts or assumptions upon which the opinion is based. As the court observed in Dasreef Pty Ltd v Hawchar:[20]
… it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that “the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded.” (citation omitted)
[20] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [37].
In Dasreef Heydon J said:[21]
At common law there is no doubt that an expert opinion is inadmissible unless the expert states in chief the reasoning by which the expert conclusion arrived at flows from the facts proved or assumed by the expert so as to reveal that the opinion is based on the expert’s expertise.
[21] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [91].
In Makita (Australia) v Sprowles,[22] Heydon JA said that, in order for the expert’s report to be useful, “it was necessary for it to comply with a prime duty of experts in giving opinion evidence; to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions.”[23]
[22] Makita (Australia) v Sprowles (2001) 52 NSWLR 705.
[23] Makita (Australia) v Sprowles (2001) 52 NSWLR 705 at [59].
He went on to say:[24]
The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are “sufficiently like” the matters established “to render the opinion of the expert of any value”, even though they may not correspond “with complete precision”, the opinion will be admissible and material. … One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.
[24] Makita (Australia) v Sprowles (2001) 52 NSWLR 705 at [64].
To put it in another way, the expert witness must clearly identify the basis upon which any opinion is expressed. The opinion must be based on the witness’s specialised knowledge, and the process of reasoning must be made sufficiently clear, so that the methodology employed by the expert in applying the specialised knowledge to assumed or proved facts, can be both comprehended and evaluated. Asserting an opinion without elucidating the way in which the opinion has been arrived at does not provide assistance to a trier of fact.[25]
[25] Makita (Australia) v Sprowles (2001) 52 NSWLR 705 at [79] & [85].
Specialised Area of Knowledge
I accept the contention that the general subject of tracking the movements of a vehicle, using an electronic device which interacts with global positioning satellites, is a specialised area of knowledge, beyond the ordinary experience of a trier of fact. Accordingly, expert evidence about the operation of tracking device, the collection and interpretation of data, and the significance of such data, may be the subject of admissible expert evidence. The admissibility of such evidence, is contingent upon such evidence meeting the criteria for admission in the authorities to which I have referred.
Such expert evidence can, therefore, only be given by experts having sufficient expertise, by way of qualifications, study, training or experience, as to enable their opinion to meet the requirement for admissibility.
The prosecution proposed to rely upon the evidence of SC Miller, Det Fahy, and subsequently the belated evidence of Associate Professor Bruce.
SC Miller installed tracking devices on the motor vehicles. He later retrieved the devices. He downloaded data from the devices on to a laptop computer using proprietary software. He said that his work involved covert police methodology, and that he intended to make a claim for PII privilege regarding the disclosure of police methodology, including, but not limited to, the method, time and location of physically installing or retrieving the device; the method, time and location of retrieving raw data from the device; the make and model of the device; or any technical specifications other than the generic GPS engine used within the device.
The DPP, as part of the prosecution case, also proposed to lead evidence from Det Fahy, as to the location of the vehicles, at various times, by reference to data extracted from the subject tracking devices. I accept the contention of counsel for the accused that any opinion expressed by Det Fahy in that regard requires a series of intermediate factual conclusions, namely:
·That the tracking device fitted is a device which is capable of monitoring the geographical position of a vehicle to which it is fitted;
·That the device was calibrated and functioning correctly at the time of its installation and throughout the time of its active service;
·That the device fitted calculates or records the position of the vehicle through some (unidentified) interaction between the device itself and, presumably (although there is no evidence of this) one or more satellites which are properly accessed and / or utilised by devices such as that fitted to the vehicles;
·That the result of the interaction between the device and a satellite or satellites is the compilation of a database of co-ordinates within the useable memory of the device which can be retrieved by a person with sufficient expertise to do so, most probably using specialised equipment and / or programs;
·That the interpretation of any data so extracted involves the application of specialised knowledge or skill to convert the data into something which is comprehensible or intelligible;
·That the data extracted and interpreted, is a reliable record of the location of the vehicle at specified times.
That the evidence is important evidence as part of the prosecution case I have no difficulty with. The opinion that at certain dates and times the vehicle was located at specific places provides a foundation upon which the prosecution intends to establish that the accused had a connection, or association with particular people, locations, and events. Generally speaking, an expert in the field of GPS tracking must be called to express an expert opinion in respect of such evidence.
