Athans v The Queen (No 2)

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 The prosecution urged the court to avoid applying outdated legal principles to modern technology, referencing the High Court's decision in *Butera v DPP (Vic)* concerning the admissibility of transcripts of recorded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.