Mohammed Ali v Attorney General of NSW

Execution of search warrants and arrest of accused after detailed investigation

1. On 25 February 2015, following a detailed investigation which included intercepting relevant telephone services for over two months, police executed a search warrant at a two-bedroom Rockdale unit where the applicant was found sleeping. There was no one else in the unit. In pockets of a pair of jeans on the floor of the room in which he slept were two mobile phones and a wallet. One phone was a black Samsung handset (IMEI number ending in 500) in which a SIM card for number 0423893836 ('the 836 number') was contained. The other was an iPhone in which a number ending in 524 ('the 524 number') was used. The wallet contained a NSW Proof of Age card with a photograph, and St George and Commonwealth Bank debit cards, in the applicant's name. A red Adidas t-shirt was found in the same room.
2. Also on the floor were more than 30 mobile phones, with numbers and names taped to the back of them, and forms of identification in different names. Identification documents in the applicant's name were also found during the search. Incomplete identification documents were found. Driver's licences with photographs of Tanveer Hussein and Salah Mohamad Uddin on them, but in other names, were found. [2] Documents such as requests to redirect mail in other names were found.
3. The Crown tendered 22 minutes of footage from the execution of the search warrant, including 10 minutes in which the applicant spoke with police. The applicant was arrested and charged on this date. The owner of the unit was not suggested to be connected with the investigation and police had difficulty in ascertaining the true identity of the person who leased it from her because of the use of apparently false names.
4. A search warrant was executed at the premises of Mr Di Anh Nguyen and his wife Ms Thi Ngoc Hung Huynh on the same day. These people were not co-accused and there was no evidence adduced as to their status in terms of charge or conviction, but they featured in the case. Police located semi-completed driver licence templates on a computer, about 500 blank card stock, unused foil (for use in a tipping machine to arrange letters on cards such as Medicare cards) and magnetic strips (as used on the back of credit cards). There were multiple card printers and an encoder capable of inserting data onto the magnetic strips of cards for security purposes. Police located holograms (of the type used in NSW licences), UV light, and a laminating machine.
5. Also conducted on the same day was a search of the Lakemba premises occupied by Mr Tanveer Hussein. He was not a co-accused and there was no evidence adduced as to his status in terms of charge or conviction, but he featured in the case. Police located the handset used in connection with the communications recorded in Exhibit A. Photographs of Mr Salah Uddin and Mr (Sheik Mohammed) Dawood Quadry (both of whom had been arrested using false identities) were located. Mobile telephones with names of relevance to the counts on the indictment taped to the back of them were located. Medicare cards and driver's licences with photographs of Mr Uddin and Mr Quadry (but different names) were located. A Medicare card and credit card with a name relating to a count in the indictment, but Mr Hussein's photograph, was found.

