Kumar v Commissioner of Police
[2023] SASC 93
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
KUMAR v COMMISSIONER OF POLICE
[2023] SASC 93
Judgment of the Honourable Justice McDonald
16 June 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
The appellant was subject of an intervention order that was imposed on 26 March 2019. That order was made for the protection of the appellant’s former wife, his daughter AT and his son ST. The appellant was charged with and found guilty of four counts of breaching the intervention order, with all four counts relating to his daughter AT. The basis of the charges were in relation to four unanswered telephone calls on the smartphone application WhatsApp, and two ‘likes’ on AT’s Instagram account.
The appellant appeals his convictions on the basis that the Magistrate erred in finding that he could exclude, as a reasonable possibility, that the various communications were made accidentally or by another person. Alternatively, it was contended that the WhatsApp calls could never amount to more than an attempt to contact the protected person and as such did not contravene the order. Equally, even if the appellant was responsible for the Instagram ‘likes’ they did not amount to communications.
Held:
1. The appeal is allowed on Grounds 1 and 5.
2. The matter be remitted back to the Magistrates Court for a retrial.
Police v Hill (2005) 93 SASR 307; R v Trotter (1979) 22 SASR 64; R v Pfennig (1992) 57 SASR 507; Police v Beukes (2011) 205 A Crim R 406; Police v Vishal Kumar [2022] SAMC 135; Wondimu v Police [2019] SASC 62, considered.
KUMAR v COMMISSIONER OF POLICE
[2023] SASC 93Criminal to Magistrates Appeal: Criminal
MCDONALD J: On 26 March 2019, the appellant became the subject of an intervention order. The order was made for the protection of the appellant’s former wife, his daughter AT, and his son ST. The intervention order relevantly contained the following term.
4.The Defendant must not contact or communicate with the protected person(s) either directly or, indirectly in any way (including phone, letter, cards, SMS messages, e-mail, facsimile, Facebook, Skype etc) except with respect to contact and access to children pursuant to any order or direction of the Family Law Court or other Courts exercising jurisdiction under the Family Law Act.
The appellant was charged with and subsequently found guilty of four counts of breaching the intervention order. All four counts related to his daughter AT.
The basis of the charges were four unanswered telephone calls made on the WhatsApp application and two ‘likes’ on AT’s Instagram account. It was alleged that the appellant initiated each of these communications.
The appellant challenges his convictions on the basis that the Magistrate erred in finding that he could exclude as a reasonable possibility that the various communications relied upon by the prosecution were made accidentally (‘pocket calls’) or by another person with access to the appellant’s mobile phone. Alternatively, it was contended that the missed WhatsApp calls could never amount to more than an attempt by the appellant to make contact with his daughter and as such, even if it was proved that the appellant had made the calls, they did not contravene the terms of the order. Equally, even if the appellant was responsible for Instagram ‘likes’ they did not amount to communications.
A preliminary issue – Extension of time
The appellant was convicted on 10 October 2022. Rule 185.1 of the Joint Criminal Rules requires that an appeal be instituted within 21 days of the date of judgment.[1] The Notice of Appeal was filed on 1 March 2023. It follows that the notice was filed over three months out of time. Consequently, the appellant requires an extension of time.
[1] Joint Criminal Rules 2022 (SA) r 185.1.
The discretion to extend time for compliance with the Criminal Rules exists for the sole purpose of doing justice between the parties. Factors to be taken into consideration in determining whether to grant an extension of time in which to file an appeal include, the length of and explanation for the delay, whether there is any prejudice suffered by the respondent, and whether there are prospects that the appeal will be successful.[2]
[2] Police v Hill (2005) 93 SASR 307 at [11].
Where a party is not able to provide a satisfactory explanation for failing to observe a time limit, or where another party might suffer prejudice by reason of the delay, an extension of time will only be granted if the party seeking the extension can point to the real possibility that a miscarriage of justice might occur by the failure to extend time.[3]
[3] R v Trotter (1979) 22 SASR 64 at 65.
