Supreme Court New South Wales Medium Neutral Citation: R v Karaali (No 2) [2022] NSWSC 1799 Hearing dates: 3; 4 August 2022 Date of orders: 4 August 2022 Decision date: 04 August 2022 Jurisdiction: Common Law Before: Campbell J Decision: (1) I reject paragraph 20 of Sergeant Catto-Pitkin's report of 14 July 2022. (2) I direct the prosecution obtain a supplementary report from Sergeant Catto-Pitkin detailing his findings on each of the inspections he did of each of the searches on the subject iPhone showing: (a) the time recorded by Google for the entry of each search term in respect of each search the subject of Table 3.1 in his said report; and (b) the time that he took during his examination to enter the exact same search terms on each occasion that he did so. (3) I will allow the evidence of Mr Chang as contained in his report of 21 July 2022 and in accordance with his oral testimony on the voir dire. (4) I reject circumstance (c) as a circumstance that the Crown may rely upon to demonstrate a consciousness of guilt. Catchwords: EVIDENCE — expert evidence — whether use of particular software within electronic evidence expert's expertise — whether delay and Crown's evidence served late results in unfairness — consciousness of guilt evidence Legislation Cited: Evidence Act 1995 (NSW), ss 9, 71, 79 Cases Cited: Bevan v Western Australia [2010] WASCA 101; (2010) A Crim R 27 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Mehesz v Redman (No 2) (1980) 26 SASR 244 R v Basha (1989) 39 A Crim R 337 Category: Procedural rulings Parties: Abdul Karaali (Accused) Regina (Crown) Representation: Counsel: P Hogan (Crown) IH Wallach (Accused) Solicitors: Director of Public Prosecutions (NSW) (Crown) TNL Law (Accused) File Number(s): 2020/61211 oral Judgment- revised 9 august 2022 1. After his plea of not guilty on arraignment, Abdul Karaali is standing trial for the murder of Ross Houllis. Mr Houllis was badly beaten by two men on 14 February 2020. His injuries included head injuries from which he died on 17 February 2020. 2. It is the Crown case that Mr Houllis was beaten to death as payback for selling counterfeit Apple AirPods to one of his two assailants. That assailant, Sami Hamdach, has now pleaded guilty to the charge of murder, will take no part in this trial and will be sentenced in the not-too-distant future. The Crown say Mr Karaali is the second man. It is the Crown case that, of the two, Mr Karaali inflicted the injuries on Mr Houllis which most likely proved fatal. These were brain injuries probably occasioned by one of the two assailants stomping on his head. As I have said, the Crown say that man is Mr Karaali. 3. The context in which the Crown say the killing of Mr Houllis occurred is that when Mr Hamdach realised he had been cheated, he decided on a course of conduct, possibly to recover his money, but also to teach Mr Houllis a lesson. To this end, on 13 February 2020, the day of the bogus supply, Hamdach arranged for his partner to make inquiries of Houllis, initially through Facebook, about the availability of another set of the AirPods on the pretext that she was purchasing them as a Valentine's Day present for her partner. The plan was that the partner would lure Mr Houllis to a meeting to complete the transaction, insisting on doing it quickly for Valentine's Day. When Houllis arrived at the rendezvous point, he would be and was met by Hamdach and a second. The plan was executed with deadly effect. Mr Karaali denies that he was the second. He denies that he was there, and he denies taking any part in the beating of Mr Houllis. Evidence 1. The Crown case against Mr Karaali turns in no small part on telephone records detailing contact between Hamdach and a telephone number that Mr Karaali admits using on 13 and 14 February 2020. The relevant contact between the co-accused was by both voice call and text message, although the content of the text messages is not before me, presumably because the SIM card for the mobile telephone being used by Mr Karaali is not in police possession. 2. From the outset, it has been the Crown case that call charge records provide the means of proving that Mr Karaali was the second assailant, in part, because they put him at the scene of the crime in the company of Mr Hamdach when the offending occurred. The police fact statement tendered when Mr Karaali was first brought before the Local Court to be charged after his arrest on 25 February, stated (Exhibit VDA, tab 2, p. 4): "Call records on [Hamdach's] mobile phone have indicated he called [Mr Karaali] immediately prior to and after the incident. Cell tower records reveal that [Mr Karaali's] mobile telecommunications service was in the identical cell tower location as [Hamdach's] before, during and after the incident. It was identified that [Mr Karaali] was using a mobile telecommunications service registered in the name of Jevad Asonovic." 1. The Crown Case Statement (Exhibit VDA, tab 3) served on 3 March 2021 alleges that Cellebrite downloads identified the service being used by Mr Karaali ending in 282 had been in contact with Mr Hamdach before and after the alleged offence and that the telephone was registered to Jevad Asonovic, who took no part whatsoever in any offending. His wallet had been stolen in or about September 2018. A number of personal documents, including Mr Asonovic's driver's licence and Commonwealth Bank card were seized at Mr Karaali's home during the execution of a search warrant on the day of his arrest. 