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Supreme Court 4 August 2022

R v Karaali (No 2)

[2022] NSWSC 1799

Homicide
EVIDENCE EXPERT EVIDENCE CONSCIOUSNESS OF GUILT EVIDENCE

Citation: R v Karaali (No 2) [2022] NSWSC 1799
Court: Supreme Court of New South Wales
Date: 4 August 2022
Judge(s): Campbell J

Background

The accused stood trial for the murder of a man who was beaten to death on 14 February 2020, allegedly as retribution for selling counterfeit AirPods. The Crown case was that the accused and a co-offender lured the deceased to a meeting and attacked him, with the accused inflicting the injuries most likely responsible for death. The co-offender had already pleaded guilty; the accused denied being present at all.

The Crown case was entirely circumstantial, with telephone and cell tower records central to placing the accused at the scene. A jury had been empanelled but the trial had not yet commenced, pending resolution of three outstanding evidentiary disputes.

Campbell J conducted a hearing akin to a Basha inquiry, examining and cross-examining the Crown's expert witnesses before ruling on admissibility. The three issues were: the admissibility of part of a digital forensics expert's opinion; the admissibility of a telecommunications expert's evidence served late; and the formulation of the Crown's consciousness of guilt evidence.

Legal Issues

  • Whether part of a digital forensics officer's expert opinion about manually entered Google search terms fell within his demonstrated expertise and complied with section 79 of the Evidence Act 1995 (NSW)
  • Whether the Unfurl open-source software used to decode URL data satisfied the common law principles governing the admissibility of results produced by scientific or technical instruments
  • Whether the late service of a telecommunications expert's report created unfairness sufficient to justify excluding that evidence
  • Which of three proposed post-offending conduct circumstances were available to the Crown as consciousness of guilt evidence

Decision

Issue 1: Admissibility of Sergeant Catto-Pitkin's opinion on manually entered searches

The court accepted that Sergeant Catto-Pitkin had the expertise to give evidence of the raw results obtained using the Unfurl software, specifically the time recorded by Google for the entry of each search query (at [27]). However, the court found it was beyond the demonstrated scope of his expertise to express the opinion that search terms were entered by a conscious and deliberate user act rather than an automated process (at [25], [27]). That inference, the court held, was one a jury of lay persons could draw for themselves from the underlying data, without the need for expert opinion (at [27]).

The court also found that the expert certificate was defective under section 79 of the Evidence Act because it did not set out the steps taken or the underlying measurements on which the opinion rested, as required by the principles in Dasreef Pty Ltd v Hawchar (at [28]). Separately, the court considered the common law principles governing instrument reliability, preserved by section 9 of the Evidence Act, as summarised in Mehesz v Redman (No 2) and applied in Bevan v Western Australia. While satisfied the Unfurl software produces accurate results when handled properly, the court found its general acceptance by experts in the field had not been established, so the presumption of accuracy did not arise (at [23]). Paragraph 20 of Sergeant Catto-Pitkin's report was rejected, and the court directed the Crown to obtain a supplementary report setting out the raw timing results for each search (at [28]).

Issue 2: Admissibility of Mr Chang's telecommunications evidence despite late service

Mr Chang, a senior technical specialist at OPTUS, gave evidence about the operation of the mobile network, including how base station antennas with 60-degree frequency vectors are used to determine the approximate geographic location of a mobile user at the time a call is made or received (at [32]-[36]). His report was served only days before the trial, and the defence had no real opportunity to obtain a responsive expert (at [37]-[42]).

Despite acknowledging the late service was not excused by the change in the accused's position on the issues, the court admitted the evidence (at [41], [47]). The court noted the centrality of the evidence had been apparent from the outset, that no adjournment had been sought, that the risk of prejudice was purely forensic rather than the kind that might produce an impermissible verdict, and that further delay would mean the accused had spent approximately three years in custody before a verdict (at [44]-[47]).

Issue 3: Consciousness of guilt evidence

The Crown sought to rely on three post-offending circumstances: (a) the phone being found on top of a kitchen cupboard, requiring a tall officer to stretch to retrieve it; (b) the SIM card having been removed before police seized the phone; and (c) the SIM card having been registered in another person's name rather than the accused's.

The court held that circumstances (a) and (b) were available to the Crown (at [55]-[56]). The placement of the phone in an unusual, hard-to-reach location supported an inference of concealment (at [55]). The removal of the SIM card was described as a classic example of post-offending conduct from which consciousness of guilt could be inferred, with sufficient evidence that the accused was the person who removed it (at [56]).

Circumstance (c) was rejected (at [57]-[59]). The court reasoned that directing a jury on this point would require them to engage in reasoning that conflicted irreconcilably with a tendency direction that would also be required if evidence of stolen property found in the accused's bedroom was admitted. The risk of juror confusion from those competing directions could not be satisfactorily resolved (at [58]-[59]).

Orders Made

  • Paragraph 20 of Sergeant Catto-Pitkin's report of 14 July 2022 is rejected.
  • The prosecution is directed to obtain a supplementary report from Sergeant Catto-Pitkin setting out, for each Google search in Table 3.1 of his report: (a) the time recorded by Google for the entry of the search term; and (b) the time he took to enter the same search terms during his examination.
  • The evidence of Mr Chang as contained in his report of 21 July 2022 and his oral testimony on the voir dire is admitted.
  • Circumstance (c) is rejected as a basis for the Crown to demonstrate consciousness of guilt.

Key Takeaways

  • Under the common law principles preserved by section 9 of the Evidence Act 1995 (NSW), results produced by a technical instrument are presumed accurate only where the instrument's reliability is generally accepted by experts in the relevant field. Where, as here, that acceptance is not established, the presumption does not arise, even if the instrument is otherwise shown to produce accurate results on the particular occasion (at [23]).

  • Section 79 of the Evidence Act requires an expert certificate to disclose the reasoning process connecting the expert's specialised knowledge to the opinion expressed. A failure to set out the underlying measurements or steps taken renders the certificate defective and the opinion inadmissible (at [28]).

  • Where an inference from underlying data is one a jury of ordinary persons can draw without expert assistance, an expert opinion on that inference goes beyond the confines of admissible expertise. The court found that whether a typed search term was entered manually rather than by automation was such a matter (at [27]).

  • Late service of expert evidence is not automatically fatal to admissibility. In balancing the prejudice to the accused against the interests of justice, the Supreme Court considered the purely forensic nature of the disadvantage, the centrality of the evidence, the absence of an adjournment application, and the length of time the accused had already spent in custody (at [44]-[47]).

  • Post-offending conduct relied upon as consciousness of guilt evidence must be capable of standing separately from any tendency reasoning the jury is simultaneously directed to apply. Where reliance on a particular circumstance would produce irreconcilable jury directions, the court may reject that circumstance even if it might otherwise be probative (at [57]-[59]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 9, 71, 79

Cases
- 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