Thursday, March 19, 2015

Appeal case - Boardman - phone evidence/cell site

The serving of evidence and arbitrarily what should be served or should be not served is highlighted in this Appeal case. It is noted the Appeal Court dealt with issues surrounding making burdensome requests for evidence from the police. I suspect the comments of the Appeal Court could be misconstrued meaning there is a potential for further hearings as to relevance of evidence. The Appeal Court indicates it is an abuse for the defence to get the police to do their work. Also, too much weight was being placed on the issue as to the police not supplying the evidence in the format received from the operators (in .xls(x) format as opposed to served .pdf) being used as an element in dismissing a case.

The problem with Appeal cases like this is that whilst they are excellent in giving guidance on how to go forward they do not establish what the police should be doing in relation as to what evidence to obtain in the first place. If the police simply obtain call records and cell details and do no more what weight can be given to this?

Looking at other issues

(a) If the police decide on minimal evidence (e.g. cell details) then is it the position that the police or the prosecution (for that matter) are waiting on the defence to conduct cell site analysis including radio test measurements at points of interest, thus doing the work for the police/prosecution?

(b) If the police conduct cell site radio test measurements is there a requirement to find out (i) the operational performance of the cell site/s at the material time/s to compare with conducted investigatory tests, which happen after the alleged offence has been committed, or is it the case (ii) that the defence cannot ask for justification as to the validation of any tests as to whether the police/prosecution have made the appropriate enquiries to the operator/s concerned regarding operational performance of particular cell sites?

These are just some of the many questions that arise.

Cell site analysis is important not only from a criminal investigations aspect but at national security level as well. The value as a useful investigation tool is not one sided, but can become that way if the science approach, technical understanding and evidential pillars are randomly chosen.

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