Wagner (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0236

HENRY WAGNER (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]Because this is an interlocutory proceeding, a pseudonym has been used in place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.

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JUDGES:	PRIEST, McLEISH and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2025
DATE OF JUDGMENT:	3 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 56
JUDGMENT APPEALED FROM:	[2024] VCC (Judge Georgiou)

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CRIMINAL LAW – Interlocutory appeal – Decision not to exclude circumstantial telecommunications evidence said to demonstrate that alleged offender was in vicinity of burglaries and arson at relevant times – Whether probative value of evidence outweighed by danger of unfair prejudice – Limitations of evidence capable of being exposed in cross-examination and addressed by jury direction – Leave to appeal refused.

Evidence Act 2008 ss 135, 137.

Moore (a pseudonym) v The King (2024) 98 ALJR 1119, applied; Moreno (a pseudonym) v The King (2023) 307 A Crim R 519, referred to.

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Counsel
Applicant:		Mr	J Connolly
Respondent:		Mr	G Hayward
Solicitors
Applicant:	Hofman Carroll Criminal Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
MCLEISH JA
ORR JA:

The applicant faces trial in the County Court on nine charges of theft,[2] eight charges of burglary[3] and a single charge of arson.[4] On each of the charges other than the charge of arson, the applicant is charged with a co-accused.
[2]Contrary to s 74(1) of the Crimes Act 1958.
[3]Contrary to s 76(1) of the Crimes Act 1958.
[4]Contrary to ss 197(1) and (6) of the Crimes Act 1958.
It is alleged that the applicant and his co-accused committed a series of burglaries between 26 January 2022 and 10 February 2022 at homes in the suburbs of Malvern East, Burwood East, Point Cook, Werribee, Middle Park, Moonee Ponds, Essendon and Attwood. The applicant is also alleged to have set fire to a car used in the burglaries, which was found burnt out in Clarkefield on 18 February 2022.
The prosecution case is circumstantial. The central issue in the trial is the identity of the offenders who committed the burglaries and associated thefts, as well as the alleged arson.
One of the categories of evidence upon which the prosecution proposes to rely, which it describes as comprising an ‘extremely significant’ part of its case, is telecommunications evidence. The telecommunications evidence is said to establish that the applicant was in the vicinity of each of the burgled premises at the time of the burglaries and thefts and in the vicinity of the car used in the burglaries on the day of the arson. It is also said to establish that the applicant was, at various points in time, moving in line with a car that was detected by CityLink and which bore the same stolen registration plates observed on the car involved in some of the burglaries.
The telecommunications evidence consists of:
(a)a spreadsheet produced by Optus containing ‘event based monitoring’ data for a mobile telephone service associated with the applicant (the ‘EBM data’);
(b)three witness statements prepared by Aleksandar Lolic, an Optus technical specialist, and seven witness statements prepared by Damian Tan, another Optus technical specialist, which annex a series of maps and tables containing various information about particular mobile phone towers, or ‘base stations’, referred to in the EBM data (the ‘base station evidence’); and
(c)a ‘reference table’ created by the informant, which contains information sourced from the EBM data and the base station evidence, cross-referenced to a ‘corresponding burglary/incident/fact’ and to the relevant charge (the ‘reference table’).
In a pre-trial application, the applicant argued that the EBM data was inadmissible. The EBM data was said to be hearsay evidence that did not fall within the business records exception contained in s 69 of the Evidence Act 2008 because it was not a business record within the meaning of s 69(1). The applicant also submitted that even if the EBM data was admissible, the base station evidence and the reference table should be excluded under ss 135 or 137 of the Evidence Act 2008 because there was a risk that they would mislead the jury.
At the pre-trial hearing, the prosecution adduced evidence from the informant, Detective Senior Constable Timothy Fitzgerald. The informant explained the process by which he had received the EBM data, extracted data points from that data and used those data points to request information from Optus about specific base stations. The informant also gave evidence about his creation of the reference table.
The prosecution also adduced evidence from Mr Raymond Chang, a senior technical specialist at Optus, who adopted and explained the ten statements from Mr Lolic and Mr Tan that comprised the base station evidence.
In a ruling delivered on 10 December 2024 (the ‘Reasons’), the judge ruled that the EBM data was admissible as a business record of Optus. His Honour declined to exclude the base station evidence or the reference table under ss 135 or 137 of the Evidence Act 2008. Pursuant to certification given by the judge under s 295(3)(a) of the Criminal Procedure Act 2009, the applicant seeks leave to appeal against this ruling. The application for leave to appeal contains two proposed grounds of appeal:
1.The learned judge erred in finding that the event-based monitoring records met the business records exception to the hearsay rule in Evidence Act 2008 s 69.
2.The learned trial judge erred in failing to exclude the evidence pursuant to Evidence Act 2009 ss 135 or 137.
At the hearing of the application, the applicant abandoned the first proposed ground, in respect of which it had been sought to raise arguments about ss 69(2) and (3) of the Evidence Act 2008, which were not raised at first instance. The applicant also clarified that the ‘evidence’ to which the second proposed ground refers is the base station evidence and the reference table.
For the following reasons, leave to appeal should be refused.

