Sayadi v Regina

1. [1]

   PAYNE JA: I agree with Beech-Jones J.

2. [2]

   BEECH-JONES J: On 23 August 2018 the Appellant, Issam Sayadi, and four co-accused were arraigned before her Honour Judge Flannery DCJ and a jury of twelve on an indictment that contained four counts. The first count charged that, between 9 September 2016 and 13 September 2016, the Appellant and his four co-accused committed an offence under s 86(3) of the Crimes Act 1900, namely, that while acting in the company of other persons, they detained Cheung Pun Lok without his consent with intent to hold him to ransom and, at the time of detaining him, occasioned him actual bodily harm. Count 2 charged that, during the same period, the Appellant and his four co‑accused committed an offence under s 86(2)(a) of the Crimes Act of acting in company to detain another person, Ms Jing Min Zhou. Count 3 charged, that on 11 September 2016, the Appellant committed an offence under s 112(1)(a) of the Crimes Act of breaking, entering and stealing from Mr Cheung’s hotel room. Count 4 on the indictment did not concern the Appellant. It charged two of his co-accused with breaking and entering Ms Zhou’s unit.

3. [3]

   The Appellant pleaded not guilty to all three counts against him. On 15 October 2018 the jury found the Appellant guilty of counts 1 and 3. On 17 October 2018 he was found not guilty on count 2. On 15 March 2019 her Honour sentenced the Appellant to imprisonment for eight years and three months with a non-parole period of five years and six months.

4. [4]

   The Appellant now appeals his conviction on counts 1 and 3 pursuant to s 5(1) of the Criminal Appeal Act 1912. His notice of appeal raises four grounds although the basis upon which grounds 3 and 4 were maintained was far from clear. Each of those grounds of appeal is addressed separately below. The essence of grounds 1 and 2 is a complaint that the trial judge erred in allowing the Crown to call a further witness, being a Telstra engineer, Mr Borg, after the Crown Prosecutor had commenced his final address. To address that complaint and the individual grounds of appeal, it is necessary to briefly summarise the Crown case against the Appellant and his co‑offenders and then outline the course of the relevant events during the trial that led to the calling of Mr Borg.

The Crown Case

1. [5]

   On or about 9 September 2016 the victim, Mr Cheung, arrived in Australia. He intended to start a business related to overseas students studying in Australia. Prior to arriving he contacted an acquaintance Ms Zhou. Ms Zhou spoke to one of the Appellant’s co-accused, Mr Bekdache. Through Mr Bekdache, Ms Zhou arranged for Mr Cheung to meet an immigration agent at a restaurant in Blakehurst at 8.00pm on 10 September 2016.

2. [6]

   Just before 8.00pm, Ms Zhou collected Mr Cheung from Pyrmont and drove him towards Blakehurst. Ms Zhou phoned Mr Bekdache during the journey and told him that they were running late. At around 8.50pm, when Ms Zhou and Mr Cheung approached the restaurant, they found that its entrance was blocked by a white van. There was another van behind them. As Ms Zhou attempted to navigate her car around the white van, both she and Mr Cheung were taken from the car by men wearing what Mr Cheung described as balaclavas and Ms Zhou described as hats pulled over their faces. They were dragged into the white van and their hands were bound. In his opening address, the Crown Prosecutor stated that the effect of evidence from various witnesses was that they were thrown into a white Mercedes‑Benz van and driven in a convoy consisting of that vehicle, a black Toyota Hilux, Ms Zhou’s vehicle, a Subaru vehicle and a “Toyota HiAce van”, that the Crown alleged was in the Appellant’s possession.

3. [7]

   According to the trial judge in her sentencing judgement “over the next 39 hours, [Mr Cheung] was taken to three locations, a shed; a unit [occupied by one of the co-accused]; a factory and then back to the unit”. At each location money was demanded from him and he was subject to physical abuse when he said he did not have any including being hit, having a gun pointed at this head, an electrical drill touched to his skin and petrol poured over him accompanied by threats to light it.

