CHRISTOPHER SHAWN FORD v THE KING [2023] SASCA 117

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE KIMBER) DCCRM-20-467 Appellant: CHRISTOPHER SHAWN FORD Counsel: MR B ARMSTRONG WITH MR P DAWES - Solicitor: MCGRATH LAWYERS Respondent: THE KING Counsel: MR C EDGE WITH MR A HAMILTON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 19/10/2022 File No/s: SCCRM-22-203 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. FORD v THE KING [2023] SASCA 117 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David) 16 November 2023 APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - CONTROL OVER PROCEEDINGS - DISCHARGE OF JURY Appeal against an aggravated robbery conviction. The only issue at the trial was identity, being whether the prosecution had proved beyond reasonable doubt that the appellant was one of the two offenders. The prosecution case was circumstantial, relying on, inter alia, CCTV footage, DNA, testimony from the bar manager at the premises where the robbery occurred, and photographs taken of text messages and photographs found in a mobile telephone. At trial two detectives gave evidence about what they found in a mobile telephone which appeared to have been used by the appellant, as well as the photographs they took of what they saw on the screen of that phone. The evidence from the gallery of the phone included photographs of cash consistent with the proceeds of the robbery, as well as text messages arranging a taxi after the robbery in the name of the appellant, using his mobile number and close to a burnt out vehicle used in the robbery. The mobile phone evidence included “metadata” evidence which comprised date and time information associated with photographs found in the gallery of the mobile phone. The appellant appealed on the basis that the trial judge erred in admitting, amongst other evidence, the metadata evidence (appeal ground 1). -- 1 of 28 -- The appellant also appealed on the basis that the trial judge erred in failing to declare a mistrial when a juror wrote a note to the trial judge regarding the appearance of the accused (appeal ground 2). The Court held (dismissing the appeal): 1. The evidence found in the mobile telephone, including the “metadata” evidence, was relevant and admissible evidence in proof of the circumstantial case relied on by the prosecution to prove guilt. 2. It was not necessary to address the broader operation of the metadata process. Different considerations might apply where it is necessary to prove the accuracy of metadata evidence beyond reasonable doubt. In the circumstances of this case the questions asked of the detectives, the arguments made by the defence and Exhibit D23 (the E-Crime download) did not call into question the reliability of the mobile phone or the accuracy of the metadata evidence found in it. 3. Alternatively, if there was error associated with the admission of the metadata evidence, or if there was otherwise a miscarriage of justice associated with the admission of that evidence and its treatment by the trial judge, this is an appropriate case in which to apply the proviso. 4. There was no error made in refusing to declare a mistrial following receipt by the trial judge of the note from the juror. There is no basis to reasonably apprehend that the jury did not impartially discharge its task. 5. Observations made about taking judicial notice of the capacity of mobile telephones to provide date and time functions, as well as about the accuracy of metadata evidence concerning the date and time photographs are taken. 6. Observations made about the use of ss 54 and 56 of the Evidence Act 1929 (SA). Criminal Law Consolidation Act 1935 (SA) s 137(1); Criminal Procedure Act 1921 (SA) s 158; Evidence Act 1929 (SA) ss 54, 56; Evidence Act 1995 (NSW) s 146; Evidence Act 2008 (Vic) s 48; Juries Act 1927 (SA) s 56, referred to. Application for Reservation of Questions of Law (No 1 of 2017) [2017] SASCFC 90; Athans v The Queen (No 2) [2022] SASCA 70; Bevan v Western Australia (2012) 43 WAR 233; Bevan v Western Australia (2010) 202 A Crim R 27; Commonwealth Shipping Representative v P&O Branch Service [1923] AC 191; Crofts v The Queen (1996) 186 CLR 427; Day v The Queen (2021) 289 A Crim R 346; HCF v The Queen [2023] HCA 35; Hillier v The Queen (2007) 228 CLR 618; Inspector Stephen Campbell v James Gordon Hitchcock [2003] NSWIRComm 148; Kingston (a pseudonym) v The Queen; Maxwell (a pseudonym) v The Queen [2022] SASCA 90; McNamara v The Queen [2021] SASCFC 2; Maric v The Queen (1978) 52 ALJR 631; Mehesz v Redman (No 2) (1980) 26 SASR 244; Nasaris v The Queen [2021] SASCA 143; North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd (2012) 83 NSWLR 710; Palmer v The Queen (1998) 193 CLR 1; R v Ciantar (2006) 16 VR 26; R v Dent [2022] SASC 65; R v Goodall (2007) 15 VR 673; R v Jarrett (1994) 62 SASR 443; R v Nieterink (1999) 76 SASR 56; R v SDI [2023] QCA 67; R v Sitek [1988] 2 Qd R 284; R v Trewin [2018] ACTSC 109; R v Weatherall (1981) 27 SASR 238; Re Van Beelen (1974) 9 SASR 163; Shearer v Hills (1989) 51 SASR 243; Shepherd v The Queen (1990) 170 CLR 573; Smith v The Queen (2001) 206 CLR 650; Smith v Western Australia (2014) 250 CLR 473; Stevenson v The Queen (2020) 61 VR 624; Stokes v Samuels (1973) 5 SASR 18; Tilley v The King [2023] SASCA 80; Tipping v The King (No 2) [2023] SASCA 17; VIM v Western Australia (2005) 31 WAR 1; Wade v The Queen (2014) 41 VR 434; Webb & Hay v The Queen (1994) 181 CLR 41; Weiss v The Queen (2005) 224 CLR 300; Quist v The Queen (2021) 140 SASR 16, considered. -- 2 of 28 -- FORD v THE KING [2023] SASCA 117 Court of Appeal – Criminal: Livesey P, Doyle and David JJA THE COURT: Introduction 1 This is an appeal against an aggravated robbery conviction. The appeal grounds are as follows:1 1. The learned trial judge erred in admitting the “phone evidence”, in particular, the “metadata” evidence which identified the date and time of photographs in a mobile phone. 2. The learned trial judge erred in failing to declare a mistrial when a juror wrote a note to the trial judge regarding the appearance of the accused. 2 For the reasons that follow, the appeal should be dismissed. 3 The mobile phone evidence and the “metadata” evidence were both relevant and admissible evidence in proof of the circumstantial case relied on by the prosecution to prove guilt. There was no error or miscarriage associated with the admission of this evidence. However, even if this Court thought otherwise, there was no substantial miscarriage of justice occasioned by their admission. The proviso should be applied (appeal ground 1). No error was made in refusing to declare a mistrial but, more importantly, no miscarriage of justice has been demonstrated (appeal ground 2). The offending and the trial in overview 4 The appellant was charged with one count of aggravated robbery, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA), which occurred at the Port Club at Alberton on 23 August 2019. The circumstances of aggravation were that the offending was committed in company and with a weapon. In the appellant’s case, a “jemmy bar” was used. 5 The prosecution case was that the appellant and another man entered the Club, threatened staff and took over $12,300 in cash of various denominations. Both men had their faces covered and both men were holding weapons. 6 The only issue at the trial was identity, being whether the prosecution had proved beyond reasonable doubt that the appellant was one of the two offenders. 1 On 20 June 2022, permission to appeal was granted in respect of grounds 1 and 2, and the question of permission on grounds 3 and 4 were referred for argument as on appeal. The appellant abandoned appeal grounds 3 and 4. -- 3 of 28 -- [2023] SASCA 117 The Court 2 7 The evidence relied on by the prosecution included observations made by the victim and witnesses, CCTV footage which depicted the offending, and a number of items of circumstantial evidence which it was contended linked the appellant to the robbery. Two detectives gave evidence about what they found in a mobile telephone which appeared to have been used by the appellant, as well as photographs they took of what they saw on the screen of that phone. The evidence included photographs of cash from the photo gallery of the phone and associated metadata (Exhibit P12), and text messages and associated metadata (Exhibit P19). 8 The appellant did not give evidence at the trial. His counsel tendered Exhibit D23 whilst cross-examining one of the detectives. During the hearing of this appeal, the Court was told that this evidence was produced by the South Australia police E-Crime section, but not deployed or explained by the prosecution at the trial.2 It comprised a printed download of information which was said to include “GPS” information contained in the metadata associated with two of the photographs in Exhibit P12. It will be convenient to refer to Exhibit D23 as “the E-Crime download”. 