Prosecutors seek review of judge's ruling on evidence relating to mobile phone masts
Prosecutors have asked the Court of Appeal to review a judge's ruling on evidence related to mobile phone masts which, they claim, will present ongoing difficulties in criminal trials.
The appeal with prejudice was taken following the directed acquittal of two persons for their alleged role in an historic crime.
Details of the persons and the alleged crime cannot be published as they are not presently charged with any offence.
The judge's ruling was made on the question of whether records from mobile phone masts could be relied upon to link individual phones to accused persons by placing them at relevant locations at relevant times.
Prosecuting counsel told the Court of Appeal yesterday that it had not been alleged that any of the accused were in a particular location but that they were in a general location.
Exactly where the calls were made had never been established, nor could it, he said.
If a call was routed through a particular cell site, the call wasn't made from the other side of the country, he said, but was made from within the cell site's coverage.
It was real evidence, he said, that those calls were made at that time and the conclusion to be drawn was a matter for the jury.
He said the judge extended the requirement necessary to adduce such evidence and had done so in error. If the error was not corrected by the Court of Appeal, he said, ongoing difficulties would persist and present themselves in criminal trials.
Responding to the prosecution, counsel for the defence at trial said there were two situations where the records could become unreliable and that was the problem.
The problem arose in relation to whether a mast was turned off and also whether the call was rerouted due to overloading.
The maintanence records of the cell sites were available for three years but appeared not to have been taken in time, counsel stated.
It wasn't a theoretical possibility, he said, but masts were turned off “not infrequently”.
Evidence in relation to the operation of the system at the time was required at a minimum, he said.
The judge referred to the fact that this seemed to be a reasonable expection on the basis of what the evidence was and how it was presented. All the prosecution had to do was look at the records, counsel said.
The defence were hampered, counsel said.
Secondly, if the call was rerouted due to overloading then the call is sent to a cell with a weaker signal and one you wouldn't expect it to be sent to.
There had been extensive expert evidence dealing with the operation of the system and “these two glitches in the system” had to be explained away to the satisfaction of the judge who was in a unique position to see the importance of it, he said.
The question was whether the evidence was reliable in those circumstances and it was a burden the trial judge appropriately placed on the prosecution, counsel said.
It was highly significant to know if the network was operating at the time, he said.
He said the judge was in a position to see the maps, the specifics of the evidence and the distortion of the records in the absence of information on rerouting and what stations were switched on.
Mr Justice George Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the court would reserve judgment.