4. [8]

   At about 11.45am on 12 September 2016 the police attended at a unit in Bankstown. Mr Bekdache and another co-accused Mr Karas gave themselves up. The police found Mr Cheung with cable ties on his right wrist and duct tape around his ankles. He was found to have “cuts to the back of his head, his face and his hands and drill marks on his face and cheek”.

5. [9]

   In relation to count 3, Mr Cheung left his luggage and some currency in his hotel room prior to travelling to Blakehurst. The Crown tendered CCTV footage of the Appellant entering the foyer of the hotel at around 4pm on 11 September 2016 with no luggage and leaving the foyer shortly afterwards carrying Mr Cheung’s luggage. In his evidence the Appellant accepted that he entered the room and removed the items but said that he (mistakenly) thought he was removing Mr Bekdache’s property.

6. [10]

   In relation to count 1, the Crown case against the Appellant and his co‑accused was circumstantial. In her summing up to the jury, the trial judge identified the circumstances relied on by the Crown to prove its case against the Appellant as including: telephone contact between him and Mr Bekdache immediately prior to and just after the kidnapping in circumstances where the Appellant’s phone was “served by” a mobile phone base station (or cell tower) near to the kidnap location; telephone messages between the Appellant and another co‑accused, Mr Banat; the Appellant’s use of a “distinctive HiAce van” which was said to be involved in the kidnapping on 10 September 2016 and the transporting of Mr Cheung on 11 September 2016; the showing to Mr Cheung of his luggage on 11 September 2016 that had been taken from his hotel room by the Appellant; the presence of the “HiAce van” across the road from where Mr Cheung was detained and the Appellant’s departure from Australia to Turkey on 13 September 2016. The significance of the phrase “served by” in relation to the connection between a mobile phone and a base station as used by the trial judge in a direction given by her Honour in relation to that topic is addressed below. The Appellant denied that he was involved in the kidnapping or that his van was in the convoy.

7. [11]

   In the sentencing judgment, her Honour found that the Appellant was “one of the people involved in the initial detention of Mr Cheung” outside the restaurant at Blakehurst. While her Honour was not satisfied beyond reasonable doubt that the Appellant was present “at the shed or later at the factory’ when Mr Cheung was verbally abused, her Honour was satisfied that he entered one of the units where Mr Cheung was detained carrying Mr Cheung’s luggage.

8. [12]

   For the sake of completeness, I note that all of the Appellant’s co-accused were found not guilty in relation to count 2 which concerned the alleged kidnapping of Ms Zhou. There was an issue at the trial as to whether she was a participant in the criminal enterprise or a victim of it.

The Crown Opening and Evidence

1. [13]

   On 23 August 2018, the Appellant and his alleged co‑offenders were arraigned. The Crown Prosecutor then opened the Crown case. The Crown Prosecutor told the jury about the events of 10 September 2016. The Crown Prosecutor referred to phone calls between Mr Bekdache and Ms Zhou as well as between Mr Sayadi and Mr Bekdache. Thus, the Crown Prosecutor stated:

2. [14]

   These references to the location of the mobile phone and cell towers were potentially ambiguous. As the balance of this judgment makes clear, the Crown Prosecutor conducted the case on the basis that the evidence established that a particular phone connected to a cell tower at a particular location, but did not demonstrate precisely where the phone was located. Hence, in the first extract the Crown Prosecutor clarified that the relevant location referred to the cell tower and not to the phone. In the second extract, the Crown Prosecutor referred to the mobile phone being “located in a cell tower”. This was probably meant to be a reference to the same concept, although it was not clearly expressed. In the third extract the Crown Prosecutor referred to the phone being “in the Bankstown area”. In the end result the evidence that was adduced at the trial was capable of supporting that statement.

3. [15]

   Towards the end of the Crown case, the Crown Prosecutor called the officer in charge, Detective Sergeant Ferns. Detective Sergeant Ferns was shown a document that became Exhibit 56. It was a schedule of phone records between 10 September 2016 and 12 September 2016. Detective Sergeant Ferns gave the following evidence without objection, as follows:

4. [16]

   The schedule was then tendered without objection. Exhibit 56 contained nine columns. Detective Sergeant Ferns explained that the columns set out information concerning the time and date of calls and SMS messages between mobile phones associated with the persons just noted. The sixth column was described as the “A location”. Detective Sergeant Ferns explained:

5. [17]

   Detective Sergeant Ferns then explained that the next column was the mobile number of the receiver and the eighth column was the name attributed to that receiver. The ninth and last column was also a listed location. Detective Sergeant Ferns stated that was “the cell tower for the B party or the receiver”.