On 7 April 2016, during the course of the trial, the DPP produced a declaration of Associate Professor Bruce in which he set out his opinion as to the method of operation of the GPS system generally, and the degree of accuracy of GPS equipment such as an LEA-5 portable device. Associate Professor Bruce is an associate professor in surveying and geospatial science, and it seems, is qualified to give such evidence.
In his declarations however, SC Miller did not refer to an LEA-5 GPS engine as being part of the tracking device installed on the motor vehicles in question. Whilst it was a possible inference that that was so, given the question posed by the investigating officer to Associate Professor Bruce, on the state of the evidence at that stage I was not prepared to draw such an inference. In any event, Associate Professor Bruce’s evidence was of a general nature, and again there was no evidence as to the equipment used, nor as to whether it had been calibrated or required calibration, nor as to the reliability of the data ultimately extracted from it.
An immediate problem in presenting the prosecution case, was the absence of evidence as to the nature and operation of the device and as to the provenance, integrity and reliability of the data which is said to be the product of that device.
Neither SC Miller nor Det Fahy provided any explanation of the methodology, or process of reasoning, they applied, relying on any specialised or expert knowledge, in order to express opinions as to the meaning of the data to which they have referred. There was little or no evidence as to the way in which the data had been collated, reviewed and interpreted, nor was there identification of any specialised knowledge possessed by Det Fahy, that might equip him to interpret the data and express an opinion as to its significance in the context of the prosecution case.
Counsel for the DPP made the submission that there was information contained within the declarations, which, if led as evidence, could provide supporting evidence from which the accuracy of the equipment might be inferred. He pointed to examples where the tracking device data was said to establish the location of a particular vehicle and that the location was confirmed by other evidence.
Counsel for the accused contended to the contrary, that the proposed evidence of Det Fahy exposed serious questions about the reliability of the data apparently obtained from the tracking device because, on a number of dates, the data could not be reconciled with other evidence upon which the prosecution proposed to rely at trial.
Indeed Det Fahy’s evidence as to the use of the tracking device data to establish the whereabouts of the Toyota Aurion, is said to reveal significant anomalies between what the prosecution contends is accurate tracking device data, and information derived from other sources. For example, on occasion, the tracking device data placed the accused in the vehicle, at locations contradicted by contemporaneous data obtained from telephone interceptions.
I accept there is a genuine dispute as to the accuracy of the tracking device data. The provision of information relating to the tracking device and its method of operation and the accuracy of the devices needed to be established. The material to which I have been referred did not disclose a proper basis for the admission of the tracking device data used by Det Fahy, who purported to map the location and/or speed of the motor vehicles in question, at particular times.
The DPP’s Further Evidence on the Rule 49 Application
Having intimated that, on the basis of the evidence then before me, I would exclude the tracking device data, I provided an opportunity to counsel for the DPP to elicit further evidence on the voir dire.
SC Miller gave evidence on oath. He had been a police officer for some 10 years. He was stationed in the technical support section where the role of officers is to provide investigators with electronic and technical support. His duties included the installation of covert tracking devices. He said that he received training:[26]
Basically there would be some principles like electrical principles, like a basic electrician. There would be getting on to more specific camera systems, tracking systems, video systems. There’s a multitude of different scenarios that we work towards. Not all specifically covert, but maybe just for attempts to counter terrorism response, roles and duties.
[26] T 165.7.
In relation to tracking devices he said that approximately five years ago SAPOL moved to the use of a new system. He had previously received training in relation to the old system. That was a GPS system and he received training from manufacturer’s representatives, and was shown the device, “how it operates, how you deploy it correctly, how you retrieve data from the device.”[27]
[27] T 166.6.
When asked whether he was trained in the way in which the GPS system in that device worked he said:[28]
Well, specifically, the GPS is obviously a world-wide system that virtually most people in the population will use on their phones, on their navigation systems in their cars. It’s one of the same GPS, same as a military system that is open to the members of the public and other agencies to use. So, the operation of satellites in their orbit is not something that I could comment upon and how that specifically works, but there is obviously a GPS receiver in an electronic device which communicates with satellites orbiting at, you know, around the sky at certain times.
[28] T 166.11.
He said that he was not trained on the “details and the specifics of the GPS receiver in that device”.[29] Rather, he was trained in the installation, the recovery, and the accessing of data from such devices. He said he received training on how to assess whether the device was working properly, which involved “turning the device on, allowing it to start, perform its basic functions and correlate the position on a map of where the device is showing where it is.”[30]
[29] T 166.22.