9 Certain aspects of the circumstantial case were criticised by the defence, and it was submitted to the jury that the totality of the evidence was insufficient to prove guilt beyond reasonable doubt. 10 On 3 May 2022, the jury was unanimous in finding the appellant guilty. A summary of the prosecution case 11 At about 12.40 am on Friday, 23 August 2019, two men entered the Port Club, a licensed hotel and gaming venue on the corner of Queen Street and Brougham Place, Alberton. As mentioned, each was masked and carried a weapon. According to CCTV footage, the robbery last around one minute. The offenders drove away in a white utility at around 12.42 am. There was no dispute at trial that this same vehicle was later found burnt out at Long Street in Queenstown. That is an address close to the Club where the robbery occurred.3 12 The prosecution case was that the appellant was the offender depicted as the more solid and larger of the two men, wearing a blue and black flannelette open jacket, a black “Jack Daniels” top, and a black beanie. The CCTV footage showed that dark blue fabric covered the mouth of the larger offender. What was seen and said about this offender was broadly consistent with photographs taken of the appellant at the time of his arrest, as well as footage from the time of arrest which was tendered by the defence. 13 The bar manager, Mr Benjamin Bailey, gave evidence. His estimates of the larger offender’s height, weight and age were broad but consistent with the 2 Transcript of Proceedings, Ford v The King (Supreme Court of South Australia, Court of Appeal, SCCRM-22-203, Livesey P, Doyle and David JJA, 19 October 2022), 32. 3 See the locality map, exhibit P21. -- 4 of 28 -- [2023] SASCA 117 The Court 3 appellant. Although Mr Bailey described a black face covering, not the blue covering shown in the CCTV footage, the prosecution case was that Mr Bailey was mistaken in this relatively minor respect. 14 The co-offender was slimmer and holding a knife. He was shown by the CCTV footage to be wearing black gloves with a distinctive branding. These appeared identical to gloves later found at the appellant’s home. 15 At around 9.30 am on Friday, 23 August 2019, police attended a block of units at 109 Long Street, Queenstown and found the white, burnt-out utility. Police also found a flannelette jacket and a blue face covering consistent with what the CCTV showed was worn by the more solid, larger offender, together with a weapon matching that held by that offender. 16 Later DNA testing of the blue face covering returned a DNA result which favoured inclusion of the appellant, although transfer could not be excluded. 17 On 28 August 2019, police seized a mobile phone at an address not connected with the appellant. Detectives later opened that phone and found content that suggested the phone had been used by the appellant. The content also identified a phone number ending in 957. There was no dispute that this number was subscribed to by the appellant. Detectives later took photographs of what they saw on the screen of that mobile phone. Those photographs, the subject of the evidence challenged by appeal ground 1, will be described in more detail. Neither detective used any expert process of extraction to examine the contents of the phone. 18 On 9 September 2019, police searched the appellant’s home in Taperoo. Taperoo is around 8 kilometres from the Port Club. Police found: 1. Black gloves matching those worn by the co-offender. Later DNA testing produced a result favouring the inclusion of the appellant. 2. A black beanie. 3. A black “Jack Daniels” singlet matching the top worn by the larger of the offenders shown in the CCTV footage. 4. A bedspread that appeared identical to that shown in photographs which depicted cash, shortly to be described. 19 Business records from Suburban Taxis showed that two trips were arranged on the morning of the robbery by mobile telephone calls using the 957 number which was subscribed to by the appellant. The first was booked at 12.50 am and the pick-up was at 12.56 am from 1 Long Street, Queenstown (the same street in which the burnt-out wreck was found). The drop off was around eight minutes later at 1.04 am on Victoria Road, in the direction of the appellant’s Taperoo home. -- 5 of 28 -- [2023] SASCA 117 The Court 4 20 The second taxi trip was booked at 5.06 am. The pick-up was at 5.09 am from 181 Port Road, Queenstown, which is near 109 Long Street. The drop off was at 5.28 am near the appellant’s home. The caller for this booking used the name of “Ford”. There is no dispute about that being the appellant’s surname. 21 The detectives who gave evidence about the seized mobile phone were Detectives Childs and Olsen. The evidence from the detectives was that they used commonly used features in a mobile telephone, including viewing electronic images or photographs stored within the phone’s “gallery”, as well as text messages. The police officers explained that they simply used their familiarity with mobile phones to access this information. This material was the subject of challenge at trial and a ruling rejecting that challenge was made following a voir dire hearing. 22 The appellant challenged two of the photographs within Exhibit P12 which show additional associated data, or “metadata”, underlying those two photographs. 23 Detective Childs explained in evidence that the photographs showed what was depicted on the screen of the mobile phone on 7 September 2019 as he and Detective Olsen went through the gallery section of the phone and clicked on two photographs of interest. Photograph 2 showed cash spread across a bedspread. That bedspread appeared to be the same bedspread which detectives had seen on the appellant’s bed at his home in Taperoo. Photograph 3 depicted the same photograph but with the metadata exposed and depicting, amongst other information, the date 23 August 2019 and the time 1.47 am, around one hour after the robbery: -- 6 of 28 -- [2023] SASCA 117 The Court 5 24 Photographs 4 and 5 similarly depicted someone holding a wad of cash, and another photograph of that photograph revealed metadata associated with that photograph, including the date 23 August 2019 and the time 1.57 am. 25 At trial, but only faintly on appeal, the appellant also challenged exhibit P19, comprising photographs of what was seen in the same mobile phone concerning photographs of two text messages from the sender “Suburban” contained in the phone, as well as personal data associated with Google and Facebook (Messenger) accounts stored in that phone. 26 In his evidence at the trial, Detective Olsen explained that P19 contained photographs of two text messages received from Suburban, the name of a well- known taxi service operating in Adelaide in 2019. Those text messages advised of the pending arrival of a booked taxi. The messages corresponded with the evidence independently obtained from Suburban by way of electronic business records concerning the date and times of the first and second taxi trips in the early hours of 23 August 2019, earlier mentioned. 27 The Google account was in the name of the appellant and, under the “Personal info” section of the account, the appellant’s birthdate and gender were recorded, as was his mobile phone number. Similar information was recorded in connection with the Facebook (Messenger) account. 28 Whilst the appellant did not formally abandon his challenge to the mobile phone evidence contained in P19, no oral submission was made about it on appeal. The voir dire ruling and the summing up 29 In the course of his voir dire ruling, the trial judge ruled that the absence of expert evidence was relevant only to the weight to be given to the evidence of the detectives and the photographs concerning what was seen in the mobile telephone. The trial judge recorded that, though he had invited counsel to consider the provisions of the Evidence Act 1929 (SA) (the Evidence Act), no submission was made about any provision within that Act. His Honour ruled:4 … Whether the date and time might be accurate is not something, in my view, which is to be assessed in a vacuum. If the images are admitted, also relevant would be matters such as what is shown in the relevant photographs, the date and time of the alleged robbery itself and a date and time on which the phone was first found by police. In my opinion the date and time within the two screenshots is admissible, notwithstanding the absence of any expert evidence about how such information is created and then stored within a phone. In my view, in the 21st century, an expert is not required to establish that phones record dates and times. In my view, the absence of expert evidence is relevant only to the weight of the evidence. 