R v Piao - [2017] SASCFC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PIAO
[2017] SASCFC 94
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Hinton)
3 August 2017
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL OF NEW TRIAL
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - ADMISSIBILITY GENERALLY
Appeal against conviction. The appellant was convicted of murder by verdict of a jury. The deceased was a prostitute working for an escort agency from a room in the Hotel Grand Chancellor in Hindley Street, Adelaide. At 7.58 am on 1 January 2015 her body was found in her hotel room by an employee of the escort agency. The deceased had suffered injuries to her head and her throat had been cut.
The prosecution case against the appellant was circumstantial. On the prosecution case the deceased was murdered on 1 January 2015 sometime between 12.13 am, the time when she stopped using her mobile phone, and 12.34 am, the time when the appellant was captured on CCTV footage running from the hotel. It was contended that the appellant struck the deceased a number of times to her head and face with a high-heeled shoe before slitting her throat with a razor blade which he then wrapped in baby wipes and placed in the sink. On the prosecution case the appellant then removed the bloodstained bedsheets from the bed, put them in the shower and turned it on, before fleeing the hotel.
The appellant’s appeal grounds are that the trial Judge erred by: intervening during the re-examination of an important witness; raising in the summing up a theory about the evidence relating to call charge records which had not been the subject of examination, cross-examination or comment in address by either counsel; and admitting into evidence text messages allegedly sent and received by the deceased (pursuant to s 34KA of the Evidence Act 1929 (SA)). The final ground is that the verdict cannot be supported having regard to the evidence.
Held per Kelly J (Nicholson and Hinton JJ agreeing):
1. The Judge’s questions during the re-examination of Mr O’Brien were not inappropriate in the circumstances and could not have caused a miscarriage of justice.
2. The Judge made it clear at all stages that the assessment of the call charge records was a matter for the jury and what they ultimately made of those records was for them to decide.
3. The Judge did not err in admitting the text messages pursuant to s 34KA of the Evidence Act 1929 (SA). The jury were properly directed about the need to be satisfied the messages were sent from the deceased and were both credible and reliable before they used them. The directions as to the proper use of the texts were correct.
4. Upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.
5. The appeal is dismissed.
Evidence Act 1929 (SA) s 34KA; Serious and Organised Crime (Control) Act 2008 (SA), referred to.
R v Koenig (2013) 229 A Crim R 108, applied.
Robinson v The Queen (2006) 162 A Crim R 88, distinguished.
M v The Queen (1994) 181 CLR 487; Gipp v The Queen (1998) 194 CLR 106, considered.

R v PIAO
[2017] SASCFC 94
Court of Criminal Appeal: Kelly, Nicholson and Hinton JJ
KELLY J.
Introduction

On the evening of 31 December 2014 the deceased, Ting Fang, was working as a prostitute for an escort agency from a room in the Hotel Grand Chancellor in Hindley Street, Adelaide. At 7.58 am on 1 January 2015 her body was found in her hotel room by Mr S, an employee of the escort agency. The deceased had suffered injuries to her head and her throat had been cut.
The appellant was convicted of murder after a trial by jury. The appellant now appeals that conviction. He complains that the trial Judge erred by: intervening during the re-examination of an important witness; raising in the summing up a theory about the evidence relating to call charge records which had not been the subject of examination, cross-examination or comment in address by either counsel; and, admitting WeChat text messages allegedly sent and received by the deceased into evidence pursuant to s 34KA of the Evidence Act 1929 (SA) (Evidence Act). Finally, he appeals on the ground that the verdict cannot be supported having regard to the evidence.
Background
The prosecution case against the appellant was circumstantial. The relevant facts and evidence at trial were as follows.
Hotel evidence
The deceased had been working from the Hotel Grand Chancellor and seeing clients there from 29 December 2014. She was based in Sydney but had travelled to Adelaide on 29 December 2014 and was due to return on the morning of 1 January 2015. The appellant was the last client to see her on the evening of 31 December 2014 and he is visible on closed circuit television (CCTV) footage entering the hotel at 10.10 pm. He is shown running from the hotel at 12.34 am on 1 January 2015.
Although Mr S found the deceased at 7.58 am on 1 January 2015, he did not notify hotel staff or the police until 8.40 am. A co-owner of the escort agency, Mr J, gave evidence that Mr S notified him that the deceased was dead, and he then instructed Mr S to return to the hotel room and “tidy up” by throwing out the condom and other items that would indicate the deceased was a sex worker before calling the police. Mr S’s evidence was that he did not want to clean up the room and that Mr J allowed him to just call the police.
When police arrived in the hotel room they found a razor blade wrapped in baby wipes in the sink. The razor blade had traces of the deceased’s blood on it, but no DNA from the appellant. The bedclothes had been removed and placed in the bathtub with the shower turned on which had caused water to overflow into the room.
Police investigation and analysis of the hotel room indicated that the deceased had been struck at least twice to the head while seated in a chair. A blood spattered high-heeled shoe bearing the appellant’s thumbprint was found near the deceased’s body. There was expert evidence that the lacerations on the deceased’s scalp could have been caused by the heel of the shoe, and a bloodstain on the shoe was consistent with bloodied hair swiping across the insole. The appellant’s DNA was located in two blood-like stains on the deceased’s handbag and on a footstool.
Dr Charlwood, a forensic pathologist, gave evidence that the razor blade found in the sink could have caused the fatal injury to the deceased’s throat. Police later searched the appellant’s work van and located a pack of 18 single‑edged razor blades. Macro and microscopic examination of the razor blades revealed that the blades from the van and the blade from the sink possessed the same combination of six distinguishing features. Only two Adelaide suppliers sell that particular razor blade. The appellant purchased the razor blades for his business from one of those two companies.
The deceased’s hotel room was accessed by a key card. The deceased used her key card to access the room some hours before the appellant arrived, and no key card was used to enter the room again until Mr S entered at 7.58 am on 1 January 2015. The deceased is not shown on any CCTV footage after the appellant entered the hotel at 10.10 pm on 31 December 2014. There was evidence from the hotel manager that it was not possible for the deceased to have left the hotel without appearing on CCTV footage or triggering a fire door alarm. No fire door alarm was triggered that night.
The appellant’s ‘post-offence’ conduct
The prosecution called evidence of the appellant’s conduct and alleged lies after the deceased’s death. The appellant broke into a run on several occasions when leaving the Hotel Grand Chancellor and returned to his car by an indirect route. He lied to police during interviews, telling them that he had walked slowly back to his car, and that others had made his appointment with the deceased on his behalf. The appellant disposed of the jeans and shoes that he can be seen wearing on the CCTV footage as he enters the Hotel Grand Chancellor. Finally, the appellant conducted an internet search on 1 January 2015 to learn how to unlock a device similar to one of the deceased’s mobile phones, which was found by the police to be missing from the hotel room. It was the prosecution case that the conduct and lies were telling of the appellant’s guilt.
