Ku-ring-gai Council v John David Chia (No 14) [2018] NSWLEC 186

Ku-ring-gai Council v John David Chia (No 14) [2018] NSWLEC 186

The affidavit tables summarised Telstra business records and did not interpret the data, so they were not inadmissible opinion evidence and did not require expert evidence under ss 76 or 79. Relevance was established, and any risk of unfair prejudice or misuse of the location data was cured by limiting its use under s 136 to establishing only that the defendant's phone was within Sydney at the recorded times and dates, not to pinpoint the defendant's precise location.

Jurisdiction
Australia
Judgment Date
16 November 2018
Procedural Posture
Class 5 Criminal Proceedings / Procedural Ruling During Trial on Admissibility and Permitted Use of Affidavit Summarising Subpoenaed Mobile Phone Records
Outcome
Affidavit admitted subject to a limitation on the use of location data.
Legal Topics
['summary Evidence' 'business Records' 'opinion Evidence' 'expert Evidence' 'mobile Phone Records' 'location Data' 'unfair Prejudice' 'limitation on Use of Evidence']
['evidence' 'criminal Procedure'] ['summary Evidence' 'business Records' 'opinion Evidence' 'expert Evidence' 'mobile Phone Records' 'location Data' 'unfair Prejudice' 'limitation on Use of Evidence']

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Procedural Posture

Class 5 Criminal Proceedings / Procedural Ruling During Trial on Admissibility and Permitted Use of Affidavit Summarising Subpoenaed Mobile Phone Records

Legal Issues

  1. 1 ['Whether summaries of voluminous Telstra mobile phone records could be admitted under s 50 of the Evidence Act 1995 (NSW).' 'Whether the affidavit and tables were opinion evidence or required expert evidence under ss 76 and 79 of the Evidence Act 1995 (NSW).' 'Whether mobile phone location data could be used in the absence of expert evidence.' 'Whether any unfair prejudice or risk of misleading or confusing use of location data should be addressed under ss 136 and 137 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The affidavit tables summarised Telstra business records and did not interpret the data, so they were not inadmissible opinion evidence and did not require expert evidence under ss 76 or 79. Relevance was established, and any risk of unfair prejudice or misuse of the location data was cured by limiting its use under s 136 to establishing only that the defendant's phone was within Sydney at the recorded times and dates, not to pinpoint the defendant's precise location.

Court Disposition

Affidavit admitted subject to a limitation on the use of location data.

Orders

  • ["The affidavit of David Thomas Gunter made 13 November 2018 was read subject to the restriction under s 136 of the Evidence Act 1995 (NSW) that the Location data in Tables A, B and C annexed to the affidavit are not to be used for any purpose other than establishing that the defendant's phone was within Sydney at...