Evidence at the pre-trial hearing

It is convenient to commence with an overview of the evidence given by the informant and Mr Chang at the pre-trial hearing.

Detective Senior Constable Fitzpatrick

The informant gave evidence that a mobile phone was seized from the applicant at the time of his arrest. The phone was not registered in the applicant’s name, but the applicant confirmed in his interview with police that it was the mobile phone he had been using.
The informant said he had submitted a request to Optus for ‘event based monitoring records’ for the mobile phone service the applicant had been using. The request was framed by reference to the dates of the alleged offending and the period between those dates. The informant had previously used this sort of data in other investigations. He submitted the request through an internet portal that Victoria Police use for making requests to external agencies. The request had to be approved by a senior police officer, including because of the cost associated with such requests.
In response, the informant received the EBM data from Optus, which comprised some 600 pages of data in the form of an Excel spreadsheet. The data in the spreadsheet identified the suburb location and cell ID of each of the base stations with which the applicant’s phone service had connected in the relevant period.
Having received this data, the informant then navigated through the spreadsheet and identified certain dates and times associated with the burglaries or other incidents of interest (such as a detection of the car used in the burglaries on a toll road). He then submitted requests to Optus for further information about particular base stations with which the applicant’s phone had connected at the times he had identified. The requests could only be submitted for one base station at a time. He sent a total of 31 requests for separate checks for base stations with which the applicant’s phone had connected.
In response to these further requests, the informant received the ten statements of Mr Lolic and Mr Tan that comprise the base station evidence. Each of these statements dealt with a maximum of five checks for particular base stations on a particular date. They showed the address of the base stations the informant had identified, the direction of the antenna on each of those base stations, and the percentage distribution of mobile traffic by various distances from each of the base stations on the identified day.
The informant was asked about the reference table he had produced. He explained each of the seven columns in the table. The first three columns contained information sourced from the EBM data, being the date and time that the applicant’s phone had ‘pinged’ off a particular base station and the cell ID of that base station. The fourth column showed the applicant’s phone number. The fifth column identified whether it was Mr Lolic or Mr Tan who had made a statement about that base station, as well as the reference number and date of the statement. The final two columns contained information that the informant had added as an aid for the prosecution. They indicated the burglary, incident or fact to which the particular connection with the base station corresponded, as well as where that connection was relevant to a particular charge.
By way of example, the informant explained an entry in the table for a connection with the Hoppers Crossing base station at 9.46 am on 27 January 2022. In this row, the table included, under the heading ‘Corresponding Burglary/Incident/Fact’, the address of a burglary in Werribee that had occurred at that approximate time on that date. The time of 9.46 am was the time of the ‘closest ping’ to the burglary. The informant said that the reference table showed that at that time, the applicant’s phone was communicating with the Hoppers Crossing base station.
The informant was also taken to an entry in the table for a connection with the Point Cook South East base station at 1.39 pm on 26 January 2022. He said this time was relevant to a burglary at Bayvista Circuit in Point Cook. He had assessed the connection with the Point Cook South East base station at this time to be a relevant data point even though there were multiple ‘pings’ off different base stations in the Point Cook, Altona and Sanctuary Lakes area in the minutes preceding the burglary. He had chosen just one of those ‘pings’ because Optus could only accept and process one base station check at a time, and they were extremely expensive. There were hundreds of different base stations contained in the EBM data and it ‘wasn’t particularly feasible to get the data for every single [station]’. Sometimes the EBM data indicated that the applicant’s phone connected with multiple base stations within a minute. For each burglary other than the Bayvista Circuit burglary, he had selected only one base station for further analysis. This was because of monetary constraints, time constraints and a ‘whole range of factors’.
