SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v El-Debel; R v Kahlon (No 5)
Citation:	[2022] ACTSC 152
Hearing Date:	27 June 2022
Decision Date:	28 June 2022
Before:	Elkaim J
Decision:	Leave to tender MFI 11 is refused.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Tender of a spreadsheet – parts of the document of vague – parts of the document are not explained – document has the potential to be highly prejudicial and unfair.
Legislation Cited:	Evidence Act 2011 (ACT) ss 90, 137
Parties:	The Queen ( Crown) Raminder Singh Kahlon ( Accused in SCC 296 of 2021) Abdul Aziz El-Debel ( Accused in SCC 297 of 2021)
Representation:	Counsel D Staehli SC, A Haban-Beer and S J Young ( Crown) M Kalyk ( Accused in SCC 296 of 2021) C Newman ( Accused in SCC 297 of 2021)
	Solicitors Commonwealth Director of Public Prosecutions ( Crown) Murphys Lawyers ( Accused in SCC 296 of 2021) Kamy Saeedi Law ( Accused in SCC 297 of 2021)
File Numbers:	SCC 296 of 2021 SCC 297 of 2021

Elkaim J:

1. The Crown wishes to tender a spreadsheet (MFI 11) which was located on Mr Vilayur’s computer during the execution of a search warrant on 10 June 2020. The spreadsheet is said to provide evidence, or at least be consistent with, the payments paid to Mr El-Debel pursuant to the alleged conspiracy.

2. Both Mr Kahlon and Mr El-Debel objected to the tender. The objections ranged from relevance to prejudice (s 137 of the Evidence Act 2011 (ACT)) and unfairness (s 90).

3. The Crown pointed out that the spreadsheet has, in general terms, the same attributes as the spreadsheet which is being discussed in the course of an intercepted phone call which is recorded at pages 517 and 518 of Exhibit A.

4. In addition the Crown said that the spreadsheet had a number of similarities with spreadsheets that had emanated from Mr Kahlon’s computer, such as Exhibits J and H.

5. MFI 11 refers to, apparently, payments made or to be made to “Bai”. This is the Hindi word for brother and, on the Crown case, refers to Mr El-Debel. There is some evidence that suggests that Mr El-Debel is Bai. The conclusion however is very much contested.

6. If MFI 11 was in the same format as Exhibit J, and if the conversation referred to above from Exhibit A was about MFI 11, the Crown’s submissions would have been significantly more persuasive.

7. In addition to the points made in the preceding paragraph, I note the following about MFI 11:

(a) The spreadsheet referred to in the conversations, in Exhibit A, is not only about different details but refers to columns, according to an alphabetically ordered description, that does not exist in MFI 11. I accept that the printing of an Excel spreadsheet may not transfer the column descriptions but there remains the problem of aligning the columns in a similar order to those described in the conversation.

(b) There are a number of unknowns in MFI 11. There are two columns bearing the heading of Talent 1 and Talent 2 respectively. There is another column headed “Bai ex.GST”. The latter is said to represent the gross figure of the margin being paid to Mr El-Debel. The difficulty with this is that there is also a column under the Talent 2 heading, which is said to be the net figure, but is also entitled “Bai ex.GST”. While I understand that there may be a reason for there to be a gross and a net figure, I cannot understand why both figures have the same heading.

(c) The column headed Talent 1 is to some extent a mystery. The Crown said that its “best guess” was that it referred to the companies through whom the contractors had submitted their applications in the tender process. These companies were effectively subcontractors to Mr Vilayur’s company, Algoram.

(d) The document emanated from Mr Vilayur’s computer. It is in a different form to Exhibit J, there being no evidence that it was a document to which either Mr Kahlon or Mr El-Debel had contributed. In addition there is no evidence that effect was ever given to the spreadsheet. It could well have been no more than a draft. This is another indication of the ‘unknowns’ associated with MFI 11.

(e) The Crown submitted that the column in Mr Kahlon’s spreadsheets (Exhibits H and J) headed “Other Share (Cash)” was consistent with the Talent 1 column in MFI 11. The structure of the spreadsheets, as already pointed out, is entirely different. The most basic difference is that there is no reference to Bai in either of Exhibits H or J. I accept that the explanations given of this column in Mr Kahlon’s record of interview are perhaps difficult to believe, let alone understand, but this does not necessarily mean that Exhibits H or J are specifically referring to Mr El-Debel. In a case where payments to Mr El-Debel are at the very core of the Crown case, I think it important to not allow evidence that is uncertain and capable of alternative interpretations. The Crown itself conceded that during some financial years the “Other Share (Cash)” column could have other explanations besides payments to Mr El-Debel.

8. I accept that if Mr El-Debel is “Bai” then MFI 11 has some potential relevance. However it is a relevance that, at best, is confirmatory of other evidence, like Exhibits H and J and parts of the intercepted telephone calls, but it is not a document which, by itself, has a substantial probative value.

9. I have also considered its admission on a limited basis, namely as no more than a piece of the circumstantial evidence that makes up the Crown case. On this basis it would need to be attended by directions as to its use by the jury.

10. Ultimately however my decision has been dictated by the vagueness and uncertainty which surround parts of the document. I think they render it inadmissible when viewed against the balance between its probative value and its possible prejudice or unfairness.

11. Accordingly I do not allow the tender of MFI 11.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date:

ACT Supreme Court