Athans v The Queen (No 2)
[2022] SASCA 70
•11 August 2022
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ATHANS v THE QUEEN (No 2)
[2022] SASCA 70
Judgment of the Court of Appeal
(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 57 of the Evidence Act 1929 (SA).
Held (Lovell JA) dismissing the appeal and agreeing with the reasons given by Livesey P subject to separate remarks:
1.With the peculiarities of the Snapchat Application, this case is not the appropriate vehicle to redefine what amounts to a photograph, and therefore a document, for the purpose of the common law.
2.Whether the image is a photograph or not, the best evidence rule as modified by the High Court in Butera v DPP (Vic) (1987) 164 CLR 180 applies. For the reasons given by Livesey P, it does not matter whether the test of “due search” or “satisfactory explanation” is applied as the prosecution met both tests. The secondary evidence given by the complainants was admissible.
Acts Interpretation Act 1915 (SA) s 4; Criminal Law Consolidation Act 1935 (SA) s 63B(3)(a); Evidence (National Uniform Legislation) Act 2011 (NT) s 47, Dictionary; Evidence Act 1906 (WA) ss 3, 79B; Evidence Act 1929 (SA) ss 5, 34C, 34CB, 34G, 54, 55, 56, 57; Evidence Act 1977 (Qld) sch 3; Evidence Act 1995 (Cth) s 47, Dictionary; Evidence Act 1995 (NSW) s 47, Dictionary; Evidence Act 2001 (Tas) ss 3(1), 47; Evidence Act 2008 (Vic) ss 47, 48, Dictionary; Evidence Act 2011 (ACT) s 47, Dictionary; Interpretation Act 1984 (WA) s 5; Juries Act 1927 (SA) s 7; Legislation Interpretation Act 2021 (SA) s 4, referred to.
ASIC v Rich [2005] NSWSC 417; Attorney-General’s Reference (No 1 of 1990) (1992) 95 Crim App R 296; Beauregard-Smith v The Queen (1995) 180 LSJS 188; Blatch v Archer (1774) 1 COWP 63; Bristow v The Queen (2020) 137 SASR 449; Bromley v The Queen (1986) 161 CLR 315; Butera v DPP (Vic) (1987) 164 CLR 180; Commissioner for Railways (NSW) v Young (1962) 106 CLR 535; Conwell v Tapfield (1981) 1 NSWLR 595; Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; De Sa v The Queen [2021] SASCFC 22; Derby & Co Ltd v Weldon (No 9) [1991] 1 WLR 652; DPP (SA) v Jaunay [2020] SASCFC 25; DPP v Garcia [2015] VSCA 275; DPP v Nguyen (1990) 156 LSJS 475; Garton v Hunter [1969] 2 QB 37; Godfrey v Woolworths (WA) Pty Ltd (1998) 103 A Crim R 336; Gregg v The Queen [2020] NSWCCA 245; Hill v Zuda Pty Ltd (2022) 96 ALJR 540; Holmden v Bitar (1987) 47 SASR 509; Jago v District Court (NSW) (1989) 168 CLR 23; JGS v The Queen [2020] SASCFC 48; Kajala v Noble (1982) 75 Cr App R 149; Lloyd v Powell Duffryn Steam Coal Co Ltd [1914] AC 733; Longman v The Queen (1989) 168 CLR 79; Mack v Lenton (1993) 32 NSWLR 259; Maks v Maks (1986) 6 NSWLR 34; Masquerade Music v Springsteen (2001) 51 IPR 650; Myers v DPP [1965] AC 1001; National Australia Bank Ltd v Rusu [1999] NSWSC 539; Omychund v Barker (1744) 1 Atk 21; People v Rose (Mich Ct App, No 351282, 18 February 2021); Police v Dorizzi (2000) 84 SASR 403; Police v Dunstall (2014) 120 SASR 88; Police v Dunstall (2015) 256 CLR 403; Police v Hall (2006) 95 SASR 482; Police (SA) v Pakrou (2008) 103 SASR 124; Police v Sherlock (2009) 103 SASR 147; Pollitt v The Queen (1992) 174 CLR 558; Port Jackson Steamship Co v Mayers (1888) 9 LR (NSW) 470; Question of Law Reserved (No 3 of 1997) (1998) 70 SASR 555; R v Ames [1964-5] NSWR 1489; R v Athans [2021] SADC 1; R v Athans [2021] SADC 3; R v B, P [2016] SASCFC 30; R v Becirovic [2017] SASCFC 156; R v Calabria (1982) 31 SASR 423; R v Cheng [2015] SASCFC 25; R v Christie [1914] AC 545; R v Collie (1991) 56 SASR 302; R v Edwards (2009) 83 ALJR 717; R v Finn [2014] SASCFC 46; R v Gaudion [1979] VR 57; R v Governor of Pentonville Prison, ex parte Osman [1990] 1 WLR 277; R v Howe [1958] SASR 95; R v Lobban (2000) 77 SASR 24 ; R v Matthews [1972] VR 3; R v N, RC [2012] SASCFC 37; R v Narula (1986) 22 A Crim R 409; R v Nikolovski [1996] 3 SCR 497; R v Nguyen [2015] SASCFC 7; R v Nicholson (1984) 113 LSJS 125; R v O’Leary [1946] SASR 175l; R v O’Sullivan and Mackie (1975) 13 SASR 68; R v Perry (No 3) (1981) 28 SASR 112; R v Perry (No 4) (1981) 28 SASR 119; R v Romeo (1982) 30 SASR 243; R v Sitek [1988] 2 Qd R 284; R v Symons (2018) 130 SASR 503; R v Szach (1980) 23 SASR 504; R v T, WA (2014) 118 SASR 382; R v Wakefield [1975] 2 All ER 40; R v Whitehorn (1983) 152 CLR 657; Ratten v The Queen [1972] AC 378; Ridgeway v The Queen (1995) 184 CLR 19; Saleh v Romanous [2010] NSWCA 373; Seiler v Lucasfilm Ltd (1987) 808 F2d 1316; Semple v Noble (1988) 49 SASR 356; Smith v The Queen (2001) 206 CLR 650; Southern Equities Corporation (in liq) v Bond (No 2) (2001) 78 SASR 554; Strickland v DPP (Cth) (2018) 266 CLR 325; Subramaniam v Public Prosecutor [1956] 1 WLR 965; Sudgen v Lord St Leonards (1876) 1 PD 154; Taylor v Chief Constable of Cheshire [1986] 1 WLR 1479; Wade v The Queen (2014) 41 VR 434; Walton v The Queen (1989) 166 CLR 283; Williams v Spautz (1992) 174 CLR 509, considered.
ATHANS v THE QUEEN (No 2)
[2022] SASCA 70Court of Appeal – Criminal: Kourakis CJ, Livesey P and Lovell JA
KOURAKIS CJ: I gratefully adopt the summary of the evidence set out in the judgment of Livesey P. I would dismiss the appeal on grounds 2 and 3 for the reasons given by his Honour. I would dismiss the appeal on ground 1 for the reasons which follow.
