R v Athans - [2021] SADC 3

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ATHANS
[2021] SADC 3
Reasons for Rulings of her Honour Judge S David
24 March 2020
EVIDENCE - ADMISSIBILITY - HEARSAY - EXCEPTION: DOCUMENTS - GENERAL PRINCIPLES - BEST EVIDENCE
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - GENERALLY
Accused charged with four counts of procuring a child to engage in or submit to sexual activity –– accused allegedly sent explicit photographs of an exposed penis on ‘Snapchat’ to four young females – uncharged act of sending explicit image on Snapchat to another female aged 17 years – alleged offending occurred from April 2016 to July 2017 – explicit images no longer in existence – whether oral testimony of the complainants describing the images hearsay and inadmissible – whether evidence offends the ‘best evidence’ rule – application for a stay of proceedings for an abuse of process - application to exclude evidence for unfairness.
Held: Evidence admissible. Application for stay of proceedings, and to exclude evidence for unfairness declined.
Criminal Law Consolidation Act 1935 (SA) s 63B(3)(a); Evidence Act 1929 (SA) ss 34G(1), 54 and 57; Electronic Communications Act 2000 (SA) s 5, referred to.
Wade v The Queen (2014) 239 A Crim R 29; R v Sitek (1987) 26 A Crim R 421; Taylor v Chief Constable of Cheshire [1986] 1 W.L.R. 1479; Semple v Noble (1988) 49 SASR 356; Godfrey v Woolworths (WA) Pty Ltd (1998) 103 A Crim R 336; Maks and Maks (1986) 6 NSWLR 34; Mack v Lenton (1993) 32 NSWLR 259; Butera v DPP (Vic) [1987] HCA 58; (1987) 164 CLR 180; Police v Sherlock [2009] SASC 64; Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23; R v Edwards (2009) 83 ALJR 717; R v Lobban (2000) 77 SASR 24; Police v Dunstall [2015] HCA 26; Police v Hall (2006) 95 SASR 482; Wigmore on Evidence 3rd Ed; Cross on Evidence 9th Ed 2013; Documentary Evidence in Australia 1st Ed 1988 R A Brown, considered.

R v ATHANS
[2021] SADC 3

Criminal

The accused, Nicholas Emmanuel Athans, is charged on an Information dated 16 April 2019 with four counts of Procuring a Child to Engage in, or Submit to, a Sexual Activity, contrary to section 63B(3)(a) of the Criminal Law Consolidation Act, 1935. The alleged offending is particularised as having occurred from 3 April 2016 to 15 July 2017. Each charge relates to a separate complainant.
The accused elected for trial by judge alone. The trial is listed to commence on 14 July 2020.
The accused makes an application for the exclusion of the oral testimony of each complainant as to the content of sexually explicit photographs and text messages, received on Snapchat and which have not been preserved, as hearsay or contravening the best evidence rule, or, in the exercise of the court’s discretion for unfairness; and the exclusion of incriminatory material extracted from the accused’s mobile telephone in the exercise of the court’s discretion for unfairness. The accused also makes an application for a stay of proceedings for an abuse of process on the basis that the charges are foredoomed to fail, or, the loss of evidence renders the proceedings unjustifiably unfair.
My rulings follow in respect of those applications.
Allegations
The accused was a disc jockey and a promoter of underage dance parties. He was 21 to 22 years of age at the time of the alleged offending. The four complainants were aged from 14 years to 16 years at the time of the alleged offending.
The accused is alleged to have contacted each of the complainants on social media using Facebook Messenger and the Snapchat application. The accused is alleged to have sent each complainant on Snapchat a sexually explicit photograph(s) of a male lying in bed exposing his penis who was, on the prosecution case, him. Each complainant also received other Snapchat messages or Facebook messages from the accused.
The prosecution seeks to prove that the accused was the sender of the sexually explicit photographs by reference to the associated Snapchat account user name and other features of the sexually explicit photographs and messages said to link the image with the accused. None of the explicit photographs have been preserved or were able to be retrieved and many of the surrounding Snapchat and Facebook were also not preserved or retrieved. The police did not seize the complainants’ mobile telephones nor make a forensic copy of the contents of the mobile telephones. The police did take photographs of some screenshots of the Snapchat and Facebook messages received by each of the complainants.[1]
[1] T28–32, Affidavit of Matthew Turtle, dated 15 April 2019, Annexure E: VDP3.
Each complainant describes the sexually explicit photograph(s) she received as well as the content of some of the Snapchat and Facebook messages which are no longer available and said to have been sent by the accused.
It is necessary to say something more about the evidence sought to be led by the prosecution on each count.
Count 1 - DN
DN was born on 25 December 2000.
DN says that on 3 April 2016 she had a conversation with a person called ‘Nick’ via Facebook Messenger on an account in the name of ‘Nick Papia’ during which Nick contacted her and asked her to contact him on a mobile telephone number. She did so and Nick asked her to Snapchat him on the account of ‘NICK.ATONIK’.[2] Nick added her to Snapchat and she added him back.
[2] Affidavit of Matthew Turtle dated 15 April 2019, Appendix F.
DN says that during a conversation on Snapchat, Nick asked her how old she was and DN told him that she was 15. DN said he made a joke saying ‘oh wow, I’m way older than you. I hope I don’t get caught’. Nick asked her to come over to his place, which she refused to do as it was late. DN says that ‘Nick’ then sent her a photograph which she described as of a person wearing blue Calvin Klein underwear. DN described the underwear as tight shorts with a band at the top saying Calvin Klein. DN said that she could see the outline of a penis which was erect in the photograph. DN said ‘he was in a bed and there were bedsheets around and stuff’. Nick then sent her a message saying: ‘come over, I’ll make it worth your while’ or something similar. DN said she replied: ‘ha ha ha nice’. She said she was being sarcastic.
Nick sent her an iMessage and asked her to sneak out and meet him. DN replied that she was going to ‘choose life’.[3] DN says she stopped replying to Nick on Snapchat after he sent her photographs of a penis.
[3] Affidavit of Matthew Turtle dated 15 April 2019, Appendix E.
DN says that on 23 April 2016, Nick sent her four to six sexually explicit photographs on Snapchat showing a penis. There were captions on the photographs which she now cannot recall. She said that in one of the photographs, the penis was fat and saggy and the person was holding it in one of his hands. In most of the photographs, the penis was erect. One of the photographs also had a caption which said something like ‘don’t you want nine inches?’.
DN said that in some of the photographs, she could see the whole penis from the base to the end of the tip, as the penis was erect.
DN said each sexually explicit photograph appeared to have been taken using the Snapchat camera rather than to have been of images stored in a camera roll of the mobile telephone. As such they were ‘snaps’. A stored image which is sent opens as a ‘chat’ and can be saved by the receiver into the memory of the mobile telephone, whereas if you take a photograph using the Snapchat camera and send it as a ‘snap’, the receiver cannot capture the photograph unless they take a screenshot of it.
