Colin Stevenson (a pseudonym)[1] v The Queen
[2020] VSCA 27
•21 February 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0141
| COLIN STEVENSON (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | WHELAN and KYROU JJA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 September 2019 |
| DATE OF JUDGMENT: | 21 February 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 27 |
| JUDGMENT APPEALED FROM: | [2018] VCC 986 (Judge Gaynor) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant, aged 24, in sexual relationship with complainant, aged 14 to 15 – Applicant charged with nine instances of sexual penetration of child under 16 and one of indecent act with child under 16 – Applicant acquitted of eight charges but found guilty of last two in series – Whether judge erred in admitting evidence of Facebook posts capable of showing applicant became aware of assertion in that complainant was aged 15 just prior to last two instances of sexual penetration – Whether probative value of evidence outweighed by danger of unfair prejudice to applicant – Whether judge erred in admitting evidence as to purported date of the applicant’s comment on post – Whether evidence concerning date of post hearsay – No error in admitting evidence – Application for leave to appeal granted – Appeal dismissed – Evidence Act2008 ss 71, 137, 146, 161; Electronic Transactions (Victoria) Act2000 s 3.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms N Karapanagiotidis | James Dowsley & Associates |
| For the Respondent | Mr C Boyce QC | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA:
I have read in draft the reasons of Croucher AJA. For the reasons he gives, in my opinion leave to appeal should be granted but the appeal should be dismissed.
KYROU JA:
I agree with Croucher AJA.
CROUCHER AJA:
Overview
In April 2018, following a trial by jury in the County Court, ‘Colin Stevenson’[2] (the applicant) was found not guilty of seven charges of sexual penetration of a child under 16[3] and one charge of committing an indecent act with a child under 16[4] (Charges 1–8) but guilty of two charges of sexual penetration of a child under 16 (Charges 9 and 10).
[2]See footnote 1, above.
[3]Contrary to s 45(1) of the Crimes Act1958 (as in force at that time).
[4]Contrary to s 47(1) of the Crimes Act (as in force at that time).
The judge sentenced the applicant to complete a community correction order of two years’ duration, with 200 hours of community work. As a result of the convictions, the applicant was also placed on the Register of Sex Offenders for 15 years.[5]
[5]DPP v Stevenson (a pseudonym) [2018] VCC 986 [34]–[40], [56]–[64].
He now applies to this Court for leave to appeal against those convictions.
Between July 2014 and May 2015, the applicant, who was then aged 24, was involved in a sexual relationship with the complainant, who was aged 14 to 15 during that period.
Whilst there was a dispute about a few of the particular acts alleged, the
primary issue at trial was whether the jury were satisfied, on the balance of probabilities, that the applicant believed, on reasonable grounds, that the complainant was aged 16 or older at the time of each sexual act charged.[6]
[6]See s 45(4)(a) and s 47(2)(a) of the Crimes Act1958 (as in force at that time).
On this application, the question is whether the trial judge erred in allowing into evidence Facebook posts that, together with evidence relating to the dates and times of some of the posts, were capable of showing that, just prior to the sexual acts giving rise to Charges 9 and 10, the applicant became aware of an assertion, made on Facebook by the complainant’s sister, that the complainant was then aged 15.
In my view, the judge was correct to admit the evidence. Accordingly, whilst I would grant leave to appeal (because the point was reasonably arguable), I would dismiss the appeal. My reasons follow.
Background
Complaint
The complainant was born in October 1999. The sexual relationship between the complainant and the applicant ended in May 2015, at the instigation of the complainant.
It was not until June 2016, however, that the complainant first approached the police, after which she was interviewed in a ‘VARE’ a couple of days later. In short, the complainant alleged that she was in a sexual relationship with the applicant between about July 2014 and May 2015. She also alleged that the applicant was aware of her age during that period. In particular, she alleged that, when they first met, she told the applicant that she was 14; and, after her next birthday, she told him that she had just turned 15.
Arrest, interview and charge
The applicant was arrested and interviewed in December 2016 (although, the interview was not led in evidence at trial). It was not until July 2017, however, that he was charged, on summons.
Impugned Facebook posts
On 23 March 2018, only a couple of weeks prior to the commencement of the trial, following a conference with prosecutors, the complainant made a further statement annexing hard copies of screenshots of posts from her Facebook account, as well as some other information (including her profile) relating to that account.
Among the posts was one by the complainant (using a partial pseudonym) bearing the date 4 March 2015. Below this message were a number of rather strongly-worded responses, in particular from the complainant’s sister ‘GS’ and a male ‘EB’, a couple of further remarks by the complainant, and, most importantly, a remark by the applicant. Beside each post was an image. And under each post were the words ‘Like Reply 3y’.[7]
[7]Further, appearing immediately after the complainant’s post and before the written replies was a ’thumbs-up’ image attributed to two named persons and eight unnamed others.