The solicitor for the appellant, Jon Lister, has filed an affidavit in which he sets out an explanation for the delay. In essence, although the appellant made contact with Mr Lister only five days out of time, there were issues with him obtaining representation that were not resolved until 20 December 2022. In the interim, on 10 November 2022, Mr Lister indicated to the Magistrate who had presided over the trial that the appellant intended to appeal his conviction. On that basis the determination of sentence was adjourned to abide the outcome of the appeal. On 20 December 2022, Mr Lister requested a copy of the trial transcript. That was not made available until 25 January 2023. Once received it was apparent that defence counsel’s objections had not been transcribed. On that basis Mr Lister requested a copy of the audio recording of the trial proceedings and a copy of the exhibits. These were not received until 14 February 2023.
It would seem that whilst there was delay in filing the Notice of Appeal, that was not through a lack of effort on the part of the appellant or his solicitor. There is no suggestion that the respondent has suffered any prejudice or disadvantage by virtue of the delay. Finally, for reasons that will shortly become apparent the grounds of appeal have merit.
I propose to grant the application for an extension of time.
The Grounds of Appeal
The Notice of Appeal contains four grounds. These are:
1.The learned Magistrate erred, in the absence of a proper evidential basis and expert evidence, by excluding as a reasonable possibility that the missed calls on What’s App were accidental ‘pocket dials’.
2.The learned Magistrate erred, in the absence of a proper evidential basis and expert evidence, by using the search history on the Instagram application on the appellant’s mobile phone, as a piece of circumstantial evidence to find that the search was ‘recent’ and that it was conducted by the appellant.
3.The learned Magistrate erred in finding that each attempted contact on WhatsApp amounted to a breach of the intervention order.
4.The learned Magistrate erred in finding that a ‘like’ of an Instagram post amounted to ‘contact’ of the protected person.
The appellant has sought leave to amend the original appeal grounds to include a further ground in the following terms:
The learned Magistrate erred by failing to consider and exclude, as a reasonable possibility, that the ‘likes’ of the two Instagram posts by the ‘ART***’ account were accidental (either by the appellant or another person at the immigration detention facility).
The respondent does not oppose leave being granted to add the additional ground. In those circumstances I grant leave for the additional ground to be added.
Issues for Determination
Between them, these grounds raise a number of issues for consideration. These are:
·To what extent is expert evidence necessary to establish the operation of mobile telephones, social media platforms and smartphone applications that are in common usage in the community?
·To what extent can the court rely on non-expert evidence from a witness who is familiar with mobile telephones, social media platforms and smartphone applications that are in common usage in the community?
·Does an attempt to make a telephone call amount to a “contact” under the terms of an intervention order?
·Does the act of ‘liking’ an Instagram post amount to a “contact” under the terms of the intervention order?
·On the basis of the admissible evidence before the Magistrate, was it open to exclude as a reasonable possibility that the Instagram likes and the WhatsApp calls were made accidentally?
The evidence
The witnesses who were called to give evidence at trial were AT, the appellant’s former wife ART, Inspector Marieka Mysko, who is employed by the Australian Border Force, and the investigating officer Detective Brevet Sergeant Ashwin Menon. A recorded interview with the appellant was played during the evidence of Sergeant Menon.
The evidence fell within relatively narrow confines and much of it is not contentious. It was an agreed fact that on 26 March 2019 an Intervention Order was confirmed in the Magistrates Court sitting in Adelaide preventing the appellant engaging in certain behaviour towards the protected persons. AT gave evidence that subsequent to this she had received 4 missed WhatsApp calls on her mobile phone and had become aware of two ‘likes’ on her Instagram account that the prosecution alleged were made by the appellant.