DN said that she did not screenshot or save any of the sexually explicit photographs received from the person Nick.
DN also said that the same day after sending her the photographs of a penis, Nick posted a Snapchat story of a photograph taken of him driving a car with the words ‘off to the football’.
DN said she had no communication with Nick until 2 July 2017, when they made contact again on DN’s Tinder profile which was connected to her Facebook account.[4] DN says on 18 July 2017, she messaged Nick on his Facebook account in the name of ‘Nick Anthems’ about the [            ] Formal afterparty.[5] She had no money to attend. She understood Nick was organising the afterparty and thought he would be able to, in her words, ‘sneak her in’. On 29 July 2017, Nick then sent her a message via Snapchat in which he suggested that if she and her friend ‘hooked up’ with him he would get them into the party. [6] DN said that she did not reply. She went to the afterparty.
[4]     Declaration of DN dated 8 September 2017, Appendix A.
[5]     Declaration of DN dated 8 September 2017, Appendix A.
[6]     Declaration of DN dated 8 September 2017, Appendix B.
On 1 August 2017 Nick removed DN from his Snapchat account and deleted her from his Facebook account. DN says she has had no contact with Nick since the night of the formal.
DN says that in April 2016 she was using an iPhone 5. After April 2016, DN purchased an iPhone 6, which she was using until shortly after the [ ] Formal, when it was broken. She did not transfer the data from her iPhone 5 to the new iPhone 6. After DN’s iPhone 6 was broken, she reverted to using her iPhone 5. DN sold her iPhone 5 on Gumtree after September 2017. Before doing so, she did a factory reset deleting all the data before she sold it.
In respect of the first count, the prosecution alleges that the sexual activity, to which the accused procured DN’s submission, is the viewing of one or all, of the photographs depicting a penis (beneath underwear, or exposed), as described by her.[7] In the absence of the production of the photograph received on Snapchat, the prosecution seeks to lead DN’s description of those photographs. The prosecution also seeks to lead DN’s recollection of the Snapchat messages which were not preserved, sent around the same time as the photographs to prove the identity of the accused as the sender, to establish the sexually suggestive tone of the conversations, and to rebut any suggestion the photographs were accidentally sent by the accused to DN. The prosecution also proposes to tender the photographs of screenshots of messages allegedly between DN and the accused saved on her Facebook Messenger account and mobile telephone.
[7] VDD1: letter dated 3 April 2019.
Count 2 – RF
RF was born on 11 February 2002.
RF says that she saw an advertisement on Facebook for a ‘Summer City’ event. She ‘liked’ the post and on 20 December 2016 she was sent a friend request from someone using the Facebook account of Nick Athans.[8] RF accepted the Facebook request. RF said that the person then gave her his Snapchat account which was ‘NickAthansAUS’.[9] RF said she added this person as a Snapchat friend, and this person added her. RF says that on 20 December 2016, the person messaged RF on Snapchat, and they had a normal conversation. She recalled the conversation as follows:
He said: ‘hey’.
I said ‘hey’.
He said ‘hey, how are you?’
I said: ‘good thanks, yourself?’.
He said: ‘a bit bored and a bit cheeky’.
RF said she then stopped replying to the person. The person then sent another Snapchat which said:
‘do you want to come for a drive?’.
[8] According to RF the name of this Facebook account was subsequently changed to Nick Christos.
[9] Declaration of Matthew Turtle dated 23 February 2017, Appendix D.
RF said she did not reply to this Snapchat either.
On the following day, 21 December 2016, the person sent her another series of messages via Snapchat which RF recalled as follows:
He said: ‘hey’.
I said: ‘hey’.
He said: ‘what are you doing today?’.
I said: ‘I’m going out with my mum’.
He said: ‘ok’.
He said: ‘do you want to come out with me for a drive tonight?’.
I said: ‘no thank you’.
He said: ‘I’m feeling a bit cheeky, are you?’.
I said: ‘no, I’m not cheeky’.
The person stopped sending messages to RF that day.
On the following day, 22 December 2016, the person sent another series of messages to RF on Snapchat which RF recalls as follows:
He said: ‘if you send me something, I will give you free tickets to Summer City’. (This message was accompanied by a photo of the sender’s face which RF said she recognised as the same person depicted on the Facebook page of ‘Nick Athans’.)
I said: ‘I don’t need tickets. I have money’.
The person stopped replying. RF said about 30 minutes later the person sent her a photograph which she described in the following way:
The photo was of his dick. He was laying in his bed and he was wanking. By this I mean masturbating. He was laying down on his back and the photo would have been taken with a mobile phone with a flash. I could tell there was a flash as the background was dark but his dick was shiny in the flesh. His penis was erect. I could not see a foreskin. Either he was circumcised or it was pulled back. The top of the penis looked like a mushroom. He had one hand around the middle of the penis. I am not sure now if it was his left or right hand. His jocks were pulled down around his knees. They were black with a band at the top which was blue with writing on it. It was either days of the week or Bonds. I’m not sure which. The sheet on the bed was a dark grey colour. I can’t remember the quilt cover but I think it was dark in colour. I am pretty sure there was a desk or a table at the end of the bed. There was a TV and a laptop on the desk at the end of the bed. There was a wooden wardrobe in the bedroom. This was brown in colour and had vertical panels and a mirror in the middle. There were two cupboards on either side of the mirror. It had been stained in different shades of brown so some areas of the wardrobe were lighter and darker shades of brown.[10]
[10] Declaration of RF dated 1 February 2017, p5.
RF said that after having received the photograph of the penis, she did not reply and she did not hear from the person again. She said at some point, the person blocked her on Facebook Messenger and on Snapchat.
RF says the photograph of a penis was sent to her on Snapchat as a ‘snap’. Most of the messages were sent as text on top of a blank screen and as a photograph. As she did not screenshot the messages and photographs they were not saved or retained on her mobile telephone.
RF says that she no longer has the same Snapchat account anymore, or the same mobile telephone (an Apple iPhone 6), and she wiped the telephone before her mother gave it to a friend after January 2017. RF bought a new Apple mobile telephone in March 2017 but she did not transfer any of the data across from her old mobile telephone.
In respect of the second count, the prosecution alleges that the sexual activity, to which the accused procured RF’s submission, is the viewing of a photograph depicting a penis (beneath underwear, or exposed), as described by her.[11] In the absence of the production of the photograph received on Snapchat, the prosecution seeks to lead RF’s description of the contents of the photograph. The prosecution also seeks to lead RF’s recollection of the Snapchat messages which were not saved and sent around the same time as the photograph, to prove the identity of the accused as the sender, to establish the sexually suggestive tone of the conversations, and to rebut any suggestion the photographs were accidentally sent by the accused to RF.
