Sayadi v Regina

The Crown Case

1. On or about 9 September 2016 the victim, Mr Cheung, arrived in Australia. He intended to start a business related to overseas students studying in Australia. Prior to arriving he contacted an acquaintance Ms Zhou. Ms Zhou spoke to one of the Appellant's co-accused, Mr Bekdache. Through Mr Bekdache, Ms Zhou arranged for Mr Cheung to meet an immigration agent at a restaurant in Blakehurst at 8.00pm on 10 September 2016.
2. Just before 8.00pm, Ms Zhou collected Mr Cheung from Pyrmont and drove him towards Blakehurst. Ms Zhou phoned Mr Bekdache during the journey and told him that they were running late. At around 8.50pm, when Ms Zhou and Mr Cheung approached the restaurant, they found that its entrance was blocked by a white van. There was another van behind them. As Ms Zhou attempted to navigate her car around the white van, both she and Mr Cheung were taken from the car by men wearing what Mr Cheung described as balaclavas and Ms Zhou described as hats pulled over their faces. They were dragged into the white van and their hands were bound. In his opening address, the Crown Prosecutor stated that the effect of evidence from various witnesses was that they were thrown into a white Mercedes‑Benz van and driven in a convoy consisting of that vehicle, a black Toyota Hilux, Ms Zhou's vehicle, a Subaru vehicle and a "Toyota HiAce van", that the Crown alleged was in the Appellant's possession.
3. According to the trial judge in her sentencing judgement "over the next 39 hours, [Mr Cheung] was taken to three locations, a shed; a unit [occupied by one of the co-accused]; a factory and then back to the unit". At each location money was demanded from him and he was subject to physical abuse when he said he did not have any including being hit, having a gun pointed at this head, an electrical drill touched to his skin and petrol poured over him accompanied by threats to light it.
4. At about 11.45am on 12 September 2016 the police attended at a unit in Bankstown. Mr Bekdache and another co-accused Mr Karas gave themselves up. The police found Mr Cheung with cable ties on his right wrist and duct tape around his ankles. He was found to have "cuts to the back of his head, his face and his hands and drill marks on his face and cheek".
5. In relation to count 3, Mr Cheung left his luggage and some currency in his hotel room prior to travelling to Blakehurst. The Crown tendered CCTV footage of the Appellant entering the foyer of the hotel at around 4pm on 11 September 2016 with no luggage and leaving the foyer shortly afterwards carrying Mr Cheung's luggage. In his evidence the Appellant accepted that he entered the room and removed the items but said that he (mistakenly) thought he was removing Mr Bekdache's property.
6. In relation to count 1, the Crown case against the Appellant and his co‑accused was circumstantial. In her summing up to the jury, the trial judge identified the circumstances relied on by the Crown to prove its case against the Appellant as including: telephone contact between him and Mr Bekdache immediately prior to and just after the kidnapping in circumstances where the Appellant's phone was "served by" a mobile phone base station (or cell tower) near to the kidnap location; telephone messages between the Appellant and another co‑accused, Mr Banat; the Appellant's use of a "distinctive HiAce van" which was said to be involved in the kidnapping on 10 September 2016 and the transporting of Mr Cheung on 11 September 2016; the showing to Mr Cheung of his luggage on 11 September 2016 that had been taken from his hotel room by the Appellant; the presence of the "HiAce van" across the road from where Mr Cheung was detained and the Appellant's departure from Australia to Turkey on 13 September 2016. The significance of the phrase "served by" in relation to the connection between a mobile phone and a base station as used by the trial judge in a direction given by her Honour in relation to that topic is addressed below. The Appellant denied that he was involved in the kidnapping or that his van was in the convoy.
7. In the sentencing judgment, her Honour found that the Appellant was "one of the people involved in the initial detention of Mr Cheung" outside the restaurant at Blakehurst. While her Honour was not satisfied beyond reasonable doubt that the Appellant was present "at the shed or later at the factory' when Mr Cheung was verbally abused, her Honour was satisfied that he entered one of the units where Mr Cheung was detained carrying Mr Cheung's luggage.
8. For the sake of completeness, I note that all of the Appellant's co-accused were found not guilty in relation to count 2 which concerned the alleged kidnapping of Ms Zhou. There was an issue at the trial as to whether she was a participant in the criminal enterprise or a victim of it.