The first telephone call was made at 2:11 pm on 30 March 2020. AT was aware of this call being made to her telephone, however she did not answer as ‘Dad’ had come up on the caller ID. It was AT’s evidence that she had previously saved the appellant’s mobile telephone number under ‘Dad’. AT’s evidence was supported by a screen shot that she had taken of the history log of the phone call showing the date and time that she had received it.[4]
[4] Exhibit P4.
The next 3 calls were made to AT’s mobile phone on 1 July 2020. Again her evidence was supported by a screen shot that she had taken that showed that those calls were made between 7:41 am and 7:42 am.[5]
[5] Exhibit P5.
It was not disputed that AT had received the 4 missed calls on her mobile phone at the time and date alleged. There was also no dispute that the telephone number the appellant was using at that time was recorded in AT’s telephone as ‘Dad’, that his telephone had made those calls and the screen shot accurately depicted the call log. The issue that arose was the circumstances in which those calls had come to be made and in particular whether the prosecution could prove beyond reasonable doubt that they resulted from an intentional act by the appellant.
AT also gave evidence about her Instagram account. She regularly used it to message, call, videocall, post and to ‘like’ other people’s posts. The username to AT’s Instagram account was AT*** and her profile was public meaning that it was accessible to all.
It was the evidence of AT that at some time in July or August 2020 she checked her Instagram account and saw that two of her previous posts had been liked by someone using the name ‘ART***’. This was her mother’s name followed by the numbers 961. AT told the court that she knew that her mother used Instagram however this was not her username. ART confirmed that this was not her username.
AT’s evidence was also supported by a further screen shot of the Instagram notification from AT’s mobile phone.[6] It established that one of the posts had been ‘liked’ 7 weeks before and the other 12 weeks earlier. There is nothing to suggest that there was anything particularly meaningful or significant about the images that were ‘liked’. One appears to be of three people and the other an image of a birthday cake.
[6] Exhibit P6.
There was no dispute that these two posts were ‘liked’ in the time frame alleged or that the screen shot accurately depicts the Instagram log. Again the issue was about the circumstances in which these images were ‘liked’ and in particular whether the prosecution could prove that they were the product of a deliberate act on the part of the appellant.
Detective Menon gave evidence that on 17 August 2020 as a consequence of becoming aware of these events he conducted an interview with the appellant. That interview was recorded on camera. During the course of that interview Detective Menon inspected the appellant’s mobile phone. He found the Instagram app on the phone with an account in the name of ART***. He pressed on the profile tab for the account and saw that two accounts were being followed by this profile. One of those was the account of AT. Detective Menon took a photograph of the appellant’s phone displaying this information. That photograph was tendered.[7]
[7] Exhibit P9.
During the interview the appellant was asked a number of questions about his knowledge of the WhatsApp missed calls and the Instagram ‘likes’. He gave the following account:
·He did not make any of the missed WhatsApp calls. However he admitted it was his telephone number.
·He was in immigration detention over the time that these contacts were made.
·Initially he suggested that he did not have his mobile phone with him in detention when the first WhatsApp missed call occurred. He subsequently moved away from that position.[8]
·He generally maintained that no one else had access to his mobile phone, and the contacts could not have been made by someone else. At one stage he suggested that he left his phone on recharge in an area that could be accessed by 3 other detainees.[9]
·He maintained that he had made no contact with any of the protected persons as a consequence of the intervention order.
·He said that he does not use WhatsApp and he doesn’t know how to use it. He went on to suggest that maybe the WhatsApp missed calls were a mistake “automatically sometimes if you press any button – then goes – I don’t know”
·He does not have an Instagram account. The only explanation that he had for the Instagram account on his mobile phone was that maybe his wife created the account when they were still living together as a family.
·He denied following his daughter’s Instagram account and said that he did not know how it worked. He said – “I’m not smart.”
·He said that his phone was broken and that it sometimes seizes up automatically.[10]
[8] By the time of trial there was no dispute that the appellant had his mobile phone with him during the relevant period.