4 R v Ford (District Court of South Australia, Judge Kimber, DCCRM-20-467, 28 April 2022), 2. -- 7 of 28 -- [2023] SASCA 117 The Court 6 In my view, the evidence is not more prejudicial than probative, nor is it unfair to admit the evidence against Mr Ford. In my view, there is also no other basis to decline to admit the evidence. 30 During the trial the defence tendered the E-Crime download, Exhibit D23, which was a print-out of downloaded metadata associated with photographs 3 and 5 of Exhibit P12. This included “GPS” information. GPS refers to the “global positioning system” by which satellites and devices fix the location of things on Earth. There was no evidence explaining the process used by the E-Crime section to produce this print-out. The E-Crime download suggested that GPS information associated with these photographs included a date of 22 August 2019, which was before the robbery. In addition, the recording of the latitude and longitude associated with photograph number 3 – the cash on the bedspread – did not correspond with the appellant’s home address when it was entered into “Google Maps”. 31 In the course of his summing up to the jury, the trial judge referred to the arguments of the prosecution and the defence about this evidence, especially defence counsel’s submission that there was no expert evidence explaining any of the metadata, nor the GPS information in the E-Crime download. The trial judge then directed the jury not to make assumptions about dates and times in phones and metadata as follows:5 You must be careful not to make assumptions about dates and times appearing within phones and metadata without the benefit of expert evidence. You will bear in mind that the onus of proof is on the prosecution. 32 The trial judge referred to the evidence of Detective Childs that it was his understanding that the metadata information associated with photograph 3, including the GPS location, was created at the time the photographs were taken. The evidence of Detective Childs was that according to the information he had, the GPS location suggested by the E-Crime download was in the vicinity of Long Street at Queenstown. 33 The trial judge also referred to the detective’s evidence that he could not say whether the photographs were taken using the camera function of the phone, or whether they had been sent from another mobile telephone, as he was not an expert in those matters. Appeal ground 1 - the contentions of the parties 34 The appellant submitted that in other cases evidence has been given about similar matters by experts. It was not suggested that the evidence is precisely the same. It was not suggested that the processes involved in extracting the evidence in this case required any particular qualification, training or expertise. 5 R v Ford (District Court of South Australia, Judge Kimber, DCCRM-20-467, 3 May 2022), 15. -- 8 of 28 -- [2023] SASCA 117 The Court 7 35 The appellant contended that judicial notice could not be taken of the fact that mobile phones now record dates and times where there was no expert evidence explaining how this information is created and stored on a mobile phone. 36 In connection with his challenge to the taking of judicial notice, the appellant referred to well-known cases involving equipment such as speedometers and weighbridges. The appellant accepted that in Bevan v Western Australia, the Court of Appeal had held that a mobile phone was a notorious scientific instrument.6 He submitted that a mobile phone is nonetheless distinguishable from, for example, a wristwatch because the mechanism by which it produced readings of date and time was much less well understood, with the result that it was less realistic to expect a jury to be able to assess its reliability. 37 Ultimately, the appellant’s proposition was that the prosecution did not meet the onus of satisfying the court that the time and date information on a mobile phone was so notoriously reliable as to be incapable of dispute among reasonable people or that this was capable of immediate, accurate demonstration.7 Rather, it was necessary for an expert to testify that mobile phones, or more likely this mobile phone in particular, is an accepted scientific instrument capable of producing reliable time and date information which can be received as evidence.8 38 Finally, the appellant referred to s 56 of the Evidence Act, in so far as it was relied on by the respondent, submitting that it had not been the subject of detailed consideration in this jurisdiction.9 The appellant contended that in New South Wales, the Court of Appeal had held that the relevant counter-part provision, s 146 of the Evidence Act 1995 (NSW), was not directed to the underlying accuracy of the information contained in the document or record produced by the “device or process” referred to in that section.10 39 The respondent acknowledged that though there may be a spectrum of functions on a mobile phone – from those that are obscure and little understood, through to those that are ubiquitous and widely understood – the existence of accurate date and time information associated with photographs was clearly at the latter end of the spectrum. The respondent submitted that the evidence was admissible, whether at common law or under s 56 of the Evidence Act. Determination of appeal ground 1 40 There are three strands of evidence which are challenged. They are all contained within the photographs taken by the detectives of what was shown on 6 Bevan v Western Australia (2010) 202 A Crim R 27 (Bevan), [34] (Blaxell J, with whom Owen and Buss JJA agreed). 7 Commonwealth Shipping Representative v P&O Branch Service [1923] AC 191, 212 (Lord Sumner). 8 Mehesz v Redman (No 2) (1980) 26 SASR 244; R v Jarrett (1994) 62 SASR 443. 9 Application for Reservation of Questions of Law (No 1 of 2017) [2017] SASCFC 90, [31]-[32]. 10 North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd (2012) 83 NSWLR 710 (North Sydney Leagues’ Club Ltd), 721-722 (Beazley JA, with whom Macfarlan and Whealy JJA agreed). See also Inspector Stephen Campbell v James Gordon Hitchcock [2003] NSWIRComm 148 (regarding a “Safe-T-Cam system”). -- 9 of 28 -- [2023] SASCA 117 The Court 8 the screen of the seized mobile phone, included within Exhibit P12, produced by Detective Childs, and Exhibit P19, produced by Detective Olsen. 41 The first strand concerned the photographs taken of two photographs stored in the phone, including photographs 3 and 5 which depicted the metadata or date and time information associated with photographs 2 and 4 (P12). The second concerned the Google and Facebook (Messenger) account information, and the third strand concerned the text messaging with “Suburban” stored in the mobile phone (P19). 42 The evidence which is attacked formed part of a body of circumstantial evidence relied on by the prosecution to prove facts which, if accepted, connected the appellant to the robbery on 23 August 2019. The photographs the subject of challenge are photographs of some of the things the detectives saw as they trawled through the mobile phone. The prosecution invited the jury to accept that these things were associated with both the appellant and the robbery, thereby connecting the appellant to the robbery. 43 In truth, the detectives did little more than tell the jury what it was they found when they opened and went through the seized mobile phone and looked at various of the applications in it. What the detectives described in their evidence was primarily concerned with what they saw, and how they went about seeing what they saw in the mobile phone. No scientific process or expertise was employed. They did not give expert opinion evidence. And, as has been seen, Detective Childs disclaimed expertise in connection with aspects of the operation of the mobile device. 44 There is nothing new about using mobile telephone technology in this way. As the appellant accepted, in 2010 mobile phone and laptop computer technology was described as notorious by the Western Australian Court of Appeal in Bevan v Western Australia:11 Mobile phones and laptop computers are ubiquitous items which have been in common use in the community for a number of years. Most people (including school children) are very familiar with the processes of sending and receiving text messages on mobile phones, and of downloading data from computers. It is also a matter of general knowledge and experience that these processes are accurate in the sense that the data displayed (or printed out) replicates what is actually there. It follows that mobile phones and laptop computers each fall into the category of “notorious” scientific instruments. 