The written submissions of both the appellant and the Director of Public Prosecutions (the Director) filed before the hearing of the appeal, and their oral submissions, proceeded on the erroneous premise that the best evidence rule applied to photographs which displayed no written language and other mute images of people or objects (collectively referred to as mute images). The submissions proceeded to debate, from that premise, the proper application of the decision of the High Court in Butera v DPP (Vic)[1] (Butera) to images of a man posing indecently which were sent through the social media application known as Snapchat. As best I can understand it, the premise was accepted because Butera dealt with a 20th century innovation, an audio tape recording, and Snapchat was a 21st century technological innovation. However the decision in Butera extended the best evidence rule from documents bearing written language to covertly taken audio tapes of the conspiratorial conversations of drug traffickers. The preliminary question, whether what remains of the best evidence rule is limited to precluding secondary evidence of the words read on a document, or heard on the playing of an audio recording, when there is no satisfactory explanation for the absence of the record, was overlooked.
[1] (1987) 164 CLR 180.
After the hearing of the appeal the Court asked for and was provided with written submissions addressing the following questions:
1.Does the best evidence rule apply to images which do not include any writing?
2.Is the best evidence rule limited to precluding oral evidence to prove the meaning or significance of the writing in a document from a legal or evidentiary point of view?
3.If yes to either or both of the above questions, does the failure to put into evidence the image, whether the original or a reproduction, affect only the weight to be given to the testimony purporting to describe the image?
4.Does the approach to the best evidence rule in Butera[2] apply by analogy to [images] sent and received using Snapchat?
5.Must Wade v The Queen (Wade)[3] and R v Sitek[4] be read as subject to Butera?
[2] Ibid, 186.
[3] (2014) 41 VR 434 [27].
[4] [1988] 2 Qd R 284.
I will refer to some of the submissions provided in response to those questions in the course of providing my reasons.
For the reasons which follow I would hold that the best evidence rule, in its current form, does not preclude secondary evidence of images (or sounds) unless the evidence is led to prove words written on those images, or made by those sounds, when a fact in issue is whether a person wrote, or said those words or subscribed or assented to them. The best evidence rule does not preclude the testimony of a witness, who, as in this case, describes only the poses struck by a man and his state of undress irrespective of whether the images are still available.
Over 50 years ago, in Garton v Hunter[5] Lord Denning said that “the old rule that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded has gone by the board long ago”. He continued:
The only remaining instance of it that I know is that if an original document is available in one’s hands, one must produce it. Once cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence.
[5] [1969] 1 All ER 451, 453.
The ‘remaining instance’ to which Lord Denning referred, and its extension by the High Court in Butera, precludes secondary evidence of a record, in hard copy or electronic form, of written or spoken words, or numbers, when the legal or evidentiary significance of someone writing, subscribing to, speaking or assenting to those words is in issue.
The origins of that rule can be traced back to the earliest period of the development of the common law.[6] I will return to it below.
[6] John Henry Wigmore, A Treatise on Anglo-American System of Evidence in Trials of Common Law (Little, Brown and Company, 3rd ed, 1940) vol 4, 30 at [1173].
In Semple v Noble[7] the Full Court upheld a decision of a Magistrate to exclude oral testimony of the monetary amount displayed on price tickets when there was no explanation for not producing the tickets. The charge before the Magistrate was one of obtaining goods by false pretences by swapping the price tickets on items for sale in a store. Price tickets on goods in a store are invitations to treat. The amount for which the invitation to treat was extended by the store manager in respect of the goods obtained in Semple was therefore a critical issue on the trial. The contemporary, and limited, best evidence rule was, with respect, correctly and succinctly stated by King CJ:
Oral evidence is not admissible … to prove the meaning or significance of the writing in the document, from a legal or evidentiary point of view.[8]
[7] Semple v Noble (1988) 49 SASR 356.
[8] Semple v Noble (1988) 49 SASR 356, 358.
Accordingly, the terms of a deed or contract, or an offer or admission made in correspondence, or the contents of a label or price sticker cannot be adduced in evidence without producing the original[9] when the meaning or legal (including evidential) significance of that writing is in issue.
[9] Unless its absence can satisfactorily be explained.
On the other hand, the description of a mark, whether alphanumeric or pictorial, can be given in oral evidence for the purpose of proving a chain of evidence. So too can oral evidence be given to identify an item. For example, the book a person was reading, if that is a relevant issue, can be identified by a witness by testifying that it was entitled ‘Commonwealth Law Reports Volume 100 1958-1959’, that its last page was numbered 687 and that the case reported on the first page was Council of the City of Newcastle v Royal Newcastle Hospital, without producing the very same, or another copy of that volume of the Commonwealth Law Reports. [10] The best evidence rule does not preclude testimonial descriptions of documents which evidence a fact in issue which is not concerned with the meaning or legal significance of the writing or speaking of words or numbers. The testimony given at trial in this case, of the brand name of underwear worn by the man in a Snapchat image, is evidence of that kind and is admissible.[11]
[10] Commissioner for Railways (NSW) v Young (1962) 106 CLR 535, 553 per Menzies J.
[11] See Smith v The Queen (2001) 206 CLR 650, 656 per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
There was no legal or evidential significance, in this case, of the manufacturer affixing that particular brand name to the underwear the man was wearing. Its significance was that irrespective of anything the manufacturer may have wished to communicate by fixing the brand name, the appellant had underwear displaying it.
The essential holding in Butera is of narrow compass and has no application to this case. It is that a transcript made of a conversation recorded electronically may be received as an exhibit to aid the tribunal of fact in its understanding of the primary evidence, being the sounds made by playing the recording on a device in court. However, in reaching that conclusion it was necessary to address the admissibility of the recording itself. If the recording was inadmissible so too were the transcripts.
In Butera Mason CJ, Brennan and Deane JJ (the plurality) explained that the rules of evidence must be moulded to deal with the technical and legal conditions which must be satisfied before a tape recording can furnish proof of what is recorded.[12] The plurality judgment observed that the transcript would not have been admissible if the tape had not been produced, or its absence satisfactorily explained, because ‘prudence and convenience combine to support the application of the best evidence rule in such cases’.[13]
[12] (1987) 164 CLR 180, 184-185.
[13] (1987) 164 CLR 180, 184-186.
The Director submits that that statement of the plurality should be treated as seriously considered dictum. It is certainly that, and indeed, may properly be considered to be a necessary step in the resolution of the question of the admissibility of transcript when a tape is produced.
Dawson J acknowledged that there was a rule of evidence that the effect of a written document must be proved by production of the original and not by secondary evidence unless the absence of the original is accounted for and excused.[14] Dawson J noted that the rule appeared to predate the ‘so-called best evidence rule’.
[14] Ibid, 194.
Dawson J held that the rule as to proof of written documents should be applied to other things which contain “that which, when perceived, conveys information”.[15] It is clear that Dawson J had in mind a thing which communicated information through language because he observed that in the absence of legislative reform documents, like photographs, ‘ought not … be included in [the best evidence rule]’ requiring proof by primary evidence.[16] Dawson J’s statement of what remains of the best evidence rule accords with the holding of King CJ in Semple v Noble.
[15] Ibid, 194.
[16] Ibid, 194-195.