The Crown Opening and Evidence

1. On 23 August 2018, the Appellant and his alleged co‑offenders were arraigned. The Crown Prosecutor then opened the Crown case. The Crown Prosecutor told the jury about the events of 10 September 2016. The Crown Prosecutor referred to phone calls between Mr Bekdache and Ms Zhou as well as between Mr Sayadi and Mr Bekdache. Thus, the Crown Prosecutor stated: "But on the Crown case the relevance of them [the calls between Mr Bekdache and Ms Zhou] is the call from Mr Bekdache at roughly 7.29pm came from a cell tower that is the call cell tower was at Hurstville … Around the same time [ie, 8.30pm] Mr Sayadi's mobile number was located in a cell tower on the Princes Highway at Blakehurst and he spoke to Mr Bekdache." (emphasis added) After describing the kidnapping, the Crown Prosecutor continued. "At 9.30pm Mr Bekdache, using a mobile phone the Crown says he had and Mr Sayadi exchanged text messages. At the time Mr Bekdache's phone was located in the Lakemba area and Mr Sayadi's in the Bankstown area." (emphasis added)
2. These references to the location of the mobile phone and cell towers were potentially ambiguous. As the balance of this judgment makes clear, the Crown Prosecutor conducted the case on the basis that the evidence established that a particular phone connected to a cell tower at a particular location, but did not demonstrate precisely where the phone was located. Hence, in the first extract the Crown Prosecutor clarified that the relevant location referred to the cell tower and not to the phone. In the second extract, the Crown Prosecutor referred to the mobile phone being "located in a cell tower". This was probably meant to be a reference to the same concept, although it was not clearly expressed. In the third extract the Crown Prosecutor referred to the phone being "in the Bankstown area". In the end result the evidence that was adduced at the trial was capable of supporting that statement.
3. Towards the end of the Crown case, the Crown Prosecutor called the officer in charge, Detective Sergeant Ferns. Detective Sergeant Ferns was shown a document that became Exhibit 56. It was a schedule of phone records between 10 September 2016 and 12 September 2016. Detective Sergeant Ferns gave the following evidence without objection, as follows: "Q. Does it contain a summary of the contact of phone records between the accused and Mr Bekdache, Mr Sayadi, Mr Banat, Mr Kamaleddine, Mr Mahmic and also another man by the name of Blazevski? A. Yes."
4. The schedule was then tendered without objection. Exhibit 56 contained nine columns. Detective Sergeant Ferns explained that the columns set out information concerning the time and date of calls and SMS messages between mobile phones associated with the persons just noted. The sixth column was described as the "A location". Detective Sergeant Ferns explained: "Q. Then the next column across, so that's the sixth column from the left hand side what's that represent? A. That's the cell tower location of that call. Q. When you say the cell tower, what do you mean? A. Well, when you make a phone call on your mobile phone it has to go through a cell tower for that call to happen and the cell tower has a location, a geographical location and that's the geographical location."
5. Detective Sergeant Ferns then explained that the next column was the mobile number of the receiver and the eighth column was the name attributed to that receiver. The ninth and last column was also a listed location. Detective Sergeant Ferns stated that was "the cell tower for the B party or the receiver".
6. Exhibit 56 contained four entries relevant to the Appellant as follows: A Location B Location 10/09/16 8:23:14PM 9 XXXXXXX287* Bilal BEKDACHE BLAKEHURST PRINCES HIGHWAY DOVER PARK XXXXXXX852* Issam SAYADI BLAKEHURST 10/09/16 8:51:50PM 20 XXXXXXX852* Issam SAYADI SYLVANIA # XXXXXXX287* Bilal BEKDACHE SYLVANIA 10/09/16 8:52:41PM 15 XXXXXXX852* Issam SAYADI BLAKEHURST PRINCES HIGWAY DOVER PARK XXXXXXX287* Bilal BEKDACHE SYLVANIA 10/09/16 9:13:19PM 18 XXXXXXX287* Bilal BEKDACHE LAKEMBA TE 50-54 THE BOULEVARD XXXXXXX852* Issam SAYADI BANKSTOWN W/BOARD

(*Telephone numbers redacted in accordance with Court practice.)

1. Detective Ferns was then shown a document that became Exhibit 57. It contained one relevant entry as follows: A Number B Number Date Time Duration B Location XXXXXXX700* XXXXXXX852* 10/09/2016 19:47:14 130 BLAKEHURST PRINCES HIGHWAY DOVER PARK Unknown Person Isaam Sayadi

(*Telephone numbers redacted in accordance with Court practice.)