WeChat messages
The deceased was a prolific user of “WeChat”, an online platform used to send text messages between electronic devices. WeChat was also used by the escort agency to take bookings. The deceased and Mr S were in very frequent contact via WeChat during the deceased’s stay in Adelaide, both in relation to bookings and the arrival of clients. The deceased and Mr S also used WeChat to chat casually while she was in Adelaide.
WeChat messages between the deceased and Mr S indicate that the appellant was going up to the hotel room at 10.05 pm on 31 December 2014. At 10.39 pm the deceased messaged Mr S to inform him that the appellant wanted to extend his booking for a second hour. At 10.45 pm the deceased informed Mr S that the appellant wanted to extend his booking for the entire evening, and at 10.52 pm the deceased messaged that she would take the appellant to get money later to pay for his extended booking. This never occurred. At 12.05 am on 1 January 2015 the deceased and Mr S exchanged messages on the WeChat application wishing each other “Happy New Year”.
Mobile phone evidence
The deceased had two mobile phones. One could not be located by the police when the hotel room was searched. The other was found wrapped in the bedclothes inside the bath. The prosecution called an expert witness, Mr Jonas O’Brien from Vodafone Hutchison Australia, to interpret various telephone records associated with the deceased’s phones.
He explained that when they are switched on, mobile phones connect to mobile phone signal towers by effectively analysing the signals coming from nearby towers and connecting to the tower with the strongest signal, which is usually the closest tower. In the metropolitan area mobile phone towers are located approximately every one to two kilometres, and sometimes as close as 200 metres apart in areas like central business districts (CBDs). Signals from the towers are directed to switching stations which contain the information of the last apparent locations of mobile phones, and allow calls to be directed to receiving mobile phones.
It was an agreed fact that the mobile phone with the number ending 711, which was found in the bath of the hotel room (the 711 phone), was subscribed to the deceased. Call charge records for that phone were tendered at trial (Exhibit P52) which detailed outgoing calls, text messages sent and also connections to the internet. The records also indicated the name of the mobile phone tower (usually the name of the suburb it was located in) that the handset was connected to at the beginning of a call.
The last record of a call or text message (as opposed to messages exchanged on the WeChat application which used data) from the deceased’s 711 phone was at 11.42 pm on 31 December 2014, to a phone apparently located in New South Wales. However, the records also indicated that there were a number of “data connections”, the last of which was at 1.55 pm on 1 January 2015. Data connections occur when the phone has connected to the internet. They do not necessarily signify that the phone is actively being used to access the internet at that time, only that the phone is connected. For example, a data connection may occur when the phone is not actively used but the connection is running in the background to automatically update a phone application.
Mr O’Brien also gave evidence about visitor location records, which indicate the location of a phone at times when it sends signals between towers and mobile switching centres. From these records his opinion was that the deceased’s missing phone had most likely been switched off while still in the Adelaide CBD at 12.32 am on 1 January 2015.
Notably, the deceased’s 711 phone found in the bath is recorded as registering a location distribution of Netley at 10.13 am on 29 December 2014, and then registering 15 minutes later at Adelaide Airport, before being locatable at Adelaide CBD West when a call was made to the deceased’s phone at 11.20 am. On 30 December 2014 the phone registered at locations indicating that at sometime between 4.13 am and 6.21 am, the phone moved from the CBD to Netley, and then returned to the CBD by 8.19 am. On 31 December, the records indicate that the phone was locatable at 4.15 am in the Adelaide CBD, at 6.15 am in Netley before returning to Adelaide by 8.14 am. Mr O’Brien’s evidence was that the most likely reason for the mobile phone being referrable to the different tower locations was that the phone itself had moved.
Importantly, on the defence case, at 2.00 am on 1 January 2015 the deceased’s 711 phone was in the north western area of the Adelaide CBD, however at 4.21 am the phone again registered at Netley. At 6.14 am the phone again registered in Netley, but by 8.07 am the phone had returned to the CBD. Records indicate that at 12.54 am, the appellant’s phone was in the Beverley area.
Mr O’Brien was re-examined about possible explanations for the deceased’s phone registering with different towers and conceded that it was a possibility, albeit an unlikely one, that there could be an explanation other than the phone being in the vicinity of those towers. When pressed he conceded “[t]o happen three days running at the same time, I couldn’t say whether the handset had moved or whether there was the tower outages, it’s too difficult to say”. Mr O’Brien later gave further evidence on that issue after checking available information held by Vodafone to see whether there was a technical malfunction to explain those records. He could find no possible technical explanation for the deceased’s phone registering at Netley other than the phone moving location, although he acknowledged that it is not possible for all errors in locations recorded to be detected with existing practices at Vodafone.
The appellant’s finances
On the prosecution case, the appellant’s offending was motivated by his financial hardship. All of his bank accounts and credit cards had a zero balance or were overdrawn and in November and December 2014 he had asked two acquaintances for loans totalling $10,000. On 31 December 2014 the appellant had received a text message threatening him with violence if he did not repay money that had been loaned to him.
It was an agreed fact that, based on the bookings that the deceased had taken while in Adelaide, there should have been at least $5,500 in the deceased’s hotel room. However, only $3,927.70 in cash was found by police in the hotel room. On 1 January 2015 the police located $850 in the appellant’s wallet and $400 in the pocket of his jeans. Earlier that day the appellant had deposited a total of $1,040 into two overdrawn bank accounts.
The prosecution case
The prosecution case was that the deceased was murdered sometime after 12.13 am on 1 January 2015, being the time of the last recorded outgoing WeChat text message sent from the deceased’s mobile phone. The appellant struck the deceased a number of times to her head and face with the high-heeled shoe before slitting her throat with the razor blade which was then wrapped in baby wipes by the appellant and put into the sink. The appellant removed the bloodstained bedsheets from the bed, put them in the shower and turned it on. On the prosecution case the appellant also took one of the deceased’s mobile phones and money. It was not the prosecution’s case that these thefts were premeditated.
Appeal Grounds 1, 2 and 3 concerning the Judge’s interventions and directions concerning the call charge records
The first three grounds of appeal concern the Judge’s treatment of and directions concerning certain phone records tendered on behalf of the prosecution. The specific complaint in ground 1 concerns an intervention made by the Judge during the re-examination of Mr O’Brien concerning the records of the deceased’s 711 mobile phone (Exhibit P52). Counsel for the appellant submitted that the Judge’s intervention had the effect of undermining the expert opinion of Mr O’Brien that the most probable explanation for the call charge records in Exhibit P52 was that the deceased’s mobile phone had travelled from the city to Netley and back between about 2.00 am and 8.00 am on 1 January 2015. The appellant complains that the Judge’s intervention on this topic was compounded by the Judge’s summing up to the jury when he put forward calculations and theories based on the call charge records for the deceased’s phone which arguably established that the deceased’s phone was still at Netley at the time when, on the prosecution case, the witness Mr S went into the hotel room and found the deceased’s body.