Gaudron J too accepted that a tape recording should be treated as analogous with a written document for the purpose of extending the best evidence rule to such recordings.[17]
[17] Ibid, 207.
For present purposes, it is important to understand that the reasoning in all of the judgments proceeds from an acceptance that the rule of evidence as to proof of the contents of written documents should be extended from documents displaying written language to conversations recorded by an audio recording device. The decision in Butera does not address the application of the best evidence rule to audio tapes of sounds other than language. One can take for instance the example used by Street CJ in Conwell v Tapfield,[18] and cited in the plurality judgment in Butera,[19] of the screech of a tyre followed by the sounds of a collision recorded on a tape. If the only evidence of those sounds was the evidence of a witness who heard a recording, perhaps taken by a smartphone which has since been lost, which is independently proved to have been taken at the time and place of the collision, his or her testimony can be given without producing the tape. The only question would be one of weight. The judgments delivered in Butera carry no suggestion that the best evidence rule applies to audio recordings or visual images, in whatever form they are captured, which are neither written nor spoken language.
[18] [1981] 1 NSWLR 595, 598.
[19] (1987) 164 CLR 180, 186.
The appellant submitted in answer to the first question that there is no reason in principle not to apply the best evidence rule to images. The appellant submitted that the extension to images is consistent with the rationale of the best evidence even if it be the case that, when originally conceived, the rule was directly concerned with the mode of proof of the content of written documents. The appellant contended that the history of the rule did not deny its application and relevance to contemporary conceptions of documents which include electronic documents. The potential application of the remains of the best evidence rule to electronic documents can be accepted. The critical question is whether it is limited to precluding testimony of the words read or heard from those electronic documents or whether it has been, or should be, extended to exclude secondary evidence of mute images.
The appellant is correct to observe that there was a rule, which preceded the best evidence rule, which was limited to precluding secondary evidence of the words of a document like a deed or other agreement. The history of that rule is traced by Wigmore to a time before the Norman invasion when written documents had a talismanic quality which, when produced, conclusively determined an issue with which they dealt. There followed a period in the early development of the common law when written documents were produced and inspected through pleadings. By the early eighteenth century it had become a rule of evidence in criminal and civil cases, applicable to all writings, that to prove a writing for the purpose of establishing its terms, the original writing must be produced unless it is not feasible to do so.[20]
[20] John Henry Wigmore, A Treatise on Anglo-American System of Evidence in Trials of Common Law (Little, Brown and Company, 3rd ed, 1940) vol 4, 30 at [1179]; see also Sir W. S. Holdworth, A History of English Law (Methuen & Co. Ltd., 1926) 166-177.
The rationale for the rule is also explained by Wigmore. First, production of the original was necessary to confirm compliance with the formalities necessary to give many documents their legal effect. Secondly, production of the original might reveal fraudulent or honest mistake in copying of a document. Thirdly, the risk of error in the recollection of the words of a document from memory alone is great.[21]
[21] Ibid.
In the eighteenth century the rule as to production of the original writing was swallowed up by a much wider rule of evidence which admitted only the best available, or superior, evidence, whatever its defects, and excluded inferior evidence irrespective of its probative force.
In 1744 in Omychund v Barker[22] Lord Hardwicke applied the expanded rule to the testimony of a witness which was not sworn on the Gospel. The statement of the best evidence rule, which Lord Hardwicke drew from “the judges and sages of the law”, was that there is but one general rule of evidence, the best that the nature of the case will allow”. It was both an exclusionary rule which precluded inferior evidence when there was better evidence available, and an inclusionary rule which admitted the best available evidence whatever its defects. The greater sophistication in the development of the law of evidence in the centuries which followed resulted in a matrix of more prescriptive inclusionary and exclusionary rules which left no place for a rule as general and uncertain as that conceived by the early common law judges and sages. And so it was that in 1969 Denning LJ was able to confidently and simply state that the best evidence rule in its broadest form had long gone by the board. The appellant’s attempt to resurrect and repeat this cycle of the historical development of the law of evidence must be rejected. All that remains of the best evidence rule, as Denning LJ observed, is the older rule as to the production of the original written document when a party relies on the effect of the writing.
[22] (1744) 1 Atk 21 at 49; See Lexis Nexis, Cross on Evidence, 1465.
One of the reasons given to justify the written document rule in earlier times remains valid to this day and explains why the distinction between written or spoken records on the one hand, and mute images on the other, should be maintained. The explanation is that it is generally difficult for a person to distinguish between the actual words which were read or heard and his or her subjective understanding of their meaning, in the absence of a recording or contemporaneous note. That difficulty was probably compounded in earlier times when levels of literacy were poor. For that reason it is common for a witness to a conversation which has not been recorded to limit his or her evidence to the nature and effect of the words spoken. However, when the legal or evidentiary significance of words is in question, greater precision is demanded by the law.
Wigmore records many instances in which judges of the common law courts from early in the sixteenth century to late in the nineteenth century commented on the “vague and fluctuating recollection”[23] of the contents of written documents, expressed concern about the dramatic consequences of even minor failings of recollection, and concluded that “the common sense of mankind concurs”[24] in maintaining the written document rule.[25] For reasons of that kind “prudence and convenience”,[26] to borrow from the plurality judgment in Butera, has maintained the written document rule in respect of secondary evidence of writing and has justified its extension to audio-recordings of spoken language.
[23] John Henry Wigmore, A Treatise on Anglo-American System of Evidence in Trials of Common Law (Little, Brown and Company, 3rd ed, 1940) vol 4, 317 at [1179].
[24] Ibid, 320 at [1181].
[25] Edward W. Cleary and John W. Strong, “The Best Evidence Rule: An Evaluation in Context” (1966) 51(4) Iowa Law Review 825, 826-830
[26] (1987) 164 CLR 180, 186.
Indeed, Wigmore bases his conclusion that the written document rule does not apply to mute images or objects on that very rationale for the rule. Wigmore explains that:[27]
To remember … the color of a horse is a simple matter in comparison with remembering or even accurately transcribing the terms of a written warranty about a horse.
[27] John Henry Wigmore, A Treatise on Anglo-American System of Evidence in Trials of Common Law (Little, Brown and Company, 3rd ed, 1940) vol 4, 30 at [1173].
Whilst the description of a mute image may be unhelpfully vague, it will not suffer from the defect that the subjective understanding of the reader or listener of the words has displaced the actual language used by the communicator.
The relevant fact in issue in this case is the nature of the images sent to the complainants and the identity of the male depicted. There was no issue as to the meaning or legal significance of the pictorial images, or even of the brand name of the underwear worn by the male depicted in the image. Even if the ‘snaps’ were produced, it would be necessary for the complainants to testify that they viewed them on their smartphones. Plainly enough, therefore, this is not a case in which the best evidence rule applies.
The use of the evidence in this case is similar to the evidence considered in Kajala v Noble (Kajala)[28], Taylor v Chief Constable of Cheshire (Taylor)[29]and Wade.[30]
[28] (1982) 75 Cr App R 149.
[29] [1986] 1 WLR 1479.
[30] (2014) 41 VR 434.