1. In relation to the phone number listed against the Appellant, Detective Sergeant Ferns stated, without objection, "that's Issam Sayadi's phone". The transcript then records as follows: "[Crown Prosecutor] Q. And you've got the B location and this was recorded at Blakehurst Princes Highway [Dover] Park. [Detective Sergeant Ferns] A. Yes. Exhibit #57 SUMMARY OF CALL DOCUMENT TENDERED, ADMITTED WITHOUT OBJECTION; COPIES DISTRIBUTED TO JURY. [Counsel for the Appellant]: Just in relation to that last question, the Crown said it was recorded at Blakehurst. The B location refers merely to the cell tower location where there will be some evidence about that. [Crown Prosecutor]: That's what I was referring to. If I said 'recorded' I meant the cell tower location. [Her Honour]: Yes. Members of the jury, you will hear some evidence apparently in due course with the significance of that heading location and what it appears under it means in fact." (emphasis added)
2. The Crown Prosecutor then showed Detective Sergeant Ferns another document in similar format to Exhibit 57. It purported to show that a phone number associated with the Appellant made a call at 4.10:06pm on 11 September 2016. This document was tendered without objection as Exhibit 58. The document listed an "A" location at Pyrmont Casino. Detective Sergeant Ferns was asked as follows: "Q. Where it's got a location, that's the cell tower where in this case party A, Mr Sayadi, connected the call through to the cell tower? A. That's right. Q. And in this case it was Pyrmont casino? A. That's correct."
3. The Crown Prosecutor then tendered through Detective Sergeant Ferns a document that was admitted, without objection, and became Exhibit 59. This was a map of the various cell tower locations said to be of interest to the investigation. The map showed that the location of the cell towers for Blakehurst, Blakehurst Princes Highway and Sylvania were relatively close to each other and to the restaurant at Blakehurst that was the site of Mr Cheung's kidnapping.
4. Detective Sergeant Ferns completed his evidence on 17 September 2019. The Crown then called Mr Rupinder Malhi, a technical consultant employed by Vodafone. He stated that he had specialised knowledge in relation to calls to and from cell towers. In his evidence‑in‑chief, Mr Malhi was asked and answered as follows: "Q. What happens when you switch a phone on and make a phone call, a mobile phone call? A. Yes. So how a mobile phone works these days is when you switch on the handset it will look for the strongest signal. So the topographical area where the handset is. It will look for the strongest signal and where the strongest signal is and it will relay it to that cell and just to the cell. Then onwards we can start making calls. Q. When you say it looks for the strongest signal is that the closest tower or furthest tower from the caller? A. In most cases is the nearest tower. But still depends on many factors. We have to [draw] the coverage map for that particular cell to see how big the area is covered by that particular cell. Q. What are the general factors that determine where a call is connected to a particular cell tower? A. Yeah, there are many factors. Most more dominant factors are like height of the tower, direction of the antennas and adjacent antennas and [topography] of the landscape." (emphasis added)
5. Mr Malhi explained that cell towers are either owned by a particular telecommunication provided or shared between them. He said that call information, including the numbers and time and the cell tower to which they connect, is recorded by call charge records (known as "CCRs").
6. Under cross-examination by (trial) counsel for the Appellant, Mr Malhi said the coverage map to which he referred in the above extract could be prepared using specialist software and CCRs, although he had not undertaken that process. He was taken to Exhibit 57 and shown a further document that indicated that the relevant carrier for the telephone number associated with the Appellant was Telstra. Mr Malhi said he did not have expertise with Telstra records. The cross-examination continued on the "hypothetical" that the Vodafone call charge records were to be treated in the same way as the Telstra records. Mr Malhi was asked, and answered as follows: "Q. Then is it the case that all you could say as the expert for Vodafone records is that it's just a possible area that cell ID in which a sending mobile was located when a call was made from that mobile and picked up by the receiving phone. It's just a possibility? A. If the mobile phone served, like the call has been connected, the information of the tower is all in the CCRs that's for sure. And from that we can tell that [it's] highly likely the handset will be in that location. For which location we have to determine the map. … Q. So without doing the coverage map, I'm suggesting to you that all you have with a cell tower ID is it's a possible area? A. Yes, that is a possibility. … Q. And you can't say based on just a call charge record entry for a tower that that's probably the area where the phone was where the second phone was located when a call was made. You can't say it's probable? A. I can't specifically. You need the maps. … Q. And so for that one that I gave you which was the Sayadi phone recorded at I think it's Blakehurst firstly, you can give no expert evidence about cell tower because it's Telstra? A. Yes. Q. And even if it was hypothetically a Vodafone record a cell tower, you would not say it's probable the mobile phone was in the vicinity of that tower at the time? A. Because all the cell towers have different coverage areas and I don't think we can say if that's the location which is served. We have to draw the coverage maps and see exactly CCRs. We have to relate CCRs with the coverage map. We have to do a bit of homework before producing this." (emphasis added)