2. The Crown Case Statement sets out a number of the telephone contacts between Mr Hamdach and Mr Karaali and identifies the cell tower or base station involved in each of those calls (Exhibit VDA, tab 3 [54] – [56]). Additionally, lawful telephone intercepts on the service ending in 282 persuasively identify Mr Karaali as its user, including the provision by him of his home address where he was arrested and the subject of the search warrant. These intercepts included a telephone call on 20 February 2020. 3. Mr Karaali, through previous legal advisers, not only denied being the second assailant but also denied that he was the user of the service ending in 282 on 14 February 2020. After a recent change in representation, I am told that the latter fact is no longer in issue. However, I accept that it is for the Crown to prove all elements of the alleged offence against Mr Karaali beyond reasonable doubt. While criminal trials are adversarial and the parties are entitled to choose the ground on which the case will be fought, the identification of the real issue for decision by the jury is different from the refined approach taken in civil litigation. I will approach these preliminary questions on that basis. 4. It is obvious from what I have said that the Crown case against Mr Karaali is entirely circumstantial and that the telephone evidence is central to proof of the murder charge. 5. Mr Karaali's trial was twice adjourned in 2021 due to lockdown restrictions rendering jury trials unavailable. The third attempt was fixed for 25 July 2022 but was delayed until 3 August 2022 for COVID reasons. A jury has now been empanelled but the trial has not commenced, pending the resolution of three outstanding evidential issues. The first two evidential issues relate to the late service of expert evidence relevant to the telephone evidence. The third category is the formulation of the Crown case on post-offending conduct as evidence of consciousness of guilt. From 3 to 5 August 2022, I conducted what was effectively a voir dire on principles akin to those discussed in R v Basha (1989) 39 A Crim R 337 during which the experts were fully examined and cross-examined on the evidence they would give at the trial if I permitted the Crown to rely upon their reports. Expert evidence of Sergeant Catto-Pitkin 1. The first expert witness examined was Sergeant Adam Catto-Pitkin, an electronic evidence specialist with the New South Wales Police, employed in the Digital Forensics Unit. I am satisfied that Sgt Catto-Pitkin has specialised knowledge based on his training, qualifications and experience in the identification, preservation, analysis and presentation of electronic evidence. Indeed, I did not understand that proposition to be challenged, so far as it went. He has been a police officer since 1996 and has worked in electronic policing, commencing in the Telecommunications Interception Branch, for many long years. He has undertaken several in-house police courses, including the Cellebrite certified operators' course in 2014. He retook the course in 2018 when that course was revised internally by New South Wales Police. He also has a Graduate Certificate in Science (Forensic Computing) from the University of South Australia. While he described the content of that postgraduate qualification as more theoretical, it is not irrelevant for me to record here that during it he undertook a course in ethics for the digital investigator. As things developed during his evidence, it became apparent, as I have said, that his expertise generally was not in question, nor was it said that much of his evidence was inadmissible. I should say that his expert evidence is contained in two expert certificates, the first dated 14 July 2022 and the second 19 July 2022 which were not served until 21 July 2022. 2. Sergeant Catto-Pitkin used his technical skills to extract and examine data from an Apple iPhone 6s which had been seized during the execution of the search warrant at Mr Karaali's home. The SIM card was missing, and the six-digit passcode was not provided. I interpolate, the absence of these limited the capacity of the examiner to conduct a full examination of the phone. 3. In any event, the area of dispute was limited and related to so much of the results of the examination obtained using open-source software, referred to as "Unfurl", developed by a Mr Ron Benson to decode the universal resource locator ("URL") data of each internet search made by the user of the smartphone and identified in the officer's report. The software is available in an online version. Mr Karaali objects to the opinion expressed in paragraph 20 of the report of 14 July 2022 which is in the following terms: "Based wholly or substantially on my specialised knowledge, I am of the opinion that each listed Google search is the result of a user action, being a typed query and not an automated action of the device." These searches were of the key word "Wakeley", the suburb where the fatal assault took place, or "Wakeley news", which ultimately provided links to various media websites carrying reports of the assault on Mr Houllis. The real objection is not to the results themselves, but to the expression of the opinion by Sgt Catto-Pitkin that the searches were the result of "user action" rather than by some other means. 