EVIDENCE - documentary evidence - tender of documents - phone summary
Legislation Cited: Evidence Act 1995 (NSW), s 50
Cases Cited: R v Macdonald
R v Edward Obeid
R v Moses Obeid (No 4) [2019] NSWSC 1286
Re Idylic Solutions Pty Ltd
Source
Original judgment source is linked above.
Catchwords
EVIDENCE - documentary evidence - tender of documents - phone summary
Legislation Cited: Evidence Act 1995 (NSW), s 50
Cases Cited: R v MacdonaldR v Edward ObeidR v Moses Obeid (No 4) [2019] NSWSC 1286
Re Idylic Solutions Pty Ltd
Judgment (6 paragraphs)
[1]
Solicitors:
Solicitor for Public Prosecutions (Crown)
M Bowe (Accused Edward Obeid)
Murphy's Lawyers Inc (Accused Moses Obeid)
File Number(s): 2015/212910; 2015/214251; 2015/212851
[2]
Judgment
HER HONOUR: The Crown tendered a document of 132 pages headed "Phone Summary" (MFI 88) pursuant to s 50 of the Evidence Act 1995 (NSW). The Phone Summary has been through a number of iterations. The document the subject of tender was complete as at 12 October 2020.
The Phone Summary covers the period 1 January 2007 to 31 December 2010, incorporating the period of the conspiracy between 1 September 2007 and 31 January 2009. It comprises, in total, 7294 instances of phone contact placed from time to time by each of eight individuals in various combinations. Those eight individuals include each of the accused, and Gardner Brook, Alan Fang, Mart Rampe, Warwick Grigor and Justin Kennedy Lewis.
The phone contact is identified by time and date, whether it is a call, voicemail or SMS, duration, the identity of the caller and the recipient of the call. Only outgoing calls are included.
The Crown also tendered a series of Explanatory Notes to accompany the tender of the Phone Summary. Objection was taken by the accused to some part of the Explanatory Notes in the original format tendered by the Crown as containing statistical analysis or involving the application of a judgment, neither being a permissible use of a s 50 summary or other document prepared to aid its interpretation. The Crown withdrew the part of the Explanatory Note which contained that analysis, reserving it for the Crown's final submissions as to what the Phone Summary is capable of proving about the facts in issue.
The Explanatory Notes, as edited, identify the source materials from which the information included in the Phone Summary was compiled, including the identifying details of phone numbers used from time to time by the eight individuals whose phone records form the basis of the summary, and the subscriber details of the various phone services.
The Explanatory Notes also include details as to the month and year for which call charge records for each of the eight individuals are available; where that material is located in the brief of evidence as served and points of distinction between call attempts and SMS messaging. Calls are also distinguished referable to whether they were diverted to voice mail. Finally, there is a detailed explanation as to how the summary is to be interpreted, that is, whether the time of the call and its duration are rounded up to intervals of 30 seconds or whether calls are not rounded up at all.
The parties addressed the admissibility of the summary in written submissions and in oral argument.
[3]
The Crown's submissions
The Crown submitted that the entire Phone Summary should be admitted, the requirements for admissibility under s 50 of the Evidence Act having been satisfied. The Crown also relied upon a document entitled "Crown Chronology including Key Phone Evidence" in support of the tender of the Phone Summary. That document (received by the Court in the form of a submission - MFI 91B) extracts a number of critical events upon which the Crown relies to prove its case, itemising phone contact between various of the eight individuals on the dates surrounding those events. Those events include, inter alia, the acquisition of various of the rural land holdings in the Bylong Valley, including Edward Obeid's acquisition of Cherrydale Park; each of the nine acts of ministerial misconduct the subject of the conspiracy; the various dates upon which the expression of interest process for the issue of coal exploration licences was publicly opened and the various commercial arrangements in which Monaro Mining NL (Monaro Mining) was involved as an applicant for the issue of an exploration licence (EL). Insofar as involves Monaro Mining, those arrangements took place both during the currency of the conspiracy and after 31 January 2009, the date the Crown nominates in the indictment as the date at which the object of the conspiracy had been achieved.
Save only for Mr Rampe and Mr Grigor who have given evidence in the trial of having made phone calls to each other and to Mr Brook in the course of their dealings with him on behalf of Monaro Mining from about June 2008 until May 2009, and the confirmatory evidence that is likely to be adduced from Mr Brook of his phone contact with both company executives and with Moses Obeid at that time, the Crown acknowledges it has no direct evidence of the content of any of the phone calls in the Phone Summary. The Crown does not propose to call Justin Kennedy Lewis to give evidence of the nature of his relationship with Moses Obeid or the reason for his phone contact with him as set out in the Phone Summary. Mr Fang is unavailable to be called as a witness (see R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1286).
The Crown submitted that the fact of phone contact between various of the eight individuals relative to the events in the Crown chronology (MFI 91B), in particular the phone contact between each of the three accused (both with each other and, in the case of Moses Obeid, with Mr Brook and Mr Fang), when considered together with other facts and circumstance established by the evidence, is capable of proving both the existence of the conspiracy alleged and the participation of each of the accused in the conspiracy.