The informant accepted that the burglaries occurred over periods of up to 15 minutes. He said that the time he had chosen in connection with his request for information about the Point Cook South East base station was based on the time that CCTV footage showed the car that was used in the burglaries arriving at Bayvista Circuit, as well as a briefing note he had received from the original investigator that indicated that the timestamp on the CCTV footage was 40 minutes behind. There was no particular reason he had not chosen a later time when the burglary would still have been occurring — he just ‘had to pick one’.
The informant said that when selecting the Point Cook South East base station, he had not made any enquiries as to which base station provided the strongest signal to the address where the burglary at Bayvista Circuit had occurred. Nor had he made any enquiries as to which antenna direction would provide the best signal. He did not know how far the Point Cook South East base station was from Bayvista Circuit. He could not explain why a connection was made at the Point Cook South East base station at 1.39 pm that day, but a connection was also made at the Sanctuary Lakes base station at 1.38 pm on the same day.
The informant agreed that the CCTV footage from the burglary at Bayvista Circuit showed that the burglary commenced at 12.49 pm, and that the time he should have selected, adjusting for the 40 minute discrepancy in the timestamp on the CCTV footage, was therefore 1.29 pm (rather than 1.39 pm). The EBM data showed that the applicant’s phone had ‘pinged’ off four base stations at this time — the Altona Meadows base station, the Brighton Central base station, the Newport base station and the Sanctuary Lakes base station. He said he had not picked the Brighton Central base station because the other base stations were closer to Point Cook, where the burglary occurred. He said that in the minutes surrounding that data point, there had only been one ‘ping’ at the Brighton Central base station, whereas there were more ‘pings’ at the other three base stations. Based on the context, he thought that the reference to Brighton Central in the EBM data may have been an anomaly. He could not say why he had not chosen one of the other three base stations rather than the Point Cook South East base station.
The informant confirmed that he had requested analysis of a second base station in connection with the burglary at Bayvista Circuit, being the Altona Meadows base station that the applicant’s phone had ‘pinged’ off at 2.53 pm. He said he had chosen this data point based on the time that the CCTV footage showed the car returning to the address. He accepted that there were three ‘pings’ at this time, one at the Williamstown North base station, one at the Westona base station and one at the Altona Meadows base station. Again, he had chosen the Altona Meadows base station because he ‘had to pick one’. He agreed that it was closer to the address of the burglary than the other two base stations, but said that was ‘not particularly’ why he had chosen it. He accepted that his choice meant there was no analysis of the other base stations.
Similarly, the informant accepted that although the EBM data showed that the applicant’s phone ‘pinged’ off three different base stations at 12.07 pm on 8 February 2022 — one at Coonan’s Hill, one at Brunswick West and one at Moonee Valley — he had requested information only about the Coonan’s Hill base station. He said he might have picked this base station because it was closest to the address in Essendon where one of the burglaries took place at that time, but could not remember if this was the case. He accepted that his choice of the Coonan’s Hill base station meant that there was no analysis of the Brunswick West or Moonee Valley base stations.
The informant was also questioned about the date and time he had selected that led him to request information about the Attwood base station in connection with the burglary that occurred in Attwood on 8 February 2022. He was asked why he had not chosen 6.53 pm, when this was the time that CCTV footage showed the car that was used in the burglary at Attwood leaving the scene. He said he had chosen the earlier time of 6.29 pm because he had formed the belief, based on witness statements and other CCTV footage in the vicinity, that the burglary had occurred at approximately 6.30 pm. He denied that he had not chosen 6.53 pm because that data point would show that the applicant’s phone was connected with the West Meadows North base station rather than the Attwood base station.
The informant said that he had not chosen any of the base stations for further analysis based on whether they were the base station that was closest to the address of the burglary or incident of interest, or on whether they were the base station that had the strongest signal for that address. He did not know and had not made enquiries about these matters before picking certain base stations out of the EBM data.
When questioned about the process by which he had verified the accuracy of the timestamps in CCTV footage across the locations of the burglaries, the informant said that he had not been informed in any briefing note that the timestamps on any of the CCTV footage other than the CCTV footage at Bayvista Circuit were inaccurate. He would have expected any inaccuracy to be noted in a briefing note or otherwise to have been passed on to him.