I shall set out the complainant’s original post and the subsequent remarks in full (but sans the images and the words ‘Like Reply 3y’). For convenience, I shall number the posts consecutively.
[1] [The complainant] So I jump on facebook to complain I can’t sleep because of my eye, the first thing I see is a guy ask if I want to root him sometime. I’m really sick of this, I like girls not guys and even if I did like guys, I AM NOT EASY!!! In the future, whoever asks me for a root, I will delete instantly, goodnight.
[2] [GS] I will also point out that’s sexual harassment of a minor[8] and has some pretty severe charges associated with it. And even if it didn’t, [the complainant] has a very large family full of people with anger problems who would happily beat the shit out of any douchebags propositioning her. FYI, in case any said douchebags are reading this.
[8]Italics and underlining added.
[3] [EB] HAHAHAHAHAHA when girls think they’re so special and not just another chick this guy asked for a root, get over yourself.
[4] [GS] Hey [EB], grow up. It doesn’t matter if this cunt only asked [the complainant] or if he’s asked a billion chicks, the point is it’s sexual harassment and [the complainant] is under no obligation to tolerate it. Personally I’d screencap it and send it to his mother, but I’m a vindictive bitch.
[5] [EB] It is not sexual harassment ohmyfuck it’s called a proposition, that’s like saying if I ask a girl for sex and she’s keen as well I’ve STILL sexually harassed her?
[6] [GS] Well given that [the complainant] is 15[9] and the age of consent, assuming you’re not in a position of power, is 16 … It’s not just sexual harassment, it’s proposition of a minor, falls under the category of online child grooming laws and can carry a 12-15 year jail term.
[9]Italics and underlining added.
Also do you not realise the kind of shit women have to deal with online? Or hell, in day to day life? I mean being yelled at from a car driving past is bad enough, then you go home to check facebook to see what your friends are up to and you start getting it there as well? There is a big difference between asking someone you know is DTF and asking someone you’ve barely spoken two words with. There’s also an unfortunate mindset men have due to the porn industry where upon being informed that someone is a lesbian their first reaction is “that’s hot, maybe I can get a 3-some out of this” rather than “this chick isn’t interested, I’ll back off”.
I had a dude at my work try to chat me up and my wedding ring wasn’t enough to deter them, reporting them to our supervisor wasn’t enough to deter them, threatening to shove a spot-welder up their ass wasn’t enough to deter them.
Men have this notion that they’re entitled to do and say whatever they want to women and we just have to stand there, look pretty and giggle. And I’m sorry to inform you, but the world hasn’t worked like that in a very long time, and our mother raised us better than to tolerate that kind of bullshit.
[7][The complainant] I like this
[8][GS] You had to say it because you couldn’t like it twice?
[9] [The complainant] yes
[10] [The applicant] Very well spoken [GS][10]
[10]Italics and underlining added.
During an initial pre-trial Basha inquiry concerning this proposed evidence, Detective Senior Constable David Matthews (the informant) conceded that he could not say when the applicant’s remark (at para [10]) was made.
The next day, Detective Matthews advised that he had made further inquiries on the timing of the posts. He had logged into the complainant’s Facebook page and then hovered a cursor over the ‘3y’ symbol appearing immediately below the applicant’s remark, which caused something like a speech bubble to appear, in which the date and time of Friday 6 March 2015 at 12:07 were displayed. (It is rather like placing a cursor over a footnote on a computer screen in a document created by a word-processing programme and thereby revealing, in a little pop-up on the screen, the text in the footnote.) A screenshot of the post forming part of the hard copy exhibit that was ultimately received into evidence before the jury shows that speech bubble displaying the date and time.
By the same method, and also on screenshots forming part of the trial exhibit, GS’s post at para [6], the complainant’s post at para [7] and GS’s post at para [8] showed the date Friday 6 March 2015 and the times of 09:50, 12:03 and 12:04 respectively.
Prior to empanelment of the jury, counsel for the applicant objected to the admissibility of the Facebook posts, on two bases. First, it was submitted that the whole series of posts should be excluded pursuant to s 137 of the Evidence Act2008. In particular, it was submitted that the evidence was potentially dangerous and misleading for numerous reasons, including the following. The complainant herself did not recall the post (or her further posts at paras [7] and [9]) until it (or they) popped up on her Facebook in recent weeks. Nor did she have any independent recollection of when any of the replies were made. Next, it was submitted that it could not safely be determined to what the applicant’s comment actually related, as GS had made several different points in her posts. Further, it was unclear how the various messages were formatted or how they appeared to the applicant when accessing them. Moreover, there was no expert to assist the jury to navigate the material. Finally, it was submitted that the applicant’s remark conceivably could have been made after the end of the relationship given that the only date that appeared on the Facebook post was simply ‘3y’ (meaning three years).
