R v Al Batat & Ors (No 6)

1. [1]

   This application to exclude evidence arises as a result of the blatant and contemptuous disregard of court orders on the part of police and (by extension) prosecuting authorities. It is representative of a systemic problem confronting the criminal justice system that needs to be addressed.

2. [2]

   Abdallah Al Batat is charged with two counts of attempted murder and one count of murder. [1] He is to stand trial with five other men. The proceedings have been case managed, first by the criminal list Judge and, from 27 March 2020, by me. A number of orders and directions have been made pursuant to Part 2, Division 3 of the Criminal Procedure Act 1986 (NSW). A pre-trial hearing commenced on 20 July 2020. In the course of the pre-trial hearing, less than one week before the trial proper was scheduled to commence, and when the Court was reserved and part-heard in a number of legal arguments, I was advised by the Senior Public Defender, who appears for Mr Al Batat that “a more significant problem has arisen”. That problem was that, in spite of orders directed specifically to the evidence concerning telephone records, the investigating police had served further material relating to a telephone allegedly used by Mr Al Batat in the days leading up to and including the date of the attempted murder subject of count 1 on the indictment. Unsurprisingly, Ms Rigg SC sought time to consider her position. She called on the Prosecutor to indicate whether he intended to rely on the records and to advise the parties how the new records fitted in with the schedules upon which all parties had understood the prosecution case was based in this respect.

3. [3]

   Over the following days, the Prosecutor and his solicitors (who I gather were as blindsided as everybody else by this development) worked assiduously to place the new evidence into the context of the Prosecution’s substantial “telephone” case. The Prosecutor indicated that he proposed to adduce the evidence and to incorporate it into the existing telephone schedules. Ms Rigg then indicated that she objected to the evidence pursuant to s 146(1) of the Criminal Procedure Act which provides:

4. [4]

   I cannot accede to that application for reasons I will explain. If there is a tone of exasperation to this judgment, it is because I am exasperated. The reasons for that exasperation will become apparent from what follows.

5. [5]

   On that note, I should say at the outset that nothing in these reasons should be taken as a criticism of the Prosecutor or the two solicitors who instruct him. It is quite clear that the problem is not attributable to them. It is equally clear that, like their colleagues at the bar table, they are grappling with a vast amount of material in a serious and difficult case. It seems they were not aware of the possibility that ongoing investigations were pending, that further evidence may be obtained, and of the potential for these things to derail the trial and interfere with Mr Al Batat’s preparation of the case. I have no doubt that if they were so aware they would have brought the issue to the attention of the Court and those appearing for Mr Al Batat.

Case management orders; or, an exercise in futility

1. [6]

   I understand the accused, or some of them, were subject to separate committal proceedings. Before their cases were committed for trial, the Local Court must have been told that the police brief was complete and had been served. Obviously it wasn’t or hadn’t been.

2. [7]

   An important aspect of modern law enforcement and investigation is the capacity of investigators to use a variety of electronic records to establish the whereabouts of an accused person, and their connection to other people, at relevant times. It is a common practice for police to obtain the call charge (and reverse call charge) records relating to particular accused or the telephones apparently connected with criminal offending. These records provide a great deal of relevant information. This includes when the telephone service was used, with whom it was used to communicate and, sometimes, the cell towers through which the communications passed. The telephone service is connected to a SIM card which is placed inside a telephone handset. The SIM card has a unique number, corresponding to the telephone number used by target of the investigation. SIM cards can be used in different mobile telephone handsets. Each handset has its own unique identifying number, known as an IMEI number. By reference to the call charge records and IMEI numbers, investigators can determine if different handsets have been used by the same service and, conversely, whether different SIM cards have been used within the same handsets.

3. [8]

   By analysing this information, connections can be made between handsets, telephone services and the targets of police investigations. Connections can also be established between services used by different people alleged to have been involved in joint criminal activities. The records maintained by the telecommunication companies can provide a range of information. This includes whether the communication is a call or a text message, the time and length of the communication, the subscriber of the service with which the target service connected, when the service connected to the internet and, with some limitations, the approximate location of the service when the communication was made.