[9] On appeal the appellant’s counsel Ms Luu conceded that on the evidence it was not a reasonable possibility that someone else had made these calls.
[10] A photograph taken of the appellant’s mobile phone shows that the top of the screen is cracked.
Was it necessary for the prosecution to call expert evidence?
In 1992, during the course of the trial of R v Pfennig,[11] Cox J raised the issue of how the court could be confident that a photocopier reproduced accurately. In that same transcript during a voir dire hearing the Crown prosecutor made the observation that “everyone knows that computers can’t be trusted.”
[11] (1992) 57 SASR 507.
Technology has moved on since that time with the courts ever increasingly having to contend with developments in the digital world. It is inevitable that new methods of communication, social media platforms and applications will become so common place that they will require no explanation to a jury or trier of fact. At the other end of the spectrum as new technology develops it will be necessary that the court be assisted by experts. The question that arises for consideration on this appeal is where in that spectrum the evidence in this trial fell and whether the Magistrate was in error in arriving at the relevant findings absent the assistance of expert evidence.
Ground 1
Ground 1 raises a complaint that the Magistrate erred in the absence of a proper evidential basis and expert evidence by excluding as a reasonable possibility that the missed WhatsApp calls were accidental. In support of this ground the appellant relies on the following passage in the Magistrate’s reasons:[12]
I also do not consider it a reasonable possibility that the accused accidentally ‘pocket dialled’ his daughter on either occasion. To make a call using WhatsApp, I am satisfied beyond reasonable doubt the application needs to be open. It also needs to be open and displaying either the contact alleged to have been called or their number needs to be displayed somewhere on the screen such that they can accidentally be dialled.
[12] [2022] SAMC 135 at [24].
It is the appellant’s submission that there was no adequate evidentiary foundation to arrive at this finding.
The offence of breaching an intervention order is an offence of strict liability.[13] As such, the only intention which must be proved by the prosecution is an intention to do those acts which constitute a breach of the order. The prosecution must prove that those acts were intentional or reckless. It is not necessary to prove that the appellant intended those acts to contravene the order, or that he knew that his actions amounted to a contravention of the order.[14] All that was necessary was for the prosecution to prove the appellant deliberately engaged in the relevant conduct.
[13] Police v Beukes (2011) 205 A Crim R 406 at [6]-[10].
[14] Ibid.
So what was the evidence about the manner in which WhatsApp operated that the prosecution relied on to exclude the possibility of the accidental dialling of AT’s mobile phone number?
AT gave evidence about her experience of using WhatsApp. She said that she had first used it about ten years ago and that she used it to message people, to voice call, to video call and to post stories.[15] She described that to set up an account you download the app, select the country you are in and then, having provided your telephone number, a verification code is sent. That code is then put into the app and you are then able to set up an account. AT went on to explain that once an account is established you do not need to log in, you simply open the app and “go on to the messages that you would like to go onto, or call people that you would like to call”.[16] It was AT’s evidence that when you open WhatsApp the first thing that you see are your messages. Unlike iPhone messages you get a preview of a multitude of different messages and if you clicked on a message you could call that person or see their previous messages.[17] She said that in order to call someone:
…you type their name, which is on the top, there is a searching area, so you just search up their name and click on the name and then you would have to click on their profile then I believe on the top right hand corner, there is a video call option and a phone call option. You can just click the phone on the video call”.[18] When asked whether there are other ways that you can call someone on WhatsApp she replied “If you made a previous call and it’s recent, you can just do it through your regular phone, otherwise if it’s a previous phone call you need to go through WhatsApp to call them.[19]
She went on to elaborate:
[15] TT 19.
[16] TT 20-21.
[17] TT 25-26.
[18] TT 21.
[19] TT 21.
So, you can just search up their name, click on their name which will take you to like a – it would be like a message profile on the screen and then on the top right there’s two options. You can just click the call option and it will just ring through.[20]
[20] TT 21-22.
