Athans v The Queen (No 2)  SASCA 70 (11 August 2022)
A Justice of the High Court once made the comment that while the law keeps up with the latest discoveries in science and related disciplines, it does not do so very easily. Justice Windeyer of the High Court of Australia remarked:
“The law can be found marching with [new discoveries in science and medicine] but in the rear and limping a little.”
Some might say that this comment applies equally to new technology such as computer evidence and communications. This case though illustrates how the law (without limping too much) applied the rules of evidence to deal with an item of evidence which could not have existed only a few decades ago and which had therefore never been contemplated by the rules of the common law.
The accused was charged with four counts of procuring a child to engage in or submit to sexual activity. At issue was the identity of the offender and whether or not the accused was the person depicted in sexually explicit images (digital photographs) that were sent to four children by the medium of ‘snapchat’ an application which operates so that the image sent will disappear from the recipients phone a short time after it appears.
The prosecution wanted to lead evidence from the four children as to what they had seen before the images disappeared from their phones. There were two reasons why the image was important to the prosecution case. First, to prove the charge of procuring a child to engage in sexual activity it was necessary to prove that the offence had been committed by someone sending a child an indecent photograph. Second, even though the face of the person in the image could not be seen there was an item of clothing worn by the man in the image which could be used as part of the proof that the accused was the sender.
There is a rule at common law which still operates which is referred to as “the best evidence rule”. Simply explained, although it has quite complicated features, it prohibits evidence from being given as to what someone has seen in a ‘document’. The best evidence rule requires that if something in a document is significant as part of the proof of some matter, then the document must be produced. This common law rule has been altered by legislation to some extent and a copy of the document will suffice, provided the lack of the original document can be explained.
Lawyers for the accused argued that the children could not, because of the ‘best evidence’ rule, testify to what had been contained in the images which had been sent to them. Neither the original of the document existed, nor was there a copy. The trial judge rejected that argument and permitted the children to give evidence as to what was depicted in the images they had received on their phones. The accused was convicted. He appealed to the South Australian Court of Appeal.
On appeal counsel for the Director of Public Prosecutions (“the DPP’) argued a number of issues, one being that the images were not ‘photographs’ because the process was electronic. Therefore, the DPP argued, not being ‘photographs’ they were in turn not ‘documents’ and therefore the best evidence rule did not apply. The Court of Appeal did not find it necessary to decide that particular point, but in any event upheld the DPP’s argument that the appeal should be dismissed. However, individual Justices of the court gave different reasons. Both Justice Livesey and Justice Lovell dismissed the appeal for reasons which were based on the legal technicalities of the best evidence rule.
Chief Justice Kourakis on the other hand cut through all of the legal technicalities of the rule by finding that the rule didn’t matter because it did not apply to audio recordings or visual images which were not concerned with the meaning or legal significance of the writing or speaking of words and numbers. The significance of the snapchat image of a man in a sexually explicit pose in a state of undress was an image of that kind.