4. [9]

   In this last respect, by reference to the telephone towers through which particular communications connected, inferences can be drawn as to the whereabouts of suspects at relevant times. These inferences are not watertight or fool proof. For one thing, the evidence does not allow for certainty as to which person was using the relevant handset or service at any particular time. If a handset is stolen by, or lent to another person, the inferences drawn from the cell tower evidence can be quite misleading. Another issue is that the service does not always connect through the closest cell tower. If one cell tower is busy, the service may connect through a tower some distance away. Also, the presences of buildings or mountains may block the radio waves and the service may connect through a different cell tower. If there is a large body of water nearby, the waves travel further and sometimes the cell tower through which a call connects is some considerable distance away. Usually, the telecommunications companies can provide maps and charts indicating the likely range of relevant cell towers.

5. [10]

   Investigators can also obtain information as to the names of the subscribers for particular telephone services, when those services commenced to operate, and where the service was first connected.

6. [11]

   Needless to say, those involved in organised criminal activity are well aware of the investigative techniques employed by modern police services and tailor their conduct accordingly. It is common for services to be set up in false names, for SIM cards to be used in different handsets, for SIM cards to be used for very short periods of time, and for perpetrators to use a number of different telephone services.

7. [12]

   In spite of the limitations of the evidence, it has become a common feature of criminal trials for the parties to use the various telephone records provided in an attempt to establish connections between relevant people and the movement of those people at various times.

8. [13]

   A problem with such evidence is that the records are not easily digestible or comprehensible in the absence of interpretation by somebody who understands them. Often, the records present to the ordinary reader as a sea of numbers occupying hundreds of pages. For that reason, the parties generally attempt to produce charts, tables and schedules culling the irrelevant material and presenting the information in an understandable format.

9. [14]

   In the present case, I am told there are around 5,500 pages of telephone records. [2] Senior Counsel for Mr Al Batat has, for many months, been attempting to have the Prosecution confine and articulate in clear and comprehensible terms what its case is in relation to the telephone records.

10. [15]

    By March of this year, the matter was being case managed by the criminal list Judge in this Court (Fullerton J). On 6 March 2020, her Honour made a series of case management orders. These included an order that the prosecution serve a schedule of movements relating to each of the accused, based inter alia, on the telephone records and the provision of:

11. [16]

    The matter was first listed before me on 27 March 2020. By that time Fullerton J had listed the matter for trial commencing 3 August 2020. While the Prosecution had done its best in the time available to comply with her Honour’s case management orders, a number of complaints were made as to the nature of that compliance. For example, Ms Rigg said:

12. [17]

    There were discussions about what was required to remedy the problem, what the accused could do by way of agreed facts or admissions to facilitate the process, and the case was adjourned for a week for further case management orders.

13. [18]

    On 3 April 2020, Ms Rigg was asked if the situation had in any way improved. She replied:

14. [19]

    A number of case management orders were made. [5] This included a requirement that each of the accused indicate by 20 May 2020 whether they admitted (i) their whereabouts at various times and (ii) their use of telephone services nominated by the prosecution. [6] As I understand it, the lawyers for the accused generally complied with these orders. I interpolate that the process was, in light of the recently served material, somewhat futile in Mr Al Batat’s case. The orders also required the Prosecution to serve “a list of all documents to be tendered by the prosecution” by 28 May 2020. While there was ostensible compliance with that direction, it is clear in retrospect the obligation was not fulfilled.

15. [20]

    The matter was back before the Court on 29 May 2020. In relation to the telephone evidence, the following exchange occurred:

16. [21]

    What is clear from this exchange is that (i) Senior Counsel for Mr Al Batat remained fastidious in ensuring that her client was in a position to know what the case against her client was in terms of the telephone evidence, (ii) the Prosecutor was satisfied that he could comply with the case management orders and that all relevant telephone services had been identified, and (iii) the investigating police were aware of, and involved in, the process.

17. [22]

    What seemed to be implicit in the exchange, and in the approach taken by Mr Al Batat from the moment the trial date was fixed, is that no further telephone services were being investigated. It was clear from everything that had been said to that point that Mr Al Batat’s readiness to proceed to trial was dependent on his lawyers being apprised of the telephone services that the Prosecution alleged that he was using or responsible for, and the inferences – such as his movements – that the Prosecution would ask the jury to draw from those records.

