R v Rogerson; R v McNamara (No 44)

[2016] NSWSC 451

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rogerson; R v McNamara (No 44) [2016] NSWSC 451
Hearing dates:	14 April 2016
Date of orders:	14 April 2016
Decision date:	14 April 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [12]
Catchwords:	CRIMINAL LAW – Evidence – Documentary evidence – Whether document misleading or confusing – Discretionary exclusion
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	Regina – Crown Roger Caleb Rogerson – Accused Glen Patrick McNamara – Accused
Representation:	Counsel: Mr C Maxwell QC – Crown Mr G Thomas – Accused Rogerson Mr G Wendler – Accused McNamara   Solicitors: Director of Public Prosecutions – Crown Katsoolis and Co – Accused Rogerson AHA Taylor Lawyers – Accused McNamara
File Number(s):	2014/157408; 2014/156921
Publication restriction:	Nil

Judgment EX TEMPORE - REVISED

1. On 1 April 2016 the Crown called Joanne Sofrenic, an intelligence analyst, through whom evidence was tendered of telecommunications contact between each of the accused, and between the individual accused and other persons. In the course of Ms Sofrenic being cross-examined (commencing at T2824 L14) Mr Thomas, who appears for Rogerson, asked her questions about certain data which had been obtained and been provided to her, which was referred to as “GPRS data”.

2. Ms Sofrenic explained that she had a "very basic knowledge" of GPRS data. She said (at T2824 L24) that she understood GPRS to stand for "General Packet Radio Service", which referred to (inter alia) internet usage. However, she repeated that she did not have a full knowledge of it.

3. Ms Sofrenic also stated (at T2824 L31 and following) that she understood that GPRS data was not referable to “deliberate use” of the internet, but that it could refer to “automatic access” to the internet through a phone service. She also expressed some understanding (the basis of which was not entirely clear) that email communications could manifest themselves as GPRS data.

4. In the course of the proceedings today Mr Thomas cross-examined Det. Phillips, the officer-in-charge of the investigtion, and showed him a document which he described as "an extract of telecommunications involving Jamie Gao and Glen McNamara that involved the use of the internet, that is GPRS, for the period 1 April 2014 through to 23 May 2014". Det. Phillips replied that the document indicated internet activity on the individual phones of the deceased and McNamara at that period of time.

5. Det. Phillips was then asked questions relating to what has been referred to as a “Viber” application installed on the phone of McNamara. He explained that this was a specific application that permitted use of the internet to transmit voice and other messages. The connection (if any) between GPRS data and “Viber” has not been otherwise explained.

6. Mr Thomas then sought to tender the document shown to Det. Phillips. It was objected to by Mr Wendler, counsel for McNamara, who submitted that the document was both misleading and confusing. He submitted that in all of the circumstances and, contrary to the import of the question put to Det. Phillips, the document did not evidence “association” (for want of a better term) through telecommunications between the deceased and McNamara.

7. Mr Thomas submitted that the document was relevant and admissible on a number of bases. Firstly, he submitted that it was relevant to what he described as the "nature and quality of the relationship between the deceased and the accused McNamara". Secondly, he submitted that the document was capable of sustaining an inference that the accused and the deceased had a particular means of communication with each other. Thirdly, he submitted that the document was capable of sustaining an inference that McNamara was at particular locations at particular times. Finally, he submitted that the document was capable of establishing that McNamara was "tech savvy", and a regular user of the internet.

8. The evidence explaining the nature of GPRS data is essentially confined to those passages of Ms Sofrenic's evidence to which I earlier referred. I was not referred to any other passage(s) of her evidence in which the subject of GPRS data was touched upon.

9. Clearly, and without intending any disrespect to Ms Sofrenic, knowledge of the nature of GPRS data is not required to allow her to perform part of her duties as an analyst. She is not an expert. She has, on her own admission, what only could be described as a very basic knowledge of GPRS data, essentially limited to the fact that it refers to internet usage. If the data refers to internet usage by two separate individuals, it is difficult to determine how the document could be said to go to the nature and quality of a relationship between those individuals.

10. The paucity of evidence as to the nature of GPRS data is that the document in its present form, at its highest, shows individual internet usage by the accused and by the deceased, independently of each other. It does not infer, much less establish, that the deceased and McNamara were communicating with each other by way of the internet. To that extent, the document, or more specifically the form in which it has been produced, is in my view positively misleading.

11. To the extent the document is said to be evidence of locations at which McNamara was present from time to time, there has been some evidence given in that regard by Petine Tuhukava, an analyst for Vodafone Hutchison Australia, who was called by the Crown on 1 April 2016. Ms Tuhukava (commencing at T2857 L50) explained, in very basic terms, the nature of the network which operates to facilitate mobile telephone coverage. If the document now sought to be tendered were used for the purposes of establishing that McNamara was in a particular location at a particular time, the evidence of the nature of the operation of the network would have to be far more detailed.

12. For all of these reasons, the probative value of the document is severely limited. It should be excluded under s. 135 of the Evidence Act 1995 (NSW) (“the Act”) on the basis that such probative value it might have is substantially outweighed by the danger of unfair prejudice to McNamara, as well as by the danger that it is both misleading and confusing.

13. That does not prevent Mr Thomas from cross-examining McNamara about his whereabouts on particular dates and at particular times. Similarly, it does not prevent Mr Thomas from cross-examining McNamara about his use of the internet, nor does it prevent Mr Thomas cross-examining McNamara about his association with Mr Gao. It also does not prevent Mr Thomas, if he wishes to do so, calling a telecommunications expert in his own case to give further evidence in relation to the matters to which I have referred, so as to make the document admissible.

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Decision last updated: 15 June 2016