The State of Western Australia v Samura [No 6]
[2021] WASC 126
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- SAMURA [No 6] [2021] WASC 126
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 cell tower location information contained in call charge records of a telecommunications company
Legislation:
Nil
Result:
Application dismissed
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:
Nil
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 adduce through the witness Mr Qamar (I have not been provided with his first name) Optus telephone records relating to a mobile phone with the number 0421 823 580 (the Records). Mr Qamar is, I understand, employed by Optus as a law enforcement liaison officer.
Mr Akhbari Sadiqi has formally admitted that his mobile phone number from about July 2017 until 17 August 2017 was 0421 823 580. In other words, there is no dispute that the mobile phone to which the Records relate was at the relevant time the phone belonging to, and being used by, Mr Akhbari Sadiqi.
The Records appear at pages 1993 to 2023 of the prosecution brief. The information contained in columns H, I, N and O of the Records relates to Optus cell tower locations.
The State seeks to adduce and rely upon the cell tower location information contained in the Records as evidence going to prove that at 8.35 pm on 4 August 2017, that is, within a very short time after the time that it is alleged that the deceased was killed in his house, Mr Akhbari Sadiqi's phone was used to make a phone call, that at the time that the call commenced the phone was communicating with an Optus cell tower that was situated in close proximity to the deceased's house, that the call lasted for 26 seconds, and that by the end of the call the phone was communicating with an Optus cell tower that was a little further away from the deceased's house. In other words, the State seeks to adduce the evidence of the cell tower location information contained in the Records as part of the circumstantial evidence going to prove that Mr Akhbari Sadiqi was present at the deceased's house at the time that the deceased was killed.
The application
By an application dated 20 April 2021 Mr Akhbari Sadiqi objects to the admissibility of the cell tower location information contained in columns H, I, N and O of the Records.
The objection has, needless to say, been made very late. Mr Akhbari Sadiqi's legal representatives have been aware of the intention of the State to lead the objected to evidence since well before the trial was originally listed to start in 2020. The objection to the admissibility of the evidence should have been made well before now at a pre-trial directions hearing.
The submissions made in support of the application
The argument advanced in support of the objection to the admissibility of the cell tower location information contained in the Records is, in essence, as follows.
There are some anomalies in the cell tower location information contained in the Records. The State is not intending to adduce evidence that is capable of explaining the anomalies. In the absence of such explanatory evidence the anomalies demonstrate that the entirety of the cell tower location information contained in the Records is unreliable. Given the demonstrated unreliability of the entirety of the cell tower location information contained in the Records, the information is inadmissible; in other words, the information contained in columns H, I, N and O of the Records is inadmissible in its entirety.
It is further submitted that to permit the cell tower location information to be adduced in the absence of evidence explaining the anomalies will give rise to a real risk that the jury will impermissibly speculate about the reasons for the anomalies, and that this provides a further basis for excluding the evidence. Counsel for Mr Akhbari Sadiqi did not clearly articulate why admitting the objected to evidence will give rise to a risk that the jury will impermissibly speculate about the reasons for the anomalies notwithstanding the direction that I will give to them to the effect that they must not guess or speculate about matters that are not in evidence.
The anomalies that it is contended exist within the cell tower location information contained in the Records fall into two groups.
The first group of asserted anomalies relate to calls shown by the Records to have been made to or from Mr Akhbari Sadiqi's phone over a short period of time on the afternoon of 4 August 2017. The details of the calls as specified in the Records, including the specified cell tower location details, are as follows:
1.At 14:12:02 Western Standard Time (WST) the phone, at the time of receiving a call which was forwarded to voicemail, connected to a cell tower identified as Balga-VP0239-OU09-A-2;
2.At 14:23:53 WST, so 11 minutes later, the phone, at the time of making a call which did not connect to the dialled number, connected to a cell tower identified as Bentley East O-P0172-OU21-B-2; and
3.At 14:42:37 WST, so a further 19 minutes later, the phone, at the time of making a call, connected to a cell tower identified as Balga-VP0239-OU21-B-2.
Thus, it is submitted, given that Mr Akhbari Sadiqi could not have been in Bentley within 11 minutes of having been in Balga and could not have been in Balga within 19 minutes of having been in Bentley, the cell tower location information relating to the calls must be erroneous or anomalous.