Raymond Chang

Mr Chang said that he worked as a Senior Technical Specialist in the State Radio Planning and Quality Department at Optus. The role of the department was to design and maintain the Optus mobile network. Mr Chang, who had a degree in electrical and electronic engineering, had worked in the telecommunications industry for 28 years, 26 of which he had spent at Optus. Mr Tan and Mr Lolic, who had produced the base station evidence, were colleagues in the same department. They were not able to attest to their statements because they were no longer in their roles. Mr Chang had read their statements and adopted each of them as correct.
As part of his role, Mr Chang had access to the base station configuration of the network, both historically and in current time. He and his colleagues received information from the police about a particular mobile phone using the Optus network, or a particular person using the Optus network, at a particular date and time. They then looked back to the particular date and time and extracted the base station configuration on that day. They normally prepared a map to signify the location of the base station and to show where the antenna on the base station was pointing, which determined the coverage of the base station.
Mr Chang explained that when a mobile phone is connected to a base station, it is likely to be located in the general direction of the antenna. The base station configuration also includes statistics on how many mobiles are within particular distances from the base station on the day in question. Any time a mobile phone is turned on, it will search for the base station with the strongest signal. The phone will scan all the signals from the nearby base stations and communicate with the base station with the strongest signal. The strongest signal will not necessarily come from the closest base station. The strength of the signal will depend on factors such as the height of the tower, the location of the antenna on the tower and the direction in which it is pointing, and the surrounding terrain. Even where a mobile phone is being used in a single property, if it is moved from room to room, it may jump from one base station to another.
Mr Chang explained the maps that formed part of the base station evidence as annexures to the statements of Mr Lolic and Mr Tan. The maps depicted the location of each base station as a dot with an arrow pointing away from it. The direction of the arrow is the azimuth, or the direction the antenna faces, from true north. However, the energy coming from the antenna is not as narrow as the arrow, with most of the energy broadcast in a range comprising approximately 30 degrees either side of the arrow. Mr Chang confirmed that the maps depicted only the location of the base station of interest to the police, not any other ‘location of interest’ or any particular mobile device.
Mr Chang also explained the measurement report distribution tables that formed part of the base station evidence, again as annexures to the statements of Mr Lolic and Mr Tan. These tables recorded the total number of times mobile devices had ‘pinged’ with the base station from within certain ranges of distance from the base station on the day in question. The tables also recorded those numbers as a percentage of the total traffic at that base station on that day.

For example, Mr Chang explained that the measurement report distribution table in relation to the Altona Meadows base station showed that approximately 97 per cent of the total ‘pings’ on 26 January 2022 came from within six kilometres of the base station and approximately 39 per cent came from a distance between roughly three and six kilometres from the base station. The measurement report distribution tables did not indicate whether any particular phone in fact ‘pinged’ off the base station on any particular date or at any particular time, nor the distance of any particular phone from the base station.
Mr Chang said that while the EBM data could establish that a particular phone was utilising a tower at a particular time, that data could not pinpoint the phone to a particular physical location or address. However, if a particular mobile phone ‘pinged’ off a particular base station at a particular time, it was highly likely that the phone was in the general vicinity of the direction where the antenna on the base station was pointing.
Mr Chang said that he had not had access to the complete EBM data. His evidence was about the network configuration and was based on the dates and base station names he had received from the police. The EBM data was not involved. The opinions he gave were based on the Optus base station information and his years of experience.