The basis of the charges - intercepted conversations and draft emails

1. The Crown case was based primarily on 40 recorded conversations in which English was spoken, and the applicant was an alleged participant. Most of these were directly probative of the counts on the indictment and I will sometimes refer to these as the incriminating calls. Some were relied upon as circumstantial evidence to indirectly prove the Crown case that it was the applicant speaking in the incriminating calls and I will sometimes refer to these as the identification calls. These 40 conversations were played to the jury over three days, with the assistance of transcripts marked for identification. I will address them in more detail shortly, but firstly introduce the two relevant telephone services.
2. Of significant relevance to the investigation was the 836 number. This was subscribed in the name Omar Malik, for whom police found no records on state or federal police systems, the Roads and Maritime system, or with the Department of Immigration. The 836 number was used in one handset with an IMEI number ending in 800 during the initial part of the investigation period. From 5 January 2014 it was used in a different handset with an IMEI number ending in 500. This was the black Samsung phone found in the jeans on the floor where the applicant was asleep on the date of his arrest.
3. The 524 number was also important for identification purposes, but not used to make incriminatory phone calls. It was associated with an iPhone found at the same time in the pair of jeans.
4. Six of the counts were based on recorded conversations in which the applicant is alleged to be captured committing the offence. For example in relation to counts 1 and 2 it was alleged that the applicant was the person recorded in the exhibits speaking to Westpac Bank employees on the same date in late 2014 and identifying himself as Yassim Kabala (count 1) and Peter Stevanos (count 2). There were three recorded calls, in English, tendered and played in support of these two counts. The 836 number was used by the speaker, using the handset with an IMEI ending in 800. There was no issue at trial that the male speaking in these recorded conversations was guilty of committing counts 1 and 2.
5. Similarly there was no issue at trial about the fact that the male speaking on 7 January 2015 to a Woolworths employee, applying for a platinum credit card, was guilty of count 5. This call, as with all six in this category of offending, was in English using the 836 number. Count 8 was proved by two calls on 6 February 2014 between a male and a FedEx employee in which the male used the identity information of Ajay Vindo. The commission of count 9 was captured in two recorded conversations with National Australia Bank employees on 6 and 7 February 2014. Count 10 relied on an intercepted call on 9 February 2014 between a male and a Westpac operator. The 836 number was used in the black Samsung for the commission of counts 5, 8, 9 and 10.
6. The other five counts were committed by saving the relevant identification information in draft emails to which Mr Nguyen and Ms Huynh were given access. The email account was accessed by police on a number of occasions and copies of those draft emails were tendered. They have not been produced on the application but they are described to some extent in the transcript of evidence and submissions of the Crown Prosecutor. Four of these five counts particularised multiple names for the relevant identification information which was dealt with. One particularised only one identity. When the first draft email was accessed there was a photograph attached as well as the other details. The photograph was actually of Salah Uddin, who is referred to above at [40] and [43]. In connection with count 4 the draft email attached a photograph of Dawood Quadry, referred to above at [43]. There was no issue taken at trial with the Crown contention that the person who created those draft emails and shared the information with Mr Nguyen and Ms Huynh thereby committed those five offences.
7. Text messages from the 836 number and phone conversations in English between a male using the 836 number and Mr Nguyen and Ms Huynh were relied upon as directly demonstrating guilt of these five counts. For example count 3 was supported by the male speaking on 28 December 2014, using the 836 number in the handset with IMEI ending 800, with Mr Nguyen, and sending Mr Nguyen an SMS at the same time (presumably referred to in intercepted conversation) with details of an email account and password. It was this email and password used for sharing the identification information the subject of these five counts. The prosecution relied upon another intercepted conversation about 20 minutes later, using the same number and handset, and two further relevant phone calls the following day.
8. Another relevant text was sent from the 836 number stating "It's in draft". Police used this email account and password to log in on 8 January 2015 and subsequent dates. Evidence was given of their accessing the draft email folder and printing what was seen. The Crown case was that the content of the calls between the male voice and Mr Nguyen and Ms Huynh showed that it was the applicant (male voice) who created the draft email in count 3 and supplied the identification information, and did so with the intention of facilitating the fraud. Similarly for count 4, the male voice told them to "check email."
9. Counts 4, 6, 7 and 11 were similar to count 3. Further identification information was recorded on the draft email account with conversations between the male using the 836 number and Mr Nguyen and Ms Huynh in which the conveying of the relevant information was discussed. These calls were all in English, using the 836 number; in the IMEI handset ending in 800 before 30 December, and the Black Samsung after 5 January 2014.
10. It was the Crown case that the male speaking in these calls was the creator of the draft emails, and sender of the text message advising Ms Huynh and Mr Nguyen how and when to access the information. The Crown Prosecutor submitted that the male voice in his conversations with Mr Nguyen and Ms Huynh showed knowledge that identity information provided in the draft emails was going to be used to produce identification. No issue has ever been taken on the applicant's behalf with these propositions.
11. Approximately 23 of the 40 tendered intercepted conversations fell in this category of demonstrating, by the male's conversations with Ms Huynh and Mr Nguyen, the dealing in identification information in the five separate draft emails (relating to 15 different identities in total), supporting these five counts.
12. Some of these intercepted conversations were additionally relied upon for identification purposes. This principally arose in connection with the intercepted calls supporting count 6. There were six tendered English calls in support of this count, and a relevant draft email. [3] The officer in charge conducted surveillance on 20 January 2015 as a result of listening to intercepted conversations connected with count 6. He saw a man who was the same as a man he had seen five days earlier at Riverwood library (as referred to further below, he found the man at the library similar to a photograph of the applicant). He was wearing a red t-shirt with an Adidas logo in white print across the chest and light blue jeans. Still images from CCTV footage were tendered and the jury was asked to conclude that this was the applicant.
13. The closing address of the Crown Prosecutor reminded the jury that calls supportive of count 6 intercepted on 20 January 2015 referred to meeting at Strathfield that day, and that the timing of references in the intercepted call correlated with the surveillance on 20 January 2015 at Strathfield station. The jurors were invited to be satisfied for themselves that the CCTV photographs depicted the applicant, wearing the red t-shirt found on 25 February 2015 where he was sleeping. In one intercepted call the male voice said "I'm still in the train station" at a time submitted to correspond with a photograph of the applicant at Strathfield station, apparently on the telephone.