[30] T 167.1.
He said that the new system involved the use of a different tracking device, which also used a GPS tracking system. He gave evidence, over objection, and received de bene esse, that the new device contained an LEA-5 GNSS GPS receiver. He said he knew that because he had seen the receiver in the device. He had received training from a representative of the manufacturer who came to Adelaide and demonstrated to technical support officers how the system worked, how best to deploy it, and how to retrieve the information from the device.[31]
[31] T 168.22.
He said apart from being told that the GPS receiver in the device was an LEA-5 receiver, he had been to the manufacturer’s factory, had seen a production line and observed the way in which the device was put together. He had read the specifications of the product from the manufacturer’s web page and web site. He had read reviews of that GPS receiver. He had discussed the device with representatives of other agencies.[32]
[32] T 170.18.
He said that when SAPOL made a decision to purchase a new system, he was the leader of an evaluation team that looked at a number of systems and selected the system presently used.[33] He contacted suppliers, attended trade fairs, and attended national forums where such equipment was discussed.[34] The evaluation team looked at three potential devices. He said that there was a consideration of “ease of use, just the size, their weight,” and that “at the end of the day it’s all about the results and how the device performed. As an installer, operator of the equipment, I don’t specifically care what’s inside the box, I just care about the result.”[35]
[33] T 171.28.
[34] T 173.11.
[35] T 174.30.
He tested and evaluated the device by deploying the device in different areas. He conducted a test over a period of weeks to evaluate the accuracy and performance of the device by comparing the results from the device and correlating those results with known positions of the test vehicle.[36] He said that the accuracy of the device when tested was very good, and he did not detect any errors or discrepancies between the tracking results, and the known position of the test car.[37]
[36] T 175.4.
[37] T 175.16.
SC Miller said that he had subsequently used the tracking device on hundreds of occasions. The general process adopted was that upon receipt of a request for an installation, he selected the tracking device and tested it in the office prior to deployment. That test involved “powering up the device and ensuring how to do it correctly and it requires the GPS position, I am satisfied it is working properly.”[38] That form of test would then be repeated at the installation site.[39]
[38] T 177.23.
[39] T 178.8.
SC Miller said once a device was recovered, it would be connected to a computer, and the data downloaded.[40] Specific software was provided by the manufacturer that enabled decryption of the data on the device, and the extraction of the data.[41] He said that he was not able to alter or change the data obtained from a device.[42] The information obtained from the tracking device “is a long string of information that the device collects. Ultimately it is produced as a – called a .CSV file which looks like an excel spreadsheet.”[43] The data would then be saved as a file on a computer, which in turn enables the data to be viewed as a spreadsheet.
[40] T 181.18.
[41] T 181.35.
[42] T 182.6.
[43] T 182.11.
He said the time on the tracking device is always in UTC time, but the program enables conversion to a local time zone. The times recorded in his declaration were out by an hour, because the log from which the data is produced enables the selection of local time in which the log is to be produced, and “at the time I produced the log it was in – I don’t know – there was a change in the time zone within South Australia at the time and so when I produced the log it was an hour out because at the time the device was deployed it was in the different time zone.”[44]
[44] T 184.9.
SC Miller said that he installed the tracking device on the Toyota Aurion on 8 May 2013. He believed it was a device he had used before. He had not had issues with the accuracy and reliability of that device prior to its use in the current matter. He would have tested it in the office prior to going to the installation site. He then attended at the installation site, or nearby and tested it again. He did not observe any difficulties with its accuracy at that point. He then installed the device. He repeated the test. He retrieved the device on 3 July 2013. He downloaded the data.[45]
[45] T 187.10.
He installed a similar device on the Mercedes vehicle on 21 September 2012. He again conducted testing at the desk before installation, testing near the installation site, and testing after installation. He conducted testing after retrieval of the device.[46]
[46] T 189.1.
He requested Det Fahy to interpret the logs and produce mapping. He provided Det Fahy with a laptop with the proprietary software provided by the manufacturer of the device. He provided Det Fahy with guidance as to the use of that software.
He said that he had subsequently used the devices that had been used in the present case on the Toyota Aurion and Mercedes vehicles, in other cases, and experienced no difficulty with the accuracy or reliability of the devices.
