R v Mofu

[2025] NSWDC 62

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Mofu [2025] NSWDC 62

Hearing dates:

24 February 2025

Date of orders:

25 February 2025

Decision date:

06 March 2025

Jurisdiction:

Criminal

Before:

McGuire SC DCJ

Decision:

The screenshot of the Find My Phone application is admitted.

Catchwords:

EVIDENCE — Find My Phone application — where screenshot of data produced by the Find My Phone application purports to show the location of stolen iPhone — absence of expert evidence — whether the statutory presumption is displaced — reliability — whether the operation of the Find My Phone application is “common knowledge” — ss 48, 69, 144, 146, 183 Evidence Act1995

Legislation Cited:

Evidence Act 1995 (NSW)

Cases Cited:

Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621

The Queen v Yatno & Aminudin [2018] NTSC 53

R v Youseff (No 2) [2024] NSWSC 1260

Category:

Procedural rulings

Parties:

Rex
Joshua Mofu (Accused)

Representation:

Counsel:
R Murray (Solicitor Advocate) (Crown)
F Santisi (Accused) (until 3 March 2025)
N Carroll (Accused) (from 5 March 2025)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
David H. Cohen & Co. (Accused) (until 3 March 2025)
George Sten and Co. (Accused) (from 5 March 2025)

File Number(s):

2022/00311981

JUDGMENT

1. Immediately prior to the commencement of the trial, counsel for the accused applied for a ruling in relation to the admissibility of certain evidence proposed to be called in the Crown case. It was the joint position of the parties that the application should be dealt with before the trial commenced so that my ruling on the issue could be taken into account in the Crown’s opening address.

2. The accused objects to a screen shot taken by one of the complainants, Mr Christian Stadler, showing the results of using the Find My Phone application to locate his stolen iPhone. The bases of the objection are that the result produced by the Find My Phone application is opinion evidence, that no expert evidence is to be called to explain how the application works and that no evidence presently served by the Crown explains the steps taken by Mr Stadler to produce the screenshot.

3. The Crown submits that the evidence is admissible pursuant to ss 48 and 146 of the Evidence Act 1995 (NSW). Although the Crown originally submitted that s 147 also applied, that argument was abandoned during the hearing of the application.

4. On 25 February 2025 I ruled that the evidence was admissible. I set out my reasons for that order.

Background

5. The Crown Case Statement dated 8 November 2024, a statement by Detective Senior Constable Paige Roberts dated 18 May 2024 and a statement by Christian Stadler dated 13 April 2024 were tendered on the application. A summary of that evidence follows.

6. On the evening of 8 July 2022 and the early morning of 9 July 2022 the apartment in Waterloo in which the complainants Mr Christian Stadler and Mr Yuthakarn Chakping resided was the subject of a home invasion.

7. At some time late in the evening, after Mr Stadler had retired to bed and whilst Mr Chakping was in the living room, Mr Chakping saw an intruder inside the apartment. CCTV footage later obtained by the Police shows that a male person wearing black, carrying a Puma brand backpack, with a hood covering his head and a face mask partly covering his face had gained access to the lobby area of the apartment building by tailgating another person through the security doors and then walking towards Mr Stadler and Mr Chakping’s ground floor apartment.

8. Once inside the apartment the intruder is alleged to have covered his face with a black balaclava and confronted Mr Chakping with a pistol. It is alleged that the intruder then forced Mr Chakping to lie face down on the living room floor and used tape to cover his eyes and to secure his wrists. A short time later the intruder forced Mr Stadler out of bed, whilst holding the pistol to his head, forced him into the living room and used tape to cover his eyes and mouth and to secure his wrists.

9. The intruder then demanded money, banking cards and PIN numbers and searched the apartment for valuables.

10. Whilst the intruder was searching the apartment Mr Stadler was able to free himself by loosening the tape and run out into the street to seek assistance. At about 1:02 am on 9 July 2022 he is recorded on CCTV footage running from the apartment building wearing his pyjamas and with tape still partially attached to his wrists.

11. A short time later CCTV footage, including footage obtained from nearby premises, record a man walking away from the complainants’ apartment building in a southerly direction wearing a backpack and carrying a number of bags.