Submissions below

The submissions below addressed a number of issues, including whether the EBM data was a business record for the purpose of s 69(1) of the Evidence Act 2008. For the purpose of this application, we focus on the submissions that are relevant to the second proposed ground of appeal, namely the submissions in support of the application to exclude the reference table and the base station evidence under ss 135 or 137 of the Evidence Act 2008.
The applicant submitted that in requesting analysis of particular base stations, and subsequently creating the reference table, the informant had focused on single points in time. He had taken no steps to verify the chosen points in time, such as by testing the accuracy of the CCTV footage on which they were based. Further, the evidence did not establish that the base stations he had selected even ‘cover[ed] the site[s] in question’. This meant that the probative value of the base station evidence and the reference table was low. Given that there was little or no other evidence linking the applicant to the burglaries, there was a risk that the jury would be misled into thinking that the evidence demonstrated that he was in fact at each burglary at the relevant time.
The prosecution submitted that the probative value of the evidence was not outweighed by the danger of any perceived unfair prejudice to the applicant. It emphasised that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue, namely the identity of the offenders. Taken at its highest, the prosecution submitted, the evidence suggested that the applicant’s mobile phone was in the vicinity of the locations of the burglaries (and the arson) at the time and date of each of the alleged offences. While the evidence could not place the applicant at the exact location of the burglaries, combined with the other circumstantial evidence, it had significant probative value. The prosecution pointed to the following evidence:
(a)a black Kia Cerato had been stolen outside a property in Reservoir on 5 November 2021;
(b)a black Kia Cerato was observed by witnesses to have been used, or recorded on CCTV footage, during each of the eight burglaries;
(c)on 8 February 2022, a set of stolen Queensland registration plates were detected on a car travelling southbound on CityLink at Moreland Road — the EBM data indicated that the applicant followed the path of the car in line with that detection;
(d)on the same date, a black Kia Cerato bearing the stolen Queensland registration plates was used in three burglaries committed in Moonee Ponds, Essendon and Attwood;
(e)on 18 February 2022, the stolen black Kia Cerato bearing the stolen Queensland registration plates was found burnt out in a suspicious fire at Clarkefield — the EBM data linked the applicant’s mobile phone to the location shortly before the car was destroyed; and
(f)on 5 March 2022, when the applicant was arrested, he was found to be in possession of a shotgun and a Mercedes car key remote control that were stolen during the burglary committed in Essendon on 8 February 2022.
Further, the prosecution submitted that any danger of improper use of the evidence by the jury could be ameliorated by appropriate judicial directions.

Ruling

The judge observed that the fact in issue was the identity of the offenders, and that the prosecution sought to adduce the telecommunications evidence to establish that the applicant was in the vicinity of the burglaries at around the times of the alleged offending, as part of its circumstantial case that he was one of the offenders. Thus, the evidence was not to be looked at in isolation, but in combination with all the other evidence upon which the prosecution relied.[5]
[5]Reasons, [63]–[64].
The judge did not accept that the informant’s evidence concerning the EBM data, in combination with the evidence of Mr Chang, was of low probative value. He found that, taken at its highest, the ‘combined telecommunications evidence’ was of significant probative value as a piece of circumstantial evidence, going to the issue of the identity of the offenders involved in the commission of the burglaries and the related offences. The evidence could be used to establish that the applicant was in the vicinity of each burglary on the date in question and at the approximate time each burglary was committed and, by extension, that he participated in the offending.[6]
[6]Reasons, [66], [72].
The judge referred to the measurement report distribution tables in the base station evidence, which set out the percentage distribution and range of distances at each base station on a particular date. He said that while the tables showed that some of the mobile traffic may have been many kilometres from the particular base station, it was the percentage distribution for each base station on a particular day that gave that evidence its probative value. That probative value was to be considered with the other circumstantial evidence on which the prosecution relied.[7]
[7]Reasons, [72].
Ultimately, the judge concluded that the probative value of the evidence, in combination with all of the other evidence in the case, was high. The judge also concluded that the probative value was not substantially outweighed by the danger that the evidence might be unfairly prejudicial to the applicant or be misleading or confusing. He said that the evidence was not particularly complex. The jury would understand that it was circumstantial evidence and would readily appreciate any shortcomings of the evidence that might arise through cross-examination. The informant could be cross-examined on the failings or shortcomings of the police investigation, such as why he only selected particular dates and times for analysis by Optus. The jury would also be given directions concerning circumstantial evidence. In these circumstances, there was little risk that the jury would be misled by the evidence.[8]
[8]Reasons, [73], [75], [78].
The judge also made a number of observations in relation to the reference table. He observed that the first four columns of the reference table were no more than an extraction and compilation of the EBM data. They were not expressions of opinion. He said that, subject to the prosecution proving that the EBM data was in fact the Optus records relating to the particular mobile device, there was no difficulty with the first four columns being referred to in the informant’s evidence. It would be a matter for the trial judge as to whether the reference table itself was admissible, as opposed to the informant giving the evidence orally.[9]
[9]Reasons, [58].
As for the sixth and seventh columns of the reference table, the judge said that the information contained in those columns simply related the first four columns to a particular allegation and charge. These columns were an explanation as to why the information in the first four columns was obtained. A jury would need to somehow understand the relevance of the first four columns, or they would be meaningless. However, the judge said that if there was a better, more anodyne way of expressing their relevance, the prosecution should adopt it.[10]
[10]Reasons, [59].
The judge also observed that although defence counsel had criticised the basis upon which the prosecution had established the time of each burglary, or the approximate time of each burglary, he was to take the evidence at its highest. Any issue about the accuracy of these times was properly the subject of cross-examination, although the judge noted that counsel had not suggested that the dates relevant to Mr Chang’s evidence were not the dates of the alleged burglaries.[11]
[11]Reasons, [68].