SC Miller was cross-examined by Mr Edwardson QC. SC Miller was asked what tracking device was used, and said in answer that there would be a public immunity interest claim against answering. He was asked who the manufacturer of the device was. He said “I don’t know what his name was”. He was asked again who the manufacturer of the particular tracking device deployed in relation to the two vehicles was, and he said “subject again to a PII claim.”[47]
[47] T 194.19.
SC Miller agreed that there was a manual and a handbook that accompanied the device that provided instructions on the operation of the device. Those documents would identify the manufacturer. An additional manual dealt with the use of software associated with that device, relating to the extraction of data.[48] That manual would also identify the specific tracking device. SC Miller asserted a claim for PII privilege in relation to any questions regarding the contents of the manuals. He made the same claim in respect of the method of installation of the tracking devices, and the removal of the devices.[49]
[48] T 194.19-T 195.4.
[49] T 195.
SC Miller agreed that he could, theoretically, use a live feed; that is observe a signal on a map in real time, and pass such information on to an investigating officer, who could in turn make a visual check to confirm the apparent accuracy of the location data being transmitted by the device.[50] Alternatively, he agreed, he could identify the location of the tracking device, from time to time, over the period of the deployment, by analysing the encrypted data downloaded from the device, using software which he was not prepared to identify.[51]
[50] T 196.2.
[51] T 196.16.
SC Miller was asked how in fact he deployed the software in accordance with the manufacturer’s instructions and said “I wouldn’t be able to answer in any way, it is a question for a software engineer who runs a program and designs software.”[52] He was cross-examined as to his formal qualifications, and said that he was an electrician, and had attended courses provided by “police and national jurisdictions.” He conceded that he was “unqualified to express any opinion about GPS workings, and the way in which the software operated.”
[52] T 196.30.

He agreed that in relation to the extraction of data and the operation of the software, he did no more than connect a cable from the tracking device to a computer, and used the proprietary software to download data.[53] He had not been qualified as an expert on any of the topics upon which he gave evidence, in any previous matter.[54]
[53] T 197.16.
[54] T 197.25.
He was asked whether the proprietary equipment, or device, within which the LEA-5 GPS receiver was housed, simply housed the receiver, or whether it interacted with the receiver, in order to produce data.[55] He agreed that the tracking device contained a number of components, all of which interacted together.[56]
[55] T 197.36.
[56] T 202.12.
SC Miller agreed that as part of his training, he was informed that there were potential limitations on GPS tracking, which might be affected, for example by local topography. He said that would have an effect but not a significant effect.[57]
[57] T 201.16.
Under cross-examination by Mr Griffin QC, SC Miller asserted a claim for PII privilege in declining to answer a question as to whether he was able to monitor a tracking device remotely.[58] He took the same position in relation to a question as to whether data could be downloaded remotely whilst the tracking device was being deployed, so that the downloaded data could be provided to investigating officers,[59] and as to whether a technician had the capacity to turn the tracking device on or off remotely.[60] A similar claim was asserted in respect of a refusal to answer any questions regarding the software, methodology and technical processes of accessing the data, during the deployment of the device.[61] He said that other people also had access to the data to which he had access, but declined to identify how many people.[62]
[58] T 205.13; T 206.6.
[59] T 206.11.
[60] T 206.17.
[61] T 208.34–T 209.1.
[62] T 210.13.
Leaving aside for the moment the purported identification of the GPS receiver within the tracking device; the complaint by the accused following receipt of the evidence and declarations of SC Miller, the declarations of Det Fahy, and Associate Professor Bruce, is that it was not possible to establish the accuracy of data collected by that type of device, let alone the particular device in question, when the device remained unidentified, the workings of the device were unknown, the method of deployment was undisclosed, and the software used to decrypt and extract the data was unidentified.
Counsel for the DPP contended that the claim for PII privilege asserted by SC Miller was untested. However, having been given the opportunity to elicit evidence on the voir dire to establish the admissibility of the tracking device data, the DPP produced a witness that, to the knowledge of counsel for the DPP, would decline to answer such questions. Accordingly I proceed on the basis of the evidence produced by the DPP on the issue.
An Alternative Basis for Admissibility
The trial of the charges was due to commence on 4 April 2016. The trial in fact commenced on 5 April 2016. Sections 53 and 56 of the Evidence Act, which were enacted by the Evidence (Records and Documents) Amendment Act 2015, came into operation on 4 April 2016.
