The State of Western Australia v Samura [No 5]
[2021] WASC 125
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- SAMURA [No 5] [2021] WASC 125
CORAM: DERRICK J
HEARD: 21 APRIL 2021
DELIVERED : 22 APRIL 2021
FILE NO/S: INS 241 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
SANNAH JR SAMURA
Accused Samura
AMIRALI FARSIJANI
Accused Farsijani
PORIA AKHBARI SADIQI
Accused Akhbari Sadiqi
WILLIAM WADE KICKETT
Accused Kickett
Catchwords:
Criminal law – Evidence – Application to exclude evidence to be given by employee of telecommunications company in relation to call charge records
Legislation:
Nil
Result:
Application allowed in part
Category: B
Representation:
Counsel:
| Prosecution | : | Ms L E Christian SC & Ms S M Cerqui |
| Accused Samura | : | Mr D C McCallum & Mr H T Gawley |
| Accused Farsijani | : | Mr M T Trowell QC & Mr R Kan |
| Accused Akhbari Sadiqi | : | Ms H E Prince & Mr R Kashyap |
| Accused Kickett | : | Mr A G Elliott & Mr F P Merenda |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused Samura | : | Holborn Lenhoff Massey |
| Accused Farsijani | : | Legal Aid (WA) |
| Accused Akhbari Sadiqi | : | Legal Aid (WA) |
| Accused Kickett | : | Not applicable |
Cases referred to in decision:
Brown v The State of Western Australia [2008] WASCA 48
Do v The State of Western Australia [2014] WASCA 218
DERRICK J:
(These reasons were delivered orally and have been edited from the transcript.)
Introduction
Mr Sannah Samura, Mr Amirali Farsijani, Mr Poria Akhbari Sadiqi and Mr William Kickett (the accused) are jointly charged with the offence of murdering Mr Dejan Dimitrovski (the deceased). They are alleged to have committed the offence on 4 August 2017.
The trial of the accused commenced on 22 February 2021. The trial is scheduled to run for three months. The trial is now in its ninth week.
The State proposes to call the witness Paul Francione.
Mr Francione is employed by Telstra Corporation (Telstra) as a Business Specialist. As a Business Specialist he is responsible for answering requests made by law enforcement authorities for Telstra records and for providing witness statements in relation to such records.
The State proposes to adduce through Mr Francione two sets of Telstra records relating to the phone number 0457 662 624. This was a phone number being used by the deceased at around the time of his death on 4 August 2017. From this point onwards I will refer to the phone as the deceased's phone for convenience.
The first set of records were provided by Telstra to the police on 8 August 2017 and cover the period 1 August 2017 to 5 August 2017. The second set of records were provided by Telstra to the police on 29 January 2021 and also cover the period 1 August 2017 to 5 August 2017.
In the prosecution brief the first set of records is accompanied and authenticated by a statement made by Mr Francione dated 20 August 2019.[1] The second set of records is accompanied and authenticated by a statement made by Mr Michael Tapper, a Security Liaison Specialist employed by Telstra, dated 10 February 2021. I understand that Mr Tappers's statement, which has been disclosed to each of the accused, does not form part of the prosecution brief. I further understand that the proposal is for Mr Francione to in effect give the evidence that is set out in Mr Tapper's statement.
[1] Prosecution Brief, 4878 ‑ 4879.
There is no dispute that the two sets of records are kept by Telstra for the purpose of its business and that the records relate to Telstra's supply of carriage services.
Both sets of records, according to the statements of Mr Francione and Mr Tapper, purport to show the times at which phone calls were made to or from the deceased's phone during the relevant period in Western Standard Time (Perth time). Similarly, both sets of records, according to the statements of Mr Francione and Mr Tapper, purport to show the times at which SMS communications were sent to or from the deceased's phone during the relevant period in Perth time.
There are some discrepancies between the two sets of records. The discrepancies exist in relation to seven SMS communications sent to or from the deceased's phone on 4 August 2017, the date on which the deceased was killed. The discrepancies are that in the first set of records the Perth times at which each of the seven SMS communications are shown to have occurred are precisely two hours later than the Perth times at which each of the seven SMS communications are shown in the second set of records to have occurred. So, for example, the first set of records shows the first of the seven SMS communications as having been sent from the deceased's phone to another number at 02:06:42 Perth time on 4 August 2017 when the second more recent set of records shows the same communication as having been sent at 00:06:42 Perth time on 4 August 2017.