The appellant submitted that even further prejudice was caused when the Judge went on to raise another matter arising from the call charge records of the phone of Mr J (Exhibit D74). This was said to be particularly prejudicial because the Judge referred to an apparent anomaly in relation to Mr J’s call charge records, not relevant on either the prosecution or the defence case, and which neither counsel had mentioned.
Counsel for the appellant submitted that the overall effect of the Judge’s interventions and his inadequate attempts to address the situation in summing up compounded the prejudice to the appellant by raising theories which were not supported by the evidence and about which, had the appellant been on notice, could have been met.
In this respect counsel for the appellant tendered affidavits of Dr Matthew Sorell, an engineer who explained the records, and Ms Harvey, whose affidavit set out the material which was relied on by Dr Sorell in providing his expert opinion on the records.
Dr Sorell expressed an opinion that there were two possible explanations for the apparent anomaly in the records of Mr J (Exhibit D74). The first being that the registering of his phone at 10.45:37 am with the Netley base station control tower could have been because the Netley base station was managing the mobility of the 4G connection of the handset and controlling a continuous data connection from elsewhere in the Vodafone network. This data would not be shown due to the moderation of 4G call data by Vodafone to fit 2G call records, giving only a snapshot of the phone’s movements.
The second possible explanation is that the time recorded as 10.45:37 am should read 10.15:37 am to reflect local time, assuming that the data portion of the network was managed in Australian Eastern Daylight Saving Time instead of Central Daylight Saving Time, which may have occurred if the data network was being controlled exclusively through the eastern states of Australia.
The witness said that in any event and whatever the explanation for the presence of an apparent anomaly in Mr J’s call charge records, it did not cause him to revise his opinion that the only reasonable explanation for the records relating to the deceased’s phone was that the telephone with the sim card was moved to Netley and back to the vicinity of the CDB north west tower between the times indicated in the call charge records. In this respect the evidence proposed to be led from Dr Sorell replicates Mr O’Brien’s final position after he rechecked the records and gave further evidence.

Counsel’s submission in summary was that the Judge should not have put assumptions or theories about the evidence to the jury, particularly when those assumptions and theories turned out to be wrong. It was critical that the evidence be put properly to the jury. It was submitted that the effect of the Judge’s interventions and his summing up on the topic of the call charge records improperly undermined a critical aspect of the defence case.
In order to assess the strength of that submission, it is necessary to set out in some detail the course of events at trial.
Mr O’Brien was called to give evidence concerning his interpretation of various telephone records associated with either the deceased’s mobile telephones or other witnesses, such as Mr J. In cross-examination counsel for the appellant elicited from Mr O’Brien his opinion that the most probable explanation for entries on the call charge records of the deceased was that her 711 phone had been taken from the hotel room, had registered with a mobile phone tower at Netley and returned to the Adelaide CBD sometime between 2.00 am and 8.00 am on 1 January 2015.
The obvious relevance of that evidence on the defence case was to raise an explanation consistent with the appellant’s innocence, namely that someone else went into the hotel room after the appellant left, removed and then replaced the deceased’s phone, or that the deceased was still alive at 2.00 am on 1 January 2015 and took the phone with her to Netley, later returning to the hotel room where she met her death. If either of those scenarios were reasonable possibilities then the appellant could not have been the killer of the deceased because he was seen to leave the hotel at 12.34 am.
The Judge’s questions during re-examination of Mr O’Brien which are the subject of complaint are set out below:
HIS HONOUR
Q.Are you saying, on the times put to you by Mr Boisseau which match, about 6 o’clock or 6.15, that’s not a coincidence that they both happen to go to Netley at that time. I think that’s what he’s asking you. I mean, either someone has gone to Netley at around about the same time both mornings or within the vicinity of the Netley tower or something’s happening with the towers.
A.6 a.m. in the morning. I suppose there’s a possibility that there was some scheduled outages. It would be difficult for me to confirm that in fact.
Q.We don’t want you to speculate and that sounds as if that might have been a bit of speculation. To give a more definite opinion, do you need to know the towers that are in situ between Hindley Street and Netley and the distance between those towers.
A.Given the information provided, that it was 3 or 4 km apart -
Q.Yes, I think they would be 3 or 4 km, yes.
A.Then I would suggest that there’s at least a couple of towers between those two locations and those towers would have to be out at the same time for the handset to jump to the Netley tower. To happen three days running at the same time, I couldn’t say whether the handset had moved or whether there was the tower outages, it’s too difficult to say.
The Judge then gave counsel for the appellant an opportunity to further cross-examine the witness:
MR MEAD
Q.The fact remains, doesn’t it, that, as you said in your evidence, most towers have a 1 to 2 km coverage.
A.No, the coverage distance is dependent on a range of factors. The distance between the towers is 1 to 2, maybe 3 km in the outer metropolitan areas. So the range is going to be roughly half of that, if you like. So - because you’ll ultimately connect to most likely the nearest tower.
Q.Your evidence is, isn’t it, that the most likely explanation for these registrations are that the phone has moved.
A.I believe that’s the most likely scenario.
The trial Judge then asked the following questions which are also the subject of complaint:
HIS HONOUR
Q.I mean, the facts are you need to understand and Mr Mead that it appears to be around the same time three days in a row. So either the phone has moved to Netley three mornings in a row or there’s some other explanation.
A.And a possible scenario is a scheduled maintenance event on the towers in the area.
Q.That could be checked, I presume, with -
A.It’s unlikely that we have records on that.
Q.Not by you.
A.No.
Q.But could it be checked.
A.I can certainly check but I think it’s unlikely that I’ll find any information.
Eventually Mr O’Brien was recalled after conducting those further checks. His evidence upon being recalled was that all of the checks ruled out any other possible explanation for the call charge records other than that the phone had been moved.
During the summing up the Judge addressed the call charge records and the implications of those records on both the prosecution and the defence case in some detail. His Honour prefaced his remarks by saying:
Now, I wish to say something about the telephone records in this case and, in particular, P53. What you make of the telephone records is quintessentially, in this case, a jury question. You have heard arguments from both Mr Preston and Mr Mead about the accuracy or inaccuracy of the records and what, if any, inferences can be drawn from them.
[emphasis added]
The trial Judge then accurately, in my view, summarised the implications from the point of view of both the prosecution and the defence about those call charge records and, in particular, the defence hypothesis that the call charge records could be explained if the deceased was with the witness Mr J at the relevant times shown in the call charge records. The trial Judge then gave the jury further assistance with regard to the records and stated:
So what I suggest to you, ladies and gentlemen, is they are matters for you to consider of what you make of the records and I suggest you look at the records of the conversations in their entirety to get a contextual idea of these things.