7. Mr Malhi was cross-examined by counsel for one of the co‑accused on the same topic. He was asked: "Q. And what you really need is the coverage maps in order to determine whether you would be on the fringe? A. Yes, and the map we have produced is the very strongest signal. That is highly likely if the handset is in that area it will be served by that tower. As you were saying if it's in the fringe it can." (emphasis added)
8. After Mr Malhi finished his evidence, the Crown Prosecutor noted, correctly, that in the exhibits there was a reference to the cell towers being at certain locations. The Crown Prosecutor stated that he did not understand their location to be an issue when they were tendered, but said that he now understand it was in issue based on this cross-examination of Mr Malhi by counsel for the Appellant. The Crown Prosecutor explained his position as follows: "I don't put it any higher than that the calls went to a specific cell tower, but if that is going to be an issue I won't be closing my case, I will be seeking to call further evidence in relation to the particular telco for a particular phone. I did not understand up until just now that it was an issue. As I say, there's a number of documents in evidence based on CCR records and the location of cell towers. I am not seeking to identify specific areas within the range of a cell tower, merely that a call connected to a particular cell tower. As I said, I did not understand that to be an issue, I now know it is, so I am not prepared to close the case and there will be further evidence in relation to that. So the Crown won't close its case today." (emphasis added)
9. The trial judge then asked of counsel for the Appellant "Is it an issue …". Counsel for the Appellant said that "[i]t is …" and then recounted the history of the calling of Mr Malhi. Counsel for the Appellant stated that, based on a recent conference that he had with Mr Malhi, and his cross-examination, it had become clear that Mr Malhi has no experience in relation to Telstra records. He submitted that "[t]hat is a problem for the Crown". Counsel for the Appellant also noted that Mr Malhi had not been asked to prepare coverage maps other than for a cell tower near Hurstville which was not relevant to the Appellant.
10. It is important to note that the issue identified by the Crown Prosecutor at this point was whether Exhibits 56 and 57 properly reflected the effect of Telstra CCRs for mobiles that charged to the Telstra network such as Mr Sayadi's, especially the references in those exhibits to the A locations and the B locations as the cell towers to which the relevant mobile connected to. The combination of Exhibits 56 to 57 and the evidence of Detective Sergeant Ferns and Mr Malhi, demonstrated that, so far as the Vodafone CCRs were concerned, the relevant mobile phones connected to the corresponding cell tower at the stated time. In the above passage the Crown Prosecutor simply indicated that, until Mr Malhi's cross‑examination, he did not anticipate that there was some dispute about that matter, ie that the locations listed in Exhibits 56 and 57 specified the cell tower that the relevant mobile phone connected to. Given the lack of objection to Exhibits 56 and 57 and the evidence of Detective Sergeant Fern then there was also some evidence supporting the position so far as Telstra was concerned.
11. To the extent that counsel for the Appellant was putting in issue the matter raised by the Crown Prosecutor, namely, "that the calls [listed in Exhibit 56 and 57] went to a specific cell tower", then it was a significant change in his position. As noted, he previously did not object to the tender of Exhibits 56 and 57 or to the evidence of Detective Sergeant Ferns set out in the passage at [16] above. Otherwise, it seems that counsel for the Appellant had a different, or at least a further, concern namely that the Crown Prosecutor would attempt to rely on the body of evidence that was led concerning the connection between a mobile phone and a cell tower in support of a submission concerning the location of the mobile handset without tendering coverage maps. The evidence that was led, especially Mr Malhi's evidence, was capable of supporting a submission that it was "highly likely" or probable that the mobile was in the general area of the cell tower that it connected to. However, it was not capable of supporting a submission that the relevant phone was at a particular location.
12. Overnight the Crown advised the parties that it proposed to call a witness from Telstra, Mr Gelfe. When the trial recommenced the following day, 18 September 2018, counsel for the Appellant submitted Mr Gelfe lacked the relevant expertise to give the anticipated evidence. During the course of the debate over the admission of his evidence, the Crown Prosecutor reiterated that the evidence he was seeking to adduce was only to establish that a "particular phone call was registered to a [particular] base station" in a cell tower, but he was otherwise "not seeking in the Crown case to identify where in the radius of a 360 degree of the cell tower a particular phone call emanated from". Bearing in mind the limits of Mr Gelfe's qualifications, her Honour refused to allow him to be called by the Crown Prosecutor to establish even the former. Instead, he gave evidence before the jury on an unrelated point. The Crown then closed its case.