[11] VDD1: letter dated 3 April 2019.
Count 3 - KW
KW was born on 11 August 2002.
On 16 January 2017, KW received a private Facebook message from a Facebook account in the name of Nick Athans. The message came as a request. KW accepted the message and the person then sent KW a ‘friend request’ on Facebook. KW added the person as a Facebook friend. That Facebook account of Nick Athans is now in the name of ‘Nick Christos’. The police took photographs of the Facebook messages between KW and the person.[12] The person asked KW if she was coming to his party and they discussed tickets to the party. The person then asked KW to ‘snapchat’ him and gave KW the Snapchat user name of ‘NickAthansAUS’. KW added this Snapchat account to her account and then the person added her Snapchat account to his.
[12] Declaration of Matthew Turtle dated 23 February 2017, Appendix A.
KW said on 16 January, at around 7 pm, she received another five messages from the Snapchat account of ‘NickAthansAUS’. The first few messages were a blank screen with text. The person asked her if she wanted free tickets. KW said: ‘yes’. He said: ‘what are you going to do for me?’. KW said she did not reply to this message. The person then sent her more messages on Snapchat including a message with a photograph of him driving and a message with a blank screen with the words ‘driving home’.
KW said she then received a photograph which was a meme of a woman giving oral sex to a man on a jet ski with the words ‘when you want some head so you jet ski to the middle of the ocean and tell her either suck it or swim back’.
KW said she replied ‘oh’.
The person said: ‘what?’.
She replied: ‘bit odd’.
The person said: ‘too naughty for you?’ with an emoji of a smirking face. She replied ‘it’s a bit odd, how I don’t know you and you are a lot older than me and you’re sending me these things’.
The person did not reply.
KW said she was concerned she would not be able to go to the party so she sent the person a message saying:
‘I’m not trying to be rude’.
KW said the person sent her a photograph which she described as follows:
… a male person holding his penis through a pair of underwear. The underwear was a pair of grey trunk type underwear. (She) could not see or tell the brand. There was a white band at the top. You could not see a face in the photo. It was a selfie which means it was taken with a mobile phone. The person was lying down on a bed.[13]
[13] Declaration of KW dated 23 January 2017 at p3.
KW says the person sent her a second photo which she described as:
of the same person in the same place wearing the same underwear … the underwear had been pulled down to be around the knees exposing the penis and genital region. I could see the entire length of the penis and surrounding pubic hair which was brown or black. It was a circumcised penis. The sheets underneath were grey and the duvet was black. I could see a small flat screen TV on a stand at the end of the bed.[14]
[14] Declaration of KW dated 23 January 2017 at p3.
KW said that upon receiving each photograph she pressed skip and did not screenshot the photograph. KW did not reply to the messages containing the photographs and she had no more conversation with the person on Snapchat.
The following day, KW communicated further with the person on Facebook about obtaining tickets for the event to be held the next evening.[15]
[15] Declaration of Matthew Turtle dated 23 February 2017, Appendix A.
On 18 January 2017, KW went to the Summer City event, and whilst there recognised a DJ as the person depicted on the Facebook account in the name of Nick Athans (now in the name of ‘Nick Christos’) from which she had been receiving messages.
The person subsequently deleted KW from his Snapchat account.
KW says that in January 2017 she was using an Apple iPhone 6S which she had purchased in October 2016. It was a second-hand phone. The Facebook messages have been saved but the Snapchat messages have not as she did not screenshot or save any of the Snapchat messages or photographs.

In respect of the third count, the prosecution alleges that the sexual activity, to which the accused procured KW’s submission, is the viewing of one or all, of a series of photographs depicting a penis (beneath underwear, or exposed) as described by her, and the meme.[16] In the absence of the production of the photographs received on Snapchat, the prosecution seeks to lead DN’s description of the content of those photographs. The prosecution also seeks to lead DN’s recollection of the unsaved Snapchat messages sent around the same time as the photographs, to prove the identity of the accused as the sender, to establish the sexually suggestive tone of the conversations, and to rebut any suggestion the photographs were accidentally sent by the accused to DN. The prosecution also proposes to tender the photographs of the screenshots of messages allegedly between KW and the accused on her Facebook Messenger account.
[16] VDD1: letter dated 3 April 2019.
Count 4 - BD
As to the fourth count, BD was born on 16 February 2001.
On 13 July 2017, late at night, BD received a message on Snapchat from another Snapchat account with the user name ‘NickAthans’ saying that she had been added to his Snapchat account. BD looked at the person’s Facebook account, which was also in the name of ‘Nick Athans’. There was then a series of messages between BD and a person into the hours of the following morning, of which BD took a screenshot, and which were as follows: [17]
[17] Declaration of BD dated 1 September 2017, Appendix A.
The person said:    ‘oh, heyyy,
So .. (emojis)
what are you doing?
We should hang
I’m so bored right now x’
BD replied: ‘I’m so sleepy haha’
He said:     ‘I’ll make it worthwhile though … (emojis)’
BD replied: ‘but, like sleep’
He said:    ‘nine and a half inches though … (emojis)’
BD said:    ‘are you sure’
He said:    ‘do you want me to show you?’
BD said:    ‘are you sure it’s not like 7?’
He said:    ‘I just have to make sure I eat your tight wet pussy until you come and squirt all over my face, to make sure you’re nice and wet (emojis)
It’s 9
9 and a half inches
I’m 6’3, size 14/15 shoes (emoji)
If you don’t believe me I’ll show you gaga
Ha ha’
BD replied: ‘Bahha nah all
G’
At this point, BD says that she received two or three photographs. BD described the photographs as follows:
The photos showed a person on a bed. I cannot remember anything about the bed. He was wearing blue Calvin Klein underwear. They were dark blue and had a white band at the top with Calvin Klein written on the band. His underwear was down below his penis. He was holding his penis with his left hand. From the angle that the photo was taken, I could see the side and front of the penis. He sent me two photos. The photos were both taken in the same place on the bed. In the first photo, his penis was soft and in the second photo it was hard. I cannot say if he was circumcised. He might have sent me a third photo of a different angle but I am not 100 per cent sure, he definitely sent me two photos in which I could see his penis, I am sure of that.[18]
[18] Declaration of BD dated 1 September 2017, pp 3-4.
BD said she did not screenshot or save the photographs.
BD said that during the exchange of messages, the person also sent her a video clip taken on a mobile phone of the person driving. It started on the person’s face which she could see was the same person as shown on the Facebook account of ‘Nick Athans’.
BD said the messages on Snapchat then continued as follows:
The person said: ‘missing out hard
Are you keen or nah?
Like even to hang another time? Haha
Do you want me to leave you alone?’