6. [18]

   Exhibit 56 contained four entries relevant to the Appellant as follows:

7. [19]

   Detective Ferns was then shown a document that became Exhibit 57. It contained one relevant entry as follows:

8. [20]

   In relation to the phone number listed against the Appellant, Detective Sergeant Ferns stated, without objection, “that’s Issam Sayadi’s phone”. The transcript then records as follows:

9. [21]

   The Crown Prosecutor then showed Detective Sergeant Ferns another document in similar format to Exhibit 57. It purported to show that a phone number associated with the Appellant made a call at 4.10:06pm on 11 September 2016. This document was tendered without objection as Exhibit 58. The document listed an “A” location at Pyrmont Casino. Detective Sergeant Ferns was asked as follows:

10. [22]

    The Crown Prosecutor then tendered through Detective Sergeant Ferns a document that was admitted, without objection, and became Exhibit 59. This was a map of the various cell tower locations said to be of interest to the investigation. The map showed that the location of the cell towers for Blakehurst, Blakehurst Princes Highway and Sylvania were relatively close to each other and to the restaurant at Blakehurst that was the site of Mr Cheung’s kidnapping.

11. [23]

    Detective Sergeant Ferns completed his evidence on 17 September 2019. The Crown then called Mr Rupinder Malhi, a technical consultant employed by Vodafone. He stated that he had specialised knowledge in relation to calls to and from cell towers. In his evidence‑in‑chief, Mr Malhi was asked and answered as follows:

12. [24]

    Mr Malhi explained that cell towers are either owned by a particular telecommunication provided or shared between them. He said that call information, including the numbers and time and the cell tower to which they connect, is recorded by call charge records (known as “CCRs”).

13. [25]

    Under cross-examination by (trial) counsel for the Appellant, Mr Malhi said the coverage map to which he referred in the above extract could be prepared using specialist software and CCRs, although he had not undertaken that process. He was taken to Exhibit 57 and shown a further document that indicated that the relevant carrier for the telephone number associated with the Appellant was Telstra. Mr Malhi said he did not have expertise with Telstra records. The cross-examination continued on the “hypothetical” that the Vodafone call charge records were to be treated in the same way as the Telstra records. Mr Malhi was asked, and answered as follows:

14. [26]

    Mr Malhi was cross-examined by counsel for one of the co‑accused on the same topic. He was asked:

15. [27]

    After Mr Malhi finished his evidence, the Crown Prosecutor noted, correctly, that in the exhibits there was a reference to the cell towers being at certain locations. The Crown Prosecutor stated that he did not understand their location to be an issue when they were tendered, but said that he now understand it was in issue based on this cross-examination of Mr Malhi by counsel for the Appellant. The Crown Prosecutor explained his position as follows:

16. [28]

    The trial judge then asked of counsel for the Appellant “Is it an issue …”. Counsel for the Appellant said that “[i]t is …” and then recounted the history of the calling of Mr Malhi. Counsel for the Appellant stated that, based on a recent conference that he had with Mr Malhi, and his cross-examination, it had become clear that Mr Malhi has no experience in relation to Telstra records. He submitted that “[t]hat is a problem for the Crown”. Counsel for the Appellant also noted that Mr Malhi had not been asked to prepare coverage maps other than for a cell tower near Hurstville which was not relevant to the Appellant.

17. [29]

    It is important to note that the issue identified by the Crown Prosecutor at this point was whether Exhibits 56 and 57 properly reflected the effect of Telstra CCRs for mobiles that charged to the Telstra network such as Mr Sayadi’s, especially the references in those exhibits to the A locations and the B locations as the cell towers to which the relevant mobile connected to. The combination of Exhibits 56 to 57 and the evidence of Detective Sergeant Ferns and Mr Malhi, demonstrated that, so far as the Vodafone CCRs were concerned, the relevant mobile phones connected to the corresponding cell tower at the stated time. In the above passage the Crown Prosecutor simply indicated that, until Mr Malhi’s cross‑examination, he did not anticipate that there was some dispute about that matter, ie that the locations listed in Exhibits 56 and 57 specified the cell tower that the relevant mobile phone connected to. Given the lack of objection to Exhibits 56 and 57 and the evidence of Detective Sergeant Fern then there was also some evidence supporting the position so far as Telstra was concerned.

