R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 12) [2020] NSWSC 1946

Supreme Court New South Wales

Medium Neutral Citation: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 12) [2020] NSWSC 1946 Hearing dates: 12 October 2020 Date of orders: 13 October 2020 Decision date: 15 October 2020 Jurisdiction: Common Law Before: Fullerton J Decision: Phone summary admitted. Catchwords: EVIDENCE - documentary evidence - tender of documents – phone summary Legislation Cited: Evidence Act 1995 (NSW), s 50 Cases Cited: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1286 Re Idylic Solutions Pty Ltd; Australian Securities and Investments Commission (ASIC) v Hobbs [2012] NSWSC 568 Category: Procedural rulings Parties: The Crown Ian Michael Macdonald (Accused) Edward Moses Obeid (Accused) Moses Edward Obeid (Accused) Representation: Counsel: S Callan SC / R Rodger (Crown) J Martin (Accused Macdonald) MJ Neil QC / M Kalyk (Accused Moses Obeid)

Solicitors: Solicitor for Public Prosecutions (Crown) M Bowe (Accused Edward Obeid) Murphy's Lawyers Inc (Accused Moses Obeid) File Number(s): 2015/212910; 2015/214251; 2015/212851

Judgment 1. HER HONOUR: The Crown tendered a document of 132 pages headed "Phone Summary" (MFI 88) pursuant to s 50 of the Evidence Act 1995 (NSW). The Phone Summary has been through a number of iterations. The document the subject of tender was complete as at 12 October 2020. 2. The Phone Summary covers the period 1 January 2007 to 31 December 2010, incorporating the period of the conspiracy between 1 September 2007 and 31 January 2009. It comprises, in total, 7294 instances of phone contact placed from time to time by each of eight individuals in various combinations. Those eight individuals include each of the accused, and Gardner Brook, Alan Fang, Mart Rampe, Warwick Grigor and Justin Kennedy Lewis. 3. The phone contact is identified by time and date, whether it is a call, voicemail or SMS, duration, the identity of the caller and the recipient of the call. Only outgoing calls are included. 4. The Crown also tendered a series of Explanatory Notes to accompany the tender of the Phone Summary. Objection was taken by the accused to some part of the Explanatory Notes in the original format tendered by the Crown as containing statistical analysis or involving the application of a judgment, neither being a permissible use of a s 50 summary or other document prepared to aid its interpretation. The Crown withdrew the part of the Explanatory Note which contained that analysis, reserving it for the Crown's final submissions as to what the Phone Summary is capable of proving about the facts in issue. 5. The Explanatory Notes, as edited, identify the source materials from which the information included in the Phone Summary was compiled, including the identifying details of phone numbers used from time to time by the eight individuals whose phone records form the basis of the summary, and the subscriber details of the various phone services. 6. The Explanatory Notes also include details as to the month and year for which call charge records for each of the eight individuals are available; where that material is located in the brief of evidence as served and points of distinction between call attempts and SMS messaging. Calls are also distinguished referable to whether they were diverted to voice mail. Finally, there is a detailed explanation as to how the summary is to be interpreted, that is, whether the time of the call and its duration are rounded up to intervals of 30 seconds or whether calls are not rounded up at all. 7. The parties addressed the admissibility of the summary in written submissions and in oral argument.