Submissions in this Court

The applicant submits that, for the following reasons, the form in which the prosecution intends to adduce the EBM data in the reference table is misleading and unfair.
First, the reference table seeks to cross-reference the EBM data with the base station evidence without first having proved where the EBM data came from and how it came to be. The applicant submits that the prosecution must first prove that the EBM data refers to connections to base stations that were made by the applicant’s phone, and that this was not done at the pre-trial hearing.
Second, the applicant says that the methodology behind the reference table renders its use misleading and unfair. The data in the reference table has, he submits, been ‘cherrypicked’ to such an extent that the more than 50,000 individual data points in the 693 pages of EBM data have been reduced to only two data points for two of the burglaries, and only one data point for each of the remaining burglaries. The data points chosen by the informant each represent one point in time within what were allegedly ongoing acts. The applicant submits that the informant did not have to pick such a limited set of data points to be analysed, and it was unfair for him to do so.
Third, the applicant submits that to the extent that the informant chose data points based on timestamps in CCTV footage, the accuracy of those timestamps had only been examined for the footage at Bayvista Circuit in Point Cook. The remainder of the CCTV timestamps were unverified. The applicant also points to the informant’s error in the process of adding 40 minutes to the time recorded in the CCTV footage for Bayvista Circuit, resulting in the use of 1.39 pm to select a base tower from the data, rather than the correct time of 1.29 pm. He submits that the Court could not have any real confidence about the accuracy of the timestamps underlying the remaining nine data points associated with charges in the reference table.
Fourth, the applicant submits that the unfairness of the methodology behind the reference table is compounded by the fact that the EBM data suggests that the applicant’s mobile phone was frequently connecting to different base stations within short periods of time, including within a single minute. By selecting only single data points, the prosecution has withheld information about other base stations that the applicant’s phone was ‘in the vicinity of’ at a relevant time. In relation to the Bayvista Circuit burglary in Point Cook, this includes the Brighton Central base station situated on the other side of the bay to the location of the alleged offending. He submits that the single data points ‘did not tell the full story’.
For the same reasons, the applicant submits that the base station evidence is misleading and unfair. It too is based on ‘cherrypicked’ data points that happen to be closest to the places of interest, with the consequence that potentially exculpatory evidence has been shut out. The applicant submits that the expert evidence from Mr Chang reinforces the informant’s ‘cherrypicked’ data points. Mr Chang is armed with tables and with maps with arrows pointing in particular directions, which support the prosecution case. The maps and tables are presented in a way that is capable of being well absorbed and understood by a jury. In contrast, Mr Chang has no similar maps or tables in relation to other base stations. Thus, even if the applicant can make the point in cross-examination that his mobile phone ‘pinged’ off other base stations in the same minute as the ‘cherrypicked’ data points, he cannot adduce evidence of maps with arrows potentially pointing elsewhere. The applicant submits that there is a severe power imbalance because the police have a dedicated system to obtain this data and he neither has such a system nor the capacity to make requests for EBM data or for analysis of any base stations.
It is, the applicant submits, no answer to say that it would have been expensive for the informant to have made the proper enquiries. The obligation on the prosecution was to adduce the evidence in a fair manner. While this did not mean obtaining data for every base station referred to in the EBM data, it did require the informant to obtain ‘sufficient data for the evidence to be adduced fairly’. If this could not be done, the prosecution should not be permitted to rely on the evidence. To permit it to be used would cause extreme potential prejudice to the applicant.