18. [30]

    To the extent that counsel for the Appellant was putting in issue the matter raised by the Crown Prosecutor, namely, “that the calls [listed in Exhibit 56 and 57] went to a specific cell tower”, then it was a significant change in his position. As noted, he previously did not object to the tender of Exhibits 56 and 57 or to the evidence of Detective Sergeant Ferns set out in the passage at [16] above. Otherwise, it seems that counsel for the Appellant had a different, or at least a further, concern namely that the Crown Prosecutor would attempt to rely on the body of evidence that was led concerning the connection between a mobile phone and a cell tower in support of a submission concerning the location of the mobile handset without tendering coverage maps. The evidence that was led, especially Mr Malhi’s evidence, was capable of supporting a submission that it was “highly likely” or probable that the mobile was in the general area of the cell tower that it connected to. However, it was not capable of supporting a submission that the relevant phone was at a particular location.

19. [31]

    Overnight the Crown advised the parties that it proposed to call a witness from Telstra, Mr Gelfe. When the trial recommenced the following day, 18 September 2018, counsel for the Appellant submitted Mr Gelfe lacked the relevant expertise to give the anticipated evidence. During the course of the debate over the admission of his evidence, the Crown Prosecutor reiterated that the evidence he was seeking to adduce was only to establish that a “particular phone call was registered to a [particular] base station” in a cell tower, but he was otherwise “not seeking in the Crown case to identify where in the radius of a 360 degree of the cell tower a particular phone call emanated from”. Bearing in mind the limits of Mr Gelfe’s qualifications, her Honour refused to allow him to be called by the Crown Prosecutor to establish even the former. Instead, he gave evidence before the jury on an unrelated point. The Crown then closed its case.

The Appellant’s Case and the Crown Prosecutor’s Closing Address

1. [32]

   The case for each accused commenced on 18 September 2018. Only the Appellant and one of his co‑accused gave evidence. During the cross‑examination of the Appellant he was asked whether at 7.47pm on 10 September 2016 his phone was in the Blakehurst area. The Appellant’s counsel objected to the question. The Crown Prosecutor rephrased the question and suggested to him that his phone was “registered at a tower in Blakehurst”. Thereafter, during the cross examination the Crown Prosecutor suggested to him that his phone was “recorded at” a particular cell tower at a particular point in time.

2. [33]

   The submissions in this Court on behalf of the Appellant contended that these questions were “put to the accused without a proper evidentiary foundation and contrary to repeated assurances from the learned Crown that the locations and areas could be put only in terms of merely possibility and no higher”. This contention is misconceived. No objection was or could have been made to the Crown Prosecutor putting questions to the Appellant on the basis that his phone was recorded at a particular cell tower. Such a suggestion was supported by the exhibits and the evidence of Detective Sergeant Ferns that was admitted without objection. The questions were consistent with the statements made by the Crown Prosecutor noted at [31].

3. [34]

   On 20 September 2018, the Crown Prosecutor commenced his closing address. It is necessary to set out parts of that address to illustrate what the Crown Prosecutor submitted to the jury in respect of the entries concerning mobile phones and cell towers:

4. [35]

   The written submissions in support of the appeal contended that the reference to a “coincidence” in this part of the Crown Prosecutor’s address amounted to an improper reliance on “coincidence reasoning” without notice having been given under s 98 of the Evidence Act 1995 or a ruling permitting the use of coincidence evidence having been obtained. This complaint was not the subject of any ground of appeal. In any event, it is misconceived. Just because the Crown Prosecutor used the phrase “coincidence” does not mean that it was an appeal to the form of reasoning described in s 98. The form of reasoning described in s 98 is that which suggests that the likelihood of two or more events coincidentally was improbable “having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred” (s 98; R v MR [2013] NSWCCA 236 at [64]). Nothing in the Crown Prosecutor’s address deployed any reliance on the improbability of two more events occurring having regard to their similarities. Instead, the Crown Prosecutor only submitted that the combination of various circumstances connecting the Appellant to the kidnapping of Mr Cheung was no coincidence. It was not suggested that there were any similarities in those circumstances.