The second basis for objection was that, contrary to the prosecutor’s submission, the informant’s evidence as to the date of the applicant’s remark was hearsay and did not fall within the scope of the exception in s 71 of the Evidence Act. It was submitted that the purported date of the remark was not an ‘electronic communication’ within the meaning of s 71. This is because the date never formed part of the communication and/or was never received by the complainant. Further, the date appeared over the applicant’s remark only because the informant took additional steps and thereby received further information from the Facebook providers. It was submitted that the only way that that evidence could be admitted was by hearing from a relevant Facebook technician or someone else with the appropriate expertise, neither of which occurred.
The prosecutor submitted that the applicant’s remark was not led for a hearsay purpose. Rather, it was a record of a communication made by the applicant. In his submission, if the remark were to be regarded as hearsay, then s 71(a) of the Evidence Act would allow the evidence to be admissible in so far as it was a representation in a document as to the identity of the person who sent the electronic communication. Similarly, in respect of the date and time, in his submission, s 71(b) would also allow admissibility in so far as it was a representation in a document as to the date on which and the time at which the communication was sent.
The trial judge admitted the posts into evidence, including those showing (in the speech bubbles) the dates and times of some of the posts, as well as the informant’s evidence of what he had done to extract the dates and times.
In the course of giving brief ex tempore reasons for her ruling, her Honour said:
[I]nsofar as the date situation is concerned, it does not seem to me to be unfair prejudice in light of the exception contained in s 71 of the Evidence Act to the hearsay rule, relating to a document recording an electronic communication, both insofar as the representation is to the identity of a person from whom the communication was sent or be the date at which or the time at which the communication was sent. I am satisfied that the electronic communication is one which is defined in the Electronic Transactions (Victoria) Act …, that is ‘a communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy or both’ [and] that this document falls squarely within the definition and hence the s 71 exception and is admissible.[11]
[11]Transcript of Proceedings (11 April 2018) 98–99. See also the discussion at 96–98.
In the result, the hard copy of screenshots of the series of Facebook posts (which included depiction of the dates of some of the posts) was placed before the jury.[12] I should add that the exhibit was in a rather confusing form, as mostly the same information was reproduced multiple times across thirteen pages of screenshots. The informant also told the jury how he accessed those posts and turned up the particular date of the applicant’s remark.
Complainant’s evidence at special hearing
[12]They became Exhibit SH-6.
As is the way in cases of this nature, the complainant was called to give evidence at a special hearing before the jury were empanelled, and the audio-visual recording of that evidence was played later to the jury in the course of the trial proper.
In that evidence, the complainant adopted what she had said in her VARE, which was also played to the jury.
In contradistinction to her account in the VARE, however, the complainant gave the following responses to questions asked of her in evidence-in-chief:
Did they [i.e. Facebook communications with the applicant] commence after your birthday on 7 October [2014]?---After, yes.
And was there any mention of your birthday in any communications with him, any oral or otherwise?---Um, I can’t recall any exact details of conversations.
Did you tell him your age at your birthday at that birthday?---Um, I — I know that I would have but as I just said I can’t recall exact conversations.
Further, in cross-examination, the complainant conceded that she was not able to say whether she told the applicant that she was 14 when she first met him or that she was 15 after her next birthday. She also agreed that not once in any of the Facebook or other messages between her and the applicant during the relevant period was there any mention of either her age or the age difference between them.
Also in cross-examination, the complainant confirmed that she told the police of the following exchange at some point after the relationship ended. She told the applicant that she would not report him because she knew what she was doing and was consenting, to which the applicant responded that their relationship was legal because of her age. The complainant then said words to the effect that she was 15, not 16. His first reaction, she said, was, ‘What are you talking about, I can’t get into trouble, you’re 16.’
On the other hand, in her evidence-in-chief, the complainant said that, while applying for a library card, when asked her age by a staff member, she said she was 15; and that the applicant was beside her at that time. Further, the complainant said that, during their relationship, the applicant helped her prepare resumes for applications for apprenticeships, and that those resumes contained her correct date of birth. In addition, she claimed that, earlier on the morning of, and in the days leading up to, her giving evidence, she remembered, for the first time, that she and the applicant discussed that their age difference was just under ten years. (The applicant was born in July 1990; the complainant in October 1999.) Also, when it was put to her that she did not tell the applicant her actual age at any stage, she said that that was not true.