AT gave evidence that before the intervention order had been imposed, she had been in contact with the appellant through WhatsApp. The contact took the form of the exchange of brief messages and photographs.
In cross-examination AT agreed that it was not necessary to add individual contacts to WhatsApp, as the contacts from the phone were automatically accessed. Further that if the app was open and the profile was displayed it would only require one click for a telephone call to be made. When it was put to her that if the application was open and you put the phone in your pocket it may result in an accidental phone call AT replied:[21]
No because when you open the app and click on the message or the name, the main thing that can happen is like the message would open or previous chats would be clicked on but because the icon to call is on the top right hand, it’s a small icon so I don’t think if you put it in your pocket that’s the only surface that can be touched.
[21] TT 25.
The only further evidence on the topic of the functioning of WhatsApp was elicited during the cross-examination of Detective Menon. When asked about whether in his experience, the small crack on the top of the screen of the appellant’s phone might mean that it doesn’t function properly, he responded that not in this case because of the position of the crack. He said it was not near where you would slide to use the phone. When asked specifically about the number of touches required to make a ‘pocket call’ using WhatsApp Detective Menon replied that it was not possible. He said: [22]
No, based on my experience because I use WhatsApp, and to call someone on WhatsApp, you need to have called that person first for that butt dialling to happen because to call someone on WhatsApp you need to go into a WhatsApp account, search for that person, dial that person, only then you can dial that person again, using butt dial any combination. To reach that phase of dialling someone there are many clicks that you need to go through.
[22] TT at 37-38.
Detective Menon was then asked how many touches would be required to call a person in the event that the app was opened with the contact opened and placed in the pocket – Detective Menon responded with one.
Counsel for the appellant, Ms Luu submitted that this evidence was an insufficient factual basis for the Magistrate to exclude beyond reasonable doubt that the appellant accidentally made the missed calls. Ms Luu did not challenge the admissibility of the evidence of AT (and presumably Detective Menon) to give evidence of their experience in using WhatsApp however said it could amount to no more than their own experience and could not be elevated to the status that this was in fact how WhatsApp operated on the appellant’s phone. She made the submission that there were a number of potential variables to how WhatsApp operates that were not addressed by the evidence. These were the impact of the damage to the appellant’s phone, the version of the software being utilised and the question of whether it was an Android or iPhone device. Whilst Ms Luu accepted that at some point in time WhatsApp may be in such common usage that judicial notice may be taken of how it operates, she submitted that we are not yet at that point and in those circumstances it was incumbent on the prosecution to prove beyond reasonable doubt that the appellant deliberately made the four missed calls.
Ms Luu also accepted that it was not necessary for the prosecution to lead expert evidence in every case in which there is an allegation of a communication by WhatsApp. She maintained however, on the facts of this case, when the appellant had raised the issue of accidental calls right from the outset in the record of interview it was necessary for the prosecution to meet this explanation with expert evidence.
Mr Slocombe appeared for the respondent. It was his submission that there was a sufficient basis in the evidence absent an expert for the Magistrate to arrive at the relevant finding. He also submitted that it was open for the appellant to call his own expert to give evidence on the topic. The latter submissions ignores the onus of proof and the fact that it was for the prosecution to prove beyond reasonable doubt that the missed telephone calls were the product of a deliberate act on the part of the appellant.
I do not accept that it was necessary for the prosecution to lead expert evidence about WhatsApp in order to make out this charge. As was appropriately conceded by Ms Luu it does not necessarily follow that just because the prosecution relies on a communication via this app that an expert needs to be called, it will depend on the facts and issues of each individual case. I also do not hold the view that on the facts of this case expert evidence was required. The fact that the accused made reference in the interview to the calls possibly resulting from a mistake advances the appellant’s position no further than reinforcing that in proving the elements of the offence the prosecution must prove that the appellant’s conduct was deliberate and intentional. Having said that, this case does not fall at the other end of the spectrum such that judicial notice could be taken of the manner in which this app operates. Consequently this ground of appeal turns on whether there was a sufficient evidentiary basis for the Magistrate to exclude beyond reasonable doubt that the missed calls occurred accidentally.
