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

Supreme Court

New South Wales

Medium Neutral Citation: R v Youseff (No 2) [2024] NSWSC 1260
Hearing dates: 03-04 September 2024
Date of orders: 04 September 2024
Decision date: 08 October 2024
Jurisdiction: Common Law - Criminal
Before: McNaughton J
Decision:
The Cellebrite report purportedly depicting the activity sensor data recorded on an Apple iPhone is excluded.

Catchwords:
EVIDENCE – iPhone health app data – admissibility of hearsay evidence – where Cellebrite extraction report records iPhone activity sensor data – where extraction report purports to contain data showing number of steps taken at a particular time – whether evidence admissible as an exception to the hearsay rule – whether evidence is misleading – evidence excluded

Legislation Cited:
Evidence Act 1995 (NSW), ss 48, 55-56, 69, 135, 144, 146-147, 183

Cases Cited:
Norvill v Stokes [2006] NSWLEC 622

Texts Cited:
J Peter van Zandwijk and A Boztas “The iPhone Health App from a forensic perspective: can steps and distances registered during walking and running be used as digital evidence?” (2019) 28 Digital Investigations S126-S133

Category: Procedural rulings
Parties: Rex (Crown)
Bahra Youseff (Accused)
Representation:
Counsel:
S Sloane (Crown)
J Stratton SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Just Defence Lawyers (Accused)

File Number(s): 2022/259263
Publication restriction: Nil

JUDGMENT

This judgment provides more detailed reasons for my ruling given on 4 September 2024 that the Cellebrite report depicting the activity sensor data recorded on an Apple iPhone should not be admitted into evidence in the trial of the accused for the offence of murder. I note at the outset that the objection to this evidence was made well into the trial, and it was assumed by the Crown, prior to that objection, that there was no contest to the evidence. Accordingly, the Crown attempted to adduce the evidence without any expert, purportedly pursuant to s 146 of the Evidence Act 1995 (NSW). As can be seen from the following analysis, in my view, this evidence does not easily fit within any of the provisions of the Evidence Act.

Background

On 30 November 2020, at approximately 2:35am, the deceased, Adnan Salameh, was shot and killed at the home of his girlfriend, Ms Smith (a pseudonym), in Tregear. Two men dressed in black with their faces covered are said to have kicked in the front door of the residence. One of the men fatally shot the deceased in the right shoulder and right thigh with a shot gun. The deceased and Ms Smith were drug users (who also sometimes supplied drugs). At the time of his death, the deceased had allegedly accrued some debts to drug suppliers and others. It is alleged that Ms Smith had accrued a debt to the accused whom she only knew as “B”.
The accused was arrested for the murder of the deceased one year and nine months after his death, on 31 August 2022. The case against the accused is largely circumstantial. The Crown alleges that Ms Smith had accrued a $1500 drug debt to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Youseff (No 2)

Details

AGLC: R v Youseff (No 2) [2024] NSWSC 1260
Case: [2024] NSWSC 1260
Decision Date: 08 October 2024

CaseChat Overview and Summary

The case of R v Youseff (No 2) involved a defendant accused of a crime. The central issue in this case was the admissibility of data from an iPhone health app as evidence in the proceedings. Specifically, the court was required to determine whether the data, which was extracted by Cellebrite and recorded in a report, could be admitted as an exception to the hearsay rule. This was a crucial point as it involved determining whether the evidence was reliable and not misleading. The court had to consider the technical nature of the data and its extraction process, ensuring that the evidence was both relevant and trustworthy.

The court examined whether the iPhone activity sensor data, which included information about the number of steps taken by the defendant at a specific time, could be considered admissible. The primary concern was whether this data constituted hearsay and, if so, whether it qualified for an exception under the rules of evidence. Additionally, the court had to assess whether the data was misleading or unreliable, which would render it inadmissible. The court's analysis involved a detailed examination of the extraction process and the potential for manipulation or error in the recorded data. Ultimately, the court concluded that the evidence was inadmissible due to its hearsay nature and the lack of reliability in proving the defendant's actions at the time in question.

The reasoning provided by the court highlighted that while the data might appear to be a straightforward record of activity, the process by which it was obtained and the potential for it to be manipulated made it unsuitable as evidence. The court found that the hearsay exception did not apply and that the risk of misleading the court was too high. Consequently, the evidence from the iPhone health app was excluded from the trial. This decision underscores the importance of stringent criteria when admitting digital evidence, particularly in cases where the technology and methods of data extraction are complex and susceptible to error or manipulation.

Orders