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

1. The case for each accused commenced on 18 September 2018. Only the Appellant and one of his co‑accused gave evidence. During the cross‑examination of the Appellant he was asked whether at 7.47pm on 10 September 2016 his phone was in the Blakehurst area. The Appellant's counsel objected to the question. The Crown Prosecutor rephrased the question and suggested to him that his phone was "registered at a tower in Blakehurst". Thereafter, during the cross examination the Crown Prosecutor suggested to him that his phone was "recorded at" a particular cell tower at a particular point in time.
2. The submissions in this Court on behalf of the Appellant contended that these questions were "put to the accused without a proper evidentiary foundation and contrary to repeated assurances from the learned Crown that the locations and areas could be put only in terms of merely possibility and no higher". This contention is misconceived. No objection was or could have been made to the Crown Prosecutor putting questions to the Appellant on the basis that his phone was recorded at a particular cell tower. Such a suggestion was supported by the exhibits and the evidence of Detective Sergeant Ferns that was admitted without objection. The questions were consistent with the statements made by the Crown Prosecutor noted at [31].
3. On 20 September 2018, the Crown Prosecutor commenced his closing address. It is necessary to set out parts of that address to illustrate what the Crown Prosecutor submitted to the jury in respect of the entries concerning mobile phones and cell towers: "At 3.44pm on that day, that's on the 10th, it's in Exhibit GG, you've got telephone contact between Mr Banat and Mr Mahmic, and at that time both of them, the cell phones, are recorded at the Bankstown, Water Board tower. … At that time [7.29.39pm] that phone was found at 287 in the possession of Mr Bekdache and he admits he was using it, that phone was located to the cell tower at Hurstville, 43 Bridge Street at Hurstville. … 7.44pm, Exhibit 57 before you, Mr Issam Sayadi makes a telephone call on his mobile phone ending in 852 and the location of that, it records to the tower Blakehurst, Princes Highway, Dover Park. … 8.23pm in Exhibit 56 there is a telephone call of 9 seconds' duration between Mr Bekdache and Mr Sayadi and at that time, 8.23pm, Mr Bekdache's phone is recorded at the Blakehurst, Princes Highway, Dover Park tower and Mr Sayadi's is to the Blakehurst tower. … At 8.51.50pm there is a telephone call in Exhibit 56 from Sayadi to Bekdache and it is 20 seconds' duration. Now, at that time Mr Bekdache's phone connects to the Sylvania tower and Mr Sayadi's phone connects to the Sylvania tower. You will recall the evidence of the eye witnesses that were in their motor vehicles were on the Sylvania side of Tom Ugly's Bridge and they told you they saw a white van go through a red light followed by a dark coloured four wheel drive and that they were driving erratically and quickly from the Sylvania side across Tom Ugly's Bridge. And at 8.52.41 there's another telephone call, less than a minute from the previous one involving Sayadi and Bekdache. There's another one from Mr Sayadi to Mr Bekdache for 15 seconds. Now, at that time Mr Sayadi's phone is recorded at the Blakehurst, Princes Highway, Dover Park. That's where it is recorded to the cell tower. Mr Bekdache's is recorded at Sylvania. In my submission, to you, you wouldn't accept what Mr Sayadi told you, that he doesn't recall, he doesn't remember what he spoke to Mr Bekdache about during those phone calls. As I said, proximity and timing is important in this case. This wasn't a coincidence, ladies and gentlemen. … Now, at 9.13pm, that is after they have been taken from Blakehurst, Exhibit 56, at 9.13 there is a telephone call between Mr Bekdache and Mr Sayadi. It lasts for some 18 seconds. At that time Mr Bekdache's phone connects to a cell tower at Lakemba, but Mr Sayadi's vehicle - sorry, phone, it connects to the cell tower at Bankstown, Water Board. … Now, at 10.50am on the 11th of September, Mr Banat is in Bankstown. You will see it, you have got it before you, it is Exhibit 28 before you. He is wearing a red T-shirt, grey shorts and joggers. And at that time he makes a phone call using his mobile ending 370 to Mr Sayadi. It is in Exhibit 56. But Mr Sayadi, his phone was recorded at the Bankstown, Water Board tower, Mr Banat's was recorded at Bankstown." (emphasis added)
4. The written submissions in support of the appeal contended that the reference to a "coincidence" in this part of the Crown Prosecutor's address amounted to an improper reliance on "coincidence reasoning" without notice having been given under s 98 of the Evidence Act 1995 or a ruling permitting the use of coincidence evidence having been obtained. This complaint was not the subject of any ground of appeal. In any event, it is misconceived. Just because the Crown Prosecutor used the phrase "coincidence" does not mean that it was an appeal to the form of reasoning described in s 98. The form of reasoning described in s 98 is that which suggests that the likelihood of two or more events coincidentally was improbable "having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred" (s 98; R v MR [2013] NSWCCA 236 at [64]). Nothing in the Crown Prosecutor's address deployed any reliance on the improbability of two more events occurring having regard to their similarities. Instead, the Crown Prosecutor only submitted that the combination of various circumstances connecting the Appellant to the kidnapping of Mr Cheung was no coincidence. It was not suggested that there were any similarities in those circumstances.
5. The above portion of the Crown Prosecutor's address prompted a complaint by counsel for the Appellant to the trial judge about the absence of any expert evidence from a Telstra witness. Counsel also complained that the Crown Prosecutor was relying on the evidence about mobile phones connecting to cell towers as suggestive of the location of the mobile phone even though no coverage maps had been tendered. This led to a lengthy debate in the absence of the jury about the effect of Mr Malhi's evidence. The trial judge recounted her understanding that Mr Malhi had stated that "it's highly likely that the phone is in the area served by the relevant tower, but to get to the particular location he needs to do [a] coverage map". This represents a correct understanding of his evidence set out above.
6. In his submissions to the jury, the Crown Prosecutor did not expressly invite the jury to treat evidence that a particular mobile phone connected to a particular cell tower as evidence that the mobile phone was "at" that cell tower. Instead, the Crown Prosecutor repeatedly reminded the jury in words to the effect that the mobile phone had connected to a particular cell tower and then reminded the jury of other evidence pointing to the location of the Appellant or his co‑accused. However, it was implicit in the Crown Prosecutor's submission that the jury could use the fact that a particular accused's mobile phone connected to a particular cell tower as some evidence that the mobile phone was in the general location represented by that cell tower. To the extent that the Crown prosecutor did so, this was clearly open on the evidence.
7. The matter adjourned. The following day, Friday 21 September 2018, the trial judge ruled as follows: "I have reflected on that issue overnight and I propose to allow the Crown to refer to the evidence. I will give a direction to the jury about the use they can make of it. It seems to me that having regard to how the issue developed, that the evidence is before the jury. The Crown understood, from my reading of the transcript, that there was no objection to the evidence, so long as somebody was called that would allow you all to cross‑examine about the significance of the evidence and although the expert was from Vodafone, you had the opportunity to cross examine about the relevant issues. You can make what you will of it in your address … and I will give the jury a direction about the care they must take in relation to the use of the evidence."
8. Counsel for the Appellant then told the trial judge that he would not make "any further submissions about the Crown address in relation to the evidence". However, he submitted that the Crown Prosecutor should at least clarify the references to the mobile phone being located at, or connected to, a particular cell tower. The Crown Prosecutor then resumed his address and stated as follows: "Ladies and gentlemen, yesterday I was taking you through my closing address to you and I was referring to particular phones that were being recorded to particular cell towers. One matter that you need to remember in relation to those cell towers is that there's a limitation in fact … in that we don't know the area of coverage of a particular cell tower. So that's a matter that you need to keep in mind when I'm giving you the recorded towers that these particular phones were recorded at. That there's no evidence before you as to the actual area associated with the particular cell tower."
9. The Crown Prosecutor's address did not conclude that day and the proceedings were adjourned to Monday, 24 September 2018.

The "Applications"