In evidence-in-chief and in cross-examination, the complainant conceded that the Facebook posts from March 2015 that formed the exhibit were things she gave the police only in recent weeks. She explained that Facebook has a function called ‘On this day’, which shows things that the user may have shared one, two or three years ago on that day, and the information in those posts just happened to pop up just before she was due to see the police prior to trial. Equally, however, she confirmed that she had no independent memory of anything that appears on those posts or of conversing with the applicant about those posts.
In re-examination, the complainant said that she looked up the law to see if there were any ‘loopholes’, and showed the applicant what she found on an ‘Australian government website’ (including documents). Her researches were to the effect that ‘the age of consent is 16’ and that, ‘if you genuinely believe that someone is within the age limit, then it can be an exception’. When asked, ‘When you showed him that, did he say anything?’, her answer was, ‘Not really, no.’
Applicant’s evidence
The applicant gave sworn evidence before the jury. In substance, he accepted that he and the complainant were in a sexual relationship but asserted that he believed she was aged 16 or 17 throughout that period.
In particular, in evidence-in-chief, he denied reading on Facebook in 2015 any assertion that the complainant was aged 15. He had no memory of writing the Facebook remark attributed to him. He was aware that the complainant was at school during their relationship but denied that she ever told him her age or her year level. He denied hearing anyone ask the complainant her age or her say that she was 15.
In cross-examination, the applicant denied asking the complainant her age when he first met her and denied being told she was 14. He denied that she told him she had just turned 15 after her birthday in October 2014. He denied that he considered there was a substantial chance she was not 16, particularly given that she was working (while at school), that she moved in with him and that she often spoke about having children. He denied that she researched the age of consent in his presence. He did not remember sending the message on Facebook on 6 March 2015. He did not know to what his remark ‘Very well spoken [GS]’ was referring, given the number of messages that preceded it. If he had read GS’s assertion that the complainant was 15, he would have confronted the complainant about it, because it would have worried him.
In re-examination, the applicant said that, if he had found out the complainant was under 16 at the time, he would have ended the relationship.
Photographs of the complainant
Also put into evidence were photographs of the complainant and the applicant together during their relationship. The applicant was cross-examined about the complainant’s apparent age in photographs taken at a party when he first met her. Over objection, it was suggested to him that it could not be said that the complainant looked 16 or over in that photograph. The applicant remembered the party and said that he believed she looked over the age of 16 or 17.
Jury questions
During their deliberations, the jury queried why the first page of the exhibit containing the Facebook posts showed the complainant’s first post bearing the date 4 March 2015 whereas another page showed the date of that post as 5 March 2015. Further, the jury noted that the differently dated copies of the same post also had different pictures beside them and that some versions of the posts in general had news feeds to the right of the page whereas another did not. Further still, only the copy bearing the date 5 March depicted the applicant’s post after it. The jury also asked whether this information could have been altered, because they could not see any post by the applicant on the complainant’s original status of 4 March 2015.
By agreement with counsel, the judge told the jury that their observations about what was contained in the exhibit were accurate, but directed that there was no evidence before them about why these differences existed.
Verdicts
The only charges on which the jury returned guilty verdicts (Charges 9 and 10) related to one sexual episode, involving both digital and penile penetration on an occasion between 25 April 2015 and 7 May 2015. It was the last sexual encounter between the complainant and the applicant and the only charged incidents occurring after the Facebook posts of March 2015.
It is consistent with their not guilty verdicts on Charges 1–8 that the jury accepted the applicant’s stated belief (and that he had reasonable grounds for that belief) that the complainant was 16 or 17 at the time of the sexual acts forming the bases of those charges. Equally, it would seem that the guilty verdicts on Charges 9 and 10 are capable of rational explanation only if the jury found that the applicant became aware of the complainant’s true age (or, at least, were not satisfied that he continued to believe, on reasonable grounds, that she was 16 or older) as a result of reading the assertions by GS in the Facebook posts. There was no other evidence that could explain the conflicting verdicts. Thus, the admissibility of the Facebook posts must have been critical to the guilty verdicts.
Ground of appeal
The applicant’s sole ground of appeal reads in this way:
Ground 1: The learned trial judge erred in admitting into evidence (i) the March 2015 Facebook post; and (ii) evidence as to the purported date of the applicant’s comment on the post.
i)The only rational explanation for the jury’s conviction on charges 9 and 10 and acquittals on charges 1 to 8 was the March 2015 Facebook post.
ii)The evidence should have been excluded pursuant to s 137 of the Evidence Act on the basis that the complainant herself did not recall the post and it was potentially dangerous and unfair to admit, particularly given there was no expert evidence on the matter.
iii)The additional evidence as to the alleged date of the applicant’s comment, which formed part of the Facebook post, ought to have been excluded as it was not an electronic communication that fell within the scope of s 71 of the Evidence Act.
