DPP Reality Distortion... or is it Perverting the Course of Justice
Below is an extract from the Ora Banda Trial where Phil Dunn QC is questioning the DPP witness, Stephen Elliot, an intelligence analyst with the Western Australia Police Service. Gary White was one of five accused in the dock that were acquitted of the charges laid by the DPP and in particular Ken Bates, based upon the testimony of Sidney Reid, the same double murderer that got Gary convicted of murder months earlier.
This is an example of the lengths the DPP in WA will go to ensure a conviction... by deliberately and wilfully distorting evidence that does not meet their version of the facts. Benjamin Disraeli once wrote "there are lies, damn lies, and then there are statistics." The DPP and Police follow this famous phrase closely as, in WA there are lies, damn lies and then there is the DPP version of the truth.
The responses by Mr Elliot are shown in RED.
DUNN, MR: Did you do the initial charts, that you spoke about, for the police sometime before that? --- These ones?
As I understood your evidence, the genesis of these charts was from charts you'd done to assist the police originally? --- There was an original working copy and then we worked on it from those and ---
When did the working copy start? When did this work in progress start? --- 2002, very late in 2002.
The reverse call charge records, when were you requested to get those? --- That would've been - I'd have to look at my supplementary statement.
Just roughly? --- It was earlier this year.
Earlier this year. Before June of this year, in any event? --- Yes.
Are you aware of when those charts were first provided to the defence and the incoming - sorry, the incoming call records? --- No, I'm not.
All right. Thank you, Mr Elliott. If you'd just return that pen to Mr Scudds so I don't get in trouble.
DUNN, MR: I'll use Mr Scudds' pen.
FENBURY DCJ: Yes?
DUNN, MR: Thank you very much, your Honour. I was just saying leave Mr Scudds' pen right where it is.
Sir, isn't this the situation: in June of this year the DPP asked you to prepare these charts, of the type that you're now looking at, to assist the jury in their deliberations? --- Yes, that's correct.
So in other words, this chart was designed to be helpful, was it, and not misleading? --- That's correct.
All right. Well, I'll come back to that chart in a moment. Just a couple of basic things; as an analyst, do I understand that what you do is you interpret data? That's your job? --- Part of my job, yes.
You don't claim to be an expert in telephony? --- No.
But you don't have to be an expert in telephony, I suppose, to know these things: if you look at a phone record, a mobile phone record, that is, it will tell that the phone was used near a certain mobile phone tower. Right? that's marked on the bill? --- Agreed.
It doesn't tell you who was using the phone? --- No, it does not.
In relation to my client it s admitted that he had access to a mobile phone 0417-xxx-xxx. In relation to when a mobile phone is not used, in other words, when there's no calls, you can't by any electronic means tell where that phone is? In other words, if my phone is not - my phone right now is in my jacket but can you find out where it is by any intelligence method that you, the police or the phone companies have got? --- Not that I can think of, no.
If you don't know where the phone is, you don't know who has got access to it ? --- That's correct.
- - - as a matter of logic. In November of 2000 I'm instructed that my client, his partner and their children, three children, lived in Oxley Road out in Hovea near the corner of Callan Street and Oxley Road in Hovea. Have you checked by the simple method of contacting Telstra on their customer service line or indeed going on the Web to www.telstra.com.au/mobile to see whether that address where Mr Stupar lives is within the mobile phone range - where he lives? In other words, if he's there on Sunday, 5 November, could he use his phone? --- I didn't make that inquiry, no.
So do you tell the jury on this helpful chart that you've produced you don't know whether where Mr Stupar lives, if he's home with his family on Sunday, 5 November - whether he's got mobile service or not? --- No, I didn't make those inquiries.
And nobody asked you to? --- No.
All right. So if I was to suggest to you that the area that he lives in is marked on Telstra maps as being an area where mobile phones will only work if they're connected to an external aerial such as a car phone, you can't comment one way or the other? --- No, I'm not aware of that.
I suppose one way of testing, however, about that would be to check, would it not, the phone number 9295-xxxx registered in the name of Mr R.D. Stupar of 1105 Oxley Road, Hovea? Did you check that phone to see what calls were made on that phone on Sunday, 5 November? --- No, I was only requested to look at mobile phones.
So you were given a very selective task, weren't you? --- You could say that.