1. Sergeant Catto-Pitkin described Unfurl as software developed by Mr Ron Benson, as I have said, whom he described as "a well-known digital forensics examiner" (48.28T). He said the software decodes the URL value from the search engine used, to display it in a readable format. The searches on the subject iPhone were on Google and use of the Unfurl software returned values such as the date and time from Google's server, rather than the device, including the search term used. The officer was self-taught in the use of the software in the course of his work at the Digital Forensics Unit. He first used the software in 2018 or 19 (48.1T) 2. When asked how the opinion that the searches on the subject iPhone were "a typed query" was based on his specialised knowledge, he said he relied on the values returned by the tool and the previous testing that he had carried out. The software had been also used by other experts in the Digital Forensics Unit "about a dozen times" (79.37T). As I understood it, the opinion about whether the search term had been manually entered by a user resulted from an extrapolation from Google data "tracking how long it takes you to type the query" (49.25T). His opinion was based on the length of time to type the query (50.2T). 3. In cross-examination, the officer explained that his opinion was in part based upon the testing he himself had carried out by timing how long he took to type the query and comparing that with the decoded results Unfurl provided from the Google data. Part of the testing he had previously carried out was in conjunction with colleagues working on a Tamworth investigation. He said (64.40T): "I was shown Unfurl by one of my colleagues who was using it for a Tamworth homicide where a typed search was being made so that it has been tested and used many times for analysis works such as this." I interpolate the "many times" as the dozen times he referred to in re-examination. 1. In cross-examination, the officer accepted that Unfurl was quite different from Cellebrite. The latter has been subject to much peer review around the world, whereas his experience of Unfurl has been restricted to its use within the Digital Forensics Unit. He accepted that broader randomised testing would be relevant to validation (68.27T). He could not speak about the design of the tool as he did not develop it and questions of that type would have to be directed to the developer, Mr Benson (68.40 - .50T). 2. I should also point out that the opinion expressed at paragraph 20 was also objected to on the grounds that the reasons for Sgt Catto-Pitkin's opinion were not set out in the body of the report and, accordingly, he had not demonstrated how his opinion was based wholly or substantially upon his specialised knowledge as required by s 79 of the Evidence Act 1995 (NSW). He confirmed that his opinion was based upon the time recorded by Google for the user to enter the search. In this regard, Sergeant Catto-Pitkin accepted that his opinion may have been clearer if he had set out each of the steps he had followed in respect of recording the Google results in respect of each search referred to in the body of his report, so that the reader could know what steps had been taken to check their accuracy if necessary (74.30 – .40T). Applicable legal principles 1. The admissibility of technical or scientific evidence of the type proposed to be given by Sgt Catto-Pitkin is not wholly governed by the Evidence Act, although naturally the requirements of s 79 must be complied with in respect of the admission of all expert evidence. Moreover, there is an exception to the hearsay rule in respect of electronic communications established by s 71 of the Evidence Act. That section facilitates the admission of evidence of representations as to the identity of a person by whom or on whose behalf, or to whom, an electronic communication was sent or addressed. It seems to me that that specific provision does not take this matter very far. 2. By dint of s 9, the Evidence Act "does not affect the operation of a principle or a rule of common law or equity in relation to evidence in proceedings to which the Act applies, except so far as the Act provides otherwise expressly or by necessary intendment". In particular, s 9(2)(b) makes clear that the Evidence Act does not affect any common law principle so far as it relates, inter alia, to the operation of a legal or evidential presumption that is not inconsistent with the Evidence Act. 3. I am of the view that the principles of the common law rules of evidence relating to the admissibility in evidence of results produced by scientific or technical instruments are preserved by s 9 of the Evidence Act and remain applicable. These principles were discussed by Blaxell J (Owen and Buss JJA agreeing) in Bevan v Western Australia [2010] WASCA 101; (2010) 202 A Crim R 27 at [29] – [33]. Blaxell J expressed the principle in the following terms: "There is a rebuttable presumption at common law as to the accuracy of "notorious" scientific or technical instruments which, by general experience, are known to be reliable. Accordingly, readings from watches, clocks, thermometers, speedometers and a variety of other ingenious contrivances for detecting different matters can be received into evidence without specific proof of their accuracy." His Honour went on to point out that the presumption extends to scientific or technical process, including results produced by reliable computer applications. 