BD said there was then some missing conversation in the screenshots before the messages continued:
He said:    ‘Oh yeah. Good excuse, if you don’t text me you won’t come see me DJ at Red Square (emojis)’
BD replied: ‘I’m too young to see u there’
He said:    ‘No one has to know that’
BD said:    ‘I can’t get in otherwise haha’
He said:     ‘Can’t you?
Oh, forgot
I don’t DJ here or anything. I can’t just walk whoever I want in …
Emoji
You know you didn’t have to lie yeah
you could’ve just said no to texting me’
BD said that the person then asked her to text him and she never did. She did not hear from the person again.
BD said that on 1 August 2017 she posted the screenshots of her Snapchat messages (set out above) onto a comments section of a Facebook post about the [ ] afterparty.[19] BD said that on 2 August 2017, she had a conversation with a person on the ‘Nick Athans’ account on Facebook Messenger in which the person said his Snapchat account had been hacked[20] after which time the person blocked her on Snapchat and she blocked him on Facebook.
[19] Declaration of BD dated 1 September 2017, Appendix B.
[20] Declaration of BD dated 1 September 2017, Appendix C.
BD owned an Apple iPhone 6 in July and August 2017, which she used until August 2018, when she purchased a new iPhone X, as her iPhone 6 stopped working properly. BD is unsure where her iPhone 6 is now.
In respect of the fourth count, the prosecution alleges that the sexual activity, to which the accused procured BD’s submission, is the reading and/or viewing of one or all, of a series of sexually explicit communications; namely the reproduced text messages[21] and the 2 or 3 photographs depicting a penis, as described by her.[22] In the absence of the production of the photographs received on Snapchat, the prosecution seeks to lead BD’s description of the content of those photographs. The prosecution seeks to tender photocopies of the Snapchat messages[23] pursuant to ss 54 and 57 of the Evidence Act 1929 (SA) (the Evidence Act) to prove the identity of the accused as the sender, and as forming part of the actus rea of the offence. The messages are also said to establish the sexually suggestive tone of the conversations, and to rebut any suggestion the photographs were accidentally sent by the accused to BD.
[21] Declaration of BD dated 1 September 2017, Appendix A.
[22] VDD1: letter dated 3 April 2019: VDD1.
[23] Only those set out in the declaration of BD dated 1 September 2017 at Appendix A, pp1-2.
‘Snapchat’
Snapchat is a popular mobile telephone application which provides for communications with photographs, videos and text. Snapchat is designed ‘to have the pictures (or electronic data) arrive for a short period of time and then disappear from the user.’[24] In 2016 and 2017, Snapchat had two options in which parties could communicate; a ‘snap’ and a ‘chat’. It is clear to the user whether they have received a ‘snap ‘or a ‘chat’.[25]
[24] T403.
[25] T387.
A ‘snap’ is a photograph or video taken using the Snapchat camera function. Text may be added to the photograph. That photograph or video is then transmitted from the sender’s mobile telephone to the recipient and displays on the recipient’s mobile telephone momentarily before disappearing. The recipient is not able to save or re-view the ‘snap’ except by taking a screenshot of the image whilst it is temporarily displayed. Once a ‘snap’ has been opened and closed, the data is removed from the mobile telephone and not retained.[26]
[26] T367-368.
On the complainants’ accounts, the sexually explicit photographs the subject of the charges appear to have been sent and received as a ‘snap’ in that they are described as having been taken using the Snapchat application’s camera function.[27]
[27] Declaration of DN dated 24 May 2019 at [27]; Declaration of RF dated 15 April 2019 at [22]-[23]; Declaration of KW dated 23 January 2017 at p3 and 13 April 2019 at [5]; Declaration of BD dated 12 April 2019 at [20]-[22].
Alternatively, a ‘chat’ can be a photograph or video taken from the Snapchat application’s camera with or without text, a photograph or video saved on the mobile phone’s camera roll with or without text and a text only message. That ‘chat’ is also transmitted from the sender’s mobile telephone to the recipient’s mobile telephone. The data from a ‘chat’, although appearing to have disappeared, remains on the mobile telephone[28] and is recoverable[29] until the data is overwritten.[30]
Applications for the exclusion of evidence
[28] T367, T380.
[29] T380.
[30] T406-407.
Hearsay
Senior counsel for the accused contended that the oral testimony of the complainants as to the contents of the sexually explicit photograph(s), and surrounding written communications or messages allegedly received from the accused is inadmissible, as it offends the rule against hearsay. It is submitted that there is an express or implied assertion in each sexually explicit photograph and the surrounding written messages which is being led to establish the truth of that assertion.
The rule against hearsay prevents a party from proving the truth asserted by an out of court statement. In other words, evidence of a statement made to a witness by a person who is not called as a witness, is hearsay and inadmissible when the object of the witness’s evidence is to establish the truth of what is being asserted in the statement.
Senior counsel for the accused submitted that the express or implied assertion in each photograph, and surrounding messages, which is proffered for its truth is as follows:
1.That the messages were sent by the accused;
2.That the photographs were of the accused’s penis; and
3.That the photographs were taken by the accused in his bedroom in the house in which he lived.
The prosecution argued that the oral testimony of the complainants as to the content of the Snapchat photographs and surrounding messages do not offend the hearsay rule because none of the images contained any assertion, express or implied relied upon for its truth, and the surrounding messages are not being led to prove the truth of their contents.
The prosecution relied on two authorities in support of their contention: Wade v The Queen[31] and R v Sitek[32].
[31] (2014) 239 A Crim R 29.
[32] (1987) 26 A Crim R 421.
In Wade v The Queen, the Supreme Court of Victoria sitting as the Court of Appeal, considered the admissibility of CCTV footage. The appellant was charged with two counts of armed robbery. One of the armed robberies occurred at a convenience store and was recorded on CCTV but the footage was later deleted by mistake. Before the footage was deleted, it was viewed by a police detective and evidence as to its contents, including the actions and description of the offender, was given by the detective at trial. On appeal, the Court held that the security camera footage of the commission of an offence is real evidence of what occurred, and the detective’s evidence as to the content of the footage was admissible. Nettle JA said:[33]
At common law, security camera footage of the commission of an offence is real evidence of what occurred (albeit having some of the features of testimonial evidence). Subject to considerations of reliability, prejudice and the exercise of discretion it is permissible therefore for a witness who has seen the footage to give evidence of its contents as if the witness had been a witness to the crime.
[33] Ibid, 27.