The respondent commenced its submissions with a series of observations about the connections between the applicant’s phone, the EBM data and the base stations that are the subject of the base station evidence. The respondent submits that:
(a)the judge was correct to proceed on the basis that the prosecution would be able to establish that the times the informant had selected were the correct times that CCTV cameras had captured the offences, although the respondent accepts that this may require further witness statements;
(b)there is no issue that that the EBM data relates to the phone used by the applicant — the spreadsheet containing the EBM data identifies the mobile phone number to which it relates and the applicant admitted to using this particular phone number when interviewed by police; and
(c)the applicant’s submission that the prosecution had not sufficiently proved that the applicant’s phone had connected to the particular base stations referred to in the reference table and base station evidence should be rejected — the EBM data included information about the base stations that the applicant’s phone had connected to and Mr Chang gave evidence about the reasons a phone may connect to a particular base station. The EBM data itself, reinforced by the evidence of Mr Chang, provided an ‘error free basis’ for the finding that the applicant’s phone had connected to each of the selected base stations.
Against this backdrop, the respondent’s primary submission is that the contents of the reference table (and the base station evidence) are not unfair or misleading. The respondent accepts that the reference table contains selective information obtained from the EBM data, and that the base station evidence is based on that information. However, it also accepts that that the jury will need to be given a ‘fair representation of the EBM data itself for the relevant time periods’, including any instances where the EBM data shows that the applicant’s phone ‘pinged’ off multiple base stations within a particular period. The respondent submits that when the EBM data is analysed closely, it is clear that the selected information is neither unfair nor misleading as to the areas the applicant’s phone was in at the time of the burglaries.
The respondent provides an example in support of this submission. It points to the two rows in the reference table that refer to charges 2 and 3, which concern the burglary at Bayvista Circuit in Point Cook, which is alleged to have occurred at approximately 1.30 pm on 26 January 2022. The reference table refers to the EBM data at 1.39 pm and 2.53 pm on this date and to the Point Cook South East and the Altona Meadows base stations respectively. An analysis of the EBM data shows that while there were occasional connections to other base stations between 1.40 pm and 2.38 pm, the vast majority of connections in this period were to ‘Point Cook’ base stations.
Similarly, the respondent points to the row in the reference table that refers to charges 4 and 5, which concern a burglary at Timbarra Drive in Werribee, which is alleged to have occurred at approximately 9.30 am on 27 January 2022. The row refers to the Hoppers Crossing base station. The EBM data shows that there were connections to a Hoppers Crossing base station between 9.46 am and 10.11 am, and that while there were also connections to other base stations, each of those other base stations bear the names of suburbs or locations broadly in the vicinity of the area of the burglary.
The respondent’s alternative submission is that the judge was correct to conclude that any shortcomings in the evidence based on the EBM data can be brought to a jury’s attention through cross-examination. Just as was done at the pre-trial hearing, the applicant’s counsel can adduce evidence of any apparent anomalies in the EBM data (such as the specific connection to the Brighton Central base station at 1.29 pm on the date of the Point Cook burglary, as well as the general connections that were made to base stations other than those the informant selected). In addition, any risk of prejudice could be cured by appropriate directions, designed to reinforce to the jury that neither the reference table nor the base station evidence is a complete distillation of the telecommunications information.
On either approach, the respondent submits that the judge was correct to conclude that the probative value of the evidence was not outweighed by the danger that it may be unfairly prejudicial, misleading or confusing.