18. [23]

    What was conspicuously absent was any suggestion that the investigators believed or suspected that Mr Al Batat was using another telephone service or that there would be further investigations and analysis of the records before and during the trial. If the parties were aware of such ongoing investigations, the Court should have been told. At the very least, if the police and prosecuting authorities were conducting ongoing investigations, the accused should have been put on notice that the telephone evidence could potentially change.

19. [24]

    Further orders and directions were made on 29 May 2020. This included confirmation of the dates for the trial and pre-trial hearing and a case management order that “the Prosecutor is to serve any telephone evidence summary and or schedule, in the form proposed to be tendered at trial, on or before 3 July 2020”. The case was adjourned until 20 July 2020 for the commencement of the pre-trial hearing.

20. [25]

    When the pre-trial hearing commenced on 20 July 2020, nothing was said to indicate there may a problem in relation to disclosure of all relevant telephone evidence. Nor was anything said over the following five days as various witnesses gave evidence and a number of legal and evidentiary issues were canvassed.

21. [26]

    On 24 July 2020, I reserved judgment in relation to a number of issues and the case was adjourned until Wednesday, 29 July. It was on that day that Ms Rigg foreshadowed the current problem, having been made aware of it the previous day. She made the following submissions and application:

22. [27]

    The Prosecutor indicated that he only became aware of the material “yesterday”; that it seemed the matter had “slipped through the cracks”. He said the evidence concerned “potentially a very significant additional phone”. [9] It emerged that the telephone schedules were served on 3 July 2020 and re-served on 20 July 2020. I made the further order for disclosure sought by Mr Al Batat. [10]

23. [28]

    On Friday, 31 July 2020, the issue was not ready to proceed because the revised telephone schedules had not been provided until 5:00pm the day before. The argument was stood over until Wednesday, 5 August 2020. On that date the prosecution tendered a bundle of documents relevant to the issue (Exhibit VDE). [11] Other evidentiary issues were ventilated over the following days and judgment was reserved on a number of those issues. The telephone disclosure issue was mentioned next on Tuesday, 11 August 2020 and it emerged that still further material had been served on the parties by the investigating police officers:

24. [29]

    These exchanges emphasised the invidious position in which the parties were placed by the ongoing service, by metaphorical dump truck, of mountains of material beyond the 27 volumes I was told comprised the police brief when the matter was first before me in March. [13] It also showed that the Prosecution’s legal team, who are clearly understaffed and struggling with the enormity of their task, are not being kept apprised of the ongoing investigation and decisions being made by the investigators. The result is that they are unable to provide a filter to the material being served on the defence lawyers days and weeks after the trial was due to commence. This led to an application for orders that the police be prohibited from serving further material directly on the defence. [14] I made orders accordingly.

The evidence and submissions on the application

1. [30]

   The issue and argument was finally litigated in Court on Friday, 14 August 2020. In addition to the earlier bundle of documents (Exhibit VDE), the Prosecution tendered two telephone schedules updated to include the new number relied on (Exhibit VDM and Exhibit VDN). Mr Al Batat read an affidavit of his solicitor (MFI 47) which exhibited a substantial amount of material setting out the background to the application including correspondence between the parties about the issue of the telephone evidence (Exhibit VD10).

2. [31]

   Ms Rigg’s submissions emphasised the length to which she, and those who instruct her, went to ensure that they were and remain on top of the voluminous telephone material and the extraordinary amount of material in the brief, as well as the degree of unfairness in the continued service of material on the virtual eve of the trial and in patent breach of the case management orders. She stressed that the defence has proceeded on the basis that there are three telephone services that the Prosecutor attributed to her client (two of which are admittedly his) and the amount of work involved in adding to the complex matrix of electronic evidence a further (fourth) telephone service. She explained the nature of the investigations and cross-checking involved in further and unexpected preparation for the trial. It will be necessary for her and her instructing solicitor to cross-reference the new material with all relevant telephone services and hand-sets including those used by co-accused, witnesses and other relevant characters. There are 128 additional communications and each of these will have to be considered. It is also necessary to establish whether other people may have used the new service by reference to the IMEI (handset) numbers, telephone services operated by others and cell tower locations referred to in the call charge records already provided or disclosed. It is a very substantial task which will take many days of full-time work. And all of this work is to be undertaken while preparing to open the case to the jury and cross-examine important witnesses to be called in the first weeks of the trial.

