Citation: R v Rogerson; R v McNamara (No 44) [2016] NSWSC 451
Court: Supreme Court of New South Wales
Date: 14 April 2016
Judge(s): Bellew J
Background
This decision arose in the course of a major criminal trial involving two accused, Rogerson and McNamara. The ruling concerned an evidentiary dispute about a document relating to telecommunications data, specifically what was referred to throughout proceedings as "GPRS data" (General Packet Radio Service data), broadly understood to relate to internet usage on mobile phones.
Counsel for Rogerson sought to tender a document described as an extract of telecommunications activity showing internet usage by McNamara and the deceased, Jamie Gao, over a period of approximately seven weeks in 2014. The document was put to both an intelligence analyst called by the Crown and the officer in charge of the investigation during cross-examination.
Counsel for McNamara objected to the tender of the document on the grounds that it was misleading and confusing, submitting that it did not, contrary to the impression created during cross-examination, demonstrate any form of communication or association between McNamara and the deceased.
Legal Issues
- Whether the GPRS data document was relevant and admissible to establish the nature of the relationship between McNamara and the deceased, a shared means of communication, McNamara's locations at particular times, or his general internet usage habits.
- Whether the document should be excluded under s 135 of the Evidence Act 1995 (NSW) on the basis that its probative value was substantially outweighed by the danger of unfair prejudice, or by the danger that it was misleading or confusing.
Decision
Bellew J found that the evidentiary foundation for the document was thin. The only witness who had spoken to the nature of GPRS data was an intelligence analyst, Ms Sofrenic, who acknowledged she had only a "very basic knowledge" of the subject and was not an expert. Her evidence established little more than that GPRS data relates to internet usage generally, including potentially automatic background activity rather than deliberate use.
On that limited foundation, the court found that the document, at its highest, showed individual internet usage by McNamara and the deceased independently of each other. It did not establish, or even reasonably infer, that the two were communicating with each other via the internet. The form in which the document had been produced was characterised as positively misleading in that respect.
Similarly, the court found that using the document to establish McNamara's location at particular times would require far more detailed evidence about the operation of telecommunications networks than had been led. The evidence of the Vodafone analyst, Ms Tuhukava, did not provide a sufficient basis for that use.
Bellew J concluded that the document's probative value was severely limited and that it should be excluded under s 135 of the Evidence Act 1995 (NSW). The probative value was substantially outweighed by the danger of unfair prejudice to McNamara and by the dangers of the document being both misleading and confusing. The ruling did not, however, close off cross-examination of McNamara on his whereabouts, internet use, or association with the deceased, nor did it prevent the tendering of a telecommunications expert to provide a proper evidentiary foundation for the document in the future.
Orders Made
• The document is excluded under s. 135 of the Evidence Act 1995 (NSW) on the basis that its probative value is substantially outweighed by the danger of unfair prejudice to McNamara and the danger that it is misleading and confusing.
Key Takeaways
- A document will not be admissible merely because it is relevant in a general sense; where the evidentiary foundation explaining the document's meaning is limited or derived from a non-expert witness with only basic knowledge, its probative value may be severely curtailed.
- Under s 135 of the Evidence Act 1995 (NSW), a court may exclude evidence where its probative value is substantially outweighed by the danger of unfair prejudice to a party, or by the danger that the evidence is misleading or confusing.
- The form in which a document is produced matters: the Supreme Court found that this document, as produced, was positively misleading because it appeared to show a connection between two individuals when, on the available evidence, it showed only independent activity by each.
- A ruling excluding a document in its current form does not necessarily foreclose future tender; Bellew J noted that the document could become admissible if appropriate expert evidence were called to provide the necessary foundation.
- Where a party seeks to use telecommunications data for multiple purposes (such as establishing association, shared communications, and location), each proposed use requires sufficient evidentiary support and cannot be assumed from the face of the document alone.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 135 (discretionary exclusion of evidence where probative value is substantially outweighed by danger of unfair prejudice, misleading the fact-finder, or causing confusion)
Cases cited: None identified in the judgment.