English identification calls

1. There were a number of further English calls which were tendered and played, that were not directly incriminatory. They were relied upon as circumstantial evidence to support the proposition that the applicant was the speaker in those other critical calls in English that were played. These calls emanated from both the 836 and 524 number.
2. Two days after the commission of counts 1 and 2 a male person, using the 836 number, referred to having fed someone (seemingly a child) who was named. This name is the same as that of the older sibling (a toddler) of a baby born at John Hunter Hospital the previous day, whose father's name was Mohammed Ali and whose contact number left for the mother's husband was the 524 number. Two females also participated in this call, and participant 4 was the mailbox voicemail for the phone number used by Tanveer Hussein.
3. The 524 number in the handset ending in IMEI 220 (the iPhone found in Rockdale) was used in a number of recorded conversations with a named woman who was a tutor at Riverwood library. Two recordings and one text message in early 2015 arranged a meeting between the two at Riverwood library. The officer in charge conducted surveillance at the library at the designated meeting time, and having looked at a photograph of the applicant saw that the man meeting the tutor looked similar to the applicant (with this same man seen again five days later at Strathfield station on the occasion referred to above).
4. There was a body of evidence linking the applicant with use of the 524 number on 15 January 2015. A male voice using that number spoke with a Legion Cabs operator and arranged a trip to a hotel. The hotel records show a guest checked in on 15 January and out on 16 January. The name of the guest was Mohammed Ali, the 524 number was given as his phone number, and the hotel kept a copy of photographic identity card for Mohammed Ali (which was tendered). The Crown submitted that this was obviously the applicant, and the photographic identification produced was the same as that found in the pocket of the jeans that had the two phones in it on 25 February (a photograph of which was also tendered). The Crown tendered and played a conversation recorded later that night, using the 524 number. The Crown submitted that in that call the male referred to himself as Mr Ali and gave room number 520, which was that allocated to Mohammed Ali, as the relevant room. The Crown tendered CCTV footage from the hotel and stills from it, inviting the jury to accept that this was clearly the applicant.
5. The Crown played an intercepted call from the 524 number the day following the stay at the hotel, in which a male using the 524 number recorded a message for a Jetstar Operator. The Crown Prosecutor submitted that the male identified himself as Mohammed Ali in this call. In calls over the next few days a male using the 524 number had discussions with a 'Moneygram' operator. The applicant's name and date of birth was supplied in these calls.

Hindi calls

1. Madhu Agarwal was the translator who listened to 24 recorded conversations, in each of which two males spoke in Hindi. She was responsible for translating these calls to English, and the transcripts of those translations was exhibit A. She gave evidence of her background, and training and experience as a translator. She explained that in preparing the transcripts she had listened to the calls a number of times - for 3 - 7 hours a day over 15 days. She confirmed (as was stated on the transcripts, and not in dispute at trial) that one voice had been identified as Tanveer Hussein. She expressed an opinion, ultimately without objection, that the male voice speaking with Mr Hussein was the same in each of the 24 calls she had translated.
2. The admissibility of that opinion was the subject of the applicant's unsuccessful first ground of appeal in the Court of Criminal Appeal. It was held that such evidence was admissible pursuant to s 79 of the Evidence Act 1995 (NSW) as that of an 'ad hoc' expert, bearing in mind that the opinion was reached in circumstances where the Hindi calls were in a language with which the witness was particularly familiar, the witness had relied on factors such as the pitch, tone and accent of the voice in forming her opinion, and those pitches and tones were particular to the Hindi language. There was no challenge in cross-examination to her evidence as to the uniformity of the male voice.
3. The Crown separately tendered through Ms Agarwal recordings of five of the calls she had translated. None of these recordings was analysed by Dr Morrison. The Crown Prosecutor stated that the purpose of playing these calls was for the jury to conclude the voice was the same as that in the English calls.
4. There were 24 calls in the Hindi language about which there was evidence in the Crown case. For all 24, including the five that were tendered and played, transcripts of translations of the calls were tendered. Two conversations were important in the Crown circumstantial case to prove the identity of the speaker in the incriminating English calls. These were recorded on the date of the commission of counts 1 and 2, and two days later, respectively. These used the 836 number in the handset with the IMEI ending in 800. In the first, the male speaker said he had to go because "she is having contractions, after every 5 minutes duration … so I have to go with her." In the second, he said the baby had been born but that "...the baby's delivery became so complicated… the baby just survived somehow as there was a very little chance left for baby's survival."
5. The Crown tendered a birth register list from John Hunter Hospital which recorded the birth of a baby on the day between the two abovementioned phone calls. The mother was named, and the register recorded her husband as Mohammed Ali, with the 524 phone number as his contact. The birth certificate of the baby was tendered. It listed the same parents, and an older sibling whose name was the same as the person the male voice said in English using the 836 number he had fed, referred to above at [58].
6. The balance of the Hindi calls is referred to further below in consideration of the Crown address, and the analysis of the 11 calls provided to Dr Morrison. They were not directly incriminating calls, nor identification calls. They suggested in a general sense that the male and Mr Hussein were involved in fraudulent activity using already created false identification - but not the subject of counts on the indictment. There were a couple of minor connections with aspects of charges on the indictment. The jury was provided with no particular submission or direction as to the point of this evidence. It was capable of supporting the proposition that the male, if it was the applicant, had the requisite fraudulent intention when dealing in identification information on the occasions the subject of the counts on the indictment. It was not in issue that the male who was involved in the incriminating calls had such intention. There was no tendency, nor anti-tendency, direction provided.
7. A Hindi call intercepted on 30 January 2015 suggested awareness that Mr Uddin had been arrested at Caringbah. This was not a call analysed by Dr Morris. A Hindi call on 7 January 2015, not analysed by Dr Morrison, included talk about Dawood Quadry. There was talk on 20 January 2015, in another Hindi call not analysed by Dr Morrison, about meeting at Strathfield station.