[emphasis added]
His Honour then descended into some further detail in an examination of all of the call charge records before finally concluding his directions to the jury on that topic with the following direction:
So, it is a matter for you, ladies and gentlemen, but I suggest you look at these records very carefully. You will bear in mind Mr Preston’s submissions to you that the rest of the evidence establishes that the phone just could not have gone to Netley and back again. You will bear in mind the submissions put to you by Mr Mead that there is evidence in the records that supports the suggestion of an affair between Ms Fang and [Mr J], albeit denied by [Mr J].
[emphasis added]
However, subsequent to that direction being given and before the summing up was concluded, counsel for the appellant complained about the Judge’s directions on the call charge records, in particular the deceased’s and Mr J’s (Exhibits P52 and D74), and requested that Mr O’Brien’s evidence in re‑examination be specifically pointed out to the jury. His Honour acceded to that request and when the jury returned after the break the Judge further directed as follows:
I want to return to this question of the telephone records and the accuracy, and I am not going to go through the whole of that again but I want to read to you a passage of the transcript of Mr O’Brien which from memory is when he first gave evidence. He was asked some questions about the documents. He was asked this question:
His Honour then put the evidence of Mr O’Brien as follows:
Q.The report in the call charge record seems to suggest a data session of some 700 seconds starting at 12.32:26.
A.Yes.
Q.Does that change your opinion about when the phone was turned off.
This is the phone of Ms Fang. It was turned off at 12.32:
A.No, this is the duration as would have been recorded by the billing system but it doesn’t rely on the specific network messages that are happening on the network.
Q.So is it the case that the billing system will record a period of time connected to data which may or may not actually reflect what the hand set actually did.
A.That’s correct.
Q.The sort of minimum amounts that are recorded for billing purposes.
A.Yes. If you like, yes.
The Judge continued as follows:
That is not entirely clear, that evidence, what Mr O’Brien meant by that, but a possible interpretation of that is that what Mr O’Brien was saying was that what is being recorded is only the initial connection and that the 700 seconds may or may not actually reflect what the handset actually did. In other words, if that interpretation is correct, there is the initial connection at, for example Netley, which is important, and then the timed session is not going to tell you what happened to that handset in terms of whether it had geographically moved.
The other interpretation of that piece of evidence may be that the 700 seconds or so is simply not telling you what the handset was doing in the background. It’s not clear really what that evidence talks about. But I draw that to your attention as another matter you should look at when considering Mr O’Brien’s evidence.
His Honour then referred to another record, Mr J’s call charge records (Exhibit D74), and said this:
But there is evidence if you go to D74, which is [Mr J’s] phone, of a connection on 29 December 2014 at 10.45:37. Again this is a live.vodafone.com connection which records Netley as being the tower and at 10.46:57, that is two minutes and 27 seconds later, there is a phone call to a number end ending 403 which connects at Rundle Mall.
Now, it is a matter for you as to what you make of that but, if the phone was sufficiently close to connect at Netley at 10.45:37 it is difficult to understand how it could be close enough two minutes and 20 seconds later to connect to the tower at Rundle Mall.
But again these are just matters in the record and they are just matters to take into account when assessing the evidence of Mr O’Brien and the evidence of the telephone records.
I am not attempting to suggest to you that a simple anomaly like I pointed out to you or the fact in D74 of itself undermines the position that Ms Fang’s phone connected at Netley at the time suggested. It is just put to you to suggest that there are matters which you need to consider when assessing the accuracy of these records.
At the conclusion of that session, the following exchange occurred between counsel and the Judge:
MR MEAD:The only other thing is about the phone evidence, I wonder whether your Honour would consider directing the jury that, overall, the evidence of O’Brien is that, having looked at all the evidence of the call charge records and the database of Vodafone, he concluded that the most probable explanation for the call charge records is the movement of the phone? In my submission, it was -
HIS HONOUR: When I come to Mr O’Brien’s evidence, I’m confident that I’ve recorded that because that was his evidence.
MR MEAD:Yes. I’m just not sure what the jury took from the directions your Honour gave about the billing system entries in relation to duration.
HIS HONOUR: I tried to put both interpretations. I put your position, didn’t I? I said -
MR MEAD:I think your Honour did. I’m just a bit unclear where it ended up, I have to say. I’ll look at our notes over the lunchbreak.
HIS HONOUR: If you want me to correct it, let me know. What I was trying to say was that it wasn’t clear what he was saying, one interpretation was that the billing system records the periods that - the time when it connects to the data, but it doesn’t actually reflect whether the phone geographically moves or not after that time which I thought was your position.
MR MEAD:Yes, that’s correct.
HIS HONOUR: I put it’s also not clear that the evidence is not telling you what the handset itself is doing as opposed to a geographical shift. That was my intention, Mr Mead.
MR MEAD:I’ve already raised the issue about the Rundle Mall matter. I say that shouldn’t have been put because there’s no evidence from either side about it.
HIS HONOUR: But it’s in the evidence, Mr Mead.
MR MEAD:Yes, I understand.
HIS HONOUR: One can’t assume the jury haven’t seen that themselves.
MR MEAD:No.
HIS HONOUR: You chose not to deal with it, Mr Preston chose not to deal with it. I hopefully put it in a neutral way, it’s just another piece of evidence that doesn’t seem to sit and they should just look at that with the rest of the evidence. I’m not sure I can do much more about that.
MR MEAD:If your Honour pleases.
However, that was not the end of the matter. When summarising the evidence led by the prosecution, the Judge returned to the evidence of Mr O’Brien and said:
You will remember that Mr O’Brien gave evidence in relation to what he considered the most likely interpretation of those documents. He told you that for Ms Fang’s phone records to show the connection to Netley at the times on the 30th, 31st and 1st, the most likely result of his investigations and his expert opinion was that they were recording the fact that the phone of Ms Fang was close to that tower, within a few hundred metres or so of that tower, on those occasions.
When he was recalled he gave evidence that he had checked the records to see whether there was some other reason such as an outage or something of that nature that might have caused a problem with the records and he said he was unable to determine any such event having occurred.
He repeated his opinion, having done those checks and having looked at the records that in his view the most likely explanation for the registration of Ms Fang’s phone on those days at Netley was the proximity of that phone to those towers at that time.
I have already gone through the telephone records, ladies and gentlemen, I do not intend to repeat the submissions of both counsel in relation to that.
His Honour returned to the topic several more times during the summing up. It can be seen from those directions that his Honour fairly and accurately summarised the respective positions of the prosecution and the defence with regard to those call charge records. His Honour said:
As pointed out to you by Mr Mead in his address to you, if you assume that the telephone records are accurate and there is a possibility that Ms Fang was at Netley with her phone in the early hours of the morning of 1 January, that of course puts a different colour and a different view on a lot of the circumstantial evidence in this case and you will bear that in mind as I go through these directions again.