1. His Honour accepted the principles of law summarised by White J in Mehesz v Redman (No 2) (1980) 26 SASR 244 at 251 - 252. White J summarised the principles as follows: "1. If the instrument falls within the class of instrument known as notorious scientific instruments, the court will take judicial notice of its capacity for accuracy, so that the operator merely proves that he handled it properly and read it properly on the particular occasion. 2. If the instrument is not a notorious scientific instrument, its accuracy can be established by evidence: (a) that the instrument is within a class of instrument generally accepted by experts as accurate for its particular purpose; (b) that the instrument, if handled properly, does produce accurate results; ((a) and (b) must be established by expert testimony, that is, by experts with sufficient knowledge of that kind of instrument; and upon proof of (a) and (b), a latent presumption of accuracy arises which allows the court to infer accuracy on the particular occasion if it is proved) (c) that the particular instrument was handled properly and read accurately by the operator on the particular occasion; ((c) can be established by a trained and competent person familiar with the operation of the instrument, not necessarily the type of expert who proves (a) and (b)). 3. Where the actual accuracy of the measurement can be inferred from all of the proved circumstances, it is not necessary to rely upon the presumption arising from (a) and (b), proof of which is superfluous." From this, it can be seen that the first principle applies to instruments already established by the experience of the courts as accurate or reliable. This is not applicable to this case, as, on the evidence of Sgt Catto-Pitkin, it is clear that the use of the Unfurl software is not a notorious scientific instrument or process and, therefore, admissibility depends upon the application of principle 2 or principle 3. First ruling 1. I am not satisfied that principle 2 has been engaged. The evidence demonstrates that the software was developed by a respected expert in the field, is available for use by investigators generally and is regarded as reliable by the Digital Forensics Unit. Persuasive as this evidence is, it obviously falls a long way short of satisfying the principles expounded by White J and accepted as correct by Blaxell J. For instance, there is no evidence that the software is generally accepted by experts in the field as accurate for its particular purpose. But I am satisfied that the software, if handled properly, produces accurate results. In this regard, I am referring to its capacity to decode the Google data to produce an accurate result for the time taken to enter the search query in a readable form. I am also satisfied that Sgt Catto-Pitkin handled the software properly on the occasion in question, that is to say when he examined the subject iPhone. However, because I am not satisfied that its reliability and accuracy has been accepted generally by experts in the field, I am not satisfied that the presumption of accuracy has arisen in accordance with principle 2 on this occasion. 2. But I am persuaded that the Unfurl software so far as it goes is actually reliable from the circumstances proved on the voir dire. By this I am speaking of the accuracy of the measurement provided of the Google data in readable form and I would admit evidence of that matter were it proffered. But it does appear to me that those particular results are in fact not set out in the expert's report, a point to which I will return. 3. However, I am not satisfied that the opinion actually proffered by Sgt Catto-Pitkin is a matter which readily falls within his demonstrated expertise. 4. In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, a plurality of the Chief Justice and five puisne Justices of the High Court discussed the conditions to be satisfied for the admissibility of expert evidence in the following terms (at [31] – [32]): "Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered "to prove the existence of a fact". That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between "opinion" and "fact" or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of "fact". Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving. To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence "has specialised knowledge based on the person's training, study or experience"; the second is that the opinion expressed in evidence by the witness "is wholly or substantially based on that knowledge". The complaint which Dasreef made at trial, on appeal to the Court of Appeal and on appeal to this Court was that Dr Basden did not express an opinion about the numerical or quantitative level of exposure to respirable silica encountered by Mr Hawchar in working for Dasreef that was an opinion based on any specialised knowledge Dr Basden had that was based on his training, study or experience." To demonstrate this it will be generally necessary for the expert to set out his or her path of reasoning from the facts assumed or established by his or her own evidence to the conclusion proffered as the opinion relevant to the existence or not of a fact in issue in the proceedings. 1. While I accept that Sergeant Catto-Pitkin is qualified to give the results he obtained using the Unfurl software in relation to the Google searches made on the subject iPhone, I regard it as beyond the confines of his expertise to express the opinion that the search terms were entered by the conscious and deliberate act of a user rather than by automated process. I must say that the decision is not assisted by the consideration that it was never explained how a term such as "Wakeley" or "Wakeley News" could ever be entered as an automated process. However that may be, as I understand Sgt Catto-Pitkin's evidence, his actual opinion is formed by comparing the time it took him to enter the relevant search times with the time recorded by Google. I am of the opinion that those findings can be given in evidence but not the opinion. It seems to me that if those times were given in evidence, it becomes a matter for the jury to infer, or not, that the search terms were entered by the conscious deliberate act of the user. It seems to me that that is a matter which does not depend upon the type of expertise that Sgt Catto-Pitkin possesses but rather is the type of matter which may be assessed by a jury of lay people, according to their own values, experience of life and knowledge of these things as ordinary members of the community. 2. I am also of the view that the certificate is defective inasmuch as it does not comply with the necessary conditions laid down by s 79 of the Evidence Act for the admission of expert evidence as expounded by the High Court in Dasreef v Hawchar. To comply with this not very stringent threshold I am of the view that it would be necessary for Sgt Catto-Pitkin to set out the results he obtained in respect of each of the relevant searches upon which he relied in terms of the time recorded by Google as well as his own indication of the time it took him to enter the same search terms. This information would equip the jury to decide for itself the matter the subject of his opinion, and in due course I will make a direction that those results be disclosed to the defence. For these reasons I reject paragraph 20 of Sergeant Catto-Pitkin's report of 14 July 2022. Expert evidence of Mr Chang 1. The second issue relates to the opinion of Mr Raymond Chu-wah Chang, a Senior Technical Specialist employed by OPTUS Administration Pty Ltd since July 1998. Mr Chang is an electrical and electronic engineer by profession, having graduated with a Bachelor's Degree from the University of New South Wales in 1993 in electrical and electronic engineering. 2. He has worked in the telecommunications industry since 1996, initially for Motorola Hong Kong as a network engineer. Since July 1998 he has worked with OPTUS. He commenced his career with OPTUS as a Senior Network Engineer in the Mobile Radio Access Engineering Department. Since 2011 he has been the Senior Technical Specialist in State Radio, Planning and Quality, New South Wales. He is responsible for the planning, design and maintenance of the OPTUS 3G, 4G and 5G networks. 3. Mr Chang's expertise was not in doubt. No challenge was made to it. There were objections on the basis that his evidence, both in chief and cross-examination elicited material that extended well beyond the content of his expert report dated 28 July 2022, served the same day. I accept that the consideration that a body of his evidence was elicited in cross-examination on the Basha inquiry is really neither here nor there in terms of the question of its admissibility at the trial. 4. Both in his evidence and in his report, Mr Chang gave a very full description of the operation of the OPTUS mobile network and its interaction with customer mobile phones. In particular, in oral evidence there was a focus upon what the receipt of a mobile signal from a customer phone by a particular antenna on a specified base station said about the location of the user at the time that interaction occurred. This evidence is central to placing Mr Karaali, on the Crown case, in the vicinity of the scene of the beating of Mr Houllis from which the jury may be asked in conjunction with other relevant circumstances to infer that he was in fact present as the second offender. 