In Kajala evidence was admitted from a witness who had viewed a broadcast by the BBC of a news report of a riot. He later viewed a copy of the film which was received into evidence. He testified that he identified the defendant engaging in threatening conduct in that film.[31] He did not give evidence of any words spoken on the film. The copy of the film was provided by an editor of the BBC who deposed as to its provenance and testified that the BBC cameramen who shot the film were overseas. The editor explained that BBC policy prohibited removal of the original film from the BBC’s premises.
[31] Evidence of the identification of a person from a photograph or film admitted into evidence is probably inadmissible in Australia for reasons unconnected to the best evidence rule. See Smith v The Queen (2001) 206 CLR 685.
Lord Justice Ackner and Justice Woolf held that the witness’s oral testimony was admissible and was not subject to the constraints of the best evidence rule. They relied on the statement of Lord Denning in Garton v Hunter[32] to which I earlier referred. The Court of Appeal held that the old rule is limited and confined to written documents, in the strict sense of the term, and has no relevance to tapes or films. Kajala is cited for that same proposition in Cross on Evidence.[33] The Court did not consider whether the BBC’s policy was a satisfactory explanation for non-production of the original which presumably could have been produced under subpoena. However, as the plurality observed in Butera, the preclusionary aspect of the best evidence rule is inapplicable to electronically produced copies of tapes.[34] Even though a copy of the BBC film was produced and received into evidence, the holding of the English Court of Appeal that the best evidence rule was limited to written language is not mere obiter. It was the essential holding of the court which dispensed with any requirement to consider the exceptions to the rule of preclusion.
[32] [1969] 1 All ER 451.
[33] Lexis Nexis, Cross on Evidence, 1480.
[34] (1987) 164 CLR 180, 187.
The Director submitted in his answer to question five that the High Court in Butera tacitly chose not to follow the reasoning in Kajala, even though it had referred to the decision in holding that electronic copies of tapes were not precluded by the best evidence rule. I cannot accept that in deciding the very question whether the best evidence rule applied to recordings the High Court decided to remain silent, and not comment on, a strong, albeit English, authority, which it had decided not to follow. The Director submitted that the High Court chose to follow Conwell v Tapfield[35] instead of Kajala.With respect, Conwell was approved in Butera on the question of whether a transcript of a conversation, reproduced in Court by replaying a recording on a device, could be provided to the jury as an exhibit to assist them to understand the evidence, being the voices heard when the tape was played. Conwell does not address the question whether secondary evidence can be received in the absence of the tape itself. The more obvious explanation for the absence of any discussion in Butera of the holding in Kajala is that the best evidence rule does not apply to mute images. The use of the film in Kajala was limited to proving the conduct of the persons on the film and the identification of the defendant. It was not used to prove words spoken by the defendant or anyone else.
[35] [1981] 1 NSWLR 595.
In Taylor,[36] police officers were permitted to testify that they had viewed CCTV footage taken by a security camera at a shop and recognised the defendant as the person who could be seen putting a pack of batteries in his pocket.[37] The video-tape had since been erased. Ralph Gibson LJ and McNeil J relied on the decision in Kajala and a series of English decisions to the same effect. The approach of the Court in Taylor, accepting the submission of the prosecutor, was that the CCTV captured and froze in time the images of the defendant’s theft such that when the police later viewed the footage it was as if they were viewing the person’s conduct.[38] The Court did not stay to consider whether the explanation for the erasure of the tape was a satisfactory one because, following Kajala, they held that the best evidence rule did not apply to mute images. The secondary evidence admitted in Taylor was not of any oral or written statements made by the defendant.
[36] [1986] 1 WLR 1479.
[37] Evidence of the identification of a person from a photograph or film admitted into evidence is probably inadmissible in Australia for reasons unconnected to the best evidence rule. In respect of visual images and the identification of persons in them, the High Court held in Smith v The Queen (2001) 206 CLR 685 that once the image is admitted the lay opinion evidence of others who claim some familiarity with the defendant, that the defendant is, or is not, shown on the image is inadmissible.
[38] [1986] 1 WLR 1479, 1486.
The decision in R v Sitek[39] is a little different because in that case the witness gave evidence of what she saw on a live feed after refreshing her memory in court by viewing the film of what she saw. That film was received into evidence. For present purposes it is sufficient to note that the Queensland Court of Criminal Appeal approved and applied Kajala and Taylor.
[39] (1988) 2 Qd R 284.
The circumstances of this case also bear some analogy to those considered in the Victorian Court of Appeal in Wade.[40]In Wade it was held that a police officer could give oral evidence of the description and actions of the offender he observed on replaying CCTV footage of the offence which was mistakenly destroyed after he had viewed it. The rationale for its admission was that the images generated by the CCTV footage are real evidence of the acts visually captured by it. No question of due search or satisfactory explanation for the loss of the recording arose.[41]
[40] (2014) 41 VR 434.
[41] Ibid, 440-441 at [28]-[30].
Nettle JA, with whom Redlich and Coghlan JJA agreed, held that the evidence was admissible pursuant to s 48(4) of the Evidence Act 2008 (Vic). However, his Honour went on to carefully consider the application of the common law best evidence rule. His Honour relied primarily on the decisions in Taylor[42] and R v Sitek.[43]Nettle JA observed that the evidence of the surveillance monitor in the latter case as to how much cash the defendant had handed over in exchange for gambling chips may not now be admissible having regard to Smith v The Queen[44] because the CCTV footage of that transaction was before the jury.[45] However, I would observe that the surveillance monitor who gave that evidence was watching a live feed which was also recorded. In any event the perceived difficulty is not related to the best evidence rule but to the principle that it is for the tribunal of fact to make findings to what a film received into evidence shows and that the opinion of any other person on that forensic issue is irrelevant.
[42] [1986] 1 WLR 1479.
[43] [1988] 2 Qd R 284.
[44] (2001) 206 CLR 685; see also Footnote No 37.
[45] [1988] 2 Qd R 284.
For present purposes what is important is that in discussing the common law position, Nettle JA did not refer to Butera, other than to cite it as authority for the admissibility at common law of recordings as real evidence. If the holding in Butera extended to electronic recordings of both conversations and mute images it is surprising that Nettle JA did not apply it when considering the admissibility at common law of the CCTV footage.
In answer to question five, the Director suggested that Nettle JA did not apply Butera because the audio recordings of the conspirators’ conversations were put into evidence in Butera. That explanation is not persuasive. The observation in Butera that secondary evidence of an audio tape is admissible unless its absence can be satisfactorily explained, was, at the very least, as the Director strongly urged, seriously considered dicta.[46] Why then did Nettle JA not address the statement of the extended rule in Butera and consider whether there was a satisfactory explanation for the failure to produce the footage? With respect, the answer to that rhetorical question is that neither the best evidence rule itself, nor its extension in Butera, apply to mute images.
[46] The decisions on which Nettle JA relied expressly proceeded on the basis that the best evidence rule did not apply. The judgments in Butera proceeded on the basis that the best evidence rule did apply to tape recorded conversations.
The Director also submitted that the failure of Nettle JA to address whether the absence of the CCTV footage was satisfactorily accounted for might be explained because there was no dispute that the CCTV footage had ceased to exist. However, acceptance that the footage had ceased to exist is not the same as giving a satisfactory account for its absence.