During the course of the trial on Friday 16 April 2021 the prosecutor informed me that she had been attempting without success to obtain from Mr Francione an explanation for the discrepancies between the two sets of records. The prosecutor suggested that given her inability to obtain an explanation from Mr Francione for the discrepancies between the two sets of records, and so as to ensure that all of the accused were made aware of any explanation for the discrepancies prior to Mr Francione being called to give evidence before the jury, Mr Francione be called to give evidence on the voir dire for the purpose of enabling him to provide an explanation, if any, for the discrepancies. All of the accused agreed with the prosecutor's suggested approach. Accordingly, on 16 April 2021 I heard evidence from Mr Francione on the voir dire.
In light of the evidence given by Mr Francione on the voir dire the accused Mr Farsijani now objects to Mr Francione giving some of the evidence that the State proposes to adduce from him. I will return to the precise terms of the application in due course after I have referred to the evidence that Mr Francione gave on the voir dire.
The evidence given by Mr Francione on the voir dire
In his evidence‑in‑chief Mr Francione said that the first set of records are referred to as 'call records' and that the records were produced from a Telstra system called 'Snap' (the Snap Records).[2] Mr Francione gave evidence as to the nature of the information contained in each of the columns set out in the Snap Records.[3]
[2] ts 4465.
[3] ts 4466 ‑ 4467.
Mr Francione gave evidence that the second set of records are also referred to as 'call records' and that Telstra's 'data retention system' had been utilised to produce the records (the Data Retention Records).[4] Mr Francione gave some evidence in relation to the nature of the information contained in the various columns set out in the records.[5]
[4] ts 4467.
[5] ts 4467 ‑ 4469.
In his evidence-in-chief Mr Francione initially testified that the relevant times shown in both sets of records were Perth times.[6] That is, his evidence was that if the person using the deceased's phone was in Western Australia the recorded time of the phone call or SMS communication shown in the records was Perth time.[7]
[6] ts 4467, 4469.
[7] ts 4466.
During examination-in-chief Mr Francione was referred to the above referred to discrepancies relating to the times of the seven SMS communications.[8] The following exchange then occurred between the prosecutor and Mr Francione:[9]
[8] ts 4469.
[9] ts 4469 ‑ 4470.
Are you able to offer an explanation for why there is that discrepancy between the two sets of records? - - - Yes, they're completely two different systems. The one that has seven pages of data is an older system that was decommissioned and we now are utilising the new data retention call record system.
But are you able to account for why that difference would appear? - - - In time? In the time sense?
Yes? - - - Yep. The difference was the old system recorded the times in what we refer to as the switching records. So switching from different networks or different sites within and around Australia. So the - the time difference will be picked up from other States, hence the - the reason for the different time - time stamps.
But was it - it seemed to be the - the case, if we went to the earlier records, that some of the SMS messages when we compared them to the new records were correct? - - - They - they were correct for the records in that system but not when you compare the - the two records side by side.
I - I think I haven't made my question clear. There are some SMS messages in the first set of records that when you compare them to the second set of records - - - ? - - - Yep.
- - - the first appear that they were correctly in West Australian time. So - so the question is why - - - ? - - - Yes, correctly for - - -
Why are there only some that were in Eastern States time in the first records? - - - Yep. Depending on - on the - the - the calls that were utilised and - and made, depending on what switch or what State picked up that call or SMS.
So in - and if - if you can answer this question, in terms of the - the second - the more recent records - - - ? - - - Yes.
- - - were they - were those records available back - - - ? - - - No.
- - - in 2017? - - - No.
So in terms of - which records should we be relying on for accurate times? - - - The new - the - the request that was completed this year. So the request that was completed back on 29 January, which has the requests of 98 pages.
In cross‑examination on behalf of Mr Farsijani, Mr Francione confirmed that he was not a technician or an engineer.[10] He confirmed that he did not have any qualifications in understanding the processes behind the 'switching of States' about which he had given evidence.[11] He confirmed that he did not have any qualifications 'in respect to why … those switching of States occurs'.[12] When he was asked if he could give an explanation as to whether 'switching of States' occurs regularly and why switching occurs Mr Francione's answer was as follows:[13]
It - it was with that system that we spoke about that was utilised. But now with the new data retention system that's all being corrected.
[10] ts 4471.
[11] ts 4471.
[12] ts 4471.
[13] ts 4471.
When Mr Francione was asked whether he understood the mechanism behind 'why those switching of States occurred' he answered, 'Not really, no'.[14]
[14] ts 4471.
In response to being asked whether his expertise was 'really just interpreting the documents in front of [him]', Mr Francione stated that he had an understanding of the records, '[b]ut in terms of the switching - or what happens in the network, no'.[15]
[15] ts 4471.
In cross‑examination on behalf of Mr Samura, which by agreement between defence counsel was the last cross-examination to take place, the following exchange occurred:[16]
[16] ts 4473 ‑ 4474.