5. [36]

   The above portion of the Crown Prosecutor’s address prompted a complaint by counsel for the Appellant to the trial judge about the absence of any expert evidence from a Telstra witness. Counsel also complained that the Crown Prosecutor was relying on the evidence about mobile phones connecting to cell towers as suggestive of the location of the mobile phone even though no coverage maps had been tendered. This led to a lengthy debate in the absence of the jury about the effect of Mr Malhi’s evidence. The trial judge recounted her understanding that Mr Malhi had stated that “it’s highly likely that the phone is in the area served by the relevant tower, but to get to the particular location he needs to do [a] coverage map”. This represents a correct understanding of his evidence set out above.

6. [37]

   In his submissions to the jury, the Crown Prosecutor did not expressly invite the jury to treat evidence that a particular mobile phone connected to a particular cell tower as evidence that the mobile phone was “at” that cell tower. Instead, the Crown Prosecutor repeatedly reminded the jury in words to the effect that the mobile phone had connected to a particular cell tower and then reminded the jury of other evidence pointing to the location of the Appellant or his co‑accused. However, it was implicit in the Crown Prosecutor’s submission that the jury could use the fact that a particular accused’s mobile phone connected to a particular cell tower as some evidence that the mobile phone was in the general location represented by that cell tower. To the extent that the Crown prosecutor did so, this was clearly open on the evidence.

7. [38]

   The matter adjourned. The following day, Friday 21 September 2018, the trial judge ruled as follows:

8. [39]

   Counsel for the Appellant then told the trial judge that he would not make “any further submissions about the Crown address in relation to the evidence”. However, he submitted that the Crown Prosecutor should at least clarify the references to the mobile phone being located at, or connected to, a particular cell tower. The Crown Prosecutor then resumed his address and stated as follows:

9. [40]

   The Crown Prosecutor’s address did not conclude that day and the proceedings were adjourned to Monday, 24 September 2018.

The “Applications”

1. [41]

   When proceedings resumed on 24 September 2018, and in the absence of the jury, counsel for the Appellant advised the trial judge that “I have an application”. He submitted that there had been an “impermissible closing address by the Crown”. He referred to aspects of the submissions and evidence concerning the mobile phone evidence and stated “I have instructions [to apply] for a discharge of [the] jury in relation to Mr Sayadi”. Counsel continued his submissions making reference to various decisions in which evidence of coverage area of a particular tower had been adduced such as Olivieri v R [2016] NSWCCA 169. Counsel contended that there had been a “misunderstanding of the interpretation of cell tower evidence” and in particular whether one could use the evidence that had been adduced of the “user of the phone being at the location at the time of the call”. Counsel then concluded this part of his submissions stating as follows:

2. [42]

   It can be seen from this extract that, what may have started out as an application to discharge the jury, did not end up that way. Instead, counsel confirmed that his application “at the moment” was not for a discharge of the jury, but was instead for a redaction of Exhibits 56 and 57 and for the retraction by the Crown Prosecutor of any reference in his closing submissions to mobile phones and cell tower locations.

3. [43]

   The submissions continued during which the trial judge pointed out that Exhibits 56 and 57 were admitted by consent and that the appropriate time to raise an issue about the Crown’s opening was shortly after it occurred. In relation to the application for the redaction of the exhibits and directing the Crown Prosecutor to withdraw a submission, the trial judge stated, “I don’t propose to change what I said the other day … on Friday morning”. This was a reference to the ruling noted at [38] above.

4. [44]

   Counsel for the Appellant continued his submissions and focused upon the absence of evidence of the meaning of Telstra call charge records. At one point he reiterated the application noted above at [41] stating “[w]e are now looking at whether under s 136 if we can look at the limitations” and “[n]ow I’m asking for limitations on evidence and my primary submission is it is a blank”. The “evidence” to which counsel is referring in this passage is exhibits 56 and 57 and the evidence of Detective Sergeant Ferns described above.