Other evidence in the Crown case

1. The Crown adduced oral evidence and tendered documents regarding the different names particularised in the indictment (either suggesting they did not exist or did not correspond with other details used or intended to be used for fraudulent activity). A bank officer gave evidence regarding the practices for opening and changing accounts, and details of when and how different accounts were in fact opened, verified and accessed.
2. Dawood Quadry was arrested on 7 January 2015 trying to open a bank account at Westpac in the name of Tarpan Karp (information dealt with on 29 December 2014 in connection with count 4). One of the names associated with count 6 was Magath Impal (dealt with 18-20 January 2015). On 30 January 2015 Salah (Mohammed) Uddin was apprehended at Caringbah Westpac after presenting identification with his own photograph but in the name of Magath Impal. The details of the cards he was in possession of matched the details distributed in the draft email connected with count 6, accessed by police on 20 January. Other incriminatory documents, using identity information shared in that email, were found in Mr Uddin's vehicle nearby. These two men were not co-accused, and there was no evidence as to whether they were charged with or convicted of any offence.
3. The officer in charge agreed with defence counsel that the names Mohammed, Ali, and that of the applicant's older child, are very common names.
4. There was evidence led in support of a twelfth count on the indictment, resulting in a verdict of not guilty. The count alleged the possession on the date of the applicant's arrest of holograms for making a false driver's licence, knowing he or another could use it to commit the offence of forgery. These were found in the Rockdale unit. The defence response to the findings in the unit was that police could not exclude the proposition that others had come and gone from the apartment.

Crown address

1. The Crown commenced by informing the jury that each count required separate consideration. The majority of the Crown address was taken up with reminding the jury of the terms of the English calls which captured the offending (the six telephone offences) or were completely intertwined with it (the five draft email offences). These 30 or so calls, in English, from the 836 number, were clearly articulated as proof that the male voice in those calls was guilty of the counts on the indictment. As indicated earlier, no issue was taken with that proposition from the perspective of the applicant.
2. The Crown Prosecutor invited the jury to determine that the male voice in those incriminating calls was that of the applicant by reference to the tendered samples of his voice, such as his interaction with police during the recorded execution of the search warrant.
3. The Crown Prosecutor explained additionally the Crown's circumstantial reliance on the English identification calls - offering proof that the applicant was the user of the 836 number and the 524 number (which in turn supported his use of the 836 number, because the services were found in pockets of the same jeans on the floor of the room in which he slept). Emphasis was placed on the evidence of the applicant being at Strathfield station on 20 January 2015 as discussed during incriminating calls relating to count 6, using the 836 number.
4. Reliance was placed on the significance of the male using the 836 in the call referred to above at [58], saying he had fed someone suggested to be his young child, this being the same phone used by the male voice to speak to Mr Hussein, Mr Nguyen and Ms Huynh. Reference was made to the English calls where the voice was used as identification, for example nomination of himself as Mr Ali and his room number as 520 in the call made from the hotel, with photographic identification and hotel register confirming this was the applicant. The calls from the 524 number including to Jetstar (identifying himself self as Mohammed Ali) and Moneygram (using his name and date of birth) were referred to.
5. The case as addressed upon thus invited for comparison between the 30 or so incriminating calls and the known samples of the applicant's voice, and also comparison between the incriminating calls and other calls in English where the speaker used the applicant's name, date of birth, or made arrangements to go to a particular place (with a person similar to the applicant then being seen there by police, CCTV footage and stills said to show the applicant being recorded there, or use being made by the person at that forecast location of photographic identification of the applicant).
6. The Crown Prosecutor placed reliance additionally for circumstantial proof of identification on the two Hindi calls earliest in time, which were tendered and played, and translated transcripts of which were the first two transcripts of Exhibit A (see above at [65]). On the Crown case, these two calls, using the 836 number, related to the birth of the applicant's (named) child. These formed a reasonably important part of the Crown circumstantial case that the applicant was the speaker in the incriminating phone calls. The 836 number was used the day of the first of these two calls in the direct commission of counts 1 and 2. The call referred, on the Crown case, to the applicant's wife going into hospital in labour. John Hunter Hospital records indicated the applicant's child was born the next day. [4] On the Crown case the male voice spoke in Hindi to Mr Hussein the next day about the birth, using the 836 number. His wife had provided the hospital with the 524 number and name of Mohammed Ali as her husband - this being the other service of the applicant on the Crown case. Handsets for both phones were in pockets of one pair of jeans found on the floor of the bedroom in which the applicant was sleeping on the date of his arrest. Dr Morrison did not analyse these two Hindi calls.
7. The Crown Prosecutor made little reference to the other Hindi calls, and almost no reference to the 11 calls the subject of the Morrison report.
8. The Crown Prosecutor referred to Mr Tanveer Hussein in very general terms, submitting that Tanveer Hussein, Mr Nguyen and Ms Huynh were all parties to the telephone calls, and the jury might think that the Crown case revealed that more than one person was involved in the fraudulent activity. He submitted that when the calls were looked at in chronological order, the themes suggest that the Hindi and English speaker was the same. He referred to Ms Agarwal's evidence and the fact that there was evidence of Mr Hussein's involvement in the activity. A submission was advanced to "Consider, for example, the nature of what he's talking about in the calls, and also consider, for example, what was found during the search warrant in Mr Hussein's house." It was submitted that the items found in the search of Mr Hussein's residence at Lakemba forms part of the circumstantial case: "The phone used by Mr Hussein in the calls was found during the search warrant, as were photos of Mr Uddin and Quadry. As were phones that were found with names and labels, if you like. Handwritten labels attached to the back of the pones, including names that appear in the draft emails."
9. The Crown referred to the equipment found at Canley Vale. He made reference in a general sense to the items found in the Rockdale search before analysing the evidence supporting the counts on the indictment, submitting that a person involved in the activity had access to that unit.
10. The Crown Prosecutor made reference to a Hindi call intercepted on 30 January 2015, suggesting that it demonstrated awareness that Mr Uddin had been arrested at Caringbah. This was not a call analysed by Dr Morrison. She referred to call on 6 January 2015 as relevant to count 3. This was one analysed by Dr Morrison, as referred to below.