Yes. In other words, you didn't look up to see what phone calls were made from Mr Stupar's home phone to see if he was, for example - who the phone calls were made to, if you could tell therefore who was being contacted or anything like that? --- No.
No. All right. In relation to the chart which is in front of you, which is exhibit 68 - I wonder, your Honour, if the witness could be shown exhibit 73 which is the bar chart for the phone Mr Stupar had access to and I want you in particular to look at the bar chart for November of 2000. Do you have that there in front of you? --- Yes, I have.
5 November - just turn it up so first of all the jury then myself can see it. Are there any colour markings on that chart? --- Yes, there are.
And where are the colour markings? --- 5 November is coloured in yellow.
Can I ask you to do this, if you would. Could you take the green biro or the green highlighter and run a line from the 5th across like so to the left-hand side of the page as you hold it. 5 November 2000 is a Sunday so let's go seven days along to 12 November 2000. Could you put another mark along there. Would you lift that up, then show the jury. How many phone calls were made on Sunday, 5 November on the mobile phone Mr Stupar had access to? --- There were no phone calls made.
On the following Sunday, 12 November, how many phone calls were made by Mr Stupar's mobile phone? --- There were no phone calls made.
No phone calls made? I see. In between 5 and 12 November were there phone calls made during the week; that is, on Monday, Tuesday, Wednesday, Thursday? --- Yes, there were.
And on Saturday were there any phone calls, that is, Saturday, 10 November any mobile phone calls made? --- No, there were not.
So did you think, "Well, I'd better check just to see if his phone works when he's home - if he's in a mobile radio range." No? You didn't think to do that? But you were producing this chart to try to show the jury that there's some sort of link about no phone calls being made on 5 November. There's some correlation. That's why you did that chart, didn't you?
WILSON, MR: I object to that.
DUNN, MR: Why?
WILSON, MR: I'm not sure if this is a question that this particular witness can answer.
DUNN, MR: Well, I'll ask him ...
Did you deliberately, on the instructions of the DPP, prepare a chart to try to show no phone calls were being made on 5 November and there's something sinister in relation to Mr Stupar's phone call? --- I certainly did not.
Well, what on earth are you producing this - why have you got a red line down 5 November? Is that to try and trick the jury into thinking there's something symbolic about no phone calls being made on that day? Why did you put the red line, or was that not your idea? --- I was instructed to do that.
Who instructed you to put a red line on 5 November? --- The DPP.
Who? --- The DPP.
The DPP. All right. Now, would you go to the next Sunday, 19 November. Were there four phone calls made on that day? --- Yes, there were.
Would you put a green line on that? Would you now go to the following Sunday, 26 November, and tell the jury how many phone calls Mr Stupar's phone made on that day? --- One.
One. All right. Would you make a note of that please? So do you say that you produced this chart - did you think that this chart that you're producing to the jury by putting days either side of 5 November was designed to show the jury that phone calls were being made on days either side. Was that the purpose of it? --- The purpose was to show over that particular period of November the frequency of calls that were being made on particular days - - -
And a red line down the 5th. All right. Well, let's see in relation to Mr Reid's telephone. Were you asked to work out where Mr Reid was on Sunday, 5 November - where his phone was; not him. You can only tell where his phone was, I suppose. Mr Reid - you've got him there? --- Yes, I have.
And I wonder if the witness could be shown Mr Reid's phone records - that's the outgoing calls made by his phone, which is at page 399.20 of the brief, for 5 November. Did you do any analysis of where Mr Reid was on Sunday, 5 November 2000, sir? --- I'm just finding it, sir.
That's all right, but before you look at these records, did the DPP ask you to do any analysis of the movements of Mr Reid or his phone on Sunday, 5 November to see if it confirmed or corroborated what he was claiming in his evidence? --- No. I in fact looked at that in our preliminary investigations, in part of our working copy, and we looked at the cell site locations that corresponded on that particular day.
And is that a chart you've been asked by the DPP to produce to help the jury? --- Yes, based on the original working - - -
No, no. The cell site locations - have you got that for the jury to see? --- Yes.
And where's that? --- It's on the chart here.