45 The decision of Mehesz v Redman (No 2) in this State was cited with approval in Bevan.12 In that case the issue was whether an analysis of a defendant’s blood alcohol concentration using an “Autolab data analyser” could be admitted into 11 Bevan v Western Australia (2010) 202 A Crim R 27, [34] (Blaxell J, with whom Owen and Buss JJA agreed), approved in R v SDI [2023] QCA 67, [46]-[48] (Morrison JA, with whom Mullins P and Flanagan JA agreed) regarding a laptop computer and a synchronised mobile phone. 12 Bevan v Western Australia (2010) 202 A Crim R 27, [32] (Blaxell J, with whom Owen and Buss JJA agreed). -- 10 of 28 -- [2023] SASCA 117 The Court 9 evidence where the accuracy and reliability of the equipment was the subject of evidence from witnesses who were expert in its use. 46 As King CJ (with whom White and Cox JJ agreed) explained, where an instrument is so well-known that its accuracy may be assumed as a matter of common experience, the court will assume accuracy without evidence.13 Otherwise evidence is required of the trustworthiness of that type of instrument in general, as well as of the correctness of the particular instrument. Evidence about the type of instrument may be given by an expert who can testify as to its general acceptance, whereas evidence about the accuracy of the particular instrument may be given by those who use and test it.14 The Chief Justice rejected an argument that the evidence was inadmissible as tainted by hearsay in the following terms:15 Perhaps in a sense there is an element of hearsay in the use of scientific instruments. The courts do not ordinarily insist on evidence from those who manufacture scientific instruments or from experts as to the manufacture of those instruments that the instrument in question is properly constructed, arranged or programmed so as to produce an accurate result. It is sufficient that the expert who uses it is able to say that it is an instrument which is accepted and used by competent persons as a reliable aid to the carrying out of the scientific procedures in question and that he so regards it. The point is dealt with in Wigmore, 3rd edition, vol. 2, par. 665a as follows: 665a. (2) Scientific instruments, formulas, etc. The use of scientific instruments, apparatus, formulas, and calculating-tables, involves to some extent a dependence on the statements of other persons, even of anonymous observers. Yet it is not feasible for the professional man to test every instrument himself; furthermore he finds that practically the standard methods are sufficiently to be trusted. Thus, the use of a vacuum-ray machine may give correct knowledge, though the user may neither have seen the object with his own eyes nor have made the calculations and adjustments on which the machine's trustworthiness depends. The adequacy of knowledge thus gained is recognized for a variety of standard instruments. To the extent that the evidence given by an expert as to the results of scientific tests made with the aid of an instrument can be regarded as hearsay, its admission in evidence must be treated as an exception to the hearsay rule. Its admissibility is not affected, in my opinion, by the fact that the instrument used is a computer or has computerized components. 47 According to White J in the same case, in a passage that has been cited many times with approval:16 1. If the instrument falls within a class of instruments known as notorious scientific instruments, the court will take judicial notice of its capacity for accuracy, so that 13 Mehesz v Redman (No 2) (1980) 26 SASR 244, 247-248 (King CJ with whom White and Cox JJ agreed). 14 Mehesz v Redman (No 2) (1980) 26 SASR 244, 248 (King CJ with whom White and Cox JJ agreed). See also R v Weatherall (1981) 27 SASR 238 regarding a computer programme about which supporting evidence was given; Shearer v Hills (1989) 51 SASR 243, where a breathalyser was not regarded as notoriously accurate. 15 Mehesz v Redman (No 2) (1980) 26 SASR 244, 247 (King CJ with whom White and Cox JJ agreed). 16 Mehesz v Redman (No 2) (1980) 26 SASR 244, 251-252 (White J). In R v Ciantar (2006) 16 VR 26, [9] a bench of five accepted that there was supporting expert evidence concerning a breath-analysis instrument and approved the reasons of White J in Mehesz v Redman (No 2). -- 11 of 28 -- [2023] SASCA 117 The Court 10 the operator merely proves that he handled it properly and read it properly on the particular occasion. 2. If the instrument is not a notorious scientific instrument, its accuracy can be established by evidence: (a) that the instrument is within a class of instrument generally accepted by experts as accurate for its particular purpose; (b) that the instrument, if handled properly, does produce accurate results: ((a) and (b) must be established by expert testimony, that is, by experts with sufficient knowledge of that kind of instrument; and upon proof of (a) and (b), a latent presumption of accuracy arises which allows the court to infer accuracy on the particular occasion if it is proved) – (c) that the particular instrument was handled properly and read accurately by the operator on the particular occasion; ((c) can be established by a trained competent person familiar with the operation of the instrument, not necessarily the type of expert who proves (a) and (b)). 3. Where the actual accuracy of the measurement can be inferred from all of the proved circumstances, it is not necessary to rely upon the presumption arising from (a) and (b), proof of which is superfluous. 48 The common law presumption of accuracy concerning a scientific instrument, device or process permits the presumption that, when it is proved that what was used belongs to a class of notoriously accurate scientific instruments, what is produced will be admitted into evidence without more unless the opposing party adduces evidence which displaces the presumption by suggesting inaccuracy associated with the particular reading or outcome produced.17 49 In Bevan, the issue was not with mobile phone technology, but the process of downloading information from a SIM card or a mobile phone memory using a computer programme. That is to say, the Court of Appeal accepted that a mobile telephone was for the purposes of the common law a notorious scientific instrument that did not require expert evidence to prove its accuracy because most people, including school children, were familiar with the process of sending and receiving text messages and it was a matter of general knowledge and experience that the technology is accurate. 50 The Court held that there was inadequate evidence regarding the process employed to download messages from the SIM card, and especially the different process employed to download messages from the mobile phone memory. This latter process raised questions about the reliability of the software and whether the policeman had correctly used it.18 The trial judge had admitted evidence of some of the text messages which had been downloaded in these ways and then printed 17 Porter v Kolodzeij [1962] VR 75; Redman v Klun (1979) 20 SASR 343; Mehesz v Redman (No 2) (1980) 26 SASR 244, 251-252; Chiou Yaou Fa v Morris (1987) 27 A Crim R 342, 347-349; Aregar v Cox (2018) 331 FLR 411, [293]. 18 Bevan v Western Australia (2010) 202 A Crim R 27, [37]-[38] (Blaxell J, with whom Owen and Buss JJA agreed) -- 12 of 28 -- [2023] SASCA 117 The Court 11 onto sheets of paper. The Court held it was an error of law, or a miscarriage of justice, to admit the evidence but it ultimately applied the proviso.19 51 Subsequently, the same appellant came before the Court of Appeal and again challenged the process of using a computer programme to download information from a mobile phone using XRY and Cellebrite machines or software.20 The majority in the second Bevan decision held that there was sufficient supportive expert evidence to demonstrate reliability and accuracy.21 Buss JA disagreed, carefully reviewing a number of influential texts and authorities, including Mehesz v Redman (No 2), before applying the proviso.22 52 This review of the authorities permits a number of conclusions. First, it is now notorious that when powered on, mobile telephones provide date and time functions. These are ordinarily regarded as accurate without human intervention. There is no need to keep a mobile wound up or to ensure that any battery is regularly replaced. There were in this case no complicating issues such as the need for a passcode or the operation and potential effect of different time zones. 