The eleven calls analysed in the Morrison report

1. The 11 recordings analysed by Dr Morrison were intercepted on six different days. Only two of these dates correspond with dates connected with counts on the indictment. The content of the calls is generally suspicious - the men refer to many names, seem to be watching or keeping track of people going into banks, and withdrawing and forwarding money - but not in relation to counts on the indictment.
2. In two calls dated 24 December 2014 the male and Mr Hussein seem to be discussing a person going in to a bank and the withdrawal of money that day. Mr Hussein seemingly makes reference to people or identity information not corresponding with any count on the indictment. There is a reference to 'Saleh' - who may himself be simply surveilling an associate going into the bank, and may be Mr Uddin (no submission was made about this).
3. Two calls dated 5 January 2015 were similarly generally suspicious - but not in connection with counts on the indictment. The name Amar Riaz was referred to and corresponded with a licence found in one of the searches. There was reference to sending money to Pakistan. A number of names were mentioned which may have been linked with identification information but did not correspond with counts on the indictment.
4. In a call dated 6 January 2015 there were many names mentioned, some of which could correspond potentially with counts on the indictment. There was reference to Salaam, Babuti Holdings, Ajay, Agent Vinod, Shringaar, Karpan, Arnal, Giu, Trapan / Tarpan, and Mini. There was discussion of putting some money in at Strathfield. The male suggested talking to "Harzat" to see if something can be done. Tarpan Karp is one of the identities relevant to count 4, although there was never any branch attendance for verification through the identification process. Ajay Vinod Shringal (or similar) is relevant to count 3, and recorded as attending a branch for verification 5 January 2015. When Mr Hussein's premises were searched there was a mobile phone which had on the back a handwritten notation of Tarpan Karp, and another with Ajay Vinod Shringal.
5. On another call on January 6 there was reference to someone having "gone in" and likely reference to Mr Quadry and Mr Uddin. There was on 7 January 2015 a very brief call asking for a card limit.
6. There is another call on the 7 January 2015 reported on by Dr Morrison where the speakers seem to be conscious of someone being arrested. The Crown closing address mentioned that the two seemed to have knowledge of the arrest of Mr Quadry when trying to open a bank account, which was said to show a relevant intention (which was not in dispute). In a further call later the same date there was discussion as to how they thought police became suspicious, and ongoing restrictions for Hain, Dawood, and Saleh. They were going to talk to Tholas and Hazrat. There was talk about the prospect of a search warrant and a property at Granville.
7. An intercepted call on 21 January referred to the name Darshith Jeevana. The Crown Prosecutor made brief reference to this in closing address, submitting that although that is not a name particularised in count 6, the jury might think the call supports an inference that the male had given Mr Hussein identification for which there is a problem.
8. An intercepted call on 10 February 2015 refers to "Shubanti", and a bald man.