12. Amongst items stolen from the complainant’s apartment were Mr Stadler’s Apple iPhone 11, Mr Chakping’s Apple iPhone and Mr Chakping’s wallet which contained his driver’s license and Medicare card.

13. Subsequent Police investigation revealed that at about 1:25 am on 9 July 2022 a DiDi ride share car collected a passenger from an address in Waterloo, a short distance to the south of the complainants’ apartment, and travelled to an address in Merrylands. Records from DiDi in relation to that journey allegedly establish that the account used to make that booking is linked to an email address in the name of the accused and mobile telephone number registered to the accused.

14. The Crown case statement alleges that cell tower records establish that on 8 July 2022 the accused’s mobile telephone was in the vicinity of Waterloo and that between 1:20 am and 2:10 am on 9 July 2022 the accused’s mobile telephone and Mr Chakping’s stolen mobile telephone moved from Waterloo to Holroyd in Sydney’s western suburbs.

15. Upon his arrest the accused was found in possession of a black balaclava. Upon the execution of a search warrant at his residence at 31/315 Merrylands Road, Merrylands the Police seized Mr Chakping’s driver’s license and Medicare card and a Puma brand backpack.

The Find My Phone evidence

16. In days immediately following the home invasion Mr Stalder used the Find My Phone application in an attempt to locate his stolen iPhone 11.

17. Mr Stadler states in his statement that he used the Find My Phone application on 10 July 2022 and that the application showed that the last location for his stolen phone was Warwick Road Merrylands as at 1:17 am that day.

18. The results of that application were screenshotted by Mr Stadler and provided to the police. The screenshot shows a map with silhouetted image of a mobile telephone between Merrylands West and Holroyd and the location details “Christian Stadler’s iPhone11max; Warwick Road, Merrylands; today at 1:17 am”.

19. In her statement Detective Senior Constable Roberts states that she also looked at the Find My Phone application on Mr Stadler’s new mobile telephone and was able to zoom in on the map, which then indicated a drop pin location for his stolen iPhone as the north-western corner of Merrylands Road and Warwick Road Merrylands. The Crown submitted that the evidence to be tendered at the trial would establish that the accused’s residence at 31/315 Merrylands Road was within a block of apartments located on the corner of Merrylands Road and Warwick Road, Merrylands

20. Subsequent checks using the Find My Phone application failed to show any further activations of the stolen iPhone.

21. The Crown seeks to rely on the Find My Phone evidence as part of its circumstantial case against the accused.

Submissions

22. The Crown relied upon s 146 of the Evidence Act for the admission of the evidence which reads:

146 Evidence produced by processes, machines and other devices

1. This section applies to a document or thing—

1. that is produced wholly or partly by a device or process, and

2. that is tendered by a party who asserts that, in producing the document or thing, the device or process has produced a particular outcome.

2. If it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document or thing on the occasion in question, the device or process produced that outcome.

Note—

Example:

It would not be necessary to call evidence to prove that a photocopier normally produced complete copies of documents and that it was working properly when it was used to photocopy a particular document.

23. The defence argued that the evidence should be excluded essentially on the basis that that the results of the Find My Phone application are opinion evidence, there was no expert evidence explaining how the application works or how the data was produced and there was no evidence to explain the steps taken by Mr Stadler to produce the results.

24. It should be noted that no evidence was adduced on the application which called into doubt the reliability of the disputed evidence.

Consideration

25. A number of sections of the Evidence Act may be relevant to the consideration of this evidence which go beyond s 146, namely also ss 48(1)(d), 69, 144(1)(b) and 183, together with the definition of “document” in the Dictionary to the Evidence Act.

26. Section 48(1) contains the following provision in relation to proof of the contents of documents:

48 Proof of contents of documents

1. A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods—

[...]

(d)   if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it—tendering a document that was or purports to have been produced by use of the device [...]

27. In the Dictionary of the Evidence Act, the following definition appears:

Dictionary

Part 1 Definitions

[...]

document means any record of information, and includes—

1. anything on which there is writing, or

2. anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or

3. anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or

4. a map, plan, drawing or photograph.

28. The Find My Phone evidence is a document that purports to have been produced by the use of a smart phone using particular software, and using Global Positioning System (GPS) and Wi-Fi to allow users of Apple devices to track the location of those devices through a connected iCloud account.

