Ford v The King

Case [2023] SASCA 117

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

FORD v THE KING

[2023] SASCA 117

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)

16 November 2023

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - CONTROL OVER PROCEEDINGS - DISCHARGE OF JURY

Appeal against an aggravated robbery conviction. 

The only issue at the trial was identity, being whether the prosecution had proved beyond reasonable doubt that the appellant was one of the two offenders.  The prosecution case was circumstantial, relying on, inter alia, CCTV footage, DNA, testimony from the bar manager at the premises where the robbery occurred, and photographs taken of text messages and photographs found in a mobile telephone.

At trial two detectives gave evidence about what they found in a mobile telephone which appeared to have been used by the appellant, as well as the photographs they took of what they saw on the screen of that phone.  The evidence from the gallery of the phone included photographs of cash consistent with the proceeds of the robbery, as well as text messages arranging a taxi after the robbery in the name of the appellant, using his mobile number and close to a burnt out vehicle used in the robbery. 

The mobile phone evidence included “metadata” evidence which comprised date and time information associated with photographs found in the gallery of the mobile phone.

The appellant appealed on the basis that the trial judge erred in admitting, amongst other evidence, the metadata evidence (appeal ground 1). 

The appellant also appealed on the basis that the trial judge erred in failing to declare a mistrial when a juror wrote a note to the trial judge regarding the appearance of the accused (appeal ground 2).

The Court held (dismissing the appeal):

1.The evidence found in the mobile telephone, including the “metadata” evidence, was relevant and admissible evidence in proof of the circumstantial case relied on by the prosecution to prove guilt. 

2.It was not necessary to address the broader operation of the metadata process.  Different considerations might apply where it is necessary to prove the accuracy of metadata evidence beyond reasonable doubt.   In the circumstances of this case the questions asked of the detectives, the arguments made by the defence and Exhibit D23 (the E-Crime download) did not call into question the reliability of the mobile phone or the accuracy of the metadata evidence found in it.

3.Alternatively, if there was error associated with the admission of the metadata evidence, or if there was otherwise a miscarriage of justice associated with the admission of that evidence and its treatment by the trial judge, this is an appropriate case in which to apply the proviso.

4.There was no error made in refusing to declare a…

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Ford v The King [2023] SASCA 117
Case
[2023] SASCA 117
Decision Date

CaseChat Overview and Summary

The appeal concerned the admission of evidence obtained from a mobile telephone in the District Court of South Australia. The appellant, Mr Ford, was appealing his conviction. The prosecution sought to admit photographs from the appellant's mobile phone, which included metadata such as dates, times, and GPS information. The defence objected to the admission of this evidence, arguing that there was no expert evidence to explain how the metadata was generated or stored, and that it was unfairly prejudicial.

The primary legal issue before the appellate court was whether the trial judge erred in admitting the mobile phone evidence, including the metadata, without expert testimony. This involved considering whether the absence of expert evidence rendered the admission of the evidence improper, and whether the evidence was unfairly prejudicial to the appellant. The court also considered, though it was not raised at trial, the potential application of provisions within the *Evidence Act 1929* (SA) concerning electronic communications and evidence produced by processes or machines.

The appellate court reasoned that the trial judge was entitled to admit the evidence of what the detectives observed when they accessed the mobile phone. The court held that in the 21st century, expert evidence was not necessarily required to establish that phones record dates and times, and that the absence of such evidence was a matter going to the weight of the evidence, not its admissibility. The court found that the evidence was not more prejudicial than probative and was not unfair to admit. Furthermore, the court noted that even if the *Evidence Act 1929* (SA) provisions regarding electronic communications and processes were considered, they would likely support the admission of the evidence, as they create presumptions of authenticity and accuracy in the absence of evidence to the contrary.