3. [32]

   Ms Rigg also submitted that the evidence now proposed to be adduced is not just new evidence to be grappled with and considered, but that it also represents a change in the Prosecution case against Mr Al Batat. Hitherto, it has been the Prosecution case that he was using a service with a number 0416 457 697 at the relevant time. In the new evidence, that service appears to be communicating with the number the Prosecution now attributes to Mr Al Batat.

4. [33]

   Ms Rigg pointed to the fact that the late service of material, contrary to case management orders, is an endemic problem in both the Supreme and District Courts and that it is rare that Judges impose the sanction of disallowing the evidence. This provides little disincentive to police and prosecutors continuing to thumb their noses at the legislative and judicial timetables for full and proper disclosure. Adjourning proceedings and making costs orders has had little effect. This has added to the delays in trials which impact both on the particular accused persons but also others whose cases are waiting in the list. There have been issue papers prepared, and changes to practice notes have been foreshadowed. For this reason, she relies not only on the “unfair burden” on this accused and his lawyers but also on the salutary impact (deterrence) that disallowing the evidence may have. Police may then come to realise, if they are prevented from leading evidence that is served outside of the timetables set by trial Judges, that the Courts actually expect their orders and directions to be obeyed and that they will take drastic measures to ensure they are obeyed.

5. [34]

   Ms Rigg’s submissions are compelling and her understated and quietly expressed outrage well justified by the circumstances. Her concerns about this aspect of the case against her client have been stated in open Court since at least March of this year.

6. [35]

   The Prosecutor made equally compelling and accommodating submissions. He emphasised the potential significance of this evidence, a matter to which I will presently turn. He carefully took me through the evidence in Exhibits VDE, VDM and VDN to demonstrate how the relevant service can be connected to Mr Al Batat and the way it impacts on critical issues in the trial. His presentation allowed me to understand evidence that is otherwise both dense and somewhat confusing.

7. [36]

   The Prosecutor pointed to the alternative remedies provided for by the legislation and indicated he could not stand in the way of an adjournment of the trial if this was necessary to ensure that it was fair. While he could not indicate consent to bail, he said it was a matter that would be carefully considered. He relied on the seriousness of the allegations and the community interest in the relevant evidence being placed before the tribunal of fact to ensure that justice is done.

8. [37]

   What the Prosecutor did not say, perhaps out of decency and the feeling it may have involved delivering a cheap shot, was that the evidence altogether shows that Mr Al Batat was using a number of phone services, only one of which was registered in his own name. It is this fact that has led to complexity in investigating this aspect of the case.

The evidence and its relevance to the issues in the trial

1. [38]

   As I have said, until 28 July 2020 there were three telephone services that the Prosecution sought to establish were used by Mr Al Batat. There are now four. Two of those services are admitted by Mr Al Batat to be his. The four services are these:

2. [39]

   There are at least two ways in which the Prosecution seeks to associate this new service with Mr Al Batat:

3. [40]

   The relevance of the evidence relating to the #842 number is essentially twofold.

4. [41]

   First, it is expected that Mr Rivers, who is an informant witness criminally concerned in the events will give evidence that Mr Al Batat and another unnamed man conducted surveillance on Jun Jia (the target of both shootings) in the period leading up to 23 January 2017. That was the day of the first attempt on Mr Jia’s life. Mr Jia lived in the suburb of Turella. Call charge records suggest that the #842 service was used in the days leading up to the shooting and connected through cell towers near Turella.

5. [42]

   Second, the first shooting took place at or near the suburb of Earlwood. The records relating to the #842 service include entries suggesting the service was used at about the time of the shooting and connected through a cell tower proximate to Earlwood.

6. [43]

   Accordingly, the records have a capacity to provide support for Mr Rivers’ evidence that Mr Al Batat conducted surveillance of Mr Jia at or near the latter’s home in the days leading up to first shooting; and support for the prosecution case that Mr Al Batat was near the scene at about the time of the shooting on 23 January 2017.

7. [44]

   There are limitations on the force of this evidence. For one thing, at the time of the relevant entries, the #842 service was not inside the handset with the #165 IMEI number. The relevance of that IMEI number is merely to provide support for the proposition (or inference) that Mr Al Batat used the #842 service at another time. For another thing, there are a number of connections between the #842 service and the #697 service. Given that both of those services are said by the Prosecution to be used by Mr Al Batat, this presents a conundrum. It is unlikely that Mr Al Batat was calling or communicating with himself. The Prosecutor posited some possible explanations for this in the course of oral argument.