1. When proceedings resumed on 24 September 2018, and in the absence of the jury, counsel for the Appellant advised the trial judge that "I have an application". He submitted that there had been an "impermissible closing address by the Crown". He referred to aspects of the submissions and evidence concerning the mobile phone evidence and stated "I have instructions [to apply] for a discharge of [the] jury in relation to Mr Sayadi". Counsel continued his submissions making reference to various decisions in which evidence of coverage area of a particular tower had been adduced such as Olivieri v R [2016] NSWCCA 169. Counsel contended that there had been a "misunderstanding of the interpretation of cell tower evidence" and in particular whether one could use the evidence that had been adduced of the "user of the phone being at the location at the time of the call". Counsel then concluded this part of his submissions stating as follows: "…[F]irstly, I would invite the Crown to retract and redact, so redact [Exhibits] 56, 57, everything about cell tower locations, retract all of his submissions about location of the mobile phone of Sayadi and Banat and Bekdache, because they are all Telstra. If he does that that is moving very closely to remedying the problem with your Honour stepping in and directing the jury to cure any prejudice that has already happened and that is where I know it sounds like I am asking a lot, but, in my submission, it is the minimum. That is my application at the moment, your Honour." (emphasis added)
2. It can be seen from this extract that, what may have started out as an application to discharge the jury, did not end up that way. Instead, counsel confirmed that his application "at the moment" was not for a discharge of the jury, but was instead for a redaction of Exhibits 56 and 57 and for the retraction by the Crown Prosecutor of any reference in his closing submissions to mobile phones and cell tower locations.
3. The submissions continued during which the trial judge pointed out that Exhibits 56 and 57 were admitted by consent and that the appropriate time to raise an issue about the Crown's opening was shortly after it occurred. In relation to the application for the redaction of the exhibits and directing the Crown Prosecutor to withdraw a submission, the trial judge stated, "I don't propose to change what I said the other day … on Friday morning". This was a reference to the ruling noted at [38] above.
4. Counsel for the Appellant continued his submissions and focused upon the absence of evidence of the meaning of Telstra call charge records. At one point he reiterated the application noted above at [41] stating "[w]e are now looking at whether under s 136 if we can look at the limitations" and "[n]ow I'm asking for limitations on evidence and my primary submission is it is a blank". The "evidence" to which counsel is referring in this passage is exhibits 56 and 57 and the evidence of Detective Sergeant Ferns described above.
5. The Crown Prosecutor advised the trial judge that Telstra had advised the Crown that they had not undertaken an analysis which would determine where within the coverage area of a cell tower a mobile phone might be located. The Crown Prosecutor referred to evidence that could potentially be obtained from Mr Borg. The Crown Prosecutor confirmed that it did not concern the location of the mobile handset within a particular coverage area. In the absence of the jury, and just prior to the adjournment of the proceedings at the end of the day, the following exchange occurred: "HER HONOUR: Mr Hogan [counsel for the Appellant], why wouldn't I let Mr Borg give evidence? HOGAN: It may be your Honour should in light of the matters that I have raised because, as I have said, it is in the mosaic in the case against Mr Sayadi this is crucial evidence. HER HONOUR: Mr Crown, will you have some enquiries made whether he is available." (emphasis added)
6. After a short adjournment the Crown Prosecutor advised the Court that Mr Borg was available to attend to give evidence the following morning. Counsel for the Appellant requested a witness statement. There was a debate about what material should be given to Mr Borg with the Crown suggesting that it be confined to Exhibits 56 and 57, whereas counsel for the Appellant submitted he should be given access to the CCRs. Counsel for the Appellant stated that, if there was material he wanted Mr Borg to consider, he would provide it to the Crown.
7. The proceedings resumed the next morning, 25 September 2018. Counsel for the Appellant noted that he had received a statement from Mr Borg the previous afternoon. However, contrary to the impression given the previous day, counsel for the Appellant now said that he opposed the adducing of evidence from Mr Borg. He submitted "[t]he Crown needs to now make an application to reopen his case and justify how that can happen and why when the Crown anticipated this a week ago on Tuesday".
8. The trial judge observed that, if counsel for the Appellant had not indicated the previous afternoon that the witness should be called, her Honour would not have adjourned the trial. Thereafter, further debate ensued and eventually her Honour stated, "I propose to allow the Crown to split his case … in the circumstances of the way this issue has developed". The trial judge attempted to describe those circumstances until she was cut off by counsel for the Appellant. Her Honour stated as follows: "… I maintain the position I had on Friday morning, that is because of the way you conducted the case, the Crown understood that there was no issue until a particular point and then he called an expert to give the sort of evidence - "
9. The reference to "the position I had on Friday morning" is to the ruling set out at [38].

Mr Borg's Evidence and the Rest of the Addresses

1. Later on 25 September 2019, Mr Borg gave evidence on a voir dire in the absence of the jury. At the conclusion of his evidence there was a debate about the appropriate phrase the Crown Prosecutor should use in describing the location of a cell tower to which a mobile handset connected. Counsel for the Appellant submitted that the Crown Prosecutor should use the phrase that Mr Borg adopted in his evidence on the voir dire, namely, that a particular mobile phone "was served by" a particular cell tower.
2. Eventually the jury returned to the courtroom. The trial judge told the jury that an issue had arisen about the use that could be made of telephone records and that her Honour had decided that Mr Borg should give evidence so that "more information can be given to you about what use you can make of those records".
3. Mr Borg was then called. His evidence‑in‑chief was brief. He said he was an engineer employed by Telstra. He described the information that was contained in CCRs in a manner identical to what had previously been stated by Mr Melhi in relation to Vodafone. Like Mr Melhi's explanation for the Vodafone network, Mr Borg explained that a "mobile phone looks for the strongest signal and basically this is the main deciding factor as to what mobile base station it connects to".
4. Counsel for the Appellant then cross‑examined Mr Borg. He took up the theme of the connection between the location of the phone and the location of the cell tower that it connects to. At one point in the cross‑examination, Mr Borg was asked and answered as follows: "Q. We have this … this Exhibit 56, which seems to have cell site or RBS referred to it, but you are unable to because of all of the variables that you would go and investigate if you were to provide expert evidence, you would agree there are many problems with these entries which seem to be about cell sites or radio base stations - yes? A. The entries do exactly what they are proposed to do. They are not designed to indicate a coverage area and there's further work. They're only to give an indication of the rough area as to what cell it was served by. They do that quite well. If they're wrong obviously further analysis must be done to make anything of it. Q. In a rough area it's possible, is that it? A. Yes, it's just an idea and it's just a guide, if you like, as to where the phone was." (emphasis added)
5. This passage in Mr Borg's evidence was more than sufficient to support so much of the Crown Prosecutor's address that implied that the fact that a particular mobile phone connected to a particular cell tower was some evidence of the general location in which the phone was located.
6. Following the conclusion of Mr Borg's evidence, the Crown Prosecutor sought to tender the underlying CCRs which supported Exhibits 56 and 57. This application was rejected by the trial judge.
7. At last the Crown Prosecutor was able to complete his address. At various points in the balance of the address, when the Crown Prosecutor referred to a mobile phone handset connecting to a base station, he used the terminology that had emerged out of the exchange noted above, namely, that a mobile handset was "served by" a particular base station or cell tower.
8. During his address to the jury, counsel for the Appellant made reference to Mr Borg's evidence. Counsel contended that the evidence about coverage was "so important it actually blows away a lot of the Crown submissions about people being located at various times with their phone". Counsel also submitted: "An issue arose about what you can make of the telephone records that are in evidence before you. I've decided that this man should give evidence before you so that more information can be given to you about what use you can make of those records." (emphasis added)