In R v Sitek,[34] the appellant had been convicted at trial of the offence of misappropriation of property. The appellant handed $3,000 to a casino croupier and received in exchange gambling chips to the face value of $6,000 being double the value paid out. The transaction was recorded by a video camera and witnessed by a surveillance operator by means of a live video transmission within a casino. The trial judge permitted the video footage and the evidence of the surveillance operator as to what she saw occur on the live transmission to be led at trial. On appeal, the Queensland Court of Criminal Appeal held that the evidence of what the witness saw of the transaction by means of the transmission was admissible as eyewitness evidence, and the video tape itself was admissible as real evidence to prove what it recorded. De Jersey J held that: [35]
The evidence of Ms Eistreich as to what she saw of the transaction by means of the monitor was admissible as eyewitness type evidence. Her evidence of what she saw of the transaction by means of the monitor was admissible, just as, for example, evidence of things through a telescope, which would otherwise not be noted, would be admissible (cf R v Ali [1966] 1 QB 688 at 701. Also analogous is the reception of evidence of what is heard over the telephone. It was permissible for Ms Eistreich to refresh her memory of what she witnessed at the time by the contemporaneously produced video tape. Her evidence was led in an acceptable way. She was asked to give her recollection based on what she saw on the monitor on the evening of the offence, and was later asked, in effect, to supplement that evidence by refreshing her memory from the video tape. But all of her evidence appears to have been based on her actual recollection of what she saw on the evening, and was therefore admissible.
[34] [1988] 2 Qd R 284; (1987) 26 A Crim R 421.
[35] Ibid, 429.
Both the cases of Wade and Sitek draw upon the English authority of Taylor v Chief Constable of Cheshire.[36] In that case, an accused had been charged with theft in a shop. The prosecution adduced evidence from witnesses who had seen a video recording of the events alleged to constitute the offence. The recording had been made by a security officer but was not available at the trial because it had been inadvertently erased. The case of Taylor deals directly with the contention that oral testimony describing CCTV footage, where the footage has been lost, is hearsay. The Court held that it is not.
[36] [1986] 1 W.L.R. 1479.
The leading judgement was given by Ralph Gibson LJ who explained as follows:[37]
For my part I can see no effective distinction so far as concerns admissibility between a direct view of the action of an alleged shoplifter by a security officer and a view of those activities by the officer on the video display unit of a camera, or a view of those activities on a recording of what that camera recorded. He who saw may describe what he saw because, as Ackner LJ said in Kajala v Noble, it is relevant evidence, provided that that which is seen on the camera or recording is connected by sufficient evidence as to the alleged actions of the accused at the time and place in question … such evidence is not in my view inadmissible because of the hearsay principle. It was direct evidence of what was seen to be happening in a particular place at a particular time and like all direct evidence may vary greatly in its weight, credibility and reliability.’
[37] Ibid at 1486.
In the matter currently before this Court, on the prosecution case, the sexually explicit photographs and surrounding messages received by each complainant on Snapchat, allegedly sent by the accused, constitute the actus reus of each offence. Each complainant’s description of the photograph(s) and messages is an eyewitness account of the actus reus of each offence or real evidence of what occurred. There is no assertion, express or implied, in the photographs or messages which is relied on for its truth by the prosecution. Rather, the prosecution relies on inferences to be drawn from the complainants’ description of the photographs and messages to prove that the accused was the sender of the photographs, and that he did so to procure each complainant to submit to sexual activity. Those inferences do not rely on the truth of any assertion contained in the photographs or messages. The evidence does not offend the hearsay rule, and is admissible, and I so rule.
The best evidence rule
Senior counsel for the accused submits that the operation of the best evidence rule renders inadmissible all secondary evidence by the complainants of the contents of any photographs or messages received on Snapchat which are now lost or destroyed. The secondary evidence rule has been identified as the remaining element of the best evidence rule.[38]
[38] Cross on Evidence, 9^th Ed 2013 at [1460].
At common law, secondary evidence of the contents of a written document is inadmissible where such evidence is led to prove the meaning of the writings, save for several exceptions.[39] A party relying on the meaning of the words used in a document for any purpose other than that of identifying it must adduce primary evidence of its contents save for several exceptions.
[39] Semple v Noble (1988) 49 SASR 356.
The reasons for the existence of the rule are explained in Wigmore as follows:[40]
(1)As between a supposed literal copy and the original, the copy is always liable to errors on the part of the copyist, whether by wilfulness or by inadvertence; this contingency wholly disappears when the original is produced. Moreover, the original may contain, and the copy will lack, such features of handwriting, paper and the like, as may afford the opponent valuable means of learning legitimate objections to the significance of the document.
(2)As between oral testimony, based on recollection, and the original, the added risk, almost certainly exists of error of recollection due to the difficulty of carrying in the memory literally the tenor of the document.
[40] Wigmore on Evidence, 3^rd Ed, volume 4 at [1179].
Senior counsel for the accused submitted that the contents of a photograph assumes like significance in litigation to a written document, particularly where the contents of the photograph and the viewing of it are said to constitute the actus reus of each charged offence.
The best evidence rule has been legislatively modified in South Australia by s 57 of the Evidence Act. However, this section relates to the reproduction of documents and has no application to the giving of oral testimony as to the contents of photographs and messages.
At common law, there are five identifiable exceptions to the secondary evidence rule. The only exception which may be applicable in this case relates to circumstances where the original documents are now lost or destroyed. To satisfy this exception it must be shown that the document has been duly searched for, without success. The issue of whether a ‘due search’ has taken place is a matter for the trial judge and will be determined by having regard to the different circumstances of each case.[41]
[41] Godfrey v Woolworths (WA) Pty Ltd (1998) 103 A Crim R 336.
It has been held that before the secondary evidence is adduced there must be clear and convincing proof of both the existence and contents of the original document.[42] However, the degree of certainty required will differ having regard to the nature of the document and the purpose of its admission.[43]
[42] Maks and Maks (1986) 6 NSWLR 34 at 36.
[43] Mack v Lenton (1993) 32 NSWLR 259 at 260-261.
Senior counsel for the accused submitted that the prosecution has not established that there has been a ‘due search’ by police and further, that the oral testimony of each complainant does not satisfy the high standard required that such original documents existed. Accordingly, the exception is not made out and the impugned evidence is inadmissible.
On the other hand, the prosecution submitted that the exclusionary secondary evidence rule has no application to the giving of oral testimony of an image (a photograph or message) appearing momentarily on a mobile telephone and such an image is not a ‘document’ for the purposes of the rule. It was further submitted that the rule only applies to writings in proof of the meaning attributable to the words used.
Does the best evidence rule apply to the Snapchat photographs and messages which were not saved or retrieved?
Senior counsel for the accused submitted that the Snapchat photographs and messages consisted of electronic data which records the content of those communications and as such, the electronic data is an electronic document. Thus, the electronic document containing the electronic data or content of those electronic communications is the original document. It was argued that it is not to the point that after a Snapchat photograph or message has been sent or read, and not saved, the electronic content data is no longer directly perceptible by an observer. A document is constituted when the electronic data is recorded. Accordingly, the electronic data or content constituting the photographs and messages is an electronic ‘document’ and the best evidence. Thus, each complainant’s oral testimony as to the contents of the electronic document is inadmissible by operation of the exclusionary secondary evidence rule, unless one of the exceptions to the rule is established.