Section 56 Evidence Act
In opposing the accuseds’ application counsel for the DPP sought, in the alternative, to rely upon s 56 of the Evidence Act which provides:
Evidence produced by processes, machines and other devices
(1) This section applies to a document or thing -
(a) that is produced wholly or partly by a device or process; and
(b)that is tendered by a party to proceedings who asserts that, in producing the document or thing, the device or process has produced a particular outcome.
(2)if a device or process is one that, or is of a kind that, if properly used, would ordinarily produce that outcome, it will be presumed, in the absence of evidence to the contrary, that, in producing the document or thing on the occasion in question, the device or process produced that outcome.
Counsel for the DPP submitted that the data extracted from the unidentified tracking device was admissible, given the provisions of s 56(2). Section 56 is consistent in its terms, with s 146 Uniform Evidence Act 1995 (Cth) (‘Uniform Evidence Act’).
Counsel for the DPP relied, in part, on the Second Reading Speech by the Honourable GE Gago where she said:
The Bill includes new provisions to be inserted in Part 4 of the Evidence Act 1929 to facilitate proof of evidence that is produced by processes, machines or other devices and is intended to facilitate the admission of computer-generated evidence. The provisions aim for consistency with the relevant provisions in the Uniform Evidence Act models.
The Bill inserts s.56 into the Evidence Act 1929 to create a rebuttable presumption of accuracy for evidence produced by computers. Section 56 is consistent with s.146 of the Uniform Evidence Act models. It removes the requirement for authentication in every case and provides, instead, that for documents that are produced, recorded, copied or stored electronically or digitally, there is a rebuttable presumption that the technological process or device so used did in fact produce the asserted output and did so reliably. This means that a party adducing evidence of such documents would no longer have to prove the authenticity and reliability of the process or device unless there is evidence that is adduced to displace the presumption.
For example, it would not be necessary to prove the reliability or accuracy of a computer from which an email had been produced as a precondition to the admission of that email into evidence. This amendment reflects contemporary understanding of the accuracy of ordinarily reliable devices or processes.
She went on to say:
The section does not operate to facilitate the admission of a document generated by a process or device as to the truth of its content - rather, it is a presumptive aid to proof as to the accuracy and reliability of the production of the document by the technological process or device.
That latter statement is consistent with the example which appears in s 56 of the Act, namely:
It would not be necessary to call evidence to prove that a photocopier normally produced complete copies of documents and that it was working properly when it was used to photocopy a particular document.
In North Sydney Leagues’ Club Limited v Synergy Protection Agency Pty Limited,[63] the New South Wales Court of Appeal said of s 146 of the Evidence Act (NSW), the cognate provision in New South Wales:
Section 146 is directed to evidence produced by the application of a mechanical or technological process. Photocopied documents, computer-generated material and material generated from data stored in a computer are typical examples. Section 146(2) is not directed to the underlying accuracy of the information contained in a document or record that is produced in this way. For example s.146(2) has nothing to say about the accuracy of a statement in a photocopied documented that $AUD100 was worth $US96. Rather, s.146(2) is a means whereby, on this example, a photocopy of a document containing such information may be received into evidence.[64]
[63] North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd [2012] NSWCA 168.
[64] North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd [2012] NSWCA 168 at [63] per Beazley JA.
And:
As Beazley JA has also concluded, s.146 of the Evidence Act is similarly irrelevant. That section concerns the mechanical reproduction of information. …[65]
[65] North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd [2012] NSWCA 168 at [89] per Macfarlan JA.
Consistent with the plain reading of the section, the assistance to interpretation to be derived from the Second Reading Speech and the view taken in North Sydney Leagues’ Club, I do not consider that s 56 is an aid to proof, nor does it render admissible the data created by the tracking device, in the absence of expert evidence.
Section 53 Evidence Act
In the further alternative counsel for the DPP submitted that the printout of the data created by the tracking device was admissible as a business record consistent with the terms of s 53 of the Evidence Act.
The definition of a business record is wide. It may encompass call logs or running sheets created by police officers. For example, it encompasses hospital notes.[66]
[66] R v Perry (No. 2) (1981) 28 SASR 95.
However, I do not consider the definition to be so wide as to include a print-out of data created by an unidentified tracking device fitted to a suspect’s vehicle during the course of an investigation.