The Summing Up

1. In her summing up the trial judge gave the jury an expert evidence direction in relation to the evidence of, inter alia, Messrs Malhi, Gelfe and Borg. Her Honour then gave the jury the following direction: "As you know, you have before you a number of exhibits including Exhibit 22, 56, 57 and F which relate to telephonic contact between, for example, one accused and another or an accused and a third party. The Crown relies upon the location referred to in the relevant exhibits as a piece of circumstantial evidence, but you need to be careful when considering its significance, because it does have its limitations. You will recall that Mr Malhi said that when you switch on a mobile phone the handset will look for the strongest signal from a cell tower and it will relay it to that cell. He said in most cases the strongest signal came from the cell tower which was nearest to the caller, but it depended on many factors, including the height of the tower, the direction of the antennae and adjacent antennae and the topography of the landscape and for that reason to say anything more than that the handset or mobile phone would possibly be in the area covered by that cell tower, he would have to prepare a coverage map to see how big the area covered by that particular cell tower was. He also said that only one coverage map was prepared for this matter, and that is the one that is part of Exhibit JJ and relates to the Ormonde Road, Hurstville, cell tower. You will recall that later Mr Borg gave similar evidence to Mr Malhi's and that he was asked at p 1257: "Q. One cannot say from Exhibit 57 that the phone was in the Blakehurst area, can one? A. With a high level of certainty, you cannot. Q. It's possible it was and possible it wasn't? A. Yes. What I know from experience, I could investigate this and it could come out either way." He said the entries on Exhibit 56 were not designed to indicate a coverage area, as there was further work to do, they are only to give an indication of the rough area as to what cell a call was served by, it is a guide, he said, as to where the phone was. That means, members of the jury, that the location referred in the relevant exhibits is only a guide to the area the phone was in at the time it was used. You do need to be careful not to give the evidence more significance than it allows." (emphasis added)
2. No issue was taken with this direction by the Crown Prosecutor or counsel for any of the accused including counsel for the Appellant. With respect to the trial judge, it represents a completely accurate summary of the evidence concerning the connection between the location of a mobile phone and the location of a cell tower that it connects to. The emphasised passages are consistent with the limited use the Crown Prosecutor made of that evidence in his submissions, namely, as some evidentiary support for ascertaining the general location of persons associated with a particular phone including the Appellant.

Grounds 1 and 2: Allowing the Crown to Reopen

1. Grounds 1 and 2 of the Notice of Appeal contend that the trial judge erred as follows: "1. [In allowing] the Crown to re-open the Crown case in the address phase of the trial and during the course of the Crown closing address, in circumstances where the use of the evidence sought to be addressed had been the subject of a sustained dispute throughout the Crown case. The discretion enlivening leave to reply had not arisen. 2. In allowing leave to re-open during the address phase of the Crown's closing address two fundamentally different and separate phases of the trial had become inter‑mingled being the address or argument phase and the evidence phase. The manifestation of the error in terms of its introduction and effect was so fundamental as to require a new trial."
2. There is a "general rule" governing a criminal trial to the effect that "the prosecution must offer all its proof before the accused is called on to make his or her defence" (The Queen v Soma (2003) 212 CLR 299; [2003] HCA 13 at [29] per Gleeson CJ, Gummow, Kirby and Hayne JJ; "Soma"). In Shaw v The Queen (1952) 85 CLR 365; [1952] HCA 18 it was observed (at 380) that, although "[i]t seems to us unsafe to adopt a rigid formula [as to when the Crown may reopen its case] in view of the almost infinite variety of difficulties that may arise at a criminal trial", nevertheless "[i]t is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case ..". The "general rule" is not a rule of substantive law but is instead a "matter of practice and procedure" (Soma at [28]). Its application is determined by considerations of fairness (The Queen v Chin (1985) 157 CLR 671 at 685 to 686 per Dawson J [1985] HCA 35; "Chin"; R v O'Driscoll (2003) 57 NSWLR 416 at 433; [2003] NSWCCA 166 per Spigelman CJ; "O'Driscoll"). An assessment of unfairness or prejudice depends on the circumstances of the particular trial and "[i]t is pertinent to consider the reasons why the Crown did not adduce the evidence in its own case" (O'Driscoll ibid). Hence, in Chin at 685, Dawson J observed that "[t]here is also authority for the proposition that the prosecution may be permitted to reopen its case to repair omissions of a formal, technical or non-contentious nature".
3. Neither the Appellant's grounds of appeal nor the submissions identify whether it is contended that the trial judge made a wrong decision on any "question of law" or that there was otherwise a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912. I will treat grounds 1 and 2 as invoking both limbs (see O'Driscoll at 433 per Spigelman CJ).
4. In allowing the Crown to reopen, the trial judge referred to the reasons that her Honour gave on "Friday morning" (see [48]). This was a reference to the ruling set out at [38]. In effect, her Honour found that the Crown Prosecutor tendered exhibits and adduced evidence from Detective Sergeant Ferns about the connection between mobile phone handsets and cell tower locations without objection, but on the understanding that an expert would be called to allow cross‑examination about the significance of the evidence to any assessment of the location of the mobile phone that made the relevant call. As events transpired, counsel for the Appellant seized upon the expert's lack of familiarity with Telstra records to cast doubt about the admissibility of the evidence that had already been adduced without objection rather than its scope. Her Honour allowed the Crown to split its case to respond to those events. Nothing in the trial judge's approach reveals an error of law or misapplication of principle.
5. Further, when regard is also had to the uncontroversial nature of the evidence that was in fact lead in chief from Mr Borg, no miscarriage of justice has been demonstrated. Mr Borg's evidence in chief was only directed to confirming that, at a high level of generality, the means by which a mobile phone on the Telstra network connects to a cell tower was the same as how a mobile phone on the Vodafone network connects to a cell tower. His evidence‑in‑chief was truly "technical" and "non-contentious" (Chin at 685). Mr Borg's evidence‑in‑chief did not concern the relationship between the location of a mobile phone and the cell tower to which it locates. Evidence to that effect from him was only adduced by counsel for the Appellant in cross‑examination (see [53]).
6. At the hearing of this appeal, counsel for the Appellant conceded that the evidence that was adduced by the Crown in response to the granting of leave to call Mr Borg was not "different in any real way, to the evidence of Mr Gelfe or the evidence of Mr Malhi". It was nevertheless contended that the "real unfair prejudice … [was] … the extent to which a jury gave undue weight" to the evidence. Given the terms of her Honour's direction which was not the subject of complaint, that contention has no substance.
7. Neither of grounds 1 and 2 raises a question of law "alone". Instead, leave to raise them is required (Criminal Appeal Act; s 5(1)(b)). I propose that leave to raise these grounds be granted but they be dismissed.