Applicant’s submissions
In support of the application, in the main, counsel for the applicant in this Court reiterated the submissions she had made to the judge at trial, but she also added a few more points along the way.
Section 137 of the Evidence Act
Thus, counsel submitted that, for several reasons, her Honour erred in failing to conclude that s 137 of the Evidence Act compelled exclusion of the Facebook posts. In counsel’s submission, the probative value of the evidence was low because it was uncertain as to whether the applicant’s remark in fact showed that he had read GS’s assertion that the complainant was aged 15. The applicant, it was said, may have been referring to any of the several points that GS made after (or before) her assertion about the complainant’s age. Further, there was simply no evidence of how much of GS’s post would have appeared on the screen of whatever device the applicant may have been using when he read at least something and made his remark.
Counsel also submitted that such probative value as there may be in the evidence was outweighed by the danger of unfair prejudice to the applicant, in at least two broad ways. First, there was the danger in too readily inferring that the applicant had read the assertion that the complainant was only 15, despite the lack of direct evidence that he did. Secondly, the strongly-worded opinions of GS — which included references to sexual harassment, child grooming, pornography, misogyny, long prison sentences and thoughts of achieving retribution by the barbaric use of a spot-welder, no less — were inflammatory, distracting and apt to poison the minds of the jury against the applicant, particularly given the nine-year age difference between him and the complainant.
Sections 71 and 161 of the Evidence Act
In counsel’s submission, the informant’s evidence of the date of the applicant’s remark was hearsay and should not have been admitted. This, so it was said, followed because the purpose of leading that evidence was to prove ‘the truth of what’s asserted in respect of the date’. If it were otherwise, the submission continued, the evidence would be irrelevant.
Further, it was submitted that the date was an assertion made by Facebook that was extraneous to the communication made by the applicant. In counsel’s submission, ‘communication’, in this context, implies some sort of imparting or exchanging of information, but the information about the date and time was not part of that. Instead, it was information retrieved subsequently by the informant taking additional steps — namely, accessing the complainant’s Facebook account and hovering the cursor over the ‘3y’ symbol. Thus, the presumption in s 161(1)(c) of the Evidence Act could not apply because, properly understood, the date did not appear in the document itself (it only said ‘3y’). In counsel’s submission, that same reasoning precluded reliance on s 71.
In addition, counsel submitted that the presumption stated in s 161 was inapplicable because the very points raised by the jury’s questions (about the inconsistent dates of 4 and 5 March, and the like) were sufficient to raise a doubt about the presumption. Further, whilst this was not before the jury, it was apparent in pre-trial argument that there was a photograph of the complainant and the applicant together on the complainant’s Facebook account bearing the date 27 July 2011, which had to be wrong, because the protagonists were not known to each other until July 2014.
Respondent’s submissions
On behalf of the Director, senior counsel (who did not appear at trial) submitted that the admissibility of the impugned Facebook posts appears to have been approached by the judge as if the evidence were hearsay. He submitted that the better view, however, is that admissible aspects of the evidence sufficient for the Crown to prove its case need not have made any appeal to hearsay. Indeed, in his submission, the prosecutor made clear that his primary form of reliance upon the evidence was for a non-hearsay purpose. Counsel also submitted that it could be understood why the prosecutor might have expressed himself in this way. It was, counsel submitted in this Court, the expressed content of the various representations that was of relevance. The point was, the submission continued, how such expressed content might have impacted upon the applicant’s state of mind. It mattered not whether the complainant’s sister’s original post referring to the complainant’s age was true or not.
In an attractive argument, counsel submitted that the Facebook message board was much like a guest-book, where one lodger on one date writes something that is then picked up or referred to by another lodger on a later date. So long as the provenance of each entry is reliable, and so long as the issue is whether the second lodger is to be fixed with the information imparted by the first lodger by a certain point in time, it matters little whether what was written was in fact true. The dates in the guest-book referable to each entry may prove, circumstantially, the point in actual time by which the second lodger may be said to have acquired the relevant knowledge (or belief).
As it happened, counsel submitted, there was no real question in this case concerning the provenance of the impugned entries — that is to say, who was responsible for them. This being so, it was open to the jury to treat the relevant entries as if they were writings on a guest-book in the handwriting of each protagonist. It was in this manner that the entries became relevant evidence bearing, at least circumstantially, upon the question whether, and by what date, the applicant came to have knowledge of (or, perhaps more accurately, a belief about) the complainant’s age.