The entirety of the evidence led on this topic is that which I have set out from AT and Detective Menon. With respect to the witnesses that evidence was unclear and confusing. It was limited to their own experience of WhatsApp on their own devices. It was not established which devices the two witnesses had downloaded the app onto nor the extent of their experience in using the app.
In some circumstances, the nature and timing of the missed calls may be further circumstantial evidence that adds to the more technical evidence about the operation of the app. Did the missed calls occur on a date of some significance? Were messages left? Did the calls occur in a pattern or with such frequency that they take on the appearance of stalking behaviour?
If any of those questions were answered in the affirmative that may lend weight in establishing that these missed calls were not accidental. In this case however there was nothing about the nature and timing of the calls that assisted the prosecution in proving that they were not accidentally made.
There is no suggestion that the dates or timing of the missed calls have any particular meaning for AT or the appellant. There is no obvious pattern to the calls with a single call in March 2020 and three calls in close succession in July 2020. No messages were left. To my mind this pattern is more consistent with random pocket dials rather than a course of behaviour consistent with stalking and harassment. If anything this aspect of the evidence tends to point away from the conduct being deliberate and menacing.
I have arrived at the view that the nature of and manner in which this evidence was led was insufficient to negate that the missed calls were accidental, whether by pocket dialling or some other means.
It would have been open to the prosecution to lead further, clearer and more detailed evidence from Detective Menon about the operation of WhatsApp particularly on the appellant’s phone. The police are in possession of that mobile telephone. It is not password protected. There is no reason why Detective Menon could not give evidence of how WhatsApp operates on that phone. The phone itself could have been tendered. Whether that would be a sufficient evidential basis to refute accidental dialling would be dependent on the nature and quality of that evidence and will ultimately be a matter for the trier of fact if the matter proceeds to retrial.
Ground 1 has been established.
Ground 5
Ground 5 raises the same issue in relation to the two Instagram ‘likes’. An important starting point for consideration of this ground is that there is no suggestion that creating an Instagram account and following AT’s public profile was in contravention of the conditions of the intervention order. It was AT’s choice to create a public profile. Whilst it must be observed that AT should not feel compelled to change her social media practices because of the appellant’s conduct, the practical reality is that a public profile is available to the world at large. There is nothing illegal about the appellant accessing the posts on AT’s account and indeed it is understandable why a father estranged from his family may seek to see what is happening in his daughter’s life.
In his interview with police the appellant raised a positive defence to these two counts involving the Instagram ‘likes’. He raised as a possibility that his daughter or more particularly his wife had created that profile when they lived together as a family.
AT and ART denied that they had created the Instagram account. The Magistrate accepted that evidence. It was open to him to do so. In those circumstances it followed that the Magistrate rejected the account provided by the appellant to the police.
That was not however the end of the matter. It was still for the prosecution to prove that the likes were deliberate acts undertaken by the appellant. The Magistrate however appears to have omitted that step in the reasoning process and moved from a finding that the appellant set up the Instagram account to one of guilt. This error is disclosed in the following passage of the reasons:[23]
I do not accept as a reasonable possibility that AT’s mother set up the account on the accused’s phone. It makes no sense for that to be the case. The account was on the accused’s phone in circumstances where he had had no contact with AT or her mother since the date of the intervention order was put in place and his phone had been in possession the entire time.
I also do not accept as a reasonable possibility that the ‘ART***’ account was a shared family account. The protected person and her mother would remember such a thing. I would also expect there to be evidence of its use. The account had no posts, no followers and followed only by one person who just happened to be the accused’s daughter and who was the subject of a recent search on the accused’s phone. I accept beyond reasonable doubt the evidence of AT’s mother that the username ‘ART***’ was not one she used or with which she was familiar.