5. [45]

   The Crown Prosecutor advised the trial judge that Telstra had advised the Crown that they had not undertaken an analysis which would determine where within the coverage area of a cell tower a mobile phone might be located. The Crown Prosecutor referred to evidence that could potentially be obtained from Mr Borg. The Crown Prosecutor confirmed that it did not concern the location of the mobile handset within a particular coverage area. In the absence of the jury, and just prior to the adjournment of the proceedings at the end of the day, the following exchange occurred:

6. [46]

   After a short adjournment the Crown Prosecutor advised the Court that Mr Borg was available to attend to give evidence the following morning. Counsel for the Appellant requested a witness statement. There was a debate about what material should be given to Mr Borg with the Crown suggesting that it be confined to Exhibits 56 and 57, whereas counsel for the Appellant submitted he should be given access to the CCRs. Counsel for the Appellant stated that, if there was material he wanted Mr Borg to consider, he would provide it to the Crown.

7. [47]

   The proceedings resumed the next morning, 25 September 2018. Counsel for the Appellant noted that he had received a statement from Mr Borg the previous afternoon. However, contrary to the impression given the previous day, counsel for the Appellant now said that he opposed the adducing of evidence from Mr Borg. He submitted “[t]he Crown needs to now make an application to reopen his case and justify how that can happen and why when the Crown anticipated this a week ago on Tuesday”.

8. [48]

   The trial judge observed that, if counsel for the Appellant had not indicated the previous afternoon that the witness should be called, her Honour would not have adjourned the trial. Thereafter, further debate ensued and eventually her Honour stated, “I propose to allow the Crown to split his case … in the circumstances of the way this issue has developed”. The trial judge attempted to describe those circumstances until she was cut off by counsel for the Appellant. Her Honour stated as follows:

9. [49]

   The reference to “the position I had on Friday morning” is to the ruling set out at [38].

Mr Borg’s Evidence and the Rest of the Addresses

1. [50]

   Later on 25 September 2019, Mr Borg gave evidence on a voir dire in the absence of the jury. At the conclusion of his evidence there was a debate about the appropriate phrase the Crown Prosecutor should use in describing the location of a cell tower to which a mobile handset connected. Counsel for the Appellant submitted that the Crown Prosecutor should use the phrase that Mr Borg adopted in his evidence on the voir dire, namely, that a particular mobile phone “was served by” a particular cell tower.

2. [51]

   Eventually the jury returned to the courtroom. The trial judge told the jury that an issue had arisen about the use that could be made of telephone records and that her Honour had decided that Mr Borg should give evidence so that “more information can be given to you about what use you can make of those records”.

3. [52]

   Mr Borg was then called. His evidence‑in‑chief was brief. He said he was an engineer employed by Telstra. He described the information that was contained in CCRs in a manner identical to what had previously been stated by Mr Melhi in relation to Vodafone. Like Mr Melhi’s explanation for the Vodafone network, Mr Borg explained that a “mobile phone looks for the strongest signal and basically this is the main deciding factor as to what mobile base station it connects to”.

4. [53]

   Counsel for the Appellant then cross‑examined Mr Borg. He took up the theme of the connection between the location of the phone and the location of the cell tower that it connects to. At one point in the cross‑examination, Mr Borg was asked and answered as follows:

5. [54]

   This passage in Mr Borg’s evidence was more than sufficient to support so much of the Crown Prosecutor’s address that implied that the fact that a particular mobile phone connected to a particular cell tower was some evidence of the general location in which the phone was located.

6. [55]

   Following the conclusion of Mr Borg’s evidence, the Crown Prosecutor sought to tender the underlying CCRs which supported Exhibits 56 and 57. This application was rejected by the trial judge.

7. [56]

   At last the Crown Prosecutor was able to complete his address. At various points in the balance of the address, when the Crown Prosecutor referred to a mobile phone handset connecting to a base station, he used the terminology that had emerged out of the exchange noted above, namely, that a mobile handset was “served by” a particular base station or cell tower.