As to the applicant’s reliance on s 137 of the Evidence Act, counsel submitted that it was difficult to see any unfair prejudice inherent in the impugned evidence. The remarks made by GS, as stridently put as they may have been, appeared to be directed at another or others, not the applicant. Further, it was submitted that the acquittals on the first eight charges rather suggest that the jury could not have used any of the Facebook remarks of the complainant, her sister or EB in any unfairly prejudicial way against the applicant.
In addition, it was submitted that there was no substance in the complaint that any unfair prejudice arose as a result of the lack of expert evidence as to the operation of the Facebook message system either generally or in respect of the additional procedure that was followed by the informant (this additional procedure, apparently, having been confirmed through testing by the defence). The additional procedure was simply the act of placing the computer cursor above the relevant entries, which caused the Facebook computer system to reveal the actual date and time when each message was sent.
But, in counsel’s submission, the absence of such expert evidence was not a matter of unfair prejudice at all. Rather it went to a different question — a question that could be answered, it was submitted, perhaps by reference to the presumption available to the Crown arising out of the operation of s 146 of the Evidence Act. It was reasonably open to the judge, submitted counsel, to conclude that the Facebook message device or process — one by which there is open to be viewed purportedly correct lodgement of messages, both as to content and time of lodgement — was one that, or was of a kind that, if properly used, ordinarily produces this outcome. Thus, in essence, a presumption of regularity was apt to apply.
Yet, in counsel’s submission, perhaps an even better fit for admission of the impugned evidence was s 161 of the Evidence Act, especially in circumstances where it appears to have been conceded that — whatever else might be said of the information contained on the Facebook page — the messages were at least ‘in the form of data, text or images’ communicated ‘by means of guided or unguided electromagnetic energy, or both’. It was further submitted that this provision would put beyond doubt the Crown’s ability to rely upon the dates exhibited with the messages as correctly, or truthfully, recording the time at which such communications were made.[13]
[13]That is to say, if it were thought that this aspect of the evidence (the dates) contained a hearsay component.
Further, it was submitted that the discrepancy between the dates that appeared on the posts (and the ‘2011’ photograph) did not oust the presumption in s 161. This is (at least) because those discrepancies, such as they might be, did not go to the process in which the informant engaged in order to reveal the date and times of the posts — namely, his act of hovering the cursor over the ‘3y’ symbol below the relevant post. Thus, in counsel’s submission, there was no evidence at all sufficient to overcome the presumption of regularity in so far as the process in which the informant engaged was concerned.
Counsel submitted that if, in the alternative, the impugned evidence was more properly characterised in toto as hearsay (or at least containing certain hearsay aspects), then the judge did not err in admitting it. If the judge was correct to view the impugned evidence as hearsay, then the evidence was properly caught (as the judge ruled) by section s 71 of the Evidence Act.[14]
[14]In his written case, senior counsel for the Director also submitted, in the alternative, that, if the representations were thought to contain a mixture of hearsay and non-hearsay material, then s 60 of the Evidence Act would permit admission of the impugned evidence even to the extent that it might contain some hearsay. I did not understand that that submission was repeated or adopted in oral submissions. In any event, in the circumstances of this particular case, it is unnecessary to deal with it.
Thus, one way or another, on the submissions made on behalf of the Director, the impugned evidence was admissible.
The relevant provisions
Before turning to discussion of the issues, it is convenient to set out some of the provisions of the Evidence Act raised by counsel below and in this Court.
Section 71 reads as follows:
71 Exception — electronic communications
The hearsay rule does not apply to a representation contained in a document recording an electronic communication so far as the representation is a representation as to—
(a)the identity of the person from whom or on whose behalf the communication was sent; or
(b)the date on which or the time at which the communication was sent; or
(c)the destination of the communication or the identity of the person to whom the communication was addressed.
Notes
1Division 3 of Part 4.3 contains presumptions about electronic communications.
2Section 182 of the Commonwealth Act gives section 71 of the Commonwealth Act a wider application in relation to Commonwealth records.
3 Electronic communication is defined in the Dictionary.
The Dictionary to the Evidence Act provides that ‘electronic communication’ has the same meaning as it has in the Electronic Transactions (Victoria) Act 2000. In s 3 of the latter Act, ‘electronic communication’ is defined to mean:
(a)a communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both; or
(b)a communication of information in the form of sound by means of guided or unguided electromagnetic energy, or both, where the sound is processed at its destination by an automated voice recognition system …
The same provision states that ‘information’ means ‘information in the form of data, text, images or sound’.