I find beyond reasonable doubt that the accused had the ‘ART***’ Instagram account on his mobile phone and used it on the two charged occasions to contact the protected person by liking two of her posts. I find the accused guilty of counts 3 and 4.
[23] Police v Vishal Kumar [2022] SAMC 135 [44]-[46].
Part of the explanation for this error may have been in the limited evidence that was led on this topic. Again the relevant evidence about the working of Instagram came from AT and Detective Menon.
It was AT’s evidence that she had an Instagram account and regularly used it. She explained what is meant to ‘like’ a post. She said:[24]
Like is like you are acknowledging the fact that you have seen it, or if you are close to them, you are encouraging their post. To like a post you either double tap on the post or tap on the heart icon.
AT further explained that:
You become aware that someone has liked a post because it will show up in the notifications. It would show the username of the person who liked the post and the fact that they had liked it.
She also gave evidence about how to see if someone had liked your posts:
To find out which post had been liked you click on the notification and it will take you to that post.
[24] TT 13.
In cross-examination AT was asked whether it is possible to accidentally ‘like’ a post in the process of scrolling down. AT responded that it was not, on the basis that it requires a double tap. This answer however is inconsistent with AT’s evidence it is possible to like a post with one click on the heart icon. Further I do not accept that it is unlikely that someone may accidentally tap twice resulting in an unintentional ‘like’.
Detective Menon gave evidence that once he seized the appellant’s mobile phone he looked through it to see if there was an Instagram app. He located an Instagram account in the name of ‘ART***’ and saw that there were two Instagram profiles being followed. One of those accounts was that of AT. He explained that by accessing the search history he was able to determine that “one of the recent searches was AT’s account”.[25]
[25] TT at 34.
That was the extent of the evidence of the function of Instagram.
It is my view that not only did the Magistrate fail to consider the question of whether the prosecution had excluded an accidental ‘like’ but on the evidence it was not open for him to do so. The circumstances of the ‘likes’ do not advance the case for the respondent. As with the WhatsApp missed calls there is nothing of significance in the timing of the likes or the relevant posts. There are only two, some months apart with no messages attached.
The fact that the appellant is an older man who appears to be a novice in the use of Instagram in the circumstances in which it was open for him to view AT’s public profile, creates at least as a reasonable possibility that in the course of looking at AT’s account he has inadvertently double clicked on a post.
Ground 5 has been established.
Ground 2
The Magistrate erred in finding that the Instagram search conducted on the appellant’s mobile phone was recent.
This ground relates to paragraphs [42] – [43] of the Magistrate’s reasons:[26]
[42] In front of the accused, Sergeant Menon interrogated the search history within Instagram and saw the search term ‘AT’, the name of the accused’s daughter, in its recent search history. The accused denied searching for the name.
[43] The accused has been in possession of his mobile phone since being in immigration detention. The Instagram account installed on the phone only followed one account; that of his daughter. There is a strong inference the account was set up deliberately for that purpose. The inference is supported by the fact that it was set up in the name of the person close to and trusted by the protected person. The recent search of AT is a strong piece of circumstantial evidence pointing to the accused being the person responsible for the “likes”.
(Emphasis added)
[26] Police v Vishal Kumar [2022] SAMC 135 [42] – [43].
There was no dispute at trial that the Instagram posts were ‘liked’ by the “AT***” account. The issue at trial was whether the prosecution could exclude that they were accidental or made by another person.
The evidence about the timing of these ‘likes’ is that they were made 7 and 12 weeks before AT became aware of them in July or August 2020.[27]
[27] TT AT 9-10 and P6.
The only reference to the posts being ‘recent’ was in the evidence of Detective Menon when he described inspecting the appellant’s phone. In that context he said that when he accessed the search history he saw that one of the recent searches was AT’s account.