Later, after directing the jury as to how to approach the circumstantial evidence in the case, he again referred to the appellant’s submissions that when thinking about circumstantial evidence and looking at the evidence of the phone records, if they accept the appellant’s submissions about those phone records, that may well put a different colour on some of the other evidence.
In the context of summarising the addresses of both counsel, his Honour again referred to this topic:
Mr Mead reminded you right at the outset and emphasised Mr O’Brien’s evidence and indeed, as I said earlier, that the most likely explanation for the phone records was that the phone moved from the city to Netley on those occasions that people had mentioned; the 30th, 31st and the 1st. He reminded you of that evidence of the phone movement because the most likely inference to draw was that Ms Fang would have been with the phone.
He reminded you to look at the circumstantial evidence of the case in a different way once you took into account the fact that she was out of the room and down at Netley. He was critical of the prosecution of trying to - perhaps these are my words - have their cake and eat it too. They wanted you to rely on the records where it suited them, as soon as there was something which did not suit them, when it did not fit, I think the expression used ‘it was breathtaking that they should make such a submission’.
He said you cannot put Mr O’Brien’s evidence aside and the phone records by saying they are just erroneous. He said they were happy to rely on [Mr J’s] phone evidence showing he had been at Glenelg, yet when they come to the night in question, that they do not want to accept the evidence of Ms Fang’s phone. He said you can rely on the probable accuracy of these documents and assume that Ms Fang went with the phone. He said it is a rational and likely explanation. He put it to you was it a coincidence that [Mr J] just happens to live nearby.
The Judge referred to the topic five further times before concluding the summing up:
[Mr Mead] reminded you if the phone and Ms Fang were at Netley after 12.33 then automatically there was a reasonable possibility and his client must be acquitted. If she was alive and well after 12.32 his client could not possibly have been the killer.
…
He said you could not, in this case, exclude as a reasonable possibility that that telephone had moved as Mr O’Brien told you it did.
…
He said if she was alive, there was a reasonable possibility that she was alive after 12.32, then the other pieces of circumstantial evidence take on a different complexion. …
…
He reminded you that the submission that if the phone left and went to Netley, the most likely inference was that Ms Fang went with it. He reminded you that it was not good enough for the prosecution to just end up in the position of saying ‘It is a bit of a mystery about these phone records, you just do your best with the rest of the evidence’. He said that is not an appropriate way for you to assess this case. He said if a fundamental premise of the prosecution case collapses, namely the phone records, and Ms Fang being alive down at Netley then the rest of the evidence collapses as well.
…
Again, he emphasised the evidence of Mr O’Brien. He reminded you that Mr O’Brien’s opinion was the most likely explanation from the phone records was that the phone did travel to Netley on those occasions mentioned in the exhibit. He said that you are entitled to either find that or entitled to at least conclude as a reasonable possibility that occurred and therefore that the accused had to be not guilty.
It can be seen from the course of evidence at trial set out in the preceding paragraphs that the issue of the state of the call charge records and the apparent anomalies within them was fully ventilated before the jury.
The bottom line of the evidence of the expert Mr O’Brien was that the most likely explanation for the state of the records of the deceased was that the 711 phone and its sim had been moved during the relevant time period. The witness, however, conceded that phone records are not always 100 per cent accurate.
After Mr O’Brien had been questioned by the Judge in re-examination, he returned to give further evidence and confirmed his original opinion that the most likely cause of the state of the deceased’s 711 phone record was that the phone and its sim had been moved. This opinion necessarily implied that the Judge’s assumptions about the call charge records which had been put to him in cross‑examination were not necessarily correct. The jury could not fail to have been aware of the significance of the final opinion expressed by Mr O’Brien.
In my view the appellant’s complaint that the Judge improperly left an alternative basis for conviction to the jury, a basis not relied on by the prosecution or the defence and which was not available on the evidence, is misconceived.
The circumstances here are very different to the circumstances in Robinson v The Queen,[1] relied on by the appellant in support of this ground of appeal. In Robinson the case put by the prosecution and relied on throughout the trial as the basis for conviction was that two people had gone into the cell of another prisoner and attacked him. The prosecution maintained consistently that the appellant and a man named Brazel killed the prisoner. The defence case was that only one person had entered the deceased’s cell and that person was not the appellant.
[1] (2006) 162 A Crim R 88.

During the summing up the Judge left an alternative scenario that the appellant could nevertheless be convicted even on the alternative scenario as long as the jury were satisfied that the one person who entered the cell was the appellant. In the circumstances where the Crown had never relied on that alternative scenario the Judge’s directions were found to have caused a miscarriage of justice.
Here, contrary to the appellant’s submission, the prosecution always maintained that there were aspects of the call charge records, particularly with regard to the deceased’s 711 phone (Exhibit P52), which may well contain anomalies insofar as those records tended to suggest that the deceased left the hotel room, or that the phone and the sim left the hotel room, sometime after 12.32 am on 1 January 2015.
All of the call charge records were tendered and were in evidence before the jury. As the Judge himself commented when raising the issue of Mr J’s call charge records with counsel for the appellant before addressing the jury upon it, the jury may well have noticed the apparent anomaly in the call charge records as a consequence of the cross-examination of Mr O’Brien and his explanation about what the various columns in the call charge records meant.
Nevertheless, the call charge records constituted only part of the circumstantial case against the appellant. Both counsel for the appellant and counsel for the prosecution relied on the evidence of Mr O’Brien to support their respective cases.
It was the Judge’s responsibility to give the jury such assistance as required in assessing the whole of the circumstantial evidence before them. That included the call charge records.
The trial Judge gave accurate and clear directions about the way in which the jury should approach circumstantial evidence. No complaint is made about the directions on circumstantial evidence.
In my view the Judge’s directions concerning the call charge records in particular went no further than attempting to clarify some of the evidence given by Mr O’Brien and to remind the jury that it was important that they approach the evidence of the call charge records by considering them very carefully and considering them in the context of the whole of the evidence. Insofar as the Judge’s interpretation of Mr J’s call charge records raised another possible anomaly in the records, that had always been the prosecution’s position, at least in relation to the deceased’s phone records. Further, this possible anomaly was in evidence before the jury in any event.
It is evident both from the course of evidence at trial and when summing up that the Judge made it clear at all stages that the assessment of the call charge records was a matter for the jury and what they ultimately made of those records was for them to decide. The Judge was entitled to comment on the evidence, in particular on the call charge records which formed an important plank in the defence case, so long as those observations did not have the effect of overbearing the jury or leaving the jury with the impression that it was not for them to decide what use they were prepared to make of those records.
The very first direction the trial Judge gave to the jury when introducing the topic of the call charge records was a reminder that the ultimate question of what they made of that evidence was quintessentially a jury question.