5. After his description of the operation of mobile network Mr Chang states the following in his report by way of example or illustration of how the network operates: if the call originated from a specified identified base station cell, it does not necessarily mean that the call ended at that location. The specified base station was however the available base station sector at the time the call was initiated and that was the first base station to handle the call. It was implicit in this, and certainly made explicit in Mr Chang's oral evidence, that the first base station to handle the call will usually be the closest base station to the geographical location of the customer initiating the call. 6. Mr Chang explained that every OPTUS antenna attached to one of its base stations has a field of operation in an arc of 60 degrees broadcasting from the antenna. This arc is around the azimuth of the antenna, which as I understand it, is the directional angle of the central point of the antenna: where it is pointing, in simple terms. In technical terms regardless of the generation of telecommunication technology used, an azimuth refers to an antenna's direction in geographical degrees by reference to true North. 7. It also became apparent from his evidence that the usual rule that the base station to pick up the call is the closest to the caller may be departed from in certain circumstances so that the call would be diverted from the nearest base station to, again, usually, the next closest base station. Circumstances which may affect the operation of this exception include topographical, environmental, or structural interference, and excessive call demand on special occasions. However, even when one of these exceptions is operative, it is axiomatic that the antenna which picks up the call first is necessarily pointing in the direction of the mobile device which has to be within its 60 degree frequency field. Other exceptional circumstances included where a caller was standing very close to the base station, even when he or she may be outside the frequency vector, or an intervening body of water reflects or deflects the signal from the base station, so it picks up calls outside its vector. 8. While undoubtedly expert evidence, Mr Chang's evidence is in large measure descriptive of the practical operation of OPTUS' mobile telephone communications system. His evidence is relevant to the determination of the geographical location of a system user when a call is made or received but he does not purport to usurp the function of the jury by proffering an opinion on that matter himself. The respective positions of the parties 1. The objection to the admission of Mr Chang's evidence is principally that the lateness of service is unfairly prejudicial to the accused, as he is not in the position to meet it, let alone contradict it. He does not know whether it can be contradicted because he has not had a fair opportunity to qualify his own expert. The affidavit of his solicitor, Ms Ngoc Le, sworn on the 2nd of August 2022 read on his behalf is persuasive evidence that this step would have been taken had an earlier opportunity been provided by earlier service. Ms Le swears that she attempted to contact an expert in the field whose identity had been suggested by Mr Wallach of counsel only to learn that that expert had passed away. Inquiries of the well-known expert agency, Expert Experts, have not yet produced any recommendation of an appropriate expert or experts or an estimate of the cost. As Mr Karaali is on Legal Aid, prior approval of the Legal Aid Commission would be required before the expert could be qualified. In Ms Le's experience this would take some weeks, and it is not known how long the expert would require to complete the report. 2. Mr Wallach is obviously a very experienced advocate and a skilled cross-examiner. He elicited helpful evidence from Mr Chang, I infer, based on his previous experience in such cases. However, he submits that Mr Karaali ought not be left to rely upon the skill of his counsel alone when there may be available countervailing expert evidence. This is simply not known now. 3. The Crown points out the centrality of this evidence has been obvious from the outset, as I have said, from the Police Facts and the Crown Case Statement. The Cellebrite results were served in July 2022. This service included the downloaded data on a USB from the subject iPhone. Until the change of representation there was no issue about the location of the subject iPhone as Mr Karaali simply denied that he was the user at the relevant time. Now that Mr Karaali accepts that he was the user of the iPhone but says he was not at the scene of the crime, Mr Chang's evidence takes on significant relevance and potential probative value. This is made clear by Mr Wallach's objection to evidence, or a summary of the evidence, that relates to the location of the base stations relevant to any telecommunication between Mr Hamdach and the device being used by Mr Karaali. Second ruling 1. The evidence on the voir dire demonstrates that Mr Chang's opinion is not all one way, and he acknowledges exceptions which may appeal to the jury as creating a doubt about Mr Karaali's whereabouts when calls or other communications were made using the subject iPhone at material times. 2. No one has applied for an adjournment of the trial which would be an obvious means of reducing if not eliminating any prejudice arising out of late service of Mr Chang's report. There can be no doubt it was late, which is not excused by a change in the issues resulting from a change of representation. 