Meaning of ‘document’

In Documentary Evidence in Australia, it is said that ‘the concept of a document involves: (1) some physical thing or medium (2) on or in which data are (3) more or less permanently recorded (4) in such a manner that the data can be subsequently retrieved with the proper equipment’.[44]
[44] R A Brown Documentary Evidence in Australia, 1^stEd, 1988 at 9.
The Evidence Act defines a document as including a ‘map, plan, drawing or photograph’.[45]
[45] Section 34G(1), Evidence Act 1929 (SA).
The Evidence Act contains no definition of an ‘electronic document’. However, s 54 of the Evidence Act provides an aid to proof of the contents of an apparently genuine document, which purports to contain a record of an ‘electronic communication’. An ‘electronic communication’ is defined in s 54(4) as having the same meaning as provided by s 5 of the Electronic Communications Act 2000, which states, relevantly, that electronic communication means ‘a communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy or both’. That definition of an electronic communication appears to encapsulate messages and photographs transmitted via the Snapchat application. Senior counsel for the accused argued that, as such, the premise of s 54 is that the original electronic data of those electronic communications are ‘documents’. I do not accept that necessarily follows. The aid to proof set out in s 54 simply provides an exception to the hearsay rule for the contents of a documentary record of electronic communications, and does not speak to whether the electronic data is a ‘document’ which invokes the best evidence rule.
At common law, the best evidence rule has been applied by analogy to tape recordings. In Butera v DPP (Vic),[46] the High Court considered the admissibility of written transcripts of tape recordings of conversations, had in languages other than English, implicating the accused. The applicant and four others were found guilty at trial of the offence of conspiring to traffic in heroin. At the trial, a tape-recording of a conversation between the co-conspirators, mostly in Punjabi, was admitted into evidence. The tape was played over to the jury, interpreters gave oral evidence of their respective translations and verified their written translations. Each of the written translations was admitted into evidence. The appellant argued on appeal that the trial judge erred in receiving into evidence the transcripts of tape recordings made by the interpreters. There was no challenge to the admissibility of the conversation recorded on the tape, the tape recording, or the oral evidence of the translations.
[46] [1987] HCA 58; (1987) 164 CLR 180.
At trial, the prosecution relied on the tape recordings to prove: first, that the conversation had taken place in the circumstances and among the participants alleged by the prosecution, and second, the content of the conversation as translated into English.
The High Court held by majority[47] that the written transcriptions of the taped conversations had been properly admitted in evidence. The High Court said that a tape recording is not admissible evidence of its contents unless it is first played over, and accordingly, a transcript is not admissible on the basis of its ability to inform the court of the contents of the tape. In an appropriate case, a transcript of a tape recording can be received not as evidence of the conversation or other sounds recorded but as a means of assisting in the perception and understanding of the evidence tendered by the playing over of the tape. The High Court held that a tape recording may be used to produce a form of evidence which is different from both oral testimony and documentary evidence. The majority said (per Mason CJ, Brennan and Deane JJ):[48]
If the tape is not available and its absence has been accounted for satisfactorily, the evidence of its contents given by a witness who heard it played over may be received as secondary evidence. That evidence is not open to the same objection as the evidence of a witness who repeats what he was told out of court by another person who was not called as a witness.
…
Nevertheless, when the tape is available or its absence is not accounted for satisfactorily, there can be no reason to admit the evidence of an out of court listener to the tape recording to prove what the tape recorded: it should be proved by the playing over of the tape. Prudence and convenience combine to support the application of the best evidence rule in such a case.
…
It is desirable to add, however, that the best evidence rule is not applicable to exclude evidence derived from tapes which are mechanically or electronically copied from an original tape. Provided the provenance of the original tape, the accuracy of the copying process and the provenance of the copy tape are satisfactorily proved there is no reason why the copy tape should not be played over in court to produce admissible evidence of the conversations or sounds originally recorded. There is no reason to apply the best evidence rule to copy tapes.
[47] Mason CJ, Brennan and Deane JJ, and in a separate judgement Dawson J.
[48] Ibid, 186.
The prosecution relied on the separate majority judgement of Dawson J as support for their contention that the best evidence rule only applies to the proof of the contents of written documents. Dawson J said:
If then a tape recording is of a documentary character such that it is discoverable, does that mean that its contents must be proved by the production of the original tape and cannot be proved by means of a copy, either in the form of another tape or in the form of a transcript? Such a rule applies to written documents, namely, that the effect of a document must be proved by the production of the original document itself and not by secondary evidence of its contents unless the absence of the original is accounted for and excused. That rule appears to have preceded the so-called best evidence rule which is said to require the best evidence to be given which the nature of the case permits: Omychund v. Barker. The failure to observe the best evidence rule in practice has led textbook writers to conclude that it no longer exists, save as a convenient and concise description of the rule relating to the proof of the contents of written documents, and that it is only in that form that it has survived. Indeed, Dixon C.J. in Commissioner for Railways (N.S.W.) v. Young appears to have thought that the rule excluding secondary evidence never went beyond writing. In Wigmore on Evidence, the author speaks of "the genesis of a still further development which would enlarge the scope of the term 'writing' to include photographs, sound recordings, and the like", but the development of which he speaks is by statute and is confined to the United States. It is clear that in the absence of such development, documents, other than written documents, ought not now to be, if they ever were, included in the rule requiring proof by primary evidence.
Those remarks appear to be at odds with the view expressed in the other majority joint judgement that the best evidence rule excludes oral or written evidence of what a witness heard on the tape if the tape is available or not satisfactorily accounted for. But if the tape is not available, and its absence is accounted for satisfactorily, the evidence of its contents given by a witness who heard it being played over, may be received as secondary evidence.
In this matter, the Snapchat application was used to transmit the photographs and messages. Snapchat is designed ‘to have the pictures (or electronic data) arrive for a short period of time and then disappear from the user’.[49] As such, Snapchat is designed to automatically erase the electronic data from view unless some action is taken within a short period of time by the recipient to preserve the data, for example, by saving the image to the user’s camera roll or taking a ‘screenshot’. When not so preserved, the electronic data can only be retrieved from the mobile telephone by using software programs such as XRY and Cellebrite[50] or through making a preservation hold request to the parent company of Snapchat within a short retention period. In those circumstances, I am not persuaded that electronic data, constituting Snapchat photographs and messages, which has not been preserved by the recipient, has the characteristics of ‘permanence’ and ‘of a record’ such as to render it a ‘document’ for the purposes of the best evidence rule. I have been provided with no authority directly on point which supports the contention that a Snapchat photograph or message which is not preserved is a document for the purposes of the best evidence rule.