The submission that the evidence of Dr Sorell was capable of rebutting suggestions made by the trial Judge during the trial, particularly in relation to Mr J’s call charge records, overlooks the fact that Mr O’Brien’s evidence, particularly the evidence he gave after being recalled, had the same effect.
Dr Sorell’s evidence with respect to the deceased’s call charge records was exactly the same as the final opinion expressed by Mr O’Brien, namely that the most likely explanation for the state of those records was that the phone with the sim card was moved in the early hours of 1 January 2015.
The second matter that Dr Sorell commented upon, namely the apparent anomaly in the records of Mr J, was somewhat more equivocal. He said that there were two possible explanations for the apparent anomaly in Mr J’s records, neither of which could be confirmed without further enquiries being made by Vodafone.
When discussing the call charge records relating to Mr J’s phone, in my view, the Judge did no more than raise for the jury’s consideration one possible interpretation of the records which might suggest another anomaly in some of the call charge records.
It is relevant that before raising that issue he had already invited counsel for the appellant to reflect upon it and address it further if he wished the following day. The court adjourned at a point when counsel for the appellant had not yet completed his address to the jury. Notwithstanding that invitation, on the next day he completed his address without raising the matter again with the Judge. Nor did he refer to it again in the course of his address to the jury.
The jury were required to consider and assess the whole of the evidence, including the telephone evidence, before determining the critical issue of whether the prosecution had proved beyond reasonable doubt that it was the appellant who murdered the deceased.
The evidence of Mr O’Brien, if considered in isolation from the whole of the circumstantial evidence before the jury, was capable of supporting an inference consistent with the appellant’s innocence.
As the Judge directed the jury, that evidence needed to be assessed in the context of all of the evidence before them.
On the whole of the prosecution evidence, if accepted by the jury, the possibility that the deceased left the hotel room after 12.32 am on the morning of 1 January 2015 was necessarily excluded.
The call charge records constituted an item of circumstantial evidence which, standing alone, was capable of supporting an inference consistent with the innocence of the appellant. However this was merely one item of evidence, about which there were competing arguments as to the correct interpretation. The trial Judge’s interventions to my mind were calculated to assist the jury to resolve any ambiguity, doubt or confusion about the meaning of the call charge records.
To the extent that the Judge raised in evidence a theory about the call charge records, the witness Mr O’Brien corrected it upon his re-examination.
To the extent that the Judge when summing up raised another assumption in discussing Mr J’s call charge records which may not have been correct, any potential to cause confusion or misunderstanding as a consequence was removed when the Judge directed the jury to the final position of Mr O’Brien by quoting his final opinion directly.
I am satisfied that no miscarriage of justice has occurred either on account of the Judge’s questions during re-examination of Mr O’Brien or as a consequence of the directions given to the jury when summing up.
I would dismiss this ground of appeal.
Ground 4: Evidence of text messages (WeChat) sent from the deceased’s phone were not admissible pursuant to s 34KA of the Evidence Act 1929 (SA)
This ground of appeal raises for consideration the issue of whether text messages allegedly sent by the deceased in the hours preceding her death were admissible under the provisions of s 34KA of the Evidence Act for testimonial purposes. After hearing argument, the trial Judge ruled that the prosecution could lead text messages sent and received by the deceased between 10.00 pm on 31 December 2014 and 12.14 am on 1 January 2015. The Judge ruled that the messages were admissible for testimonial purposes under the provisions of s 34KA of the Evidence Act.
A forensic examination of a mobile phone belonging to the deceased, which was found in the hotel room wrapped in bed clothes in the bathroom several hours after her body was found, revealed that the deceased had apparently sent a number of text messages during the time that she was in Adelaide via an application known as WeChat. The use the prosecution sought to make of the messages was to establish what was happening in the room in the hours prior to the deceased’s death, that the appellant remained in the room between the times he was seen on CCTV footage, and to demonstrate that there were no other bookings made for the deceased during that time.
The appellant argues that the amendments to the Evidence Act, including s 34KA made in 2012, were intended to deal with situations where criminal organisations attempted to subvert the operation of the criminal justice system by intimidating and threatening witnesses and victims in relation to offences committed by members of criminal gangs and other serious and organised crime bodies.
The appellant submitted that the Parliament never intended that s 34KA would operate to extend beyond the mischief identified by the Attorney-General in the second reading speech upon its introduction. It was submitted that such a substantial change to the common law position relating to the admission of hearsay evidence was not likely to be assumed and that the operation of the section should be restricted to situations where a formal out of court statement from a witness is otherwise available but who fell within one of the conditions set out in s 32KA(2).
Section 34KA of the Evidence Act provides as follows:
34KA—Admissibility of evidence of out of court statements by unavailable witnesses
(1)Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if—
(a)     oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and
(b)     the person who made the out of court statement (the relevant person) is identified to the court’s satisfaction; and
(c)     any 1 of the conditions specified in subsection (2) is satisfied.
(2)The conditions are as follows:
(a)     that the relevant person is dead;
(b)     that the relevant person is unfit to be a witness because of a bodily or mental condition;
(c)     that the relevant person is outside of the State and it is not reasonably practicable to secure his or her attendance;
(d)     that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him or her have been taken;
(e)     that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the out of court statement, and the court gives leave for the out of court statement to be given in evidence.
(3)For the purposes of subsection (2)(e) fear is to be widely construed and includes, for example, fear of the death or injury of another person or of financial loss.
(4)Leave may be given under subsection (2)(e) only if the court considers that the out of court statement ought to be admitted in the interests of justice, having regard to—
(a)     any information (whether or not given in evidence, or of a kind that could be given in evidence) suggesting threats have been made to the witness, whether directly or indirectly; and
(b)     the statement’s contents; and
(c)     any risk that its admission or exclusion will result in unfairness to a defendant in the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence and the defendant is not able to cross examine the person); and
(d)     any other measures that could be taken by the court in relation to the relevant person; and
(e)     any other relevant circumstances.
(5)A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—
(a)     by the person in support of whose case it is sought to give the out of court statement in evidence; or
(b)     by a person acting on his or her behalf, in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the out of court statement).
(6)Nothing in this section makes an out of court statement admissible as evidence if it was made by a person who was not competent at the time when he or she made the statement.
(7)This section is in addition to, and does not derogate from, any other power of a court to admit an out of court statement into evidence.
(8)In this section—
prescribed proceedings means—
(a)     proceedings for a criminal offence; or
(b)     proceedings under the Serious and Organised Crime (Control) Act 2008.
Counsel for the appellant submitted that to restrict the operation of the section in the way suggested – to a situation where a formal out of court statement from the witness is available – would accord with the intention of Parliament and produce a practical consequence that s 34KA(1)(b) would be relatively easily satisfied. That is to say the person who took the statement would usually be available to give evidence as to the statement maker’s identity and offer to testify that the statement had been signed by that person.