3. I accept that there is a difference between the formulation of the Crown case and the evidence available to substantiate it. The accused is entitled to disclosure of both. In respect of the latter, it cannot be said to have occurred in sufficient time for Mr Karaali to ascertain whether Mr Chang's evidence can be contradicted by an independent source for the purpose of this trial. 4. I also accept that the evidence is important to the Crown and its exclusion would weaken its case in a measurable, if not substantial, way. 5. The question is whether the admission of Mr Chang's evidence would significantly impair the fairness of the trial from Mr Karaali's point of view. This is not an easy question to answer. There are other persuasive circumstances in the Crown case suggestive of his guilt, but I accept that Mr Chang's evidence is important. To me it seems unlikely an independent expert could say that Mr Chang was just wrong in his evidence about the working of the antennae and their vector of frequency, but Mr Karaali has not had the chance to check this. This disadvantage is purely forensic. It is not of that category where the risk is that the jury may misuse the evidence and reason impermissibly to an erroneous verdict if the evidence is admitted or not contradicted. 6. There is the aspect of delay. Mr Karaali has been in custody since 25 February 2020 and the trial has twice been adjourned through no fault of either party. If the present trial is adjourned, it may not be possible to fix another date this year which would mean that Mr Karaali would have been kept in custody for three years by the time a jury delivers its verdict, in circumstances where he pleads not guilty. This is a long time even for a murder case. However, this may not be unreasonable when one considers the relevant strength of the Crown case, if Mr Chang's evidence is included. 7. I should also add, that Mr Chang's evidence has travelled somewhat beyond his report during the voir dire is not surprising. The very purpose of a Basha inquiry is to hear the evidence before the jury hears it to determine its admissibility and I would not reject its tender on that basis. 8. I am of the view that despite the lateness of service and the delay involved, it is in the interests of justice that the Crown be permitted to rely upon Mr Chang's evidence. Consciousness of guilt 1. I turn then to the third issue which is the question of the evidence the Crown wishes to rely upon in terms of post offending conduct demonstrating a consciousness of guilt. By an email sent to Mr Karaali's solicitor and counsel by the solicitor for the DPP, Mr Hudson, that case is formulated by reference to these three elements: (a) the location of the phone when it was seized during the execution of the search warrant; (b) the removal of the SIM card; and, (c) the circumstance that the SIM card that had been in use in the phone was not registered in the accused's name. That third factor was somewhat refined by the learned Crown Prosecutor during argument, such that the emphasis was on the consideration that the evidence supported the proposition that Mr Karaali had removed and discarded the SIM card, even though he knew that it was not in his name but in the name of another. 2. The circumstances of the location of the phone, according to the evidence on the voir dire, are as follows: during the execution of the search warrant (and the video was played on the hearing, in part I interpolate) a phone was heard to be ringing and an investigating police officer searched for it and found it located on the top of a kitchen cupboard. The officer was a tall policeman and had to stand up on his tippy-toes and reach up to retrieve the phone. There were other matters shown in the video excerpt, including the questioning of another occupant of the house, which are not relied upon by the Crown and which I will not refer to in these reasons. 3. It is said that those circumstances leave it open to the jury to infer that some attempt was made by the user to, as it were, hide the phone or put it in an unlikely spot to hinder its retrieval by any person who might be looking for it but did not know its whereabouts. 4. It is to be borne in mind that the phone on the material I have seen and recited in this judgment was in the possession of Mr Karaali and used by him as late as, at least, the 20th of February 2021. It is clear that the SIM card had been removed by the time the subject iPhone came into police possession. Sergeant Catto-Pitkin said as much and that is a circumstance of a classic type, so the argument goes, demonstrating an attempt to discard evidence of one's involvement in a crime to hinder the detection by investigating police. 5. The third circumstance as it has been recast by counsel rather is put forward as a matter of emphasis inasmuch as it raises the question, why dispose of the SIM card when its discovery would implicate another person? Naturally a rhetorical question of that type could not be put to the jury but it indicates the type of reasoning that counsel is relying upon for that third matter. 