53 Secondly, the notion that mobile telephones can be used to take, send and receive still and moving digital images, usually described as photographs and videos, is also well-recognised. That those images can be accurately stored in and then retrieved from a mobile phone in a “camera roll” or “gallery” section is also widely-known. 54 Thirdly, the accurate and reliable storage in and use on a mobile device of account information with Google or Facebook (Messenger), or other similar applications, is likewise both straight-forward and widely-known. 55 Finally, text messaging using a mobile device now comprises one of the most frequently used communication practices employed over the last two or three decades. The same may be said about other forms of electronic messaging, such as messaging using the Facebook (Messenger) application. There are others. That any mobile device using these applications (assuming they have not been deleted) will accurately store both the message and the date and time the message was sent or received is widely-known. 56 Indeed, it is difficult to see why expert evidence was required to explain the information seen in the mobile telephone, where the explanation given by the detectives formed part of a straight-forward and well-recognised use of mobile telephone technology. The use of mobile telephone technology in this way is now ubiquitous. The evidence given by the detectives could have been determined by 19 Bevan v Western Australia (2010) 202 A Crim R 27, [47]-[67] (Blaxell J, with whom Owen and Buss JJA agreed) 20 Bevan v Western Australia (2012) 43 WAR 233. 21 Bevan v Western Australia (2012) 43 WAR 233, [64]-[68] (Pullin JA, with whom Mazza JA agreed, Buss JA dissenting). 22 Bevan v Western Australia (2012) 43 WAR 233, [111]-[140] (Buss JA). -- 13 of 28 -- [2023] SASCA 117 The Court 12 the triers of fact themselves had they been handed the mobile telephone and given an opportunity to examine it. 57 Accordingly, there was no need for expert evidence to explain or vouch for these kinds of functions. Judicial notice can properly be taken of them. If they were to be challenged, the appellant had to adduce evidence calling them into question in connection with the mobile phone the subject of evidence in this case and that was not attempted. 58 What was challenged was something different, the metadata information. That is, the date and time obtained by touching or swiping two of the photographs appearing in Exhibit P12. The metadata evidence will be addressed later in these reasons. 59 There is, as was recognised by the Queensland Court of Appeal in R v SDI, an analogy to be drawn with other kinds of evidence, especially evidence concerning technology such as closed-circuit television or films and videos which are viewed by a witness out of court.23 The cases on these technologies were recently reviewed by this Court in Athans v The Queen (No 2), where it was explained that the oral evidence given by girls of sexual offending which they viewed on their mobile devices using the Snapchat application was both relevant and admissible and not excluded by the operation of the common law “best evidence” rule where the images no longer existed.24 60 In both Athans v The Queen (No 2) and R v SDI reference was made to the Queensland case of R v Sitek.25 In R v Sitek de Jersey J likened the evidence of what a witness saw of offending on a video to eyewitness evidence.26 R v Sitek was later followed in Wade v The Queen, where the Victorian Court of Appeal accepted the oral evidence given by a detective about what he had seen of the clothing worn by an offender during an armed robbery in a CCTV recording, later deleted by mistake.27 Nettle JA regarded the CCTV recording as real evidence which could be described in evidence:28 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. 23 R v SDI [2023] QCA 67, [44] (Morrison JA, with whom Mullins P and Flanagan JA agreed), citing R v Sitek [1988] 2 Qd R 284, 292 (de Jersey J, with whom Connolly J agreed). 24 Athans v The Queen (No 2) [2022] SASCA 70, [138]-[150]. 25 R v Sitek [1988] 2 Qd R 284. 26 R v Sitek [1988] 2 Qd R 284, 292 (de Jersey J, with whom Connolly J agreed). 27 Wade v The Queen (2014) 41 VR 434, [27]-[30] (Nettle JA, with whom Redlich and Coghlan JJA agreed), addressing the common law as an alternative to admissibility of the oral evidence as secondary evidence of the CCTV footage as a “document” under s 48 of the Evidence Act 2008 (Vic). 28 Wade v The Queen (2014) 41 VR 434, [27] (Nettle JA, with whom Redlich and Coghlan JJA agreed), [51]-[52] (Redlich JA). -- 14 of 28 -- [2023] SASCA 117 The Court 13 61 After referring to these cases, in Athans v the Queen (No 2) it was explained that the evidence was treated as real evidence which could be described by a witness, especially where the real evidence was made available at the trial.29 62 The appellant pointed to no authority in which it was held that evidence such as that given or produced by the detectives in this case is inadmissible. Either the appellant relied on cases where technical information was required or experts had to be called,30 or where text messages were extracted from a mobile phone using a software programme.31 In the latter case, the police officer who was called was not expert in the programmes which he had used. In the circumstances, it is not difficult to see why the Western Australian Court of Appeal in that case was concerned about the absence of expert evidence where there remained questions about the reliability and correct use of the software. 63 There is no basis to reject the admission into evidence of the two strands of evidence which concerned the Google and Facebook (Messenger) account information, and the text messaging with Suburban, including the dates and times of those texts. That latter information was, as counsel for the appellant conceded on appeal, corroborated by the evidence obtained directly from Suburban. Those strands of evidence were relevant and admissible. 64 What lies at the heart of this appeal, however, is not whether mobile telephone technology is notoriously accurate, but whether the metadata underlying two of the photographs was admissible in the circumstances of this case, absent expert evidence explaining its creation, reliability and use. The metadata evidence 65 The fact that when images or photographs and videos stored on a mobile phone are viewed in a particular way, further information about those photographs, metadata, can be discerned is now well-recognised. That information includes date and time information. 66 The means of reading or obtaining that information from an image stored on a mobile phone is straightforward though, as the detective in this case explained, the exact way in which that may be done may vary according to the type of device used or the operating system downloaded onto that device. 67 There was no evidence demonstrating whether the images in P12 were taken with the mobile phone or only received by it. In addition, the suggested inconsistency between the metadata in P12, and the GPS information in the 29 Athans v The Queen (No 2) [2022] SASCA 70, [146]-[150] (Livesey P). 30 R v Dent [2022] SASC 65, [134]-[135] and [418] (David J), R v McNamara [2018] SADC 128, [64]-[70] (Judge Boylan) and on appeal McNamara v The Queen [2021] SASCFC 2; R v Trewin [2018] ACTSC 109, [106]-[109] (Burns ACJ). 31 Bevan v Western Australia (2010) 202 A Crim R 27, [35]-[37] (Blaxell J, with whom Owen and Buss JJA agreed). -- 15 of 28 -- [2023] SASCA 117 The Court 14 E-Crime download in Exhibit D23, apparently reflecting metadata associated with relevant photographs, was not explained by the evidence. 68 Moreover, there was no evidence as to whether the metadata information is only generated when the image was first taken, as the detective believed it was, or whether what is first generated is then altered if the image is transferred to another mobile device. It remained unclear on the evidence whether the metadata can be altered in any way when it is transmitted, including by the receiving device. 69 To be clear, what was in put into issue was not the capacity of a mobile telephone to reliably and accurately keep date and time, or to record and store information, messages and images, including metadata information associated with those images, but the broader operation of the metadata process. This included whether the metadata information is fixed or capable of being altered. The issue is whether any uncertainty about that process affected the admissibility of the evidence given by the detectives, especially about P12. The admissibility of the metadata evidence as circumstantial evidence 70 It is necessary to consider the admissibility and probative value of the metadata evidence which was adduced in this case.32 The probative value of any evidence ordinarily rests on whether its admission is capable of rationally affecting, whether directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.33 The probative value of evidence must be assessed having regard to the likely use to be made of it. That is, by having regard to the purpose for which the prosecution proposed to adduce the evidence at the appellant’s criminal trial. 