(The Honourable Chief Justice Kourakis, the Honourable President Livesey and the Honourable Justice Lovell)
11 August 2022
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
EVIDENCE - ADMISSIBILITY - HEARSAY - EXCEPTION: DOCUMENTS - GENERAL PRINCIPLES - BEST EVIDENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - MISCELLANEOUS MATTERS - ABSENCE OF AVAILABLE EVIDENCE
The appellant appeals against conviction by judge alone on four counts of procuring a child to engage in, or submit to, sexual activity contrary to s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA).
The prosecution case was that the appellant sent electronic messages or “snaps” containing images of his penis to four complainants using the “Snapchat” application. The attempts made by police to obtain data concerning the snaps and associated messaging were criticised. Police did not seize the mobile phones of the complainants and subject them to forensic analysis. Police took photographs of some “screenshots” of some of the messages exchanged.
The appellant contended that the oral evidence of each complainant should be excluded as “secondary evidence” under the common law “best evidence rule”. The appellant mounted other challenges, including the contention that the screenshots should not have been admitted under s 57 of the Evidence Act 1929 (SA).
Held (Kourakis CJ) dismissing the appeal and agreeing with the reasons given by Livesey P on grounds 2 and 3:
1.The oral evidence is admissible as “secondary evidence” because the best evidence rule does not preclude testimony descriptions of documents which evidence a fact in issue which is not concerned with the meaning or legal significance of alphanumerical writing and nor does it preclude the testimony of a witness who only describes what they saw in the image.
Held (Livesey P) granting permission to appeal but dismissing the appeal:
1.The oral evidence of each complainant about each snap was admissible as direct evidence of the offending, as it happened.
2.The “best evidence rule” did not preclude the oral “secondary evidence” of each complainant where the absence of the “original” snaps and underlying data was accounted for satisfactorily: they no longer exist. The obiter dicta by a majority of the High Court in Butera v DPP (Vic) (1987) 164 CLR 180 concerning oral secondary evidence about what was heard on a lost audio tape followed and applied by analogy to snaps sent and received using the Snapchat application.
3.Observations made as to whether snaps are “documents” or photographs for the purposes of the best evidence rule.
4.Other grounds, including the failure to exclude the oral evidence in the exercise of the general unfairness discretion, and the failure to stay the prosecution as an abuse of process, rejected.
5.The screenshots were admissible under s…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Athans v The Queen (No 2)
Sign in free to access the full text
Details
AGLC
Athans v The Queen (No 2) [2022] SASCA 70
Case
[2022] SASCA 70
Decision Date
CaseChat Overview and Summary
The appeal concerned the admissibility of secondary evidence of digital images transmitted via the Snapchat application. The appellant, Athans, was accused of sending sexually explicit images to complainants. The prosecution sought to prove the physical element of the offences by adducing evidence from the complainants regarding the content of snaps they received from the appellant's Snapchat account.
The central legal issue before the court was whether the digital images transmitted via Snapchat constituted "photographs" or "documents" for the purposes of the common law best evidence rule, as modified by section 57 of the *Evidence Act 1929* (SA). This determination was critical because it dictated the standard of proof required for the admissibility of secondary evidence, specifically whether the prosecution needed to demonstrate that a "due search" had been undertaken for the original images, or merely that their absence was "satisfactorily explained."
The court considered the appellant's submission that the images, being photographs, were documents to which the best evidence rule applied, requiring proof of due search for the originals. Conversely, the prosecution argued that the images were not photographs in the traditional sense and therefore not documents, meaning secondary evidence was admissible if the absence of the originals was satisfactorily explained. The prosecution urged the court to avoid applying outdated legal principles to modern technology, referencing the High Court's decision in *Butera v DPP (Vic)* concerning the admissibility of transcripts of recorded conversations.