Even if I were to do so, ss (2) of s 53 provides that:
A document must not be admitted in evidence under sub-s (1) if the court is of the opinion;
(a)that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document, or
(b)that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or that that it would be otherwise contrary to the interests of justice to admit the document in evidence.
Sub-section (3) of the section provides some guide to the approach to be taken in determining the issues raised in s 53(2)(b). That provides:
For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under subsection (1), consideration must be given to the source from which the document is produced, the safeguards, if any, that have been taken to ensure its accuracy, and any other relevant matters.
Having regard to my observations as to the lack of evidence as to the source from which the printout is produced, and the safeguards, if any, that had been taken to ensure its accuracy, amongst other factors referred to in s 53, I would regard myself as precluded from admitting the printout under that section.
Discussion
The accused contended that despite being given several opportunities to adduce statements or evidence to provide the foundation for admission of the tracking device data; at the conclusion of that exercise the accused did not know what device was relied upon by the police witnesses to obtain the data, did not know who the manufacturer of the device was, and did not know what components comprised the device. The accused contended that there was not even admissible evidence that the LEA-5 GPS receiver, was in fact the receiver contained within the tracking device, on the basis that SC Miller’s evidence in that regard was hearsay. The accused relied for that proposition upon the decision in Holmden v Bitar,[67] where Cox J observed:
However, it is clear law that the words on a label are not admissible to prove testimonially what they assert: see Patel v Controller of Customs; R v Romeo. (citations omitted)
[67] Holmden v Bitar; Crawford v Bitar (1987) 47 SASR 509.
I am not too troubled about the hearsay issue. On the basis of the evidence of SC Miller as to his role on the evaluation team, his discussions with the manufacturer, his discussions at the national forum, his visit to the manufacturing operation, and his observation of the assembly process, including the installation of receivers labelled LEA-5, I am prepared to find that was the receiver fitted to the unidentified tracking device. However, the limited information I have from SC Miller, includes the evidence that the tracking device operates not just because of a GPS engine within it, but operates in conjunction with the GPS engine. The tracking device is unidentified. There can be no opportunity for the accused to know what the device is, to test the device, or to obtain expert opinion in relation to the device.
Mr Edwardson QC complained that the accused did not know what componentry the device contained, or how the device was deployed or removed. The accused had no access to the Operator’s Manual which set out the way in which the device was to be deployed, and the specifications of the device. The software program which is to be used in the extraction of the encrypted data, and the conversion of that data into a form which can be read, has its own manual. That manual which would enable an understanding of the operation of the software program, was not produced.
I accept, as I have earlier said, the contention that it has not been established that the unidentified device could possibly be regarded as a recognised scientific instrument. Its reliability and authenticity would need to be proved.
As the court observed in R v Ciantar; DPP v Ciantar:[68]
… a court may admit the results of a test conducted with a scientific instrument on the basis of evidence from a witness expert in its use. It is sufficient if it is established that it is a scientifically accepted instrument for its avowed purpose and that the particular instrument was handled properly and read accurately. As White, J. put it in Mehesz v. Redman (No. 2):
"If the instrument is not a notorious scientific instrument, its accuracy can be established by evidence: (a) that the instrument is within a class of instrument generally accepted by experts as accurate for its particular purpose; (b) that the instrument, if handled properly, does produce accurate results: ((a) and (b) must be established by expert testimony, that is, by experts with sufficient knowledge of that kind of instrument; and upon proof of (a) and (b), a latent presumption of accuracy arises which allows the court to infer accuracy on the particular occasion if it is proved) – (c) that the particular instrument was handled properly and read accurately by the operator on the particular occasion; ((c) can be established by a trained competent person familiar with the operation of the instrument, not necessarily the type of expert who proves (a) and (b)).
[68] R v Ciantar; DPP v Ciantar [2006] VSCA 263 at [9].
Where the actual accuracy of the measurement can be inferred from all of the proved circumstances, it is not necessary to rely upon the presumption arising from (a) and (b), proof of which is superfluous." (citations omitted)
An illustration of the difficulty that would be faced by an accused seeking to understand, let alone challenge, the accuracy of the tracking device data arises from SC Miller’s evidence that he followed the correct procedure in installing the tracking device. Counsel for the DPP suggested that on the voir dire, SC Miller was not challenged on that assertion in cross-examination. What could be the basis of any cross-examination to challenge SC Miller’s assertion that he installed the tracking device in accordance with the unidentified manufacturer’s undisclosed instructions relating to the unidentified device?