71 As has been explained, the evidence in photographs 3 and 5 of Exhibit P12 was offered as two circumstances within a broader body of circumstantial evidence from which the jury were invited to draw the inference that there was an association between the mobile phone, the robbery and the appellant. As Dawson J explained in Shepherd v The Queen, it is not necessary to prove each circumstance beyond reasonable doubt.34 Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances – often numerous – which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance. 72 Though not articulated by the trial judge in this way, the jury was effectively invited to consider the prospect that the appellant was not one of the two offenders where a mobile telephone which appeared to have been used by him (as revealed 32 R v Nieterink (1999) 76 SASR 56, [30]-[35] (Doyle CJ). 33 Stokes v Samuels (1973) 5 SASR 18, 48 (Wells J); Re Van Beelen (1974) 9 SASR 163, 193; Palmer v The Queen (1998) 193 CLR 1, [55] (McHugh J); Smith v The Queen (2001) 206 CLR 650, [14] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Day v The Queen (2021) 289 A Crim R 346, [43]. 34 Shepherd v The Queen (1990) 170 CLR 573, 592-593 (McHugh J). See also Hillier v The Queen (2007) 228 CLR 618, [46]-[48] (Gummow, Hayne and Crennan JJ). -- 16 of 28 -- [2023] SASCA 117 The Court 15 by the telephone number as well as the Google and Facebook (Messenger) account personal information stored in the phone) contained images taken an hour after the robbery which depicted cash consistent with the cash stolen from the Port Club. 73 As well, one of those images appeared to have been taken above a bedspread that looked identical to the appellant’s bedspread which detectives had seen on the appellant’s bed in his home a few days after the robbery. A similar process of reasoning was open when considering the text messaging with Suburban Taxis stored in the mobile phone, having regard to the location of the burnt-out wreck of the vehicle used in the robbery. 74 In this context, the metadata evidence was properly admitted as part of the circumstantial case against the appellant. The potential utility of the evidence was not undermined even if the images had been received by the appellant’s mobile device, and notwithstanding the E-Crime download contained in Exhibit D23. 75 There are four additional points to be made. The first is that because this evidence formed part of a body of circumstantial evidence which it was necessary for the jury to consider as a whole it was, in the circumstances of this case, not necessary to prove the accuracy of the metadata beyond reasonable doubt. The various questions that might arise in connection with the broader operation of the metadata process did not need to be answered to render the metadata evidence admissible. The metadata evidence simply formed part of the circumstantial case which it was necessary for the jury to evaluate when determining the appellant’s guilt. 76 Different considerations might apply where the prosecution case depends on the operation and accuracy of evidence such as the metadata evidence in this case, and where it is necessary to prove the operation and accuracy of the process beyond reasonable doubt.35 In other cases, for example, it may be relevant to understand exactly how the metadata process operates, including whether an image was taken with a particular mobile phone or only transferred to it, as well as whether metadata information can be altered, and in what circumstances that might occur. 77 It must be emphasised that the questions raised in this case about the broader operation of the metadata process were not supported by any evidence. The questions asked of the detectives and the arguments which were put merely remained suggestions that were not grounded in any evidence. For example, insofar as questions were raised about whether metadata might be affected by transmitting an image from one device to another, there was no evidence to show that this had occurred. The defence did not point to any text message (or other evidence) which suggested that any image had been sent or received by the mobile phone inspected by the detectives. Ultimately, the suggestions raised by the 35 Such as where a Shepherd direction may be required, see Shepherd v The Queen (1990) 170 CLR 573; Nasaris v The Queen [2021] SASCA 143, [37] (Livesey P, Doyle and David JJA); Tilley v The King [2023] SASCA 80, [106]-[119] (Livesey P, David JA and Buss AJA). -- 17 of 28 -- [2023] SASCA 117 The Court 16 defence did not call into question the reliability of the mobile phone or the accuracy of the metadata associated with the images relied on in this case. 78 Secondly, and importantly, the jury was directed not to make any assumptions about the dates and times appearing within phones and metadata without expert evidence. This was not merely a direction about the weight to be given to the metadata evidence absent expert assistance. It was in terms an explicit warning not to assume that the dates and times were accurate because there was no expert evidence. This was followed by a passage in the summing up which addressed the unreliability of the GPS location information in the E-Crime download (Exhibit D23). To the extent that this warning went further than a warning about the need to take into account the E-Crime download, and the evidence as a whole, it might well be thought to have been unduly favourable to the defence. 79 The warning was clearly a response to the challenge associated with the E-Crime download which it was said somehow called into question aspects of the time and date information contained within the metadata underlying photographs numbered 3 and 5 in Exhibit P12. It was effectively contended that it followed that this is not a case where any assumption could be made about the accuracy and reliability of the metadata evidence. 80 In one sense, it could be said that the trial judge’s warning undermined the utility of the metadata evidence in this case. The real point to be made was that the metadata evidence concerning the date and times associated with the images was neither conclusive nor determinative. It remained to be considered as part of the circumstantial case when evaluating the probative force of all of the circumstances when viewed as a whole. On reflection, it would have been preferable had the trial judge given a direction in those terms rather than the warning in fact given. Nonetheless there is no reason to think that the jury did not understand that they needed to consider the reliability and accuracy of the metadata evidence in light of all other evidence, including the E-Crime download in Exhibit D23, and the submissions made on behalf of the defence. 81 Thirdly, and relatedly, though at the trial reliance was placed on the judicial discretions to exclude evidence for undue prejudice or unfairness, no challenge was mounted on appeal to the ruling made by the trial judge rejecting the application of those discretions. 