8. [57]

   During his address to the jury, counsel for the Appellant made reference to Mr Borg’s evidence. Counsel contended that the evidence about coverage was “so important it actually blows away a lot of the Crown submissions about people being located at various times with their phone”. Counsel also submitted:

The Summing Up

1. [58]

   In her summing up the trial judge gave the jury an expert evidence direction in relation to the evidence of, inter alia, Messrs Malhi, Gelfe and Borg. Her Honour then gave the jury the following direction:

2. [59]

   No issue was taken with this direction by the Crown Prosecutor or counsel for any of the accused including counsel for the Appellant. With respect to the trial judge, it represents a completely accurate summary of the evidence concerning the connection between the location of a mobile phone and the location of a cell tower that it connects to. The emphasised passages are consistent with the limited use the Crown Prosecutor made of that evidence in his submissions, namely, as some evidentiary support for ascertaining the general location of persons associated with a particular phone including the Appellant.

Grounds 1 and 2: Allowing the Crown to Reopen

1. [60]

   Grounds 1 and 2 of the Notice of Appeal contend that the trial judge erred as follows:

2. [61]

   There is a “general rule” governing a criminal trial to the effect that “the prosecution must offer all its proof before the accused is called on to make his or her defence” (The Queen v Soma (2003) 212 CLR 299; [2003] HCA 13 at [29] per Gleeson CJ, Gummow, Kirby and Hayne JJ; “Soma”). In Shaw v The Queen (1952) 85 CLR 365; [1952] HCA 18 it was observed (at 380) that, although “[i]t seems to us unsafe to adopt a rigid formula [as to when the Crown may reopen its case] in view of the almost infinite variety of difficulties that may arise at a criminal trial”, nevertheless “[i]t is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case ..”. The “general rule” is not a rule of substantive law but is instead a “matter of practice and procedure” (Soma at [28]). Its application is determined by considerations of fairness (The Queen v Chin (1985) 157 CLR 671 at 685 to 686 per Dawson J [1985] HCA 35; “Chin”; R v O’Driscoll (2003) 57 NSWLR 416 at 433; [2003] NSWCCA 166 per Spigelman CJ; “O’Driscoll”). An assessment of unfairness or prejudice depends on the circumstances of the particular trial and “[i]t is pertinent to consider the reasons why the Crown did not adduce the evidence in its own case” (O’Driscoll ibid). Hence, in Chin at 685, Dawson J observed that “[t]here is also authority for the proposition that the prosecution may be permitted to reopen its case to repair omissions of a formal, technical or non-contentious nature”.

3. [62]

   Neither the Appellant’s grounds of appeal nor the submissions identify whether it is contended that the trial judge made a wrong decision on any “question of law” or that there was otherwise a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912. I will treat grounds 1 and 2 as invoking both limbs (see O’Driscoll at 433 per Spigelman CJ).

4. [63]

   In allowing the Crown to reopen, the trial judge referred to the reasons that her Honour gave on “Friday morning” (see [48]). This was a reference to the ruling set out at [38]. In effect, her Honour found that the Crown Prosecutor tendered exhibits and adduced evidence from Detective Sergeant Ferns about the connection between mobile phone handsets and cell tower locations without objection, but on the understanding that an expert would be called to allow cross‑examination about the significance of the evidence to any assessment of the location of the mobile phone that made the relevant call. As events transpired, counsel for the Appellant seized upon the expert’s lack of familiarity with Telstra records to cast doubt about the admissibility of the evidence that had already been adduced without objection rather than its scope. Her Honour allowed the Crown to split its case to respond to those events. Nothing in the trial judge’s approach reveals an error of law or misapplication of principle.

5. [64]

   Further, when regard is also had to the uncontroversial nature of the evidence that was in fact lead in chief from Mr Borg, no miscarriage of justice has been demonstrated. Mr Borg’s evidence in chief was only directed to confirming that, at a high level of generality, the means by which a mobile phone on the Telstra network connects to a cell tower was the same as how a mobile phone on the Vodafone network connects to a cell tower. His evidence‑in‑chief was truly “technical” and “non-contentious” (Chin at 685). Mr Borg’s evidence‑in‑chief did not concern the relationship between the location of a mobile phone and the cell tower to which it locates. Evidence to that effect from him was only adduced by counsel for the Appellant in cross‑examination (see [53]).