No authority was brought to my attention which supports the proposition that a prosecutor may lead evidence as to the results produced by a scientific instrument, without identifying the instrument, without providing any evidence that it was used in accordance with the manufacturer’s instructions, and without being able to say how it works.[69]
[69] This is not a case akin to that considered by the Court of Criminal Appeal in R v Mason (2000) 77 SASR 105 dismissing an appeal against a conviction on the basis that police officers conducting a search formed a reasonable suspicion based on information provided by an undisclosed informant. The Evidence Act 1929 (SA) contains no equivalent to s 28A(5) of the Liquor Licensing Act 1997 (SA) considered in K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501.
I accept the submission that the general evidence from Associate Professor Bruce regarding the LEA-5 GPS receiver, and the observations from time to time made by SC Miller as to the apparent accuracy of the tracking devices installed in various vehicles, cannot elevate the tracking device to the status of being a notorious scientific instrument, nor, without more, that it produced accurate data. SC Miller was not qualified as an expert. He was unable to say how the receiver worked. The evidence of Associate Professor Bruce does not elevate the GPS receiver to the status of being a notorious scientific instrument, and in any event, as I have said, such evidence as has been led includes evidence that the GPS receiver interacts with other operative parts in the unidentified device, in order to ultimately produce the data the prosecution seeks to rely upon.
The DPP needed to call expert witnesses to establish the reliability and accuracy of the tracking device, the extraction process and the resultant data.
As the learned authors of Expert Evidence, Freckleton & Selby observed:[70]
The fruits of technology can’t be employed without appropriate supporting evidence from a suitably qualified expert who can attest to the reliability of the technology in general and as to the workings of the particular machine.
[70] Thomson Reuters, Expert Evidence, vol 2 (At Service 71) [12.5.420].
And to similar effect, the court in Bevan v State of Western Australia observed:[71]
Accordingly, relevant data obtained in this way will be admissible if there is evidence from a suitably qualified person to prove that the process produces accurate results as well as evidence to show that the downloading was properly carried out on the particular occasion in question.
[71] Bevan v State of Western Australia (2010) 202 A Crim R 27 at [35]
I do not regard SC Miller as being qualified to give expert evidence as to the operation of the tracking device, or the GPS receiver within the tracking device. Nor is he qualified to give expert evidence as to the method of extraction of the data, or the conversion of that data into readable form, or as to the accuracy of the data.
The evidence of Associate Professor Bruce does no more than speak about the general reliability of the particular GPS receiver to which he referred. His evidence does not address the way in which the other components of the tracking device interact with the GPS receiver to record information, or produce readable data. He was not in a position to give such evidence as the tracking device, it appears, was not identified to him. Similarly, the other operative components within the tracking device remain unknown to him, and he is incapable of commenting upon them.
The accused is unable to test the evidence against him. He is unable to determine whether the tracking device was properly installed, or properly removed, or properly used. He is unable to determine how the data was extracted, and whether it was altered, or capable of being altered in any way. The assertion of SC Miller that it was not capable of being altered cannot alleviate the concerns of the accused. SC Miller is not qualified to say that. Quite properly, he conceded he did not know how the software worked. Such evidence as he was able to give regarding alteration of the data, was to the effect that it was possible to have input as to the local time which would then alter the recording which was in UTC time. That is at least one example of the way in which the data can be altered. There may or may not be others. It is not possible to know. It is certainly not possible for the accused to know.
Having found that the tracking device cannot be regarded as indisputably reliable and accurate, I accept the contention of counsel for the accused that in order for the evidence to be admissible, the prosecution must establish the accuracy and reliability of each device installed by SC Miller, and its correct functioning during the period of its operation. The alternative was for the prosecution to establish that the tracking device was generally accepted as an accurate and reliable scientific instrument such that judicial notice could be taken of its accurate and reliable operation during the period of its deployment. As was put on behalf of the accused, in the absence of any evidence even identifying the device deployed, it is impossible to see how either condition could be satisfied.

The prosecution has not established the foundational requirements necessary to render the tracking device data admissible.
I grant the Rule 49 application insofar as it seeks exclusion of the tracking device data.