82 Finally, and in all of these circumstances, it cannot be said that it was an error of law to admit the evidence obtained from the mobile phone, including the metadata evidence. It was evidence of what the detectives saw when they opened and went through the phone. It cannot be said that its admission occasioned a miscarriage of justice. -- 18 of 28 -- [2023] SASCA 117 The Court 17 Judicial notice and the potential operation of Evidence Act provisions 83 Though they did not feature at the trial, there are provisions of the Evidence Act which are relevant to consider. Sections 54, 56 and 57 of the Evidence Act provide as follows: 54—Electronic communications (1) If an apparently genuine document purports to contain a record of an electronic communication (other than one referred to in section 55)36, it will be presumed in the absence of evidence to the contrary, that the communication— (a) was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made; and (b) was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made; and (c) was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made; and (d) was received at the destination to which it appears from the document to have been sent; and (e) if it appears from the document that the sending of the communication concluded at a particular time—was received at that destination at that time. (2) A provision of subsection (1) does not apply in proceedings if— (a) the proceedings relate to a contract; and (b) all parties to the proceedings are parties to the contract; and (c) the provision is inconsistent with a term of the contract. (3) A document referred to in subsection (1) may be admitted in proceedings as evidence of any of the following representations contained in the document: (a) the identity of the person from whom or on whose behalf the electronic communication was sent; (b) the date on which or the time at which the communication was sent; (c) the destination of the communication or the identity of the person to whom the communication was addressed. (4) In this section— electronic communication has the same meaning as in the Electronic Transactions Act 2000. … 36 Section 55 is concerned with proof of messages transmitted by means of a lettergram or telegram. -- 19 of 28 -- [2023] SASCA 117 The Court 18 56—Evidence produced by processes, machines and other devices (1) This section applies to a document or thing— (a) that is produced wholly or partly by a device or process; and (b) that is tendered by a party to proceedings who asserts that, in producing the document or thing, the device or process has produced a particular outcome. (2) If a device or process is one that, or is of a kind that, if properly used, will ordinarily produce that outcome, it will be presumed, in the absence of evidence to the contrary, that, in producing the document or thing on the occasion in question, the device or process produced that outcome. 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. 57–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. 84 In Athans v The Queen (No 2), s 54 of the Evidence Act was described as one of a number of statutory aids to proof in connection with electronic “documents”, including secondary evidence or copies of electronic communications:37 37 Athans v The Queen (No 2) [2022] SASCA 70, [126] and [159] (Livesey P, with whom Kourakis CJ and Lovell JA agreed). -- 20 of 28 -- [2023] SASCA 117 The Court 19 With the advent of modern copying and transmission processes, including photocopies, facsimiles and email, secondary evidence, in the form of accurate copies, has become commonplace even though copies are, strictly, still excluded as secondary evidence under the best evidence rule at common law.38 Provisions in the Evidence Act have for some time explicitly addressed various of these processes and problems, such as s 54 (electronic communications), s 55 (telegrams and lettergrams), s 56 (documents produced by a device or process) or s 57 (the modification to the best evidence rule, where a document reproduces the contents of another document, addressed later in these reasons). … Similarly, s 54 operates as 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 for by s 5 of the Electronic Communications Act 2000 (SA), which provides 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”. Whilst that definition appears to encapsulate data, text or images sent and received using the Snapchat application, s 54 is facultative. It was not relied on by the prosecution. Its presence does not hinder any other available modes of proof, see s 5(b) of the Evidence Act ... 85 Though it was not relied on in this case, s 54 permits proof of an apparently genuine document containing a record of a communication in the form of data, text or images by means of electromagnetic energy. 86 Where s 54(1) is satisfied, it generates various presumptions arising from the terms of the communication which are to be applied, subject to evidence to the contrary, regarding: (a) the form of the communication, (b) the person who sent or made it, (c) the date, time and place it was sent or made, (d) the destination at which it was received, and (e) the time it was received. Section 54(3) thereby permits proof of representations as to: (a) the identity of the person from whom or on whose behalf the electronic communication was sent; (b) the date on which or the time at which the communication was sent; (c) the destination of the communication or the identity of the person to whom the communication was addressed. 87 Section 54 could have facilitated proof of the text messaging seen by the detectives in this case. 88 Turning to s 56 of the Evidence Act, in the course of his Second Reading Speech at the time of introduction of the Evidence (Records and Documents) 38 In civil cases objection is rarely taken to copies, J D Heydon, Cross on Evidence (LexisNexis Australia, Online Edition, 2022) [39005]-[39010]. -- 21 of 28 -- [2023] SASCA 117 The Court 20 Amendment Bill 2015, the then Attorney-General gave the following explanation regarding its operation:39 The Bill inserts section 56 into the Evidence Act 1929 to create a rebuttable presumption of accuracy for evidence produced by computers. Section 56 is consistent with section 146 of the Uniform Evidence Act models. It removes the requirement for authentication in every case and provides, instead, that for documents that are produced, recorded, copied or stored electronically or digitally, there is a rebuttable presumption that the technological process or device so used did in fact produce the asserted output and did so reliably. This means that a party adducing evidence of such documents would no longer have to prove the authenticity and reliability of the process or device unless there is evidence that is adduced to displace the presumption. For example, it would not be necessary to prove the reliability or accuracy of a computer from which an email had been produced as a pre-condition to the admission of that email into evidence. This amendment reflects contemporary understanding of the accuracy of ordinarily reliable devices or processes. The section does not operate to facilitate the admission of a document generated by a process or device as to the truth of its content—rather, it is presumptive aid to proof as to the accuracy and reliability of the production of the document by the technological process or device. 89 Section 56 has counter-parts interstate. Interstate decisions on those counter- part provisions are of relevance. On a number of occasions, s 56 has been accepted as permitting the tender of email and electronic messaging using computers or mobile telephones. This provision is capable of supporting the admission into evidence of the images taken by the detectives, as well as the images, account information and messaging contained in the mobile telephone they inspected. 90 In Athans v The Queen (No 2), s 57 of the Evidence Act, which modifies the best evidence rule, was relied on to support the admission into evidence of screenshots taken of the screens of mobile telephones.40 91 Section 56 of the Evidence Act is capable of facilitating the admission into evidence of the metadata information underlying the images the detectives found in the mobile telephone. In Stevenson v The Queen, the Victorian Court of Appeal held that the dates and times associated with Facebook postings were admissible pursuant to the counter-part provision:41 First, the evidence was admissible pursuant to s 146 of the Evidence Act. Given the definitions of ‘document’ and ‘information’, the Facebook posts showing the dates and times in the speech bubbles were ‘documents’ in that they were records of information (meaning information in the form of ‘data, text or images’) from which ‘images or writings could be reproduced with or without the aid of anything else’ — the reproduction in this case being with the aid of the informant hovering the cursor over the ‘3y’ symbol. In the terms of s 146(1), the document containing those dates was produced wholly or partly by a computer device or process and was tendered by the Crown, who asserted that, in 39 South Australia, Parliamentary Debates, Legislative Council, 27 October 2015, 1921. 40 Athans v The Queen (No 2) [2022] SASCA 70, [194]ff (Livesey P, with whom Kourakis CJ and Lovell JA agreed). 41 Stevenson v The Queen (2020) 61 VR 624, [71]-[73] (Croucher AJA, with whom Whelan JA and Kyrou AJA agreed). -- 22 of 28 -- [2023] SASCA 117 The Court 21 producing the document, the computer device or process produced a particular outcome — namely, the disclosure of a date and time that the post in the document was sent. Further, employing the language of s 146(2), it was reasonably open to find that the computer device or process was one that, or was of a kind that, if properly used, ordinarily produces that outcome, such that it was presumed (unless evidence sufficient to raise a doubt about the presumption was adduced) that, in producing the document containing those dates and times on the occasion in question, the computer device or process produced that outcome. 