Nonetheless, in his answer to question two, the Director accepted that the best evidence rule, and its extension in Butera, were limited to precluding oral evidence to prove the meaning or significance of the writing in a document from a legal or evidentiary point of view. The Director accepted that if the document or recording of sounds or images has relevance other than in the meaning to be attached to any spoken or written words, the best evidence rule and the rule in Butera have no application (the first submission). Acceptance of the first submission means that this appeal on ground 1 must fail.
However, the Director in his answers to questions one and two also made a submission (the second submission) that the rule in Butera applied if the image has testimonial capacity in the sense that it conveys information as a thing in itself even if that information is not dependent on any words. The second submission necessarily contradicts the first. Moreover, it is not clear what the Director means by ‘conveys information’ other than by words. The Director referenced his submission to the decision of Cory J in the Canadian case, R v Nikolovski:[47]
Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused.
[47] [1996] 3 SCR 497, 1215 at [28] per Cory J.
Cory J meant no more than that the medium on which the mute image appears is received not as a mere thing, but as evidence of the people and events it displays. That passage is consistent with the statements of principle in Kajala, Taylor, Wade and Smith. The only issue on the appeal in Nikolovski was whether a conviction based solely on the trial judge’s identification of the defendant as the offender shown on CCTV was unreasonable. The Court of Appeal held that it was. The Supreme Court of Canada allowed the appeal and affirmed the conviction. The paragraph, therefore, does not support the contention that the best evidence rule applies to mute images; that proposition is in any event inconsistent with the line of authority stretching from Kajala to Wade.
Curiously the Director suggested that questions two and three need not be answered because the decision, or at least the reasoning, in Butera supports the admission of the evidence because the absence of the original is satisfactorily accounted for. It can be accepted that even if the best evidence rule were extended to apply to mute images, including electronic images sent through Snapchat, that the failure to produce the actual image in this case is satisfactorily accounted for. I explain precisely why that is so below. However, there are a number of difficulties with the Director’s suggestion as to how this Court should determine this appeal, which is not a case stated. First, Butera extends the best evidence rule to tape recordings of conversations. If I am correct that mute images do not fall within the best evidence rule, then there is every reason to so hold rather than to dismiss the appeal on the ground that, without deciding whether the rule applies, the absence of the image is satisfactorily accounted for. Secondly, the question remains important to those circumstances in which old technology may still be used. The same question would arise if the appellant had sent similar hardcopy photographs which the complainants, inexplicably, could not find. It is, and will continue to be a frequent occurrence that images of offences will be captured by CCTV, but later lost or overridden, leaving as the only available evidence, the testimony of a witness who viewed the images. It is unnecessary to develop a jurisprudence on what is a satisfactory reason for the loss of the original mute image. A party who seeks to rely on secondary evidence of mute images, a not uncommon occurrence, should not be left in any uncertainty as to whether they need to adduce evidence explaining the absence of the original, other than for the purpose of supporting its probative weight.
The appellant’s submission is that the best evidence rule excludes evidence of any image whatsoever. No modern authority is cited for that proposition. Butera is certainly no such authority. The appellant’s only submission is that the best evidence rule applies to all documents in the contemporary sense of the word including recordings. That it applies to electronic or digital copies or recordings of written or spoken language can be accepted. But it does not follow that it extends to documents which do not contain or include written or spoken language.
The High Court in Butera explained that audio-visual recordings of relevant evidence are admissible because the laws of evidence are moulded to take into account technological developments which add to the reliable evidence available to determine disputed questions of fact. If the ‘snaps’ were retrieved in this case they could properly have been received to supplement and corroborate the complainants’ evidence. So too, if the electronic data were retrieved, and could be replayed on an appropriate device, it would be admissible as real evidence which supplemented and corroborated the complainants’ testimonies. However, on no view was there any failure to make due search for the ‘original’ in this case. The photographic image, in the sense of the pattern of pixels produced on the screen of the complainants’ smartphones, had vanished forever soon after it was viewed. No search could discover that transient image. Its absence was therefore satisfactorily accounted for. It can be accepted that a due search might discover the electronic data which produced the image, but that data is not the image viewed by the complainants. If the best evidence rule applies to the ‘snaps’, the requirement for due search does not apply, and there is no good reason to extend it, to the electronic data which caused the screen of the smartphone to display the image.
Section 57 of the Evidence Act 1929 (SA) (the Evidence Act) applies only to those circumstances in which the contemporary rule of preclusion would otherwise apply. It provides that a photographic, electronic or other similar reproduction of the original, may be received as documentary evidence in place of the original. Moreover, once admitted, the court is permitted to inform itself as it thinks fit of the accuracy of the reproduction. Section 57 of the Evidence Act recognises that automated reproductions using modern technology do not attract the same concerns about accuracy, authenticity and reliability which preclude the admission into evidence of hand-written copies when the meaning or legal significance of the words which were hand copied are in issue. It reflects the common law development noted in Butera.[48]If the electronic data were retrieved, a reproduction of the image made by it would be admissible.
[48] (1987) 164 CLR 180, 187.
Finally, there is no forensic unfairness in receiving the complainants’ testimony as to what they saw without retrieving and admitting the electronic data in the circumstances of this case. The appellant was able to challenge and test the credibility and the reliability of the complainants’ testimonies by cross-examination in the ordinary way. There is no rule of general application that a witness cannot testify as to relevant events unless the prosecution has searched for, and made available, to an accused any objective evidence which might contradict that witness’s testimony.[49] Nor is this a case like Holmden v Bitar.[50]In that case Cox J upheld a stay on a prosecution for bringing into Australia a prohibited import when the prosecution relied on a statutory averment that the can of meat brought in by the defendant was prohibited after having destroyed it.
LIVESEY P:
[49] Police (SA) v Pakrou (2008) 103 SASR 124, 142-143 per Kourakis J; Police (SA) v Sherlock (2009) 103 SASR 147, 165-167 and 170 per Doyle CJ.
[50] (1987) 47 SASR 509.
Introduction
This is an appeal against conviction concerning 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 CLCA).
The prosecution case was that the appellant sent electronic messages containing images of his penis to four complainants using “Snapchat” between 3 April 2016 and 15 July 2017. These were described in the evidence as “snaps”.
After an eight-day voir dire hearing, on 24 March 2020 the trial judge declined to exclude the oral evidence of each complainant as inadmissible. She also declined to exclude the oral evidence in the exercise of the “general unfairness discretion”,[51] or to permanently stay the proceedings.[52] On 15 January 2021, following an eight-day trial “by the judge alone” pursuant to s 7 of the Juries Act 1927 (SA), the appellant was convicted on all four counts.[53]
[51] R v Lobban (2000) 77 SASR 24; Police v Hall (2006) 95 SASR 482.
[52] R v Athans [2021] SADC 3 (Reasons for voir dire Ruling).
[53] R v Athans [2021] SADC 1 (Reasons for verdict).
The “principal subject” of this appeal is the challenge made by appeal Ground 1 to the ruling which permitted each complainant to give oral evidence about the snaps received using their Snapchat accounts, in circumstances where the snaps could not be produced, or perhaps more accurately, reproduced. This oral evidence, the appellant emphasised, was the only evidence of the alleged offending.[54]
[54] Appellant’s Written Submissions, [8].