All right. So can we take it then that it shows on 5 November Mr Reid was in the Kalgoorlie-Boulder area throughout the day, if he was using the phone? --- Yes, there were calls made on that day and, you're correct, it's the Kalgoorlie-Boulder area.
So, for example, does it show that at 6.50 in the morning his phone was connected to the Kalgoorlie tower - at 9.15 to the Kalgoorlie tower? --- These records show 5 October - - -
Sorry, did I say October? 5 November? --- Yes. The first call on 5 November was 0212 hours.
Let's go through it then bit by bit. So then at 6.50 in the morning there's Mr - the phone connected with Mr Reid making a call connected to the Kalgoorlie tower? --- Correct.
At 9.15 his phone was connected to the Kalgoorlie tower? --- Yes.
11.41 his phone was connected to the Boulder tower? --- Yes.
12.13 he's connected to the Kalgoorlie tower? --- Yes.
12.28 he's at the Kalgoorlie tower? --- Yes.
At 3.46 in the afternoon he's making a phone call from the Kalgoorlie tower? --- Yes.
He could be in Kalgoorlie or Boulder, either one. Right? As you know, they're proximate. At 4.48 in the afternoon he was making a phone call from the Boulder-Kalgoorlie area. Right? --- Mm'hm.
Do you know who he rang? As an analyst, can you tell the jury who he rang at 4.48 in the afternoon on Sunday, 5 November? --- No.
But you would know from your records. Will you tell - wouldn't you? You checked all this out? --- I checked - in fact I checked most of the numbers on there.
All right, and you've left off who he called on that chart that you've prepared? --- Yes.
Well, would you tell the jury who he rang, seeing you've left it off? --- I don't know who he rang. I'd have - given the number - - -
You'd have to go and check your files, wouldn't you? --- Yes, I would.
Well, is there some reason the - were you asked by the DPP not to include who he rang on that number? --- For a number of numbers on there they - - -
The DPP asked you to exclude who he rang, did they? --- The - - -
I'll ask the question again so the jury understand it. Did the DPP ask you to drop people's names off this chart that's been produced? --- Yes, they did.
They did? Did they tell you why the DPP, when you're producing a chart to help the jury, you're going to take names off it? --- It was cluttering the chart.
It's cluttering the chart. Okay. Well, could go please. then to the outgoing - the calls - the reverse calls that were made to Mr Reid by other phones, that's 399.65, for 5 November? --- Yes.
When you look at that, do you see that on 5 November Mr Reid's phone received calls from a number of other phones? --- Yes, that's correct.
Do you see that at 2.36 in the afternoon, 2.6 p.m., he was called - his phone was called by a phone, 0410-xxx-xxx? --- Yes. That's Megan Bresland's phone, isn't it? --- I believe so, yes. Yes, all right. So Ms Bresland's phone is calling Mr Reid's phone at 2.36 in the afternoon and then he is called by a phone, 0407-xxx-xxx. Whose phone is that? Whose phone was ringing Mr - whose phone is ringing Mr Reid? Is it on your chart? Have you - - -? ---No, it is not on the chart.
What, you didn't put that on the chart either? --- No, I didn't.
You didn't put that on the chart for the jury, who rang him? --- No, I did not.
Why not? --- I was asked to remove that.
Were you? Were you? You're asked to remove something for 5 November. All right. So at 5.14 p.m. phone 0407-xxxx-xxxx rang Mr Reid's phone and there was a conversation of 71 seconds? --- That's correct. - - -
Can you tell the jury now, seeing you were asked to delete it, whose phone number that was? --- I'd have to check my records on that.
I see. Was Mr Reid contacted again three minutes later by exactly the same phone for a conversation of some 58 seconds? --- Yes, he was.
Can you tell the jury whose phone was ringing Mr Reid's phone on Sunday afternoon at about 17 minutes past 5? --- No, I cannot .
All right. Is it on your chart? --- No, it's not on my chart.
It's not on that chart either? Were you asked to take that one off as well? --- Yes.
You were. Okay. Was he contacted at - did Megan Bresland's phone ring him at 5.44 p.m. for 54 seconds? --- Yes.
And you would, as an analyst, assume the following: Megan, Bresland's phone at 5.44.p.m. on Sunday, 5 November rang Reid's phone and the phones were connected for some 54 seconds, meaning it looks like there s a conversation between the parties. Right? --- Yes.