R v Karaali (No 2) [2022] NSWSC 1799

R v Karaali (No 2) [2022] NSWSC 1799

Sergeant Catto-Pitkin’s opinion in paragraph 20 of his report is inadmissible as it exceeded his expertise under s 79 of the Evidence Act 1995 (NSW); however, factual findings from the Unfurl software regarding timing can be put before the jury if properly detailed. Mr Chang's expert evidence on telecommunications is admissible despite late service because exclusion would not significantly impair trial fairness, and it is in the interests of justice. The Crown may rely upon certain post-offending conduct (hiding the phone, removal of SIM card) as evidence of consciousness of guilt, but cannot rely on the fact that the SIM card was not registered in the accused’s name as such evidence.

Jurisdiction
Australia
Judgment Date
04 August 2022
Procedural Posture
Criminal / Pre Trial Procedural Rulings (voir Dire) Before Jury Trial
Outcome
Admissibility rulings granting in part and denying in part the parties' applications; certain expert evidence excluded, some allowed, directions for supplementary evidence ordered, and limits on Crown's use of consciousness of guilt evidence imposed.
Legal Topics
['expert Evidence' 'admissibility of Evidence' 'consciousness of Guilt' 'telecommunications Evidence' 'circumstantial Evidence']
['criminal Law' 'evidence'] ['expert Evidence' 'admissibility of Evidence' 'consciousness of Guilt' 'telecommunications Evidence' 'circumstantial Evidence']

Case Brief

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Procedural Posture

Criminal / Pre Trial Procedural Rulings (voir Dire) Before Jury Trial

Legal Issues

  1. 1 ['Whether expert evidence from Sergeant Catto-Pitkin regarding user-initiated searches on a mobile phone is admissible' 'Whether late-served expert evidence from Mr Chang is admissible despite possible unfairness to the accused' 'Whether certain post-offence conduct can be relied upon as evidence of consciousness of guilt']

Ratio Decidendi

Sergeant Catto-Pitkin’s opinion in paragraph 20 of his report is inadmissible as it exceeded his expertise under s 79 of the Evidence Act 1995 (NSW); however, factual findings from the Unfurl software regarding timing can be put before the jury if properly detailed. Mr Chang's expert evidence on telecommunications is admissible despite late service because exclusion would not significantly impair trial fairness, and it is in the interests of justice. The Crown may rely upon certain post-offending conduct (hiding the phone, removal of SIM card) as evidence of consciousness of guilt, but cannot rely on the fact that the SIM card was not registered in the accused’s name as such evidence.

Court Disposition

Admissibility rulings granting in part and denying in part the parties' applications; certain expert evidence excluded, some allowed, directions for supplementary evidence ordered, and limits on Crown's use of consciousness of guilt evidence imposed.

Orders

  • ["Paragraph 20 of Sergeant Catto-Pitkin's report of 14 July 2022 is rejected." 'The prosecution is directed to obtain a supplementary report from Sergeant Catto-Pitkin with specified findings regarding the Google search terms and timings.' 'The evidence of Mr Chang as contained in his report of 21 July 2022 and as...