Ultimately, the appellate court concluded that it could not be said that the admission of the mobile phone evidence constituted an error of law or occasioned a miscarriage of justice. Accordingly, the appeal ground concerning the admission of evidence was dismissed, and the appeal itself was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In the course of his voir dire ruling, the trial judge ruled that the absence of expert evidence was relevant only to the weight to be given to the evidence of the detectives and the photographs concerning what was seen in the mobile telephone. The trial judge recorded that, though he had invited counsel to consider the provisions of the Evidence Act 1929 (SA) (the Evidence Act), no submission was made about any provision within that Act. His Honour ruled:[4]… Whether the date and time might be accurate is not something, in my view, which is to be assessed in a vacuum. If the images are admitted, also relevant would be matters such as what is shown in the relevant photographs, the date and time of the alleged robbery itself and a date and time on which the phone was first found by police.In my opinion the date and time within the two screenshots is admissible, notwithstanding the absence of any expert evidence about how such information is created and then stored within a phone.In my view, in the 21st century, an expert is not required to establish that phones record dates and times. In my view, the absence of expert evidence is relevant only to the weight of the evidence.In my view, the evidence is not more prejudicial than probative, nor is it unfair to admit the evidence against Mr Ford. In my view, there is also no other basis to decline to admit the evidence.[4] R v Ford (District Court of South Australia, Judge Kimber, DCCRM-20-467, 28 April 2022), 2. During the trial the defence tendered the E-Crime download, Exhibit D23, which was a print-out of downloaded metadata associated with photographs 3 and 5 of Exhibit P12. This included “GPS” information. GPS refers to the “global positioning system” by which satellites and devices fix the location of things on Earth. There was no evidence explaining the process used by the E-Crime section to produce this print-out. The E-Crime download suggested that GPS information associated with these photographs included a date of 22 August 2019, which was before the robbery. In addition, the recording of the latitude and longitude associated with photograph number 3 – the cash on the bedspread – did not correspond with the appellant’s home address when it was entered into “Google Maps”. In the course of his summing up to the jury, the trial judge referred to the arguments of the prosecution and the defence about this evidence, especially defence counsel’s submission that there was no expert evidence explaining any of the metadata, nor the GPS information in the E-Crime download. The trial judge then directed the jury not to make assumptions about dates and times in phones and metadata as follows:[5]You must be careful not to make assumptions about dates and times appearing within phones and metadata without the benefit of expert evidence. You will bear in mind that the onus of proof is on the prosecution.[5] R v Ford (District Court of South Australia, Judge Kimber, DCCRM-20-467, 3 May 2022), 15.

Decision

Reasons for decision

Appeal ground 2 should be dismissed.Conclusion The appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

Finally, and in all of these circumstances, it cannot be said that it was an error of law to admit the evidence obtained from the mobile phone, including the metadata evidence. It was evidence of what the detectives saw when they opened and went through the phone. It cannot be said that its admission occasioned a miscarriage of justice. Judicial notice and the potential operation of Evidence Act provisions Though they did not feature at the trial, there are provisions of the Evidence Act which are relevant to consider. Sections 54, 56 and 57 of the Evidence Act provide as follows:54—Electronic communications(1)If an apparently genuine document purports to contain a record of an electronic communication (other than one referred to in section 55)[36], it will be presumed in the absence of evidence to the contrary, that the communication—[36] Section 55 is concerned with proof of messages transmitted by means of a lettergram or telegram.(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.(2) A provision of subsection (1) does not apply in proceedings if—(a) the proceedings relate to a contract; and(b) all parties to the proceedings are parties to the contract; and(c) the provision is inconsistent with a term of the contract.(3)A document referred to in subsection (1) may be admitted in proceedings as evidence of any of the following representations contained in the document:(a) the identity of the person from whom or on whose behalf the electronic communication was sent;(b) the date on which or the time at which the communication was sent;(c) the destination of the communication or the identity of the person to whom the communication was addressed.(4)In this section—electronic communication has the same meaning as in the Electronic Transactions Act 2000.…56—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 to proceedings who asserts that, in producing the document or thing, the device or process has produced a particular outcome.(2)If a device or process is one that, or is of a kind that, if properly used, will ordinarily produce that outcome, it will be presumed, in the absence of evidence to the contrary, 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.57–Modification of best evidence rule(1)A document that reproduces the contents of another document is admissible in evidence before a court in the same circumstances, and for the same purposes, as that other document (whether or not that other document still exists).(2)This section applies to a reproduction made–(a) by an instantaneous process; or(b) by a process in which the contents of a document–(i) recorded by photographic, electronic or other means; or (ii)stored on a data storage device,are reproduced, whether in the same form or in some other form; or (c) in any other way.(3)If a court admits or refuses to admit a document under this section, the court must, if so requested by a party to the proceedings, state the reason for its decision.(4)In determining whether a particular document accurately reproduces the contents of another, a court is not bound by the rules of evidence and, in particular, the court may rely on its own knowledge of the nature and reliability of the processes by which the reproduction was made.