A further argument in support of the submission that the WeChat text messages were not admissible was that the text messages themselves contained hearsay. In counsel’s submission the rule against hearsay would prevent the deceased from giving evidence that she had sent a message to Mr S telling him that the appellant wanted to extend his booking by one hour, unless of course that evidence was relevant and admissible for a purpose other than for the purpose of establishing the truth of that.
In my view there are two fundamental flaws in the appellant’s argument. The first is that the section on its face is not restricted to proceedings involving serious and organised crime. The intention of the Parliament must be discerned from the actual text, and the text in s 34KA(8) of the Evidence Act makes it plain that “prescribed proceedings” means and includes proceedings for a criminal offence in addition to proceedings under the Serious and Organised Crime (Control) Act 2008 (SA). Second, there is nothing in the text of s 34KA which suggests that its operation should be restricted to situations where a formal out of court statement is available.
That limitation is inconsistent with the express language used in the section which describes a statement broadly as “a statement however made”.
It is apparent from the second reading speech when the Bill was introduced into the Parliament that s 34KA is an adaption of a similar provision introduced in the United Kingdom as a consequence and based upon recommendations of the United Kingdom Law Commission Report “Evidence in Criminal Proceedings: Hearsay and Related Topics”.[2]
[2] United Kingdom, Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics (1997).
In R v Koenig[3] White J rejected a similar argument, concluding as follows:[4]
… Further, I note that [8.4] of the Law Commission Report recommended that the provision extend to oral as well as documentary hearsay. It is evident that the UK Act was enacted in acceptance of that recommendation.
Counsel for the accused also submitted that s 34KA had been enacted as part of a package of amendments which sought to address the problem of serious and organised crime by outlaw motorcycle gangs. As the present case was not a matter of this kind, he submitted that s 34KA should, in some way, be construed as being inapplicable to it. It is true that the Attorney-General’s Second Reading Speech indicates that the amendments in the package which was ultimately effected by the Statutes Amendment (Serious and Organised Crime) Act 2012 (SA) (which included s 34KA) were aimed at serious and organised crime. However, it is also apparent that the Parliament took the opportunity to enact s 34KA in terms which went beyond the circumstances of serious and organised crime. In the Second Reading Speech, the Attorney-General referred to the United Kingdom counterpart to s 34KA(2)(e) and continued:
The UK provision is an exception to the hearsay rule. It has other arms unrelated to the matters immediately at hand. It is proposed that this sensible provision be incorporated entire into the law of this State.
Thus, the Attorney-General made it plain that this particular provision went beyond the general purpose of the package of Bills which he was then introducing in relation to the problem of serious and organised crime by outlaw motorcycle gangs. This means that this submission of the accused cannot succeed.
[3] (2013) 229 A Crim R 108.
[4] R v Koenig (2013) 229 A Crim R 108 at [212]-[213].
I agree with the observations of White J in Koenig.
As to the second objection, it is apparent that the statements sought to be admitted within the WeChat messages are not hearsay. The oral evidence which the deceased would give were she available would not be that she sent text messages to Mr S to the effect contained within the text messages, but that “the accused told me he wanted to add a further hour”. That evidence is not hearsay. In my view the conditions set out in s 34KA(1)(a) have been satisfied.
It is also pertinent to note that a statement is only admissible if certain conditions are met. That includes the first condition that the oral evidence given would be admissible as evidence of that matter and second that the person who made the out of court statement has been identified to the court’s satisfaction.
In this regard the issue here is somewhat different to the facts confronting White J in Koenig. Although there was no real dispute that the deceased was the author of the messages up to and including 10.00 pm, the defence concession did not extend to admitting that the deceased was the author of calls or messages made after that time.
Accordingly the jury needed to be satisfied beyond reasonable doubt before they could use the evidence in the text messages that the deceased was in fact the author of those messages.
The trial Judge gave detailed and clear directions to the jury both as to the conditions on which they could use the text messages and the purpose for which they could use them were they satisfied that the text messages were credible and reliable. The directions of the trial Judge were extensive and included a detailed explanation to the jury of what constituted hearsay and what constituted direct evidence. The relevant extracts from the Judge’s directions are as follows:
The next matter, ladies and gentlemen, I want to talk to you about or give you directions about is the text evidence from Ms Fang’s phone. So I want to give you a direction about the use that can be made of the text messages sent by her or to be more precise, sent from her phone. In this case Mr Mead has suggested to you you need to view the texts sent from about 10 p.m. on 31 December with some care. There is no real dispute that the texts sent from her phone before the late hours of 31 December were sent by Ms Fang, but the defence concession stops there. There seems to be no doubt that the messages after that time came from the phone but Mr Mead has suggested to you that you perhaps cannot be satisfied that they were sent by Ms Fang or in the alternative, even if they were sent by her, that they were truthful, that is, it was put to you that they were sent on the instructions of [Mr J] to put [Mr S] off from booking any more customers so she could go to [Mr J’s] place. Or alternatively it is been suggested to you there may have been other people in the room who in some way were manipulating the texts sent.
In this case, evidence has been given of the texts allegedly sent by Ms Fang on a number of days and you have the charts and the exhibits which include the times, the translated texts and the recipient of the messages and indeed the sender. The prosecution tendered this material to establish two matters; first of all, that the messages to her phone were either sent or received by her, and secondly, and more importantly in the context of this case, that you can rely on the truth of what is contained in the texts that she sent. In other words, you should accept on the prosecution argument that if Ms Fang was still alive, she would have given the evidence that is contained within those text messages. In other words, that they are true.
So you might be wondering why I am making something of this, but generally speaking, unless a person comes along to give evidence in court, statements they make outside of court are not admissible. That is the rule against hearsay.
…
The evidence is admissible at law as an exception now to the hearsay rule. It can be used by the prosecution to persuade you that not only did Ms Fang send these texts but what she said in the texts can be relied on by you as the truth as if she had come along and given that evidence.
But you must bear in mind two important considerations: the first is that the prosecution must establish that Ms Fang sent the texts. Not so important for many of them leading up to 31 December, but, you will bear in mind Mr Mead’s submissions about the texts after about 10 p.m.
Secondly, even if they were sent by Ms Fang - and there does not seem to be any dispute they came from her phone - if the content of the texts, that is what she said in the texts, is credible and reliable. She was of course not able to be cross-examined but the prosecution are entitled to rely on the truth of those texts if they are able to establish to your satisfaction that the texts are credible and reliable.
And you will bear in mind the submissions made by both counsel as to how you go about assessing those. The prosecution say that you look at all of the texts in the surrounding circumstances and they say they clearly establish that Mr Piao arranged to stay the whole night. It was an arrangement that he made while he was there.