[49] T403.
[50] T407: Mr Wigley however gave evidence that neither Cellebrite nor XRY software programs have ever claimed to have the capability to recover deleted ‘snaps’.
Exception to the exclusionary secondary evidence rule
Even if the electronic data constituting each of the Snapchat photographs and messages, is a ‘document’, and therefore the best evidence, I consider an exception to the exclusionary secondary evidence rule has been made out. I am satisfied there was a ‘due search’ by Detective Turtle, without success, for the original ‘documents’. Detective Turtle undertook the following steps in attempting to do so.
After Detective Turtle was assigned this investigation in January 2017, he made inquiries amongst his colleagues as to the workings of the Snapchat application and received advice that when a message ‘deletes its gone and you can’t get it back’.[51] Detective Turtle also consulted the Snapchat law enforcement guide in February 2017.[52] Detective Turtle’s inquiries during the early stage of the investigation did not however involve contacting the E-crime section of SAPOL.[53]
[51] T410.
[52] T423.
[53] T410.
Detective Turtle then obtained witness statements from KW and RF, and took photographs of screenshots of their Facebook messages allegedly from the accused. The complainants told Detective Turtle that they had not saved the sexually explicit photographs. Detective Turtle examined their mobile telephones but did not seize them as he believed that there was no utility in doing so because the relevant Snapchat photograph(s) had not been preserved and, on his understanding, could not be retrieved.[54]
[54] T413.
Detective Turtle said in evidence:
If I thought that we could get the deleted snaps and that there was a reasonable possibility or probability of doing that, I would have seized the phones because that’s obviously what this case is all about and I was trying to collect evidence in relation to it. I didn’t think that and that’s why I didn’t seize the phones.[55]
[55] T416.6-11.
Detective Turtle believed it better to photograph the saved Facebook messages rather than seize the mobile telephone to avoid inconvenience to the complainants and any unnecessary intrusion into their privacy.[56] In not seizing the mobile telephones, Detective Turtle also took account of the heavy workloads of the E-crime section of SAPOL, and anticipated there would be a considerable delay before the telephones were returned.[57]
[56] T414.
[57] T415.
Detective Turtle also considered trying to obtain the deleted material from the company Snapchat. He sent an email to Snapchat on 1 February 2017, asking for a ‘preservation hold’ on the usernames of the accused, KW and RF.[58] He did so after reading a police guide on the topic available on the intranet.[59] Detective Turtle received a response from Snapchat on 6 February 2017 confirming receipt of his email.[60]
[58] T418, VD P34, Affidavit of Matthew Turtle dated 15 April 2017.
[59] T418.
[60] T418; VDP34.
On 18 October 2017, Detective Turtle re-considered the law enforcement guidelines for Snapchat,[61] and learnt that his application for a ‘preservation hold’ was not made in accordance with the guidelines. As a result, he believed that the photographs and messages could not now be retrieved as the retention period had elapsed.[62]
[61] VDP27.
[62] T420-421.
Detective Turtle became aware of the allegations involving DN and BD in September 2017. He spoke with the complainants and made or received screenshots of all relevant messages allegedly from the accused preserved on the Facebook and Snapchat applications on both mobile telephones.[63] Again Detective Turtle believed it impossible to retrieve the sexually explicit photographs received on Snapchat which had not been saved by the complainants.
[63] T421.
Thus, the complainants’ mobile telephones were not seized; no forensic copies were made of the data stored on the telephones; and they were not examined by E-crime. Further, a compliant application for a ‘preservation hold’ was not made within the retention period, and an expert report was not commissioned from Mr Wigley until 2019.
Notwithstanding those matters, and having regard to the nature of the Snapchat application, I am satisfied that considerable and adequate steps were taken by Detective Turtle in his attempts to retrieve the Snapchat material. The search for such material is more novel, less straightforward, and potentially more cumbersome than for example, the search of a house, vehicle or paper documents; and in retrospect it is always possible to formulate ways to conduct a more thorough or effective search. However, in all the circumstances of this case, as faced by Detective Turtle as the investigation proceeded and evolved, I am satisfied there has been a ‘due search’ and the exception to the exclusionary secondary evidence rule has been made out.
Further, I am satisfied on the face of the accounts given by each complainant that there is ‘clear and convincing proof’ of both the existence and contents of the original ‘document’, and that it was the accused who sent the sexually explicit photographs and messages to each complainant. Whether that evidence ultimately sustains the charged offences to the requisite level of proof, of course, is a separate matter which is still very much to be determined on the evidence to be heard at trial.
Real evidence
Finally, even if the electronic data constituting each of the Snapchat photographs and messages was a ‘document’ which attracts the exclusionary secondary evidence rule, and there was not a due search, I would still consider the complainants’ oral testimony admissible as real evidence or ‘eyewitness-like’ evidence of the actus reus of the offence, and indeed what occurred, and admissible.[64] The complainants are purporting to describe the event itself rather than describe a record of the event in a second-hand way.
[64] Wade v The Queen at [27].
The oral testimony from each complainant describing the contents of the photographs and images received on Snapchat allegedly from the accused is admissible and I so rule.
Admissibility of photocopies of screenshots of Snapchat and Facebook messages – s 57, Evidence Act
The prosecution seeks to adduce photographs of screenshots of messages taken from the complainants’ mobile telephones. These include: screenshots of messages on BD’s mobile telephone;[65] DN’s mobile telephone;[66] Facebook messages on KW’s mobile telephone;[67] and Facebook messages on RF’s mobile telephone.[68]
[65] Declaration of BD dated 1 September 2017 Appendix A pp 1-2.
[66] Declaration of DN dated 8 September 2017 Appendix A.
[67] Declaration of Matthew Turtle dated 23 February 2017 Appendix A.
[68] Declaration of Matthew Turtle dated 23 February 2017 Appendix D.
Section 57 of the Evidence Act provides as follows:
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.
Example—
A photograph displaying the contents of an image on a computer screen, or a transcript of sounds or words captured on an audio recording, may be admissible as a reproduction of the contents of the image or recording (as the case may be).
I am satisfied that once each complainant preserved each message on her mobile telephone, by way of screenshot or otherwise, they became documents for the purposes of the section. The proposed tender of a photograph reproducing the contents of each those screenshots is admissible under s 57 of the Evidence Act as they constitute a reproduction made by a process in which the contents of a document are recorded by photographic or electronic means.
Each photograph of a series of screenshots is not being led for a testimonial purpose but to prove the identity of the accused as the sender of the sexually explicit messages, and in proof of the accused’s intention to procure each complainant to submit to sexual activity by sending each sexually explicit photograph, and, in respect of the fourth count, a sexually explicit ‘meme’. I am also satisfied that each of the documents accurately reproduces the content of another by reference to the declarations of each complainant and Detective Turtle.