Following the Director of Public Prosecutions’ concession that appeal Ground 1 was reasonably arguable, on 12 March 2021 Lovell JA granted permission to appeal (in so far as it was required). The appellant now seeks permission to appeal on other grounds, including the ruling which permitted the prosecution to adduce photographs later taken by police of some of the messages sent or received by some of the complainants.
For the reasons that follow, permission to appeal should be granted but the appeal dismissed. The oral evidence of each complainant was admissible as direct evidence of the offending and the “best evidence rule” did not preclude that secondary evidence where the absence of the “original” snaps was accounted for satisfactorily: they no longer exist.
Overview of the matters not in dispute
The circumstances of the offending
The Snapchat application
The prosecution case and the complainants’ evidence in overview
The Grounds of Appeal
Ground 1: Admission of the oral evidence of ‘snaps’
Issues, relevance and admissibility
The best evidence rule: new technology
The best evidence rule
Were the snaps real evidence or documents?
The requirement for “due search”
Authentication of “documents”
Hearsay
The unfairness discretion and a stay of proceedings
Ground 2: Admission of documentary evidence
The R v Christie discretion
The unfairness discretion
Ground 3: Inadequacy of directions
The failure to warn and forensic disadvantage
Conclusion
Overview of the matters not in dispute
The appellant had not at trial disputed the receipt of the snaps by each complainant, DN, RF, KW and BD. Nor had the appellant challenged the evidence of each of DN, RF, KW and BD about the sexually explicit content of the snaps they received.
The issue in dispute at trial was the identity of the offender.[55]
[55] Reasons, [9], [11].
The defence case at trial focused upon proof of the identity of the owner or user of the “Nick.Atonik”, “NickAthansAUS” and “Nick Athans” Snapchat accounts. The findings made by the trial judge were also concerned with the identification of the owner or user of various Facebook Messenger accounts. The trial judge found that these all belonged to or were used by the appellant.
Those findings are not now challenged on appeal.
Apart from appeal Ground 3, which raises questions about whether additional warnings or directions were required, this appeal is not generally concerned with the process of fact-finding undertaken by the trial judge which led to the finding that the messages and images in each snap were sent by the appellant and that the images depicted him.
The circumstances of the offending
The appellant was charged on Information dated 16 April 2019 as follows:
First Count
Statement of Offence
Procuring a Child to Engage in, or Submit to, a Sexual Activity. (Section 63B(3)(a) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Nicholas Emmanuel Athans on the 3rd day of April 2016 at Ridleyton or another place, procured [DN], a child under the age of 17 years, to submit to a sexual activity.
Second Count
Statement of Offence
Procuring a Child to Engage in, or Submit to, a Sexual Activity. (Ibid)
Particulars of Offence
Nicholas Emmanuel Athans on the 19th day of December 2016 and the 24th day of December 2016 at Ridleyton or another place, procured [RF], a child under the age of 17 years, to submit to a sexual activity.
Third Count
Statement of Offence
Procuring a Child to Engage in, or Submit to, a Sexual Activity. (Ibid)
Particulars of Offence
Nicholas Emmanuel Athans on the 16th day of January 2017 at Ridleyton or another place, procured [KW], a child under the age of 17 years, to submit to a sexual activity.
Fourth Count
Statement of Offence
Procuring a Child to Engage in, or Submit to, a Sexual Activity. (Ibid)
Particulars of Offence
Nicholas Emmanuel Athans on the 12th day of July 2017 and the 15th day of July 2017 at Ridleyton or another place, procured [BD], a child under the age of 17 years, to submit to a sexual activity.
The trial judge outlined the elements of the offence created by s 63B(3)(a) of the CLCA:[56]
1.The accused procured a person to engage in or submit to sexual activity. The term ‘sexual activity’ includes sending explicit photographs, such as a photograph of a penis, animations or sexual memes and engaging in discussions about them.[57]
2.The other person is a child under the prescribed age. In this case, the prescribed age is a person under the age of 17 as there was no allegation that the accused was in a position of responsibility in respect of any of the complainants.
3.The accused intended to procure a person to engage in, or submit to, sexual activity.
[56] Reasons, [10].
[57] R v Symons (2018) 130 SASR 503, [8] (Kourakis CJ, with whom Kelly J agreed).
The trial judge followed R v Symons, which is authority for the proposition that sending a sexually explicit electronic message to a child constitutes the actus reus or physical element of procuring a child to submit to sexual activity “because the [messages] were themselves sexually explicit”.[58] In that case there was also associated messaging which comprised engaging the complainant “to participate in the exchange”.[59]
[58] R v Symons (2018) 130 SASR 503, [8] (Kourakis CJ, with whom Kelly J agreed).
[59] R v Symons (2018) 130 SASR 503, [8] (Kourakis CJ, with whom Kelly J agreed).
The appellant was a “disc jockey” and a promoter of under-age dance parties. He was aged between 21 and 22 years at the time of the alleged offending. The four complainants were aged from 14 to 16 years. It is alleged that he sent each complainant a sexually explicit image of a male lying in bed showing his penis, whether inside or outside of his underwear.
On the prosecution case, the male depicted in the images was the appellant.
The appellant was alleged to have contacted the complainants through Facebook Messenger after obtaining their details from events he was promoting. After approaching the complainants through Facebook Messenger, the appellant was said to have asked each to contact him on a Snapchat account associated with him. It was alleged that he then sent sexually explicit images to each of the complainants through these Snapchat accounts.
The prosecution relied on the associated Snapchat username and other features of the sexually explicit images and messages to prove that the images depicted the appellant.
None of the explicit images were preserved, nor were they reproduced from any mobile phone applications or data. Many of the surrounding Snapchat and Facebook messenger text messages were not preserved or retrieved.
Notably, the police did not seize the complainants’ mobile telephones, nor did they make a forensic copy of each phone’s contents. However, the police took photographs of some screenshots taken by some complainants of the messages they exchanged.
On 19 January 2017, the appellant was interviewed by police about one of the complainant’s allegations, but he was not arrested at that time. On 7 February 2017, the police attended the appellant’s home. He was arrested, charged and placed on a bail agreement. The police searched the premises and seized the accused’s mobile phone. The trial judge later excluded the evidence obtained from the appellant’s mobile phone in the exercise of the unfairness discretion.[60]
[60] Ruling, [123].
On 10 August 2017, the appellant’s home was again searched and items were seized from the appellant’s bedroom including underwear consistent with the underwear said to have been worn by the person depicted in the explicit images.
None of the images described by the complainants were ever put into evidence.
Before setting out the evidence relied upon by the prosecution in this case, it is necessary to first recite some of the evidence which explained the operation of Snapchat.
The Snapchat application
Snapchat is a mobile telephone application developed by Snap Inc which permits communication through images, video and text.[61]
[61] Ruling, [58]-[61].
In 2016 and 2017, Snapchat had two options by which parties may communicate: a “snap” or a “chat”. It is clear to the recipient whether a snap or a chat has been received. The complainants tended to describe viewing snaps.