The parties' submissions

1. As noted earlier, the applicant submitted that the Morrison report casts significant doubt on what was said to be the ad hoc identification evidence given at trial that it was the applicant's voice in the 24 Hindi calls, which raised a "doubt or question" as to guilt. It was submitted that a key plank in establishing the identity of the male voice in the Hindi calls was the evidence of Ms Agarwal.
2. The applicant submitted as follows in relation to Morrison report (the two footnotes are the applicant's): "That report addresses what was the critical issue in the prosecution case against MA: whether it was his voice that was heard in the intercepted phone calls ending in the number 836. [5] Those phone calls were integral to the prosecution case and were heavily relied upon by the prosecutor in her closing address. In addition, those calls were at the heart of the applicant's appeal to the NSWCCA as to the admissibility of the translator to give an opinion as to the 'identity' of the 'unknown male person' in the intercepted phone calls ending in 836. The headline point from the report of Dr Morrison is his finding that the probability that the unknown male voice in the 836 intercepted recordings was, or is, in fact, the voice of MA is very low. If that is accepted, then a key pillar in the prosecution case becomes unsafe; or put another way, there exists a reasonable hypothesis consistent with innocence which the prosecution would be unable to exclude: that it was another male who was responsible for the calls ending in 836. Such a reasonable hypothesis has a cascading impact on the remaining circumstantial facts relied upon by the Crown at MA's trial." [6] (omitting one footnote; included footnotes as in original)
3. The applicant further submitted that: "A central part of the prosecution case was the 'identification' of the male person in the intercepted Hindi and English calls attached to the mobile phone numbers ending with the digits 836 and 524 was, in fact, MA and not another male. So the attribution of MA to mobile phone numbers ending in 836 and 524 was critical to the Crown's circumstantial case. In particular, the Crown needed to establish that the male unknown person in the twenty-four (24) Hindi call recordings from the mobile phone ending in 836 was, in fact, MA."
4. It was submitted that while a key plank in establishing the male voice in the Hindi calls was the evidence of Ms Agarwal, "The Crown, of course, relied on other circumstantial facts but the cumulative strength of those other circumstantial facts relied entirely on a finding that MA was the voice in the Hindi calls."
5. The Crown invitation at trial of comparison between tendered English calls and other recordings of the voice of the applicant was said to demonstrate a clear forensic purpose of demonstration that the male person in the calls made by the 524 number was in fact the applicant. A footnote to that proposition was: "Calls ending in 836 were of a different nature because they were in Hindi. And this is where Ms Agarwal's evidence was of such importance to the Crown case."
6. It was acknowledged that there was much that was not in dispute at the trial, and the fundamental issue was the identity of the voice in the calls from the 836 and 524 numbers.
7. It was submitted that the 24 recordings sent to Dr Morrison was Exhibit A at trial. It was submitted that another way of expressing the conclusion of Dr Morrison was that "by a substantial probability it is unlikely that the recording of the male voice in Exhibit A is, in fact, MA."
8. The following submission was made: "The expert opinion of Dr Morrison raises a real possibility that a substantial miscarriage of justice has occurred and that an innocent person has been convicted. It does so, because the report of Dr Morrison detracts markedly from the Crown case that MA was the male voice in Exhibit A. ​If there is a doubt about that issue, then the other circumstantial facts relied upon by the prosecution are diminished in their ability to establish MA's guilt beyond reasonable doubt. It does so because the probative force of the other circumstantial facts is contingent upon an acceptance that the voice in the Hindi calls ending in 836 was, in fact, MA." (footnote omitted)
9. A footnote to the last paragraph referred to the evidence of the applicant's wife giving birth to their child at John Hunter Hospital. At trial and on the current application a contrast was drawn between the male speaking in Hindi two days after the commission of counts 1 and 2 stating the birth was so complicated that the baby just survived somehow, and the John Hunter records which stated there were no complications in the birth of the child of Mohammed Ali. The point of the contrast has not been elaborated upon in the current application although the submission of defence counsel at trial was that there were seemingly two different births. Considered logically, this must include a contention that there was one child born at John Hunter Hospital the day after counts one and two were committed, without complications, whose father is named Mohammed Ali, whose mother provided the 524 number for contacting him, and whose older sibling has the same name as the one the male voice using the 836 number said he had fed; and another child born on the same date, about which the male using the 836 number spoke, whose birth had been complicated. Although not expressed explicitly, this seems to involve a suggestion that one phone in the jeans by the applicant's mattress was used by the applicant, and the other phone in the jeans was used by a different man describing a different birth.
10. The filed submissions for the Attorney General addressed the Crown case at trial including the circumstantial evidence supporting the proposition that it was the applicant speaking in the calls associated with the 11 counts on the indictment.
11. It was submitted that: "It is accepted that a central part of the Crown case was the identification of the male person in the intercepted Hindi and English telephone calls attached to the mobile telephone numbers ending with the digits 836 and 524."
12. It was also submitted that: "Ms Agarwal did not in fact identify any voice. Her evidence was limited to an assertion that the male voice in all the Hindi calls was the same individual. The Crown then used other evidence to prove that person was the applicant. As such Ms Agarwal's evidence was not "a key plank" to "establishing the identity of the male voice" as has been submitted on behalf of the applicant (see [52] application)." (emphasis in original)
13. The Attorney General further submitted: "It is conceded Dr Morrison's conclusions give the appearance of a doubt or question as to the applicant's guilt. The Morrison report also raises a doubt as to a part of the evidence in the Crown case, being the evidence of Ms Agarwal. It raises the possibility that the applicant is not the "male voice" on the recordings, which was an aspect of the Crown's case. Given that the test in s 79(2) is "not a demanding one" and the Court does not need to be satisfied that a doubt or question is well founded to order an inquiry, it is submitted the power of the Court under s 79(1) of the Act is enlivened."