So can you just explain for me again then, please…if the record in each table is meant to indicate the time in Western Standard Time…what the reason for the two-hour discrepancy is?- - -Yeah. The - the time has been recorded as 2 am obviously in the records - - -
…
That's in the original records? - - - Correct.
As Western Standard Time? - - - Correct.
Yes? - - - But what the records don't indicate is where that switching record was utilised. So it may have been in another state.
I see…Can you tell me what a switching record is? - - - Okay. I'm - I'll try to do my best. As I said, I'm not an engineer or - or technician. So when someone tries to make a call, it goes out into the network and tries to locate the actual - where the handset resides. So it may be a State - for example, Victoria may go looking for that particular number and it makes a - a - tries to make a call, or an event as an SMS.
I see. And is there any information contained in these records that would indicate whether that process has occurred or not? - - - It's hard to tell from these records.
And is there any records, or information that you're aware of that may provide an answer to that question? - - - No. That system has now been decommissioned.
…
The 98 page document is in relation to the current system? - - - That's correct.
Is there any information contained within that system that would indicate whether a particular entry is the result of a switching record or not? - - - Not necessarily, no.
I see. Is that the only reason that you're aware of that would account for such a discrepancy in the records? - - - That's correct.
At the end of the cross‑examination of Mr Francione by Mr Samura's counsel I questioned Mr Francione as follows:[17]
…Do I understand your explanation to be that … the call or the – the SMS message, there's an attempt to send it, and the system … then attempts to make the call…or the … communication so that the communication, even though the handset might be located in Western Australia, the communication is sent through a cell tower which is in another State? - - - It could be, yes. And … hence the difference in time.
So although the records show the location of the handset to be in WA and although the records, I'm talking about the original records, indicate the time shown to be Western Standard Time, in fact, because the communication has gone through a cell tower in another state, the records are actually showing the switched time, the time … in the state from which the communication is sent through? Is that - - - ? - - -That's correct, your Honour.
[17] ts 4476.
In my view, the substantive effect of Mr Francione's evidence was that so far as the Snap records are concerned, the time stamp captured by the Snap system was dependant on the State that picked up the call or SMS communication.
The application and the parties' submissions
I come back now to the precise terms of the application made by Mr Farsijani dated 19 April 2021.
By the application Mr Farsijani does not object to Mr Francione giving evidence authenticating the two sets of records so that they can be tendered through him.[18] Nor does Mr Farsijani object to Mr Francione giving evidence about what the column headings in the records refer to. In other words, he does not object to Mr Francione giving evidence as to what the information in the columns represents or is meant to represent.[19] However, by the application Mr Farsijani does object to Mr Francione giving evidence which deals with the following matters:
1.How the Snap system worked and how the data retention system works;
2.The explanation for any discrepancies between the Snap Records and the Data Retention Records in relation to the times of the seven SMS communications;
3.How time zones are allocated to any of the communications;
4.How to distinguish between different types of data entries; and
5.The mechanism of switching records.
[18] Written submissions filed on behalf of Mr Farsijani dated 17 April 2021 (Farsijani submissions), par 3.
[19] Farsijani submissions, par 3.
In essence it is submitted on behalf of Mr Farsijani that evidence dealing with these matters is in the nature of expert evidence, and that Mr Francione does not have the necessary expertise to give the evidence.
The State accepts that Mr Francione is not a 'technical expert'. However, the State submits that none of the evidence that it proposes to adduce from Mr Francione is in the nature of expert evidence and that he should therefore be permitted to give the objected to evidence.
With respect to Mr Francione's proposed evidence concerning the discrepancies between the Snap Records and the Data Retention Records, the State submits that there is a distinction between Mr Francione's ability to give evidence of what the Snap system recorded and what the data retention system records, and his ability to explain why particular communications may switch between cell sites. The State submits that it is not proposed to adduce from Mr Francione evidence of an explanation for 'why phones switch from cell tower to cell tower' and 'why a phone in one State may go through another State'.[20] The State submits that all that is sought to be adduced through Mr Francione is that the discrepancies between the Snap Records and the Data Retention Records are the result of 'switching, and that evidence of this nature is not expert opinion evidence. The State submits that given Mr Francione's familiarity with the Snap Records and the Data Retention Records, and given his knowledge that the Snap Records were derived from the Snap system and that the Data Retention Records were derived from the data retention system, he should be permitted to give the evidence that is sought to be adduced from him.
[20] ts 4661.