The second group of asserted anomalies relate to four calls shown by the Records to have been made from Mr Akhbari Sadiqi's phone over a relatively short period of time on the evening of 8 August 2017. The details of the calls as specified in the Records, including the specified cell tower location details, are as follows:
1.At 21:21:13 WST the phone, at the time of making a call, connected to a cell tower identified as Riverside Drive-O-P0332-OU21-D-2;
2.At 21:21:52 WST, so 39 seconds after the first call, the phone, at the time of making a call, connected to a cell tower identified as Koondoola-V:P0037-OU21-D-2;
3.At 21:21:54 WST, so 2 seconds after the second call, the phone, at the time of making the call, connected to a cell tower identified as Riverside Drive-O-P0332-OU21-D-2; and
4.At 21:28:32 WST, so 7 minutes and 40 seconds after the first of the calls, the phone, at the time of making the call, connected to a cell tower identified as Malaga_East-O:P0369-OU09-A-2.
Thus, it is submitted, given that Mr Akhbari Sadiqi could not have moved between Riverside Drive and Koondoola over a period of 41 seconds, and given that he could not have been in Malaga within 7 minutes and 40 seconds of having been in Riverside Drive, the cell tower location information relating to the calls must be erroneous or anomalous.
There is an obvious assumption inherent in the submission that the entries in the Records identified by Mr Akhbari Sadiqi to which I have just referred are anomalous. The assumption is that the fact that Mr Akhbari Sadiqi's phone was communicating with a cell tower in a particular location indicates that his phone must have been in the general vicinity of the cell tower.
The evidence to be adduced by the State
As I have already pointed out, the State intends to call Mr Qamar. It is common ground that Mr Qamar is not qualified to, and will not, give evidence in relation to the asserted anomalies contained in the Records.
The State also intends to call Mr Sriram Kanakagiri. Mr Kanakagiri is an Optus engineer. The State envisages Mr Kanakagiri will give evidence to the effect that ordinarily or under normal circumstances a mobile phone will communicate with a cell site that is closest to the phone and has the strongest signal, but that it is possible for a cell site to cover up to 35 km.
The State accepts that Mr Kanakagiri is not in a position to, and will not, comment on the specifics of the Records. That is, he will not give evidence in relation to, or proffer an explanation for, the asserted anomalies in the Records.
The State's submissions
In opposition to the application, the State points out that the Records contain a total of 345 individual records or entries. The State contends that the fact that there are within the 345 individual records a very small number of possible anomalies does not provide a basis for concluding that the Records are unreliable in their entirety. The State submits that this is particularly so given that possible anomalies of the type identified on behalf of Mr Akhbari Sadiqi do not exist in relation to the specific entries in the Records upon which the State intends to place particular reliance and to which I have previously referred. The State submits that it will be a matter for the jury to decide if the possible anomalies in the Records identified on behalf of Mr Akhbari Sadiqi are such as to prevent them placing reliance on the cell tower location information contained in the entries upon which the State places particular reliance and which do not contain any obvious anomalies. The State further submits that the evidence to be given by Mr Kanakagiri may in any event properly be accepted by the jury as providing an explanation for the asserted anomalies.
Analysis and Ruling
I accept the State's submissions.
In my opinion it will be reasonably open for the jury to conclude that the foreshadowed evidence of Mr Kanakagiri provides a possible explanation for the asserted anomalies in the cell tower location information. However, even if the jury do not arrive at this conclusion, I do not accept that the existence of a small number of possible anomalies can be said to demonstrate that the entirety of the cell tower location information contained in the Records is so unreliable as to be inadmissible. In my opinion, the question of the reliability of the cell tower location information contained in the Records will be a matter for the jury to determine in light of all of the evidence before them. Clearly, in arriving at this determination the jury will be able to have regard to the possible anomalies.
I do not accept the argument that to permit the evidence to be adduced will carry with it the risk that the jury will impermissibly speculate about the reasons for the possible anomalies. I will direct the jury that they are not to guess or speculate about matters that are not in evidence or look for theories that are unsupported by the evidence, and the current objection must be dealt with on the basis that the jury will faithfully comply with this direction. Accordingly, if ultimately the jury do not accept the evidence to be given by Mr Kanakagiri as providing an explanation or a possible explanation for the asserted anomalies, the position will be that it will be open for them to find that there are unexplained anomalies in the Records and to take these unexplained anomalies into account in deciding whether to place any reliance upon the cell tower location entries contained in the Records upon which the State places particular reliance.
For these reasons I dismiss the application.
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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