In the Crown's submission, given the evidence already adduced in the Crown case which was tendered to prove the occurrence of certain key events within the period of the conspiracy and within the entrepreneurial phase which followed it, an interrogation of the Phone Summary is capable of establishing at least the following further critical facts by inference:
1. That Mr Macdonald knew that Cherrydale Park had been purchased by Edward Obeid (a matter of fact foundational to each of the nine acts of misconduct alleged).
2. That Edward Obeid was aware of Moses Obeid's conduct in the entrepreneurial phase (that is, after the object of the conspiracy had been achieved at a time when the confidential information that Mr Macdonald had provided was being exploited for its commercial value).
3. That Moses Obeid and/or Edward Obeid were "updating" Mr Macdonald on those commercial developments as they unfolded.
The Crown also emphasised that some of the nine acts of misconduct allege that Mr Macdonald communicated to either or both of Edward Obeid and Moses Obeid certain confidential information. The Crown submitted that the opportunity the accused had to be in both physical and phone contact with one another at relevant times is relevant to proving that those acts of misconduct occurred and that the accused each agreed that Mr Macdonald would commit those acts in furtherance of the conspiracy alleged. The Crown submitted the same evidence is relevant to proving that each of the accused participated in that conspiracy.
The Crown also submitted that the volume and regularity of phone communication between the accused within the period of the conspiracy, when taken together with their face-to-face contact as evidenced through the various diary entries which form part of the Crown tender bundle (Exhibit A), is also evidence of the strength of the personal connection they shared with each other and the probability of them being party to the conspiracy alleged.
The Crown accepts that there was a professional and personal relationship between Edward Obeid and Mr Macdonald both pre-dating the conspiracy and post-dating it, and that the filial relationship between Edward Obeid and Moses Obeid is also such that there are likely to be entirely innocent explanations for the degree of contact between the three accused and the regularity of that contact. The Crown submitted that does not render the Phone Summary inadmissible. It is the Crown case that the fact that the accused were in regular contact with each other provides context to the way in which they each acted as co-conspirators in furtherance of the shared objective to which their criminal agreement was directed.
The Crown emphasised that the nature of the relationship between Moses Obeid and Mr Macdonald is less defined. The Crown submitted that the contact between those two accused at certain critical times within the alleged conspiracy is a source of proof that it was Moses Obeid who utilised the confidential information communicated to him by Mr Macdonald (either directly or via his father) in his various commercial dealings with Mr Rumore (and with Mr Brook) in pursuit of securing a commercial arrangement with a mining company or companies to exploit that information for financial gain.
The Crown also sought to defend its tender of that part of the Phone Summary which focused on the phone contact between the executives of Monaro Mining and Mr Brook, and between Mr Brook and Moses Obeid, as support for the Crown's contention that although Moses Obeid was involved in all of the negotiations between Voope Pty Ltd and Monaro Mining, he resolved to have no direct contact with Monaro Mining in order to ensure he distanced himself and his family from Monaro Mining's expression of interest in the acquisition of the Mount Penny EL.
The Crown also defended the format of the Phone Summary which includes phone contact between some of the eight individuals for eight months before the conspiracy commenced and for a period of approximately 20 months after the object of the conspiracy had been achieved. In the Crown's submission, that extended time frame provides a comparator against which the Court is able to assess the relative concentration of phone contact between each of the accused (and others) at certain critical times during the conspiracy.
[4]
The accused's submissions
The accused object to the tender of the Phone Summary as failing to meet the test for admissibility under s 50 of the Evidence Act.
The accused submitted that Moses Obeid and Edward Obeid, and Edward Obeid and Mr Macdonald had established and close relationships, the former being personal and the latter being professional in nature. The Crown has acknowledged the existence and nature of these relationships. For these reasons, the accused submitted that even if the Phone Summary complies with the preconditions to admissibility in s 50, the phone contact between the accused in the period comprehended by the Phone Summary is intractably neutral (particularly where there is no evidence of the content of their communications), and that it fails the test of relevance in s 55 of the Evidence Act for that reason.
The accused submitted that for the Crown to invite the Court to infer that the contact between them was either for the purposes of furthering the object of the conspiracy, or to facilitate the receipt of information as to the successful exploitation of the confidential information (or both), irrespective of whether that is an inference the Crown invites the Court to draw from the relative volume and consistency of contact between the accused by reference to certain key events as elaborated upon in MFI 91B, is not to invite the Court to apply the rational analysis underpinning finding fact by inference, but to engage in speculative or suppositional reasoning.
The accused submitted that the frequency and the typical pattern of contact between the three co-accused as evidenced by the Phone Summary means, in effect, that their contact with each other could be aligned with virtually any chronology of events in a manner that suggests that the instances of contact are linked with one another and that the events are linked to them in a material way. The accused submitted that to the extent that the Phone Summary establishes that they had an opportunity to make contact with one another at various times, and that they availed themselves of that opportunity, that fact is not a sufficient basis to justify the admission of the Phone Summary in a format extending over a four-year period, inclusive of period of the conspiracy between 1 September 2007 and 31 January 2009.