A snap is an image or video taken using the Snapchat camera function. Text may be added. That snap is then transmitted from the sender’s mobile telephone to the recipient’s mobile telephone. Alternatively, a chat can be an image or video taken with the Snapchat application’s “camera” (with or without text), or image or video saved on the mobile phone’s “camera roll” (with or without text), or a text only message. A chat is also transmitted from the sender’s mobile telephone to the recipient’s mobile telephone.
One of the core features of the Snapchat application is that a snap or a chat is only made available to the recipient for a short time after the communication is received and “opened” before it disappears, with the sender specifying the time period during which a recipient may view a snap. The recipient is unable to save or re‑view a snap, or a chat,[62] except by taking a “screenshot” whilst it is temporarily displayed.[63] If the recipient takes a screenshot of the snap or chat, the sender receives a notification that a screenshot has been taken by the recipient.
[62] During the period of the alleged offending.
[63] Alternatively, “replaying” the snap once, a feature only available immediately after viewing the snap for the first time.
Once a snap has been opened and closed (or expired), the data is removed from the mobile telephone and is not retained.[64] The data from a chat, however, though appearing to have disappeared, remains on the mobile telephone and is recoverable until the data is overwritten.[65] As the trial judge explained:[66]
Snapchat is designed ‘to have the pictures (or electronic data) arrive for a short period of time and then disappear from the user’.[67] As such, Snapchat is designed to automatically erase the electronic data from view unless some action is taken within a short period of time by the recipient to preserve the data, for example, by saving the image to the user’s camera roll or taking a ‘screenshot’. When not so preserved, the electronic data can only be retrieved from the mobile telephone by using software programs such as XRY and Cellebrite[68] or through making a preservation hold request to the parent company of Snapchat within a short retention period... I have been provided with no authority directly on point which supports the contention that a Snapchat photograph or message which is not preserved is a document for the purposes of the best evidence rule.
[64] Voir dire Transcript, p 367-368. There remained some uncertainty on the evidence about the extent to which metadata or artefact can be used to reproduce complete snap images or videos, even with the assistance of software programs.
[65] Voir dire Transcript, p 406-407.
[66] Ruling, [90].
[67] Voir dire Transcript, p 403.
[68] Voir dire Transcript, p 407: Mr Wigley however gave evidence that neither Cellebrite nor XRY software programs have ever claimed to have the capability to recover deleted snaps.
The evidence in this case concentrated on the version of the Snapchat application available in 2016 and 2017. The evidence demonstrated that changes had been made to the application since that time. The Snap Inc Law Enforcement Guide (the Guide) current on 21 September 2018 was tendered and discussed in evidence. That Guide explained that Snap Inc’s servers are designed to automatically delete a snap after it has been viewed by all intended recipients, an unopened snap sent directly to a recipient is deleted after 30 days and an unopened snap in a group chat after 24 hours.[69] The Guide explained:[70]
Logs contain metadata about a user’s Snaps, Stories, and Chats, but not the user’s content … Logs of previous Snaps, Stories, and Chats can be obtained pursuant to a court order … or a federal or state search warrant…
[69] The Snap Inc Law Enforcement Guide, p 4.
[70] The Snap Inc Law Enforcement Guide, p 9.
Where a Preservation Request is made by email to the company’s law enforcement department, data may be preserved for a limited period:[71]
A preservation is a snapshot in time of a user’s data, including basic subscriber information, metadata (usage logs) and content (Chats, Snaps, Stories, and Memories). As referenced earlier, Snap retains different types of user data for different periods of time. It is likely that law enforcement would want Snap to make a preservation as soon as possible after an alleged incident for which it seeks evidence … Upon receiving a signed and dated preservation request … we will attempt to preserve available account information associated with any properly identified Snapchat users … in an offline file for up to 90 days and will extend the preservation for one additional 90-day period with a formal extension request…
[71] The Snap Inc Law Enforcement Guide, p 11.
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.
Whilst this warning emphasised the appellant’s significant forensic disadvantage occasioned by delay, that was bound up with the absence of electronic data extracted from any mobile device. The trial judge recognised that this would have been “superior in recording information about the communications compared with screenshots taken of various messages” in a case where the “complainants’ memories have faded”. Key to this warning was that “the accused has lost the ability to test and challenge the detail of their accounts” by reference to what might have been available had the electronic data been extracted.
While the appellant acknowledged that the trial judge was not bound by statute to warn herself about the forensic disadvantage caused by the absence of the electronic data, it was his case that the direction was required by common law principles. He submitted that the warning should not have been confined to a warning about delay.[213] In support of this contention, the appellant relied on the following passage from De Sa v The Queen:[214]
Leaving aside section 34CB or any warning by the Judge to herself, the existence of a forensic disadvantage is a matter that should normally be taken into account by a Judge sitting alone in the course of considering whether the charge has been proved beyond reasonable doubt.
[213] R v T, WA (2014) 118 SASR 382, 387-388; R v N, RC [2012] SASCFC 37, [133], referring to R v D, RG (2004) 150 A Crim R 496, [36]-[37]; R v Cassebohm (2011) 109 SASR 465.
[214] De Sa v The Queen [2021] SASCFC 22, [113] (Kourakis CJ, Peek and Blue JJ), citing Kourakis CJ in R v T, WA (2014) 118 SASR 383, [22]. See also Lovell J in JGS v The Queen [2020] SASCFC 48, [146].
The appellant contended that the unavailability of the photographs and their associated metadata ought to have given the trial judge “considerable pause”.[215] The appellant submitted that, in the circumstances of this case, it was necessary for the trial judge to acknowledge this disadvantage in respect of each count to avoid the perception of a miscarriage of justice.[216]
[215] Appellant’s Written Submissions, [69].
[216] See, for example, R v Finn [2014] SASCFC 46.
The appellant also submitted that the warning should have extended to the need to scrutinise the evidence of each complainant with great care, given that the evidence of each element of the charged offences was uncorroborated.[217] It was submitted that a warning of that kind should be given where, notwithstanding the legislative abolition of Longman directions,[218] that warning “is appropriate … in the interests of justice”.[219]
[217] R v N, RC [2012] SASCFC 37.
[218] LongmanvTheQueen (1989) 168 CLR 79.
[219] R v Cheng [2015] SASCFC 25 citing Tully v The Queen (2006) 230 CLR 234 and R v Cassebohm (2011) 109 SASR 465, 471, 473 (Doyle CJ).
The warning was not required at law. The obligation to warn may arise in part due to the dangers associated with relying on particular evidence, or kinds of evidence, and in part due to the problem that those dangers might not be obvious to the lay mind.[220] The trial judge was, as has been seen from the delay warning, clearly aware of those dangers and the fact-finding was in this case not undertaken by a jury. Whilst the judge recognised that the oral evidence was uncorroborated by electronic data, she was also aware that it could not be known whether the data, if produced, would support the defence or the prosecution.
[220] Bromley v The Queen (1986) 161 CLR 315, 319 (Gibbs CJ), 323-325 (Brennan J).
There was no dispute that sexually explicit snaps had been sent and received. The fact-finding undertaken by the trial judge concerning the question of identity was undertaken by reference to each count and explicitly by reference to the evidence of each complainant which was the subject of favourable credibility findings.[221] Her reasons were careful and comprehensive. No need for any further warning or direction has been established.