It is unclear whether in the impugned passages of his reasons the Magistrate has adopted the language of Detective Menon or is referring generally to the 7 and 12 week time frame. If it was the former, the Magistrate was in error in that there was no foundation in the evidence for Detective Menon to provide an opinion about the timing of the search based on what he observed on the phone. However, it may be that the Magistrate was loosely referring to the 7 to 12 week period. In those circumstance minds may differ as to whether 7 to 12 weeks prior was recent. Regardless of the basis of this finding given the decision that I have arrived at on the other grounds of appeal nothing turns on this ground.
Grounds 3 and 4
The Magistrate erred in finding that each missed WhatsApp call and each “like” of an Instagram post amounted to a contact such that it was a breach of the intervention order
Whilst my decision on grounds 1 and 5 is determinative of the disposition of this appeal, given the possibility of a retrial, it is appropriate that I express my views on grounds 3 and 4.
As I understand it condition 4 in the intervention order is a proforma condition that continues to be regularly included in such orders.
There is no doubt that those responsible for drafting this condition intended that its terms are broad. The public policy rationale behind such an approach is self-evident.
It is important that the terms of the order be clear given the need for the protected person and the appellant to understand the ambit of the prohibited conduct. It is not for a trial court or this court to imply additional terms of the order to ensure that the intended breadth be given effect.
On a plain reading of condition 4 it does not extend to prohibiting ‘attempted’ contacts regardless of what may have been intended in its drafting.
In Wondimu v Police,[28] Hinton J gave consideration to the meaning of the words ‘make contact’ as they appeared in a bail agreement. In that context Justice Hinton placed some weight on the definitions in the Macquarie Dictionary for ‘make contact’ (‘to initiate communication’) and contact (‘the state or fact of touching or meeting of bodies, immediate proximity or association, or sociologically, a condition in which two or more individuals or groups are placed in communication with one another’).[29] Importantly Hinton J expressed the view that the phrase ‘to make contact’ did not extend to acts preparatory to making contact. His Honour went on to express the following view:[30]
I consider the prohibition in the present case to be on contact in the sociological sense as defined by the Macquarie and on physical contact. As the norms of conduct created by a bail agreement become elements of a criminal offence punishable by imprisonment they should be narrowly construed. In my view the prohibition contained in clause 2(b) of the bail agreement is upon communication actually achieved, that is contact actually not contact attempted.
[28] Wondimu v Police [2019] SASC 62.
[29] Ibid [42].
[30] Ibid.
A breach of an intervention also brings with it the risk of terms of imprisonment. It follows that any purposive construction must yield to the countervailing principle that a statutory instrument ought not to be construed in such a way so as to confer criminal liability beyond its express terms. I agree with the view expressed by Hinton J that for the purposes of the interpretation of condition 4 contact does not extend to preparatory acts or attempts to contact.
Was the alleged conduct sufficient to be a breach of condition 4 of the intervention order?
The question of whether there has been a contact will depend upon the facts and circumstances of each case. Assuming for the purposes of considering this ground that the prosecution were able to prove that the appellant had intentionally dialled AT’s mobile number, albeit she did not answer, the caller identification capability of the mobile phone would record and display the number of the missed call. That would be known to the appellant. That information would be seen by AT when she next looked at the screen of her phone. In those circumstances the appellant has made contact with AT. He has conveyed to her that he is in possession of her telephone number and that he has called it.
Equally if the prosecution could establish that the appellant deliberately liked AT’s Instagram post, this would amount to a contact. The appellant through his conduct has conveyed to AT that he has been viewing her Instagram account and has chosen to ‘like’ a particular post. In the context of a current intervention order such contact has the potential to be menacing and place a protected person in fear, just as much as if a voice message was left on a telephone.
It follows that in the event that both forms of communication could be proved to be the product of the appellant’s deliberate conduct then they would be sufficient to amount to a contact for the purposes of condition 4.
Conclusion
1. The appeal is allowed on Grounds 1 and 5.
2. The matter is remitted back to the Magistrates Court for retrial.
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