Section 146 of the Evidence Act reads in this way:
146 Evidence produced by processes, machines and other devices
(1) This section applies to a document or thing—
(a)that is produced wholly or partly by a device or process; and
(b)that is tendered by a party who asserts that, in producing the document or thing, the device or process has produced a particular outcome.
(2)If it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document or thing on the occasion in question, the device or process produced that outcome.
Example
It would not be necessary to call evidence to prove that a photocopier normally produced complete copies of documents and that it was working properly when it was used to photocopy a particular document.
Section 161, in part, provides as follows:
161 Electronic communications
(1)If a document purports to contain a record of an electronic communication other than one referred to in section 162, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication—
(a)was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made; and
(b)was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made; and
(c)was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made; and
(d)was received at the destination to which it appears from the document to have been sent; and
(e)if it appears from the document that the sending of the communication concluded at a particular time—was received at that destination at that time.
Also in the Dictionary to the Evidence Act, the word ‘document’ is defined to mean any record of information, and includes:
(a) anything on which there is writing; or
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d)a map, plan, drawing or photograph.
Finally, s 137 of the Evidence Act provides that, ‘[i]n a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused’.
Discussion
I turn now to discuss the issues.
Facebook posts not led as hearsay
While it may not have been in dispute, I think it is important at the outset to make clear that none of the Facebook posts were led as hearsay. Instead, GS’s assertion as to the complainant’s age was led as merely that — i.e. to establish the fact that she made that assertion. The applicant’s remark was led, not for its truth, but for its capability of showing that he was responding to the posts that had gone before, from which it might be inferred that he had read GS’s assertion about the complainant’s age. The foregoing were the two important posts. And the other posts (including those by the complainant and EB and other parts of GS’s posts) were led merely to place those more important posts in context and make them intelligible.
Sections 146, 161 and 71 of the Evidence Act
One matter squarely in dispute, however, was the admissibility of the evidence of the dates and times of the posts. Without some evidence that the posts preceded the sexual acts alleged in Charges 9 and 10, it is difficult to see how evidence of the posts could have any relevance to those charges. Thus, the evidence of dates and times was crucial to the admissibility of the two important posts.
In my view, that evidence was admissible on several bases.
First, the evidence was admissible pursuant to s 146 of the Evidence Act. Given the definitions of ‘document’ and ‘information’, the Facebook posts showing the dates and times in the speech bubbles were ‘documents’ in that they were records of information (meaning information in the form of ‘data, text or images’) from which ‘images or writings could be reproduced with or without the aid of anything else’ — the reproduction in this case being with the aid of the informant hovering the cursor over the ‘3y’ symbol.
In the terms of s 146(1), the document containing those dates was produced wholly or partly by a computer device or process and was tendered by the Crown, who asserted that, in producing the document, the computer device or process produced a particular outcome — namely, the disclosure of a date and time that the post in the document was sent.
Further, employing the language of s 146(2), it was reasonably open to find that the computer device or process was one that, or was of a kind that, if properly used, ordinarily produces that outcome, such that it was presumed (unless evidence sufficient to raise a doubt about the presumption was adduced) that, in producing the document containing those dates and times on the occasion in question, the computer device or process produced that outcome.
(I shall return to whether there was evidence sufficient to raise a doubt about the presumption when dealing with ss 146 and 161 together on this issue.)
Secondly, the evidence was also admissible pursuant to s 161(1) of the Evidence Act. This is because, again, first, the Facebook posts showing the dates and times in the speech bubbles were ‘documents’ in that they were records of information (meaning information in the form of ‘data, text or images’) from which ‘images or writings could be reproduced with or without the aid of anything else’ — the reproduction again being with the aid of the cursor hovering over the ‘3y’ symbol.
Contrary to the submission of the applicant’s counsel, it matters not that the dates and times may have been assertions made by Facebook ‘extraneous to the communication made by the applicant’ or that they required, for their production, the actions of the informant to place the cursor over the ‘3y’ symbol.
Instead, applying the terms of the preamble to s 161(1), the Facebook posts purported to contain records of ‘electronic communications’, being ‘communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both’. That definition, in my opinion, is apt to capture the information concerning dates and times of posts displayed when the cursor is placed over the ‘3y’ symbol. In those circumstances, pursuant to s 161(1)(c), it was presumed (unless evidence sufficient to raise a doubt about the presumption was adduced) that the communication was sent or made on the day on which, and the time at which, it appears from the document to have been sent or made. Thus, contrary to the applicant’s submission, it is irrelevant whether it could or could not be established that the applicant’s communication was imparted to or exchanged with another. Instead, it was enough, for the purposes of s 161(1)(c), that the communication had been ‘sent’.