Application for a stay of proceedings for an abuse of process
Senior counsel for the accused makes an application for a stay of proceedings on two bases. The first basis is that the charges are foredoomed to fail because they rely on inadmissible hearsay evidence and secondary evidence. I have already ruled that evidence to be admissible. Accordingly, this ground of the application is not made out.
The second basis for the application for a stay of proceedings is that the absence of the Snapchat photographs and messages will result in an actual prejudice to the accused which is fundamental in nature and goes to the root of the trial such that it would be unfair for the proceedings to continue.
Senior counsel for the accused submitted that the lost evidence is precisely identified and its loss has resulted in specific prejudice because it is the actus reus of the offence; it is not a case of presumptive prejudice or possible prejudice. The absence of the original evidence of the Snapchat photographs and messages means that the accused is unable to effectively test in cross-examination the complainants’ oral testimony as to the contents of that material. It is said this is a fundamental defect which goes to the root of the trial such as to justify a stay of the proceedings.
Power to stay proceedings for unfairness
The court has jurisdiction to stay proceedings as an abuse of process if a trial will be unfair because of the unavailability of identified evidence which the prosecution could be expected to tender if available and relevant and that might have assisted the defence in a material way.[69]
[69] Police v Sherlock [2009] SASC 64 at [40].
In Jago v District Court of New South Wales[70] Mason CJ made it clear that the test of fairness was not confined to the interests of the accused person, and said:[71]
The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal trials are brought to trial.
Mason CJ continued:
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do can relieve against its unfair consequences.
[70] [1989] HCA 46; (1989) 168 CLR 23.
[71] Ibid at pp 33-34.

In considering the meaning of a fair trial, in Police v Sherlock[72] Doyle CJ said:[73]
First of all, the exceptional nature of the remedy must be borne in mind. Ordinarily, when a court’s jurisdiction is invoked, that jurisdiction must be exercised. Second, it is not a court’s function to intrude upon the independent discretion of those State officials who have the responsibility to decide whether or not a person should be prosecuted. The power to stay proceedings cannot be used as a disguised or indirect means of stopping the prosecution because the court considers that the bringing of the prosecution is, in a general sense, harsh or unfair. Moreover, as is emphasised in the authorities, the power to stay proceedings is exercised to prevent unfairness that amounts to injustice. In some cases the power will be exercised because of a risk that a trial will be unfair. But particular care is called for when the court is asked to stay proceedings, not because they can be shown to be unfair, but because of a risk that they will be unfair to the accused. Finally, the court must balance the right of the accused to a fair trial, and the public interest in the bringing to trial of a person charged with an offence and the question of innocence or guilt being decided. The decision to grant or to refuse a stay of proceedings is not to be made solely from the point of view of the accused. The public interest must also be considered.
For these reasons, when asked to stay proceedings, a court is not by any means concerned solely with the question of whether the trial will be fair.
[72] [2009] SASC 64.
[73] Ibid at [66]-[67].
Therefore, not every perceived unfairness in a trial will result in a permanent stay of proceedings.
In R v Edwards[74] the respondents had been granted a stay of proceedings due to lost evidence and the prejudicial effect of delay. The trial judge had granted the application on the basis that the continuation of proceedings could constitute unacceptable injustice or unfairness. The DPP (Cth) appealed directly to the High Court. The High Court upheld the appeal and said:[75]
Trials involve the reconstruction of events and it happens on occasion that relevant material is not available. Documents, recordings and other things may be lost or destroyed; witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.
And later:[76]
It is not necessary to consider whether there may be circumstances in which the loss of admissible evidence occasions injustice of a character that would make the continuation of proceedings on indictment an abuse of the process of the court. This is not such a case. The content of the lost electronic evidence is unknown. In these circumstances, it is not correct to characterise their loss as occasioning prejudice to the respondents. The lost evidence serves neither to undermine nor to support the Crown case.
[74] (2009) 83 ALJR 717.
[75] Ibid at [31].
[76] Ibid at [33].
In applying those principles to the facts of this case, it is important to note that whilst the Snapchat photographs and messages existed at one time, and could have been preserved by the complainants, and possibly retrieved by the police, their precise content is unknown. Nor can it be known whether such evidence would have in fact assisted the defence case. The now lost Snapchat material certainly had the potential to test the oral testimony of the complainants as to the content of the images and messages. However, it is not known and cannot be known what that material would have consisted of, and whether that material would have in fact assisted the accused in challenging the prosecution case.
R v Edwards[77] stands as authority for the proposition that there is no relevant unfairness for the prosecution to present less than the complete suite of evidence that may once have been available so that the trier of fact is being asked to decide the case on an incomplete reconstruction of relevant facts or events. That the court is now called upon to determine the factual issues on less than the whole of the relevant material which may have once been available does not make the trial unfair in the circumstances of this case.
[77] (2009) 83 ALJR 717.
There is no relevant unfairness to the accused or an abuse of process and I decline the application for a stay of proceedings.
General unfairness discretion
In the alternative, senior counsel for the accused submitted the evidence of the oral testimony of the complainants should be excluded on the grounds of unfairness. It is contended that the residual discretion is enlivened in this case because the accused has lost the ability to test the evidence.[78] The evidence has been lost. It was submitted that the following circumstances weigh heavily in favour of exclusion:
1.There is reason to doubt the reliability of the evidence;
2.No photographs of the evidence have been supplied;
3.No analyst can be called to give evidence on the material because the original documents and data cannot be produced; and
4.The accused is unable to effectively test in cross-examination, the accounts given by the complainants, and such disadvantage is incapable of remedy.
[78] R v Lobban (2000) 77 SASR 24; Police v Dunstall [2015] HCA 26 at [31].
The general unfairness discretion can only be exercised if the reception of the evidence would be ‘unfair’ in the sense that it would render the trial unfair according to law.[79] The prejudice to be considered in the exercise of this discretion is the prejudice to a fair trial rather than prejudice to the defendant. A trial had without all of the evidence which may at any one time have been available to the parties is not necessarily unfair.
[79] Police v Hall (2006) 95 SASR 482.
There is nothing inherently unreliable about the evidence the complainants are to give and there still exists the opportunity for counsel to cross-examine each complainant and test her credibility and reliability as to the contents of the Snapchat photographs and messages.
In those circumstances, I decline to exercise the discretion to exclude the oral testimony of the complainants for unfairness.
Application to exclude the material extracted from the accused’s phone
I exclude the evidence of material extracted from the accused mobile telephone in the exercise of the court’s discretion for unfairness.
I will provide reasons for my ruling at the time of handing down my reasons for verdicts.