29. It would appear that section 48(1)(d) allows the Find My Phone evidence (if otherwise admissible) to be adduced by way of a written document (being the screenshot of the results of the use of that application).

30. Section 146 provides a presumption in certain circumstances. It does not declare the presumed fact to be the fact. Rather, the Court first needs to be satisfied that “it is reasonably open to find” that the device is of a certain kind and performs a certain function before the presumption operates. The presumption will not arise if there is evidence that raises a doubt about the presumption.

31. Section 146 is directed to evidence produced by the application of a mechanical or technological process. Photocopied documents, computer generated material and material generated from data stored in a computer are typical examples. Section 146(2) is not directed to the underlying accuracy of the information contained in a document or record that is produced in this way.

32. Section 146(1)(a) states that the section applies to “a document that is produced wholly or partly by a device or process”. From the evidence before me, it would appear that the digital record of the Find My Phone application data fits within this subsection. The “document” for the purposes of s 146 is the digital record of the data (fitting within the para (c) definition of “document” within the Dictionary to the Evidence Act) because it is a record of information which can be produced with the aid of something else.

33. Section 146(1)(b) provides further, that the document “is tendered by a party who asserts that, in producing the document, the device or process has produced a particular outcome”.

34. I take from the combination of s 48(1)(d), par (c) of the Dictionary definition of “document” and s 146(1) to mean that the record of the Find My Phone data (contained in the screenshot) is being tendered to assert that the Find My Phone application has produced a particular outcome.

35. Turning to s 146(2), if it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document on the occasion in question, the device or process produced that outcome.

36. The “particular outcome” in the circumstances of the present case is the outcome set out in paragraphs 18 and 19 above.

37. In considering the question of reliability, s 144 of the Evidence Act can be utilised.

38. It can be observed that s 144 provides that “[p]roof is not required about knowledge that is not reasonably open to question”, and is—

1. common knowledge in the locality in which the proceeding is being held or generally, or

2. capable of verification by reference to a document the authority of which cannot reasonably be questioned.

39. Apple iPhones are ubiquitous. The Find My Phone application which is pre-installed as standard software on iPhones and other Apple devices, has been in common usage for many years. The application now known as “Find My” is used by parents to track the location of the phones of their children, by teenagers to find their lost or misplaced Apple devices and, more recently, by travellers to track their luggage and other personal items through Apple AirTags. Accordingly, the way the application works by tracking and locating Apple devices amounts to “common knowledge [...] generally”. The screenshotted results of that application fall within the description of “a document the authority of which cannot reasonably be questioned”, and thus would be able to verify (or otherwise) the accuracy of the data.

40. Courts have previously held that there was no reason to doubt the general reliability of vessel monitoring data, used to track the geographical location of marine vessels and that such evidence fell within s 146 (see The Queen v Yatno & Aminudin [2018] NTSC 53) and that GPS evidence relating to tracking the location of motor vehicles can be relied on as accurate (see Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621).

41. In R v Youseff (No 2) [2024] NSWSC 1260 the results of the iPhone health application data purportedly recording the number of steps taken by the user of a mobile phone and the time and date of such steps were held to be inadmissible. However, there evidence established that the recorded data relating to steps was unreliable. That unreliability included recording steps falsely (for example whilst travelling in a motor vehicle) and producing a report of those steps in blocks of 11 minutes without recording when within that time block the steps were actually taken. For those reasons the court there held that ss 144, 146 and 147 did not apply to make the evidence admissible.

42. I am satisfied that it is reasonably open to find that the device, being an Apple iPhone utilising Find My Phone application software is of a certain kind and performs a certain function, namely allowing users of Apple devices to track the location of those devices through a connected iCloud account.

43. Additionally, in the absence of evidence to raise doubt about the presumption, I am satisfied that the statutory presumption is not displaced.

44. Further, I am of the view that the evidence should not be excluded under s 135(b) of the Evidence Act on the basis that the probative value of the evidence is not substantially outweighed by the danger that the evidence might be misleading. This is because there is no basis that the Find My Phone evidence is misleading. I note that counsel then appearing for the accused made no submissions in relation to s 135(b) and did not submit that there was a danger that the evidence might be misleading.

45. Accordingly, I determined that I would admit the Find My Phone evidence.

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Amendments

17 March 2025 - Amendment to coversheet

Decision last updated: 17 March 2025