Analysis and ruling
In my opinion, evidence dealing with what 'switching records' are and what 'switching' is, whether 'switching' in fact occurred at the time that the seven SMS communications were recorded by the Snap system, and whether 'switching' provides the explanation for the discrepancies between the Snap Records and the Data Retention Records relating to the seven SMS communications is evidence of a technical nature in relation to which a person of ordinary experience is unable to form a sound judgment without the assistance of an expert witness with specialised knowledge of the subject.[21] It follows that such evidence is, in my opinion, in the nature of expert opinion evidence. Such evidence is, in my opinion different to, and goes well beyond, evidence that seeks only to authenticate call records produced by Telstra and to explain what each of the columns in the records refer to, or purport to refer to. In my opinion it is simply not correct to contend, as the State does, that evidence to the effect that the discrepancies between the Snap Records and the Data Retention Records are due to 'switching' is not expert opinion evidence.
[21] Brown v The State of Western Australia [2008] WASCA 48 [20] - [21]; Do v The State of Western Australia [2014] WASCA 218 [82].
It follows from the view that I have expressed in the preceding paragraph, that before Mr Francione can give evidence in relation to 'switching', and more specifically as to whether the discrepancies between the Snap Records and the Data Retention Records relating to the seven SMS communications can be attributed to 'switching', it must be demonstrated that he has acquired, by study, training or practical experience sufficient specialised knowledge of the subject.[22]
[22] Brown v The State of Western Australia [20] ‑ [21]; Do v The State of Western Australia [82].
In light of the evidence given by Mr Francione, I am not at all satisfied that he does, through study, training or practical experience have sufficient specialised knowledge to give evidence in relation to the subject matter of 'switching', and consequently that he also does not have sufficient specialised knowledge to give evidence as to the explanation for the discrepancies between the Snap Records and the Data Retention Records relating to the times at which the seven SMS communications occurred. Mr Francione, on the evidence before me, has no qualifications in the scientific or engineering fields. Further, the clear impression I gained from listening to Mr Francione's evidence, and from observing him give his evidence, is that while he has been provided with information, from some unspecified source or sources, that the discrepancies between the Snap records and the Data Retention Records may be the result of 'switching records' being reflected in the Snap Records, he has no specialised knowledge or understanding of 'switching' that would enable him to express an opinion as to whether switching did in fact occur, or might have occurred, in relation to the seven SMS communications at the time that these communications were recorded by the Snap system. As Mr Francione quite fairly conceded, he does not really have any understanding of the mechanism behind switching or what happens in the Telstra network.
For the reasons I have stated I uphold the objections to Mr Francione giving evidence that relates to the mechanism of 'switching' and giving evidence to the effect that switching is the explanation for, or the possible explanation for, the discrepancies between the Snap Records and the Data Retention Records relating to the seven SMS communications. If the State wishes to adduce evidence in an attempt to explain the discrepancies it will need to call an appropriately qualified person to do so.
As to the objection to Mr Francione giving evidence explaining how the Snap system worked, I take this to be an objection to Mr Francione giving evidence as to how the Snap system actually recorded and retained the data that is set out in the Snap Records. Similarly, I take the objection to Mr Francione giving evidence explaining how the data retention system works to be an objection to Mr Francione giving evidence as to how the data retention system actually records and retains the data that is set out in the Data Retention Records.
I am not satisfied that Mr Francione is sufficiently qualified to give evidence as to how the Snap system and the data retention system work in the sense that I have described. Having said this, I cannot see how such evidence would be of any relevance to the issues in the case. Indeed, on my understanding the State is not intending to attempt to adduce any such evidence.
With respect to the objection to Mr Francione giving evidence of 'how time zones are allocated to any communications' to the extent that the objection is to Mr Francione giving evidence of whether the time shown in the records is, or purports to be, local time or UTC time the objection is dismissed. As part of authenticating the records Mr Francione can properly give this evidence.
I take the objection to Mr Francione giving evidence about how to distinguish between different types of data entries to be an objection to him giving evidence as to what the various entries that appear under in the 'Data Type' column in the Data Retention Records refer to. I dismiss the objection to Mr Francione giving this evidence. In my view Mr Francione is qualified to identify the type of service that the various entries refer to. That is, he is in my view qualified to give evidence that certain terminology used in the records refers to voice calls and that certain terminology used in the records refers to SMS messages and that other terminology in the records refers to the use of the phone for purposes other than making a call or sending an SMS message.
As I have already pointed out, during the voir dire Mr Francione gave evidence that the records that should be relied upon are the Data Retention Records, these being the records that are the product of Telstra's currently existing data retention system. However, his evidence to this effect was founded or premised on his evidence to the effect that the entries in the Snap Records relating to the seven SMS communications reflected 'switching records'. Given that I have ruled that Mr Francione is not permitted to give this evidence, it necessarily follows that I am also of the view that he should not be permitted to express an opinion as to which of the two sets of records should be relied upon.
Finally, I note for the sake of completeness, and to avoid any confusion, that the effect of my ruling on the application is that Mr Francione is permitted to give the evidence that is set out in his witness statement and in the statement made by Mr Tapper.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
29 APRIL 2021
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