They put to you that the texts are contemporaneous, that is occurring at the time, are clearly made by her and are consistent with the known facts later established; for example that she was getting dressed and ready to go out.
Mr Mead reminded you that there was evidence, it was suggested, that she was later going to go to Netley and had gone on the previous morning. He reminded you that she had earlier said she was tired, sleepy, as expressed in other texts. He put to you you should find that Ms Fang was lying to [Mr S] in those texts so she could get to Netley.
So with those texts, ladies and gentlemen, that is the directions you need to consider when you come to look at those texts. Ms [Fang] is not here, the Crown, if they establish they are credible and reliable and sent by her the Crown, are entitled to rely on the truth of those texts, and you will bear in mind Mr Mead’s submissions as why you should not be satisfied that they are credible and reliable.

In my view those directions were apt to dispel any confusion on the part of the jury about the need to be satisfied before they used the WeChat messages that they were sent by the deceased and were both credible and reliable, and also, the purpose for which those texts could be used.
For these reasons I consider that the evidence of the WeChat text messages sent from the deceased’s phone was properly admitted and the jury was correctly directed as to its proper use.
I would dismiss this ground of appeal.
This leads to a consideration of the final ground of appeal that the evidence was incapable of supporting the verdict of guilty.
Ground 5: Was the verdict unsafe and unsatisfactory?
It is well established that in determining this issue an appellate court must consider the whole of the evidence and have regard to the trial judge’s summing up. The ultimate question is whether the court considers on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt.[5]
[5] M v The Queen (1994) 181 CLR 487; Gipp v The Queen (1998) 194 CLR 106.
In support of this ground of appeal the appellant submitted that the call charge records called into question the fundamental foundation of the prosecution case and raised a reasonable doubt as to the identity of the killer.
The appellant submits that as the call charge records raise a reasonable possibility that the phone did leave the room in the early hours of 1 January 2015, it is reasonably possible that there is some way that another person, whether the deceased or someone else, carrying that phone, got into or out of that room and the hotel without being seen either on the hotel CCTV or without activating the door locks to the room occupied by the deceased. The appellant’s submission about the circumstantial case against him, in a nut shell, was that if the evidence of the call charge records raises a reasonable possibility that the deceased was still alive at the time when the appellant was seen running from the hotel on the CCTV footage at about 12.34 am and that another person entered the room after that, the appellant must be acquitted.
That submission must be evaluated in the light of the whole of the evidence before the jury. I turn to that evidence now.
As I have set out earlier in these reasons, the hotel records demonstrated that the deceased did not appear on the hotel CCTV at any time after 10.10 pm on 31 December 2014. The appellant was seen on CCTV entering the hotel at 10.10 pm on 31 December 2014. He was next seen running from the hotel at 12.34 am on 1 January 2015.
The deceased had two mobile phones. She was a regular user of her mobile telephone. The evidence showed that she stopped using her mobile phone at 12.13 am, approximately 20 minutes before the appellant ran from the hotel.
The room occupied by the deceased required a key card to unlock it. The records showed that she used her key card to enter the room several hours before the appellant arrived at the hotel. No key card was thereafter used again to open the door to her room until her body was found the next morning at approximately 7.58 am by Mr S. Evidence called from the hotel manager established that it was not possible for a guest to enter or leave the hotel without either appearing on CCTV or triggering a fire door alarm. No fire door alarms were triggered on the morning of 1 January 2015.
In the hotel room police found a razor blade wrapped in baby wipes in the sink of the ensuite bathroom with traces of the blood of the deceased on it. The bedclothes had been removed from the bed and placed in the bathtub and the shower was turned on. This caused the bath to overflow and the carpet outside the bathroom was sodden when police attended.
Analysis of the crime scene demonstrated that the deceased had been attacked while sitting in a chair and had been struck at least twice to the head, causing her to bleed freely. The appellant’s thumb print was found on a high‑heeled shoe found near the deceased’s body. There was evidence that the heel of that shoe could have caused two triangular lacerations found on the deceased’s scalp. The shoe was blood spattered, consistent with bloodied hair swiping across the insole of the shoe. On two blood-like stains on the deceased’s handbag and on a footstool, police located the appellant’s DNA.
There was expert evidence to suggest that the razor blade found in the ensuite bathroom could have caused the fatal injury to the deceased’s throat. The appellant’s work van contained a pack of 18 single-edged razor blades. A physical comparison between the blade from the sink and the blades in that work van revealed that the blade from the sink and the blades from the work van had the same combination of six distinguishing features. That combination of distinguishing features was shared by blades only obtainable from two suppliers around Adelaide, one of which was the supplier where the appellant had bought his razor blades.
The WeChat messages tendered in evidence showed that the appellant extended his booking, first for an additional hour, and then again for the whole night. The deceased told Mr S that she needed to leave the hotel in company with the appellant in order to obtain money so he could pay for the overnight booking. That did not occur. When the body was found the deceased was dressed in clothing consistent with her preparing to go out.
The sum of $3,927.70 in cash was found in the hotel room occupied by the deceased. It was an agreed fact that there should have been at least $5,500 by way of earnings in that room if Mr S had not removed more money than instructed. There was evidence that the appellant was in financial difficulty. There was evidence that on 31 December 2014 he had received text messages threatening him with violence if he did not repay money previously lent to him.
Approximately a week earlier, on 23 December 2014, the appellant visited another prostitute and was not able to pay for her services. He offered a mobile telephone in lieu of payment.
Upon his arrest the police found $850 cash in his wallet and a further $400 cash in the pocket of his jeans. Earlier on 1 January 2015, the appellant deposited $500 cash into one of his overdrawn business accounts and $540 into another.
The evidence established that the appellant returned to his car via an indirect route and broke into a run on several occasions. By the time of his arrest the appellant had disposed of a pair of jeans and a pair of shoes he was seen to be wearing on the CCTV images of him as he entered the hotel. On the afternoon of 1 January 2015 the appellant conducted an internet search on how to unlock a device similar to the deceased’s missing mobile phone.
Finally, the appellant lied to police in two records of interview telling them that he walked slowly from the hotel and that other people had made the appointment with the deceased for him.
As to the telephone call charge records relied on by the appellant’s counsel, the prosecution also relied on Mr O’Brien’s evidence that the Vodafone call charge records, while very reliable, were not always 100 per cent accurate. Furthermore, Mr O’Brien gave evidence that issues had been identified in the past with the location data contained in Vodafone’s call charge records database.
Having completed an independent review of the evidence, I am satisfied that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. In fact, I am satisfied that the evidence pointing to the appellant’s guilt is overwhelming. I have no misgivings about the verdict. I would dismiss this ground of appeal.
Conclusion
For these reasons I would dismiss the appeal.
NICHOLSON J. I agree that the appeal should be dismissed for the reasons given by Kelly J.
HINTON J. I agree that the appeal should be dismissed for the reasons given by Kelly J.