Thirdly, counsel for the applicant also raised another discrepancy in reply in addition to the discrepancies in the dates on the Facebook posts. Counsel made the point that there was evidence that the complainant and the applicant exchanged numerous Facebook Messenger messages on the date and spanning the particular times the Facebook posts were said to have been made, and yet there was no mention in those messages of the Facebook posts. In counsel’s submission, this was another reason to suggest that there was sufficient doubt about the presumptions in ss 146 and 161 to oust those presumptions and deny the admissibility of the evidence under those provisions.
However, while these factors do give some pause for thought, in the end, I accept the submission on behalf of the Director to the effect that neither the differing dates disclosed on the screenshots of the Facebook posts, nor the lack of acknowledgment by either protagonist of the Facebook posts in the course of the Facebook Messenger messages, is sufficient to raise a doubt and displace the presumption for the purposes of admissibility under either s 146 or s 161. This is because those discrepancies or facts did not go to the process in which the informant engaged in order to reveal the date and times of the posts. In my view, there would need to be something like expert evidence challenging, in a material way, the accurate workings of the Facebook system of recording the dates and times of posts before admissibility could otherwise be denied under these two provisions.
Fourthly, and in any event, the complainant’s evidence at trial provided both additional support for the admissibility of the dates and times pursuant to s 146 and/or s 161 and an independent basis for proving that the posts were made in March 2015, i.e. before the behaviour alleged in Charges 9 and 10. There was no challenge to the complainant’s evidence that Facebook has a function called ‘On this day’, which shows things that the user may have shared, say, three years ago on that day, and that the information in those posts happened to pop up just before she was due to see the police prior to trial. That the dates produced by moving the cursor over the ‘3y’ symbol were of 6 March 2015 was perfectly consistent with the undisputed fact that the period during which the ‘On this day’ function caused these old posts to pop up was three years later, in March 2018, and also with the fact that the posts, when reproduced in March 2018, were accompanied by the ‘3y’ (or three years) symbol.
Fifthly, if the evidence of the dates and times was properly characterised by the judge as hearsay, then her Honour was right to hold that that evidence was admissible pursuant to s 71(b) of the Evidence Act. This is because, given the definitions already discussed of ‘electronic communication’ and ‘document’, it is plain that the dates and times revealed by hovering the cursor over the ‘3y’ symbols are capable of being described as ‘representation[s] contained in a document recording an electronic communication so far as the representation was a representation as to … (b) the date on which or the time at which the communication was sent’.
Section 137 of the Evidence Act
Turning to the applicant’s reliance on s 137 of the Evidence Act, it is difficult to assess the judge’s reasons because, unlike the situation that obtained with respect to s 71, there was no separate formal ruling addressing this issue. Counsel for the applicant took no point in this regard on the present application. Instead, she appeared to proceed on the (valid) premise that it was apparent from the discussion during the course of argument that the judge rejected the submissions directed at exclusion of the evidence pursuant to s 137.
I accept that there was a danger of unfair prejudice in the remarks made by the complainant and, more particularly, those made by her sister. The remarks were inflammatory and, I think, capable of distracting a reasonable juror from his or her task. I also accept the probative value of the posts was diminished by the lack of direct evidence as to what, precisely, the applicant may have read, and how, and to what extent, the remarks of others in the series would have appeared to the applicant.
But what cannot be denied is that there was still significant probative value in the evidence. Plainly, given the nature of the applicant’s remark, and given the evidence as to its timing vis-à-vis the preceding remarks, it was open to infer that the applicant had read the assertion that the complainant was aged 15. It might also be said that there was particular probative force in the evidence because the assertion as to the complainant’s age came from her sister — that is to say, someone who would be likely to know her age. Further, given that the sexual acts the subject of Charges 9 and 10 occurred less than two months after these posts, the evidence was clearly relevant to, and potentially quite probative of, the applicant’s belief as to the complainant’s age at the time of those sexual acts.
As to the question of unfair prejudice, while, as I have said, the remarks of GS in particular were inflammatory, there is also something in the submission, made by senior counsel for the Director, that those remarks appeared to be directed at another or others, not the applicant. In any event, while it is perhaps an ex post rationalisation of sorts, I was also attracted by counsel’s submission that the acquittals on the first eight charges rather suggest that the jury could not have used any of the Facebook remarks in any unfairly prejudicial way against the applicant.
Thus, I do not think that the probative value of the evidence of the Facebook posts was outweighed by the danger of unfair prejudice to the applicant. On the contrary, I think that the judge was right to admit the evidence and to reject the arguments under s 137 of the Evidence Act.
Proposed orders
In the result, because the applicant’s ground of appeal was reasonably arguable, I would grant leave to appeal. However, since the judge was correct to admit the evidence, the appeal must be dismissed.
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