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

1. Ground 3 of the Notice of Appeal contends that the trial judge erred in: "Fail[ing] to limit the use of the Column "B" evidence within Exhibit 56 and Exhibit 57 upon the application of Mr Sayadi pursuant to s 136 of the Evidence Act 1995 (NSW) or even to decide the application."
2. The written submissions filed on behalf of the Appellant did not mention this ground. At the commencement of the hearing of this appeal, counsel for the Appellant stated that this ground referred to an alleged failure by the trial judge to limit the use that could have been made of Mr Borg's evidence "to anything more than the limited possibility that [the Appellant's] handset may have been in the coverage area". Counsel accepted that no application to the effect was made to the trial judge and conceded that this ground rose no higher than grounds 1 and 2 of the appeal. It follows that, if the matter was left there, this ground would suffer the same fate as grounds 1 and 2. In any event, given the absence of any application to the trial judge to limit Mr Borg's evidence and the direction that her Honour gave, there is no basis for concluding that there was any miscarriage of justice arising from some failure to limit the use that could be made of Mr Borg's evidence.
3. However, later in his oral submissions counsel for the Appellant identified the reference to s 136 of the Evidence Act in the passage noted at [44] above as the basis for this ground of appeal. That reference is an echo of the submission made to the trial judge set out at [41]. It does not concern Mr Borg's evidence but instead concerns the Appellant's attempts to redact or limit the use of Exhibits 56 and 57 as well as the oral evidence of Detective Sergeant Ferns; evidence that was led without objection. The trial judge rejected any application to retrospectively redact or limit that evidence in the ruling noted at [43], which in turn invoked the ruling set out at [38]. There was no error in her Honour's approach. Before the trial judge, the only real prejudice that counsel for the Appellant identified as arising from that evidence arose from the point he raised in cross‑examination with Mr Melhi about the latter's inability to discuss Telstra CCRs. Ironically, the trial judge, with initial encouragement from counsel for the Appellant, sought to address that by having Mr Borg called only to have counsel for the Appellant reverse his position and oppose that course the next day (see [47]). Given the course of events, the limited evidence that was led from Mr Borg by the Crown and the direction given by the trial judge, no miscarriage of justice was occasioned by the trial judge not redacting or limiting the use that could be made of Exhibits 56 and 57 or the evidence of Detective Sergeant Ferns.
4. Ground 3 does not raise a question of law "alone" and thus leave to raise it is required. I propose that leave to raise this ground be granted but the ground be dismissed.

Ground 4: Alleged failure to discharge the jury

1. Ground 4 of the notice of appeal states that the trial judge erred in "[f]ail[ing to decide the application of Mr Sayadi for a discharge of the jury".
2. The written submissions in support of the appeal did not address this ground. In any event, it is without substance. The application by counsel for the Appellant to discharge the jury was ultimately not pressed. Instead, it was replaced by the application to redact or limit Exhibits 56 and 57 (see [41]). Given that the ground is only directed to an alleged failure to decide an application for a discharge, it follows that the ground is untenable if no such application was in fact pursued.
3. This ground does not raise a question of law "alone" and thus leave to raise it is required. I propose that leave to raise this ground be refused.

Proposed Orders

1. Accordingly, the orders I propose are: (1) The Appellant be granted leave to raise grounds 1, 2 and 3 of his Notice of Appeal. (2) The Appellant be refused leave to raise ground 4 of his Notice of Appeal. (3) The appeal against conviction be dismissed.
2. N ADAMS J: I agree with the orders proposed by Beech-Jones J for the reasons provided by him.

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