8. [45]

   Even allowing for those limitations and conundrums, the evidence is relevant and potentially very important.

Explanation for the late service of the material

1. [46]

   Exhibit VDE contains two statements from one of the police officers in charge of the investigation. It also includes a statement from a police intelligence analyst (Ms Vanderlight). Apart from oversight, no real explanation is provided for the delay in making the inquiries that related to the new #842 service.

2. [47]

   Ms Vanderlight says the number was of interest to the investigation as early as May 2018. Subscriber details were obtained from the telecommunications company in October 2018 and it was noted that the number had “multiple similar contacts as [Mr Al Batat’s] other mobile service [#925]”. Ms Vanderlight says she “suspected” service #842 was being used by Mr Al Batat. The records obtained in relation to service #842 only related to the period from 22 January 2017 (the connection date of that service and the #861 service).

3. [48]

   It seems therefore that police suspected from the middle of 2018 that service #842 was used by Mr Al Batat. In “a combined phone record document” prepared in March 2020, Ms Vanderlight labelled the number “possibly Abdullah Al Batat”. This document was provided to the Director of Public Prosecutions. This was at around the time the Court had ordered that schedules of phone records and movements should be served on the defence.

4. [49]

   Ms Vanderlight had a conversation with another police officer in July 2020, and further investigations were made into service #842. It was only then, essentially as the trial was about to commence, that police recognised that the service had been used with a relevant IMEI number on 21 January 2017. This information had not previously emerged because the record check conducted in 2018 commenced on 22 January 2017.

5. [50]

   While I accept that the lack of disclosure was not deliberate, it is clear from the statements of the police officers that the delay resulted from a failure to make thorough and complete investigations into service #842 in a timely fashion. This was in spite of the fact that the service was suspected to be associated with Mr Al Batat as early as the middle of 2018. It is also clear that the prosecuting authority was aware of the issue by at least March 2020 and no urgent requisition was made of the police.

6. [51]

   The result is that Mr Al Batat’s lawyers are taken by surprise on the eve of the trial.

Prejudice to Mr Al Batat

1. [52]

   The brief in the present matter is enormous, at least 27 volumes of material has been served on the legal teams for each of the accused. Complaint has been made since March 2020 that additional material has been served on an ad hoc basis and is not filtered by the prosecuting authority. The trial was due to commence on 3 August. However, because the 1-2 week estimate for the pre-trial hearing was inadequate and there are various arguments and judgments outstanding on the issues raised by the six accused, the empanelment of a jury has been postponed until Wednesday, 26 August 2020 at 2:00pm. Ms Rigg very properly acknowledged that she could deal with the new material, and make the necessary investigations, by that date. If that turns out not to be the case, it will be possible to empanel the jury next Wednesday and adjourn the trial so that opening statements will take place on (say) Monday, 31 August 2020.

2. [53]

   Ms Rigg did not suggest there was any further prejudice beyond the unreasonably onerous task cast upon her and her instructing solicitor as a result of the serious failure of disclosure.

Remedies, sending a message and other relevant considerations

1. [54]

   Even so, Ms Rigg submitted that the evidence should be excluded to send a message to police and prosecuting authorities that the case management orders made by the Courts are to be taken seriously and must be complied with. In view of the number of occasions when late service of material causes trials to be adjourned, and the apparent contempt with which such directions are treated, this is an attractive proposition.

2. [55]

   However, the reality is that the matter can be dealt with without prejudice to Mr Al Batat. The charges he faces are very grave and the relevant and admissible evidence should be before the jury in the absence of particularly compelling reasons.

3. [56]

   Another issue is the prospect that, if the evidence is excluded, the jury may be presented with a misleading picture. This is particularly so given the contact between the #842 service and the #697 service which, until last week, the Prosecution relied on as the service used by Mr Al Batat in the commission of the criminal enterprise. In the absence of the evidence relating to the #842 service, all parties in the trial would be forced to conduct the case on a quite artificial basis.

Conclusion

1. [57]

   For those reasons the application under s 146 of the Criminal Procedure Act 1984 (NSW) to exclude the telephone records is refused.