Determination

1. There is no evidence before the Court explaining the relationship, if any, between Ms Begum and the applicant. This could have been clearly stated. However I am prepared to draw the inference that Ms Begum is related to the applicant based on the fact that her husband's last name is Ali (despite the evidence adduced at trial that Ali is a very common last name), and the supplementary report of Dr Morrison which suggests the applicant's solicitor understood that she received the recording from relatives of the applicant. This would suggest that the person who asked Ms Begum for "the recording" is also a relative of the applicant, or the applicant.
2. Ms Begum however provides no evidence as to what she was asked for, nor what she provided. She does not state that she was a participant in the conversation and knows the person she was speaking with, nor that she has listened to the recording and can identify either voice.
3. Dr Morrison requested a recording as close as possible to the time of the disputed conversations. Ms Begum has not provided any information as to the date of the recording she was asked for nor that which she provided. She states that she was asked for "the recording" on 18 October 2023, and the evidence indicates that she provided a recording which was sent to the applicant's solicitors and on to Dr Morrison with a tagged date of 16 October 2013. This led Dr Morrison to note that, so long as there had not been interference with the data and the phone was correctly set as to date and time, it was reasonably proximate to the contested calls he was to analyse.
4. There is no information before the Court as to what it was that caused Ms Begum's Samsung Galaxy S4 mobile phone to automatically record and save a conversation in 2013; nor how or why it was saved for a decade and two days. There is no evidence as to what it contains, nor who is speaking. Dr Morrison did refer to it as a conversation. However the evidence does not suggest he understands Hindi, and there is no reason to suppose that he means anything other than that he observed a dialogue between two separate speakers.
5. There is nothing in the evidence to indicate the nature of the dialogue or conversation. It could be, for example, a recording of a doctor undertaking a review of a patient with laryngitis or some other condition that would distort the voice, a practise run of a comedy routine, or a personal conversation between two people known to one another. If such a personal conversation, there is nothing to indicate why and how it was saved for 10 years and 2 days nor why it was remembered and selected for provision to the applicant's solicitor.
6. There is still no evidence placed before the Court that the male speaker in the recording provided to Dr Morrison as the known speaker recording is the applicant, far less that the recording demonstrates his normal speaking voice. Such an absence of evidence is sufficient to dispose of the application by refusing it. There is no relevance in the Morrison report without an evidentiary basis for such connection.
7. However as there is another fundamental problem with the application my additional reasons for refusing it should be explained. The 11 calls analysed in the Morrison report were unimportant. The power to take action under s 79 of the CAR Act if there is a doubt or question as to any part of the evidence in the case does not necessarily warrant such action if there is a doubt or question about any part of the evidence, no matter how minor. This is not a case where there is a reason for ordering an inquiry or referral to the Court of Criminal Appeal unless any doubt or question about the relevant part of the evidence is such as to give rise to a question or doubt about the applicant's guilt. The tenor of the application accepts that burden.
8. It is not correct to state, without more, that the critical issue at trial was whether it was the applicant's voice in "the recordings". They were not all of the same importance. The critical issue was whether it was the applicant's voice that was heard in the 30 or so intercepted calls in which English was spoken using the 836 number, in which the offending conduct was recorded or (in the case of the draft email charges) conduct pivotally connected with it was recorded. Despite an expert in voice comparison having been retained, the Morrison report does not address those critical recordings (either by reference to the sample of the applicant's voice the jury was asked to compare with the incriminating calls to identify him, other calls in which the speaker used the applicant's name and / or with other evidence such as surveillance or CCTV footage strongly suggesting the applicant was using the phone, or by a new sample).
9. The Morrison report does not address whether it was the applicant's voice in the incriminating calls using the 836 number, but rather 11 calls in which Hindi was spoken which neither demonstrated the commission of the counts on the indictment nor provided circumstantial identification evidence. The recordings analysed by Dr Morrison were not integral to the prosecution case and were not heavily relied upon by the prosecutor in her closing address. Dr Morrison's report does not touch upon the grounds argued in the Court of Criminal Appeal.
10. As the Attorney General has correctly submitted, Ms Agarwal did not identify the applicant as the speaker in the Hindi calls. Contrary to the submission of both parties, the Morrison report does not touch upon Ms Agarwal's evidence - and Ms Agarwal's evidence was not particularly important in any event. It allowed transcripts of the bulk of the Hindi calls to be tendered rather than the recordings played, as she provided a foundation for the voice being the same throughout. Dr Morrison does not state that the male voice in the 11 questioned speaker conversations he analysed was not uniform and offers no opinion as to whether this voice was the same as that in the 13 calls he did not analyse. Although he chose, for the purpose of his particular expert comparison, only 11 of the 24 to analyse, this was a different exercise entirely to that undertaken by Ms Agarwal, and his approach based on his expertise does not include a suggestion that she was not able to use all 24 recordings for the purposes of her very different means of comparison.
11. Although the submission was not made, it is possible that the applicant could mount an argument by conceding that the first two Hindi calls were so very plainly him (because of the references to the birth of the child), that if the speaker in the 11 calls analysed by Dr Morrison was not him, Ms Agarwal was wrong to conclude all 24 calls she translated involved the same male. Such an argument would however obviously not assist the applicant. The important Hindi calls for the purposes of linking the applicant with the 836 number were the first two, discussing the birth of the child. This was strong evidence linking the applicant with the 836 number. To disprove Ms Agarwal's opinion about the male in all 24 voices being the same would be of little importance if this was shown by acknowledgement that it was the applicant in the two calls that provided important identification evidence.
12. Although the Crown submitted at trial that the male voice in the Hindi calls was the applicant's, the Crown was not required to prove that it was the applicant's voice in the Hindi calls. The Crown was not required to prove beyond reasonable doubt every piece of evidence or submission made. The Crown was required to prove that it was the applicant's voice in the 30 incriminating English calls using the 836 number and that he saved the five draft emails. This relied upon direct comparison with the applicant's voice, and a significant circumstantial case including his possession of the relevant phone and the content of all the English identification calls.
13. The strength of the proposition that it was the applicant speaking in the first two Hindi calls using the 836 number, the same day as the service was used in the commission of counts 1 and 2 and two days later, was one of a number of circumstantial facts relied on to prove the critical issue the Crown was required to prove.
14. Reliance on Ms Agarwal's evidence as to uniformity - which was not the applicant's submission, and would be at odds with the suggestion that the Morrison report has shown her evidence to be flawed - could found an argument that it was not the applicant in the first two Hindi calls. Even though Dr Morrison did not analyse them, his conclusion as to the 11 he did could be applied to all 24 Hindi calls, based on Ms Agarwal's evidence. Even such hypothetical exclusion of the first two Hindi calls from the Crown circumstantial case would not be important. It could well have been an associate of the applicant speaking on these two calls and all the rest of the Hindi calls, and the Crown case would not be significantly diminished. The speaker did not say that it was his wife having contractions, nor his baby whose birth had been complicated. The proposition that the applicant was the speaker in these two calls was one piece of circumstantial evidence, but nothing like an essential intermediate fact.
15. The calls in fact analysed in the Morrison report were unimportant in establishing the prosecution case. Broadbrush statements made by the trial judge in the presence and absence of the jury about the calls in general are not an appropriate substitute for squarely analysing the evidence. This is particularly so when the trial judge misunderstood the effect of Ms Agarwal's evidence, requiring significant redirection at the end of the summing up.
16. The Hindi calls other than the first two provided general background information, potentially requiring tendency reasoning, relevant to the intention and understanding of the applicant if he was the speaker in these and the incriminating calls. Such intention and understanding was not in issue in the trial. The 11 calls analysed in the Morrison report were not important in the same way as the 40 played English calls and two first played Hindi calls were important - as either offering direct proof of the counts on the indictment, or as circumstantial evidence supporting the identity of the applicant as the speaker on those 30 or so incriminating English calls.
17. The Morrison report does not give rise to the appearance of a doubt or question as to the applicant's guilt.