Consideration

The application of s 137 of the Evidence Act 2008 requires the making of three evaluative assessments, namely the weight of the probative value of the evidence, the extent of any danger of unfair prejudice, and then a comparison of one with the other. Because there can only be one correct answer resulting from this process (or the process involved in the application of s 135), it follows that the relevant standard to be applied by an appellate court in considering an appeal from a ruling as to whether or not evidence should be excluded under one of these provisions is the correctness standard.[12] This means we are to determine for ourselves whether the judge was correct to decline to exclude the reference table and the base station evidence under ss 135 or 137 of the Evidence Act 2008, while making due allowance for any advantages enjoyed by the judge in seeing the evidence given by the witnesses at the hearing of the pre-trial application.[13]
[12]Moore (a pseudonym) v The King (2024) 98 ALJR 1119, 1125 [18] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ); [2024] HCA 30 (‘Moore’).
[13]Moore (2024) 98 ALJR 1119, 1124 [14] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ), citing Warren v Coombes (1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9; Fox v Percy (2003) 214 CLR 118, 125–6 [23] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22.
We consider that the judge was correct to decline to exclude the reference table and the base station evidence under ss 135 or 137 of the Evidence Act 2008.
The base station evidence is a piece of circumstantial evidence that bears on the probability that the applicant was one of the offenders who perpetrated the burglaries and the associated offences. When considered together with the other circumstantial evidence on which the prosecution relies, including the EBM data, the base station evidence has considerable probative value. While it does not establish the precise location of the applicant’s phone at any particular point in time, when read together with the EBM data, it demonstrates that the applicant was located in the vicinity of particular base stations that are proximate to the sites of the burglaries and the arson at or around the times of the alleged offending.

As the respondent accepted, both the base station evidence and the reference table — which brings the base station evidence together with the EBM data — are the result of a selective process. They are both premised on the choice the informant has made to focus on particular data points extracted from the much larger set of data points contained in the raw EBM data. In that sense, it is true that the reference table does not ‘tell the full story’ of all the base stations with which the applicant’s phone connected during and around the times of the burglaries and the arson and, therefore, of his likely location at these times. However, if the jury is also provided with a fair representation of the broader EBM data during those periods, as the respondent indicates will occur, this will ameliorate any risk that the jury will be confused or misled into thinking that the reference table constitutes a comprehensive depiction of the base stations with which the applicant’s phone connected at the relevant times.
Further, we are satisfied that the limitations of the reference table and the base station evidence are capable of being exposed in cross-examination, just as they were at the pre-trial hearing. The soundness of the informant’s decision to request analysis of only one base station for the majority of the burglaries (and two base stations for one of the burglaries) can be interrogated, as can the soundness of the process by which he selected each of those base stations. Equipped with the EBM data, the applicant’s counsel can draw attention to any of the base stations with which the applicant’s phone connected that are further removed from the locations of the burglaries. Counsel can also draw attention to any connections that otherwise appear anomalous, such as the connection with the Brighton Central base station around the time of the burglary in Point Cook. We are not persuaded that the applicant’s inability to produce ‘competing’ maps that depict arrows potentially pointing in different directions will occasion any material prejudice. As the judge explained, this evidence is not complex, and a jury will be well able to understand the limitations that flow from the informant’s selection of only certain data points for base station analysis.
As this Court said in Moreno (a pseudonym) v The King:
Where the flaws in the evidence will be obvious to the jury or can clearly be identified by the judge then they are unlikely to give rise to any significant prejudice and such prejudice as may exist will be capable of being addressed by direction.[14]
[14](2023) 307 A Crim R 519, 539 [96] (Priest AP, Niall and Kaye JJA); [2023] VSCA 98.
To the extent that the applicant submits that the reference table and the base station evidence should have been excluded because the prosecution has not proved that the EBM data pertains to the applicant’s phone, we reject that submission. It is clear from the face of the EBM data that it concerns a mobile phone service ending in ‘057’. The informant’s evidence was that although this phone number was not registered to the applicant, it was the phone number the applicant had nominated to police as the number he had been using.
Similarly, to the extent that the applicant submits that the judge should have excluded the reference table and the base station evidence because the prosecution has not proved that the applicant’s phone had in fact connected to each of the base stations listed in the EBM data, we reject that submission. The application for exclusion does not appear to have been put on this basis below, and it will be a question for the prosecution as to how it seeks to prove the EBM data at trial. We have not addressed the impact of ss 69(2) or (3) of the Evidence Act 2008 on the admissibility of the EBM data, which were the subject of the abandoned first proposed ground. These will be matters for the judge who is asked to rule upon them.

Conclusion

The proposed ground of appeal is without merit. It is not in the interests of justice to grant leave to appeal. Leave to appeal will therefore be refused.
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[2025] VSCA 56

3 April 2025