[221] Reasons, [233].
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.
As Mr Hinton submitted, the majority in Butera observed that the rules which govern the admission into evidence of tape recordings, and the procedure to be followed by a court in ascertaining what is alleged to have been recorded on them, must be “moulded so as to deal with the technical and logical conditions which must be satisfied before a tape recording can furnish proof of what is recorded.” He submitted, correctly in my view, that the admissibility of the image could not be considered independent of a consideration of the evidential status, admissibility and use of the image itself. That is, he submitted, it is the nature of the evidence which attracts the best evidence rule, rather than the evidence’s classification as a document.
Mr Hinton submitted that the current issue was analogous to that decided in Butera. The images, he submitted, were not photographs, and by analogy with the reasoning in Butera, secondary evidence of the contents of the image was admissible if there was a “satisfactory explanation” for the absence of the image.
I accept there are similarities between the facts of this matter and those in Butera, but there are also differences. The majority in Butera (Mason CJ, Brennan and Deane JJ) did not consider the question of whether a tape recording is a document. Dawson J (although in the minority) observed[224] that “it is now accepted that a tape recording is, so to speak, the auditory equivalent of a photograph”.
[224] At page 192.
Importantly, however, the majority of the High Court held that the tape recording itself was not the admissible evidence of what is recorded on it. By itself, the tape was incapable of proving what was recorded on it. The tape was admissible because it was capable of being used to prove what was recorded on it by being “played over”.[225] By using sound reproduction equipment to play over the tape, the court obtains evidence of the conversation or other sound which is to be proved; it is that evidence, received aurally, which is admissible to prove the relevant fact. As the High Court in Butera acknowledged; “a tape recording may be used to produce a form of evidence which is different from both oral testimony and documentary evidence”.[226] That is, there is a difference between a sound recording being played in court and the production of a tangible exhibit such as an image or photograph.
[225] Butera v DPP (Vic) (1987) 164 CLR 180 at 186 (per Mason CJ, Brennan and Deane JJ).
[226] Butera v DPP (Vic) (1987) 164 CLR 180 at 184 (per Mason CJ, Brennan and Deane JJ).
Had the image, or more accurately the digital data that could be transformed into an image, been retained on the phone of the complainants, the digital data underpinning the image may be admissible but, by itself, would prove nothing. It is only by the use of particular software that the digital data is converted to an image. It is the image, that is, the converted data itself, that would be admissible to prove the relevant fact. To make the obvious point, when the complainants gave secondary evidence about what they saw, they were giving evidence not of the digital data, but of what they saw after the software had converted the data to an image.
Mr Hinton submitted that there was no reason to treat out of court conversations recorded, transmitted and reproduced electronically, any differently to images recorded, transmitted and reproduced electronically. In each case, he submitted, with the aid of technology, the trier of fact is able to perceive, by scientific process, real evidence of things said or done. Implicit in that submission is that an image produced by means of a digital camera is not a photograph, or at least not a photograph when used in the Snapchat App, and therefore not a document to which the best evidence rule applies. That is, Mr Hinton’s submission seeks to draw a distinction between a photograph produced by a camera using “old” technology (a film) and that produced by a digital camera. There are difficulties in accepting that assumption, although on the facts of this case it is not necessary to reach a final conclusion.
There are many similarities between a photograph produced by way of the ‘old technology’ of a film and an image produced by digital technology. Obviously, both are produced by means of a camera. A camera is simply a device that controls the amount of light coming into contact with a sensitive surface contained within the camera. The old technology uses a chemically treated “film” as the sensitive surface — a digital camera uses an optical sensor as a sensitive surface. To produce an image from a film requires various chemical processes that convert the light that was permitted to fall on the film into a pattern of an image. This process produces a negative from which photographs, again using a chemical process, can be made. In digital photography, an electronic sensor converts light into a pattern of electrical charges that is translated into digital data. Software converts that digital data into an image. Both processes, while perhaps appearing mysterious to many, are scientific. They both produce photographs as the end product, as that expression is commonly understood.
I have difficulties in accepting Mr Hinton’s submission that because the process is electronic, the end product ceases to be a photograph and therefore a document. Arguably, as submitted by the appellant, that is to confuse the product with how it is transmitted. It is difficult to see at a level of abstraction how what may start out in the form of a photograph, becomes transmogrified by the transmission process into some other, and different form. It raises the question of whether, with a different application and different software, a digital photograph may remain a photograph depending upon the method of transmission.
I note in passing that the Snapchat App has the facility to send a photograph taken with the App, or one already taken by use of the camera on the phone not using the App. Are those images treated differently or does the transmission of an already existing photograph, by use of the Snapchat App, somehow convert it from a photograph to an electronic image?
I acknowledge the difficulties suggested by Mr Hinton in identifying, in such circumstances, what would be the “original” photograph. The digital age also presents difficulties in dealing with overseas companies that may have retained, in some form, the digital data. The evidence on the voir dire and at trial did not deal specifically with many of the issues raised on the appeal. The evidence was directed mainly to what was done, or not done, to obtain data from the phones of the appellant or the complainants. Some evidence related to what data may have been preserved by Snapchat itself. Exactly what data, if any, was retained by the phones, how long the data remained on the phone, what data Snapchat itself retained and, in particular, whether the actual image sent to the complainants could be reconstructed were questions not specifically addressed in the evidence.
There is much in favour of Mr Hinton’s argument that the rules governing the admissibility of this type of data should be simplified. Indeed s 57 of the Act goes some way in achieving that aim.[227] While there may be, in some cases, a difference in the tests for exclusion of secondary evidence, generally the “satisfactory explanation” test deals with the rationale underpinning the best evidence rule by obviating the risk of deliberate tampering or misrepresentation or inadvertent misrepresentation of what has been seen.
[227] A document under s 4 of the Legislation Interpretation Act 2021 (SA) is given a broad definition.
However, at the risk of being seen as stuck in Dickensian times, I do not think this case, with the peculiarities of the Snapchat App, is the appropriate vehicle to redefine what amounts to a photograph, and therefore a document, for the purpose of the common law. That is particularly so given the absence of specific evidence about the workings of the Snapchat App and how it treats digital data. That said, I agree with Mr Hinton’s submission that whether the image is a photograph or not, the best evidence rule as modified by the High Court in Butera applies by analogy.[228] That is, if the absence of the image is “satisfactorily explained”, secondary evidence of the image and its contents can be given.
[228] I note that Dawson J (in the minority) in Butera observed that; “it is now accepted that a tape recording is, so to speak, the auditory equivalent of a photograph”.
While s 57 of the Act modifies the best evidence rule in relation to whether an original of the image needs to be produced, it is not clear whether it modifies the common law rule where no image, original or copy, is produced. If no copy or original is produced, as occurred here, the best evidence rule may still apply.
For the reasons given by Livesey P, it does not matter whether the test of “due search” or “satisfactory explanation” is applied as the prosecution met both tests. The secondary evidence given by the complainants was admissible.
J D Heydon, Cross on Evidence (LexisNexis Australia, Online Edition, 2022) [33315].
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