Order

1. Accordingly, I make the following order: 1. The application of Mohammed Ali filed on 20 March 2024 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) is refused.

Endnotes

1. Application of Suey [2001] NSWSC 54
2. Mr Uddin was arrested by police using false identification, referred to further below.
3. As will be referred to below, the Crown Prosecutor's closing address did make reference to one of the Hindi calls analysed by Dr Morrison in further support for this charge.
4. There was no agreed fact at trial that the relevant baby and mother were the applicant's child and wife, but these propositions seem to be accepted by the written submission in support of the current application, and acceptance of the same seems to accord with the submission at trial that the baby born at John Hunter Hospital may have been a different birth than the one discussed in the second Hindi call.
5. These were the Hindi calls. The intercepted recordings in English were attached to the mobile phone number ending in 524.
6. By necessity, and how the Crown ran the trial, the 'link' provided by the phone number ending 836 to other circumstantial facts was fundamental to a successful conviction of MA. This was a necessary 'link' in the prosecution case and not a 'strand' in a cable of circumstantial facts. On that distinction as to the evidentiary force of a 'link' and a 'strand' in a circumstantial case see generally Chamberlain v The Queen (No 2) (1984) 153 CLR 521 and Shepherd v R (1990) 170 CLR 573. 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: 05 March 2025