6. Mr Wallach accepts that the Crown may rely on consciousness of guilt evidence, again, with respect to him, his objection was based in part upon the late notice that it was to be relied upon, and the absence of any formulation of what was to be said about the matter in advance of the trial. With no disrespect, I do not understand him to say that the argument was not available, rather his concern related to the absence of any prior formulation of the matter to enable it to be dealt with. 7. Without going through any deep analysis of the law in relation to consciousness of guilt evidence, I remind myself that generally speaking when the Crown relies upon post offending conduct as evidence of consciousness of guilt, it goes beyond reliance upon those circumstances merely as part of the circumstantial case. Generally speaking, it is said that the post offending conduct must be proved beyond reasonable doubt which means if there is any possibility of any innocent explanation for the conduct available to the accused the Crown's case in that regard must fail. 8. Having said that, it does seem to me that the phone was placed in an unusual spot, and indeed one would not generally expect a mobile phone being used for innocent purposes, if I may put it that way, to be put in a location where it was difficult to retrieve. So, it would be open to the jury, I think, to draw the inference, even if necessary, beyond reasonable doubt, that the mobile phone was put out of the way to hide its existence. 9. I also agree that the aspect of the removal of the SIM card is, as I have said already, the classic type of post-offending conduct which would be available for the jury to draw an inference of consciousness of guilt. I accept, as Mr Wallach argued, that it will be necessary for the Crown to demonstrate that there is evidence from which it is open to the jury, properly instructed, to draw an inference that Mr Karaali was the person who removed the SIM card. In that regard I repeat there is no issue that he had it in his possession on 14 February 2022 and there is also evidence that he used it as late as 20 February 2022. It seems to me that those circumstances, of themselves, suggest if the SIM card was removed Mr Karaali may have done it. There are other circumstances, including the evidence of Mr Asanaovic, that his wallet containing ID cards was stolen, it would seem, in September 2018 and the circumstance that his licence and Commonwealth Bank card were found in Mr Karaali's bedroom during the execution of the search warrant. 10. For those reasons I think that circumstances (a) and (b) are available to the Crown. At the same time, I am not satisfied, even as reformulated, that circumstance (c) is available to the Crown. There is going to be a need to direct the jury, if Mr Asanaovic gives evidence, and evidence is led of the discovery of his property in the accused's bedroom, to eschew impermissible tendency reasoning. It would seem to me inescapable that if those matters are proved there would be a real temptation for a jury to think that Mr Karaali was the man who stole Mr Asanovic's wallet and from that illegality to reason that if he is the type of man who commits those type of crimes he might be the type of man who would be prepared to commit other crimes, including engaging in a bashing of Mr Houllis. 11. The need for a tendency direction, it seems to me, is going to arise even if the only evidence is that he had stolen goods in his custody at the time of the execution of the search warrant. To then work on the basis that the Crown could say that it is a circumstance proving a consciousness of guilt that he had registered the phone he was using in Mr Asanovic's name and that that was a factor the jury could rely upon when considering whether the Crown had proved Mr Karaali's guilt beyond reasonable doubt, is to ask them to engage in reasoning at a level of subtle nuance which would be very challenging for them. There is a real risk that ordinary people could become confused about what is required of them in relation to what might be seen by them as conflicting directions; on the one hand a tendency direction and on the other hand a direction that they are entitled to rely upon the circumstance that Mr Karaali had a phone in Mr Asanovic's name as evidence of guilt. In my judgment that conflict cannot be satisfactorily resolved by giving tailored directions to suit the circumstances of this case. 12. Accordingly, I will not permit what I have referred to as circumstance (c) to be relied upon as a circumstance going to the demonstration of a consciousness of guilt on Mr Karaali's part. 13. To summarise my rulings: 1. I reject paragraph 20 of Sergeant Catto-Pitkin's report of 14 July 2022. 2. I direct the prosecution obtain a supplementary report from Sergeant Catto-Pitkin detailing his findings on each of the inspections he did of each of the searches on the subject iPhone showing: (a) the time recorded by Google for the entry of each search term in respect of each search the subject of Table 3.1 in his said report; and (b) the time that he took during his examination to enter the exact same search terms on each occasion that he did so. 3. I will allow the evidence of Mr Chang as contained in his report of 21 July 2022 and in accordance with his oral testimony on the voir dire. 4. I reject circumstance (c) as a circumstance that the Crown may rely upon to demonstrate a consciousness of guilt. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2023