6. [65]

   At the hearing of this appeal, counsel for the Appellant conceded that the evidence that was adduced by the Crown in response to the granting of leave to call Mr Borg was not “different in any real way, to the evidence of Mr Gelfe or the evidence of Mr Malhi”. It was nevertheless contended that the “real unfair prejudice … [was] … the extent to which a jury gave undue weight” to the evidence. Given the terms of her Honour’s direction which was not the subject of complaint, that contention has no substance.

7. [66]

   Neither of grounds 1 and 2 raises a question of law “alone”. Instead, leave to raise them is required (Criminal Appeal Act; s 5(1)(b)). I propose that leave to raise these grounds be granted but they be dismissed.

Ground 3: Alleged failure to limit the use of the evidence

1. [67]

   Ground 3 of the Notice of Appeal contends that the trial judge erred in:

2. [68]

   The written submissions filed on behalf of the Appellant did not mention this ground. At the commencement of the hearing of this appeal, counsel for the Appellant stated that this ground referred to an alleged failure by the trial judge to limit the use that could have been made of Mr Borg’s evidence “to anything more than the limited possibility that [the Appellant’s] handset may have been in the coverage area”. Counsel accepted that no application to the effect was made to the trial judge and conceded that this ground rose no higher than grounds 1 and 2 of the appeal. It follows that, if the matter was left there, this ground would suffer the same fate as grounds 1 and 2. In any event, given the absence of any application to the trial judge to limit Mr Borg’s evidence and the direction that her Honour gave, there is no basis for concluding that there was any miscarriage of justice arising from some failure to limit the use that could be made of Mr Borg’s evidence.

3. [69]

   However, later in his oral submissions counsel for the Appellant identified the reference to s 136 of the Evidence Act in the passage noted at [44] above as the basis for this ground of appeal. That reference is an echo of the submission made to the trial judge set out at [41]. It does not concern Mr Borg’s evidence but instead concerns the Appellant’s attempts to redact or limit the use of Exhibits 56 and 57 as well as the oral evidence of Detective Sergeant Ferns; evidence that was led without objection. The trial judge rejected any application to retrospectively redact or limit that evidence in the ruling noted at [43], which in turn invoked the ruling set out at [38]. There was no error in her Honour’s approach. Before the trial judge, the only real prejudice that counsel for the Appellant identified as arising from that evidence arose from the point he raised in cross‑examination with Mr Melhi about the latter’s inability to discuss Telstra CCRs. Ironically, the trial judge, with initial encouragement from counsel for the Appellant, sought to address that by having Mr Borg called only to have counsel for the Appellant reverse his position and oppose that course the next day (see [47]). Given the course of events, the limited evidence that was led from Mr Borg by the Crown and the direction given by the trial judge, no miscarriage of justice was occasioned by the trial judge not redacting or limiting the use that could be made of Exhibits 56 and 57 or the evidence of Detective Sergeant Ferns.

4. [70]

   Ground 3 does not raise a question of law “alone” and thus leave to raise it is required. I propose that leave to raise this ground be granted but the ground be dismissed.

Ground 4: Alleged failure to discharge the jury

1. [71]

   Ground 4 of the notice of appeal states that the trial judge erred in “[f]ail[ing to decide the application of Mr Sayadi for a discharge of the jury”.

2. [72]

   The written submissions in support of the appeal did not address this ground. In any event, it is without substance. The application by counsel for the Appellant to discharge the jury was ultimately not pressed. Instead, it was replaced by the application to redact or limit Exhibits 56 and 57 (see [41]). Given that the ground is only directed to an alleged failure to decide an application for a discharge, it follows that the ground is untenable if no such application was in fact pursued.

3. [73]

   This ground does not raise a question of law “alone” and thus leave to raise it is required. I propose that leave to raise this ground be refused.

Proposed Orders

1. [74]

   Accordingly, the orders I propose are:

2. [75]

   N ADAMS J: I agree with the orders proposed by Beech-Jones J for the reasons provided by him.