Further, the accused submitted that any summary of phone contact between them extending beyond the period of the conspiracy should be excluded as incapable of bearing rationally upon whether Mr Macdonald committed any of the nine acts of misconduct as alleged, or the use either or both of Moses Obeid or Edward Obeid allegedly made of the confidential information said to have been communicated to them in breach of Mr Macdonald's ministerial obligations.
The accused submitted that the numerous transactional and other commercial documents generated in the entrepreneurial phase differ from the Phone Summary post-dating 31 January 2009 because, unlike the transactional documents which speak for themselves, the Phone Summary invites speculation as to the content of the phone communication and the reasons for it. Complaint is also made that the Phone Summary is defective in a number of respects rendering its use unfairly prejudicial to the accused.
[5]
Consideration
I am satisfied that the preconditions to the admissibility of the Phone Summary have been satisfied.
In Re Idylic Solutions Pty Ltd; Australian Securities and Investments Commission (ASIC) v Hobbs [2012] NSWSC 568 at [68], Ward J identified the three matters of which the Court must be satisfied before a s 50 summary is admissible.
Relevantly for present purposes those matters are:
1. Whether the Phone Summary in the format in which it appears in the document to be tendered summarises information contained in primary telephone records and other subscriber data? Although the source material has not been separately tendered either on the application or in the trial itself (and I would not expect it to be so), I am satisfied from the Explanatory Notes that there is nothing in the Phone Summary that is extraneous to that information or data.
2. Whether the volume and/or complexity of that source material is such that it would not otherwise be possible, conveniently, for the Court to examine the evidence? The sheer fact of there being in excess of 7000 calls organised chronologically over a four-year period between eight separate individuals satisfies me that it would be simply impossible for the Court to examine that primary evidence and gain a meaningful understanding of it without it being summarised.
3. Whether the accused have had a reasonable opportunity to examine the source documents? The form and content of the Phone Summary has been under consideration by the parties for over a year. I am well satisfied that the accused have had the opportunity to examine the source material and have actively taken the opportunity of doing so.
I am also satisfied that on a fair and balanced interrogation of the Phone Summary, and the revised Explanatory Notes, viewed in the context of the evidence as a whole, that the Phone Summary is capable of rationally affecting, directly or indirectly, the assessment of the probability of the existence of the conspiracy as alleged and/or the participation of the accused in that conspiracy.
I accept that in the phone contact between the various eight individuals whose phone records have been summarised and included in the phone summary, including, most particularly, contact between the accused, there is nothing that is capable of categorically establishing the reason for the contact or the content of what was said by any of the callers (I exclude in that connection contact between Mr Brook and Moses Obeid, and Mr Brook and Mr Rampe and Mr Grigor as noted above). I also accept that there may be an innocent explanation for the degree and frequency of contact between the accused Moses Obeid and Edward Obeid, and Edward Obeid and Mr Macdonald. However, I do not regard the evidence in the Phone Summary as intractably neutral, in the sense that it is not capable of supporting proof of the probability of the facts in issue in the trial. By way of example, even if there might have been a friendship that developed between Moses Obeid and Mr Macdonald, as suggested in the evidence of Ms Fitzhenry, that does not, in my view, adequately account for the degree of contact between them at certain key intervals in the chronology of events, including the circumstances in which Mr Fang engaged with Moses Obeid as a potential investor in coal mining activities in the Bylong Valley in June 2008. Neither does it adequately account for the concentrated contact between Moses Obeid and Mr Macdonald on 16 February 2009, two weeks after the object of the conspiracy had been achieved but the day when the extended EOI process closed. More generally, I accept that concentrated periods of phone contact as framed by the Crown in MFI 91B may, when considered as part of the Crown's circumstantial evidence case, be probative of the question whether the Crown has proved the conspiracy alleged and the accused's participation in it.
The phone contact between non-conspirators (namely, between Mr Brook and executives of Monaro Mining) and between the accused and non-conspirators (namely, between Mr Brook and Moses Obeid, and Moses Obeid and Mr Fang) assists the Crown to prove the facts in issue in the trial, although it seems to me to be of marginal weight. That does not, however, warrant a ruling that the Phone Summary, as tendered, should be edited.
A ruling on the admissibility of the Phone Summary in its current form should not be misinterpreted by the parties as informing my ultimate assessment of the probative weight of the Phone Summary in whole or in part. The parties are at liberty to address that question in closing submissions.
Sitting without a jury, I am also confident that any alleged unfairness to the accused in the use to which the Crown might seek to put the Phone Summary, or any overweighting of its probative value against the risk of unfairness, can also be addressed by the parties in closing submissions and in my judgment on verdict.
[6]
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Decision last updated: 19 July 2021