Permission to appeal was granted on two grounds, and the appeal was ultimately dismissed. The court affirmed that the common law best evidence rule, as modified by statute, remained applicable in South Australia, and the question of whether digital images constituted documents for its purposes was central to the admissibility of the secondary evidence presented by the prosecution.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Notwithstanding these avenues, the Guide explained that not all content is recoverable. That is because Snap Inc’s servers are designed to automatically delete most user content and because much of a user’s content is encrypted. Accordingly, Snap Inc “often cannot retrieve user content except in very limited circumstances”.[72] [72] The Snap Inc Law Enforcement Guide, p 10.The prosecution case and the complainants’ evidence in overview The actus reus or physical element of each count was alleged to be the sending of sexually explicit snaps to each complainant using Snapchat, and the consequential viewing of those sexually explicit snaps by each complainant using Snapchat. The prosecution case was that the following sequence occurred concerning each complainant:1. Whilst on his bed in his bedroom the appellant took a sexually explicit image of himself. 2. The appellant caused the image or snap to be sent electronically using Snapchat. 3. Using Snapchat, the complainant received, opened and viewed the snap, being the sexually explicit image taken by the appellant. In relation to Count 1, the prosecution sought to prove the physical element of the offence by adducing evidence from the complainant DN that, on 3 April 2016, she received six snaps from the user of the “Nick.Atonik” Snapchat account.[73] The first image allegedly received was that of a male in bed wearing tight blue Calvin Klein underwear. The male’s “slightly erect” penis was discernible in that image.[74] The second and third images were taken in the same bedroom and featured a male lying on a bed with his erect or mostly erect penis exposed.[75] The remaining images featured an exposed penis.[76][73] Ruling, [11], [16], [17].[74] Trial Transcript, p 91.[75] Trial Transcript, p 99.[76] Trial Transcript, p 102. It is appropriate to consider these complaints together.The failure to warn and forensic disadvantage The appellant did not address these complaints in his oral submissions. The trial judge warned herself about the “significant forensic disadvantage” occasioned to the appellant in the following terms:[210]The alleged offending occurred from 3 April 2016 to 15 July 2017. The charges proceeded to trial in 2020. During the interim period, the police did not seize the mobile telephones used by the complainants, and electronic material was not extracted from them and a forensic copy was not made of that material. The delay has resulted in a significant forensic disadvantage to the accused in that electronic data extracted from a mobile device is superior in recording information about the communications compared with screenshots taken of various messages, for the reasons elicited by Ms Noordin.[211] Further, the complainants’ memories have faded and the accused has lost the ability to test and challenge the detail of their accounts. The significant forensic disadvantages to the accused caused by the delay must be considered when deciding whether the prosecution has proved the case on each charged offence.[212] [210] Reasons, [19].[211] Trial Transcript, 389-391.[212] Evidence Act, s 34CB.
Decision
Reasons for decision
This ground must be dismissed. Conclusion Permission to appeal on Grounds 2 and 3 should be granted. The appeal should be dismissed. LOVELL JA: Although subject to much criticism, the common law “best evidence rule”, as modified by s 57 of the Evidence Act 1929 (SA) (“the Act”), remains the law in South Australia. This appeal raises the question of the admissibility of secondary evidence if the original of a digital image cannot be produced. At trial, the prosecution was unable to obtain a copy of the transmitted images (or the original). The complainants gave secondary evidence of the contents of images (to use a neutral term) transmitted to their mobile phones by means of the Snapchat application (“the App”). The prosecution alleged that the images were sent by the applicant. On appeal, the applicant submitted that, as the images were photographs as that term is commonly understood, they were, at common law, and as modified by the Act, documents[222] attracting the operation of the best evidence rule as it applies to documents. Thus, secondary evidence of the document was only permitted if the prosecution established that due search had been undertaken and the original document could not be produced. The Director of Public Prosecutions, Mr Hinton QC, urged this Court to find that the images transmitted to the complainants’ mobile phones were not photographs and thus were not documents. The prosecution, therefore, did not have to meet the due search test. Secondary evidence was admissible if the absence of the original image was “satisfactorily explained”.[222] By operation of s 4 of the Legislation Interpretation Act2021 (SA). I generally agree with the reasons of Livesey P and the orders he proposes subject to the follow remarks. Mr Hinton accepted on appeal that the best evidence rule applied in this case but submitted that as the images were not photographs, and therefore not documents, secondary evidence was admissible if the absence of the original image was “satisfactorily explained”. Mr Hinton submitted that to describe the images sent as photographs “ignores the nature of the devices and the technology utilised”. He urged the Court to not rely on the ‘Dickensian’ authorities and ‘shoehorn’ what occurred in this case into “300 years of case law dealing with a very different way of communicating, into the modern world, where 20 years ago you could do a criminal trial without any mention of a mobile phone”. Mr Hinton directed his submissions to the reasoning of the High Court in Butera v DPP (Vic) (“Butera”).[223] In Butera, the High Court considered the admissibility of transcripts of conversations of the accused, those conversations having been recorded on tape through the means of a listening device (there was no challenge to the admissibility of the tape recording the conversations). The Court held that the transcripts were not admissible as evidence of the content of the conversations. [223] (1987) 164 CLR 180.