92 As was earlier explained, it is now widely recognised that when images or photographs and videos stored on a mobile phone are viewed in a particular way, further information about them, described in this case as metadata, can be discerned such as date and time information. The images and the metadata information may be described as a document or thing produced by a mobile device or a process employed by that device. 93 Like the use of the cursor over the Facebook posting in Stevenson v The Queen, the pressing or “swiping” of an image stored in a mobile telephone gallery is capable of revealing information about the date and time associated with the image. On tender, the tendering party effectively asserts that the device or process will, if properly used, ordinarily produce an accurate outcome. That is, that the mobile device will, if properly used, ordinarily accurately store and reproduce the image and, together with it, the metadata associated with the image which includes accurate date and time information. 94 The issue in this case is whether it was reasonably open to find that the device or process is one that ordinarily produces the outcome, namely, that the mobile device will accurately store and reproduce an image taken or stored on that device and, together with it, accurate metadata associated with the image. 95 If it is, then accuracy will be presumed unless the party opposing tender adduces evidence to the contrary to rebut the statutory presumption. The South Australian provision may operate slightly differently to the iteration considered in North Sydney Leagues’ Club Ltd, where argument or evidence which raised a doubt, but which need not amount to “proof to the contrary”, might preclude drawing the statutory presumption.42 In South Australia, “evidence to the contrary” must be adduced if the party opposing tender wishes to preclude the statutory presumption being drawn. 96 Though not articulated in this way at the trial, on appeal the E-Crime download in Exhibit D23 was said to represent evidence to the contrary, precluding any presumption about the accuracy and reliability of the metadata evidence for the purposes of s 56, even though no evidence explaining Exhibit D23 was adduced by the defence. 42 North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd (2012) 83 NSWLR 710, 721-722 [58]-[61] (Beazley JA, with whom Macfarlan and Whealy JJA agreed). -- 23 of 28 -- [2023] SASCA 117 The Court 22 97 The parties cited no authority which, whether at common law or under s 56 of the Evidence Act, addressed whether the metadata underlying images taken, stored or received on a mobile phone showing date and time information associated with those images can now be regarded as notoriously accurate, or which otherwise explained the process involved in generating metadata. 98 In our view, it should now be accepted that metadata obtained by examining images (whether by touching or swiping them) stored in the gallery of a mobile telephone produces metadata that provides accurate and reliable information about the date and time the image was taken. It follows that the evidence given by the detectives in this case about the images and metadata they saw, together with the photographs they took of the images and metadata they saw, was both admissible and presumed to be reliable and accurate, whether at common law or under s 56 of the Evidence Act. Though it is not strictly necessary to decide it in this case, the same is likely true of GPS information obtained from the same metadata underlying images stored in a mobile telephone gallery. 99 In any given case that will necessarily be subject to evidence about the way that information was revealed or obtained. For example, it will be relevant to adduce evidence about whether the information was obtained by using a mobile telephone in a conventional fashion, or whether some further process or programme was employed. Proof of the accuracy and reliability of any additional process may be required. In addition, the drawing of the common law or statutory presumptions may be undermined where the evidence provides good reason to doubt the device or the information in it, such as where “evidence to the contrary” has been adduced. 100 In this case the E-Crime download, Exhibit D23, did not provide any reason to doubt the reliability of the device or the accuracy of the information in it for the purposes of taking judicial notice at common law. Moreover, it did not represent “evidence to the contrary” for the purposes of s 56 of the Evidence Act. 101 Notwithstanding the uncertainties associated with it, there does not appear to have been any objection taken to the admission of Exhibit D23 into evidence. As has been emphasised, there was no evidence, including expert evidence, explaining the process by which this information was extracted and how it may have affected the metadata, or what it purported to show. Like the questions asked of the detectives and the suggestions made by the defence in argument, it represented an attempt to collaterally attack the evidence given by the detectives about what they saw on the screen of the mobile telephone. Though there was no evidence connecting Exhibit D23 with what the detectives saw, that was the unstated premise which the defence invited the jury to consider: namely, if Exhibit D23 was open to question, so must be the information seen by the detectives. However, none of the questions, the suggestions nor Exhibit D23 represented evidence which undermined the reliability of the mobile telephone, or the accuracy of the information seen on it. Apart from by engaging in speculation, this material was -- 24 of 28 -- [2023] SASCA 117 The Court 23 not capable of calling into question what was seen and photographed by the detectives when they looked at the mobile telephone. 102 Having said that, because Exhibit D23 was admitted into evidence it remained material which the jury was required to consider when evaluating the circumstantial case advanced by the prosecution. 103 Properly viewed, there is no tension between the decisions of the New South Wales Court of Appeal in North Sydney Leagues’ Club and the Victorian Court of Appeal in Stevenson v The Queen.43 In the first, the Court limited the use of s 146 to the “mechanical process” of generating financial information stored in a computer, finding that it was not concerned with “the accuracy of the underlying information”.44 It was concerned with whether the process accurately reproduced what was stored. In the second decision, the Court held that the section was available to prove the accuracy of the dates and times of Facebook postings when revealed by hovering a cursor over a symbol.45 104 The explanation for the apparently different outcomes lies in the differing nature of the device or process considered in each case. Section 56 is not a typical business records provision. It is not concerned with proving the truth of financial information generated or compiled in the course of carrying on a business, which was the issue relevant in North Sydney Leagues’ Club Ltd. The Court limited the operation of the statutory presumption to the accuracy of the secondary evidence of that stored financial information. That is, the accuracy of what was reproduced when downloaded from a computer. 105 By contrast, Stevenson v The Queen was concerned with a process, a well- known social media platform, which recorded both the messages sent or “posts” made as well as the dates and times of those messages or “posts”. This case is much closer to Stevenson v The Queen, though the process and information generated in this case is a little more complex. 106 In each case the relevant sections permitted a presumption to be drawn as to the outcome, and in the latter case the ordinary outcome was concerned with the accuracy of the information produced with the result that the presumption extended to the accuracy of the date and time information. The operation of the proviso 107 Finally if, contrary to these reasons, the metadata evidence was inadmissible or the warning given by the trial judge should be thought to be inadequate, or if there was otherwise a miscarriage of justice occasioned by the admission of the 43 Stevenson v The Queen (2020) 61 VR 624, [71]-[73] (Croucher AJA, with whom Whelan JA and Kyrou AJA agreed). 44 North Sydney Leagues Club Ltd v Synergy Protection Agency Pty Ltd (2012) 83 NSWLR 710, 722-723 [62]-[63] (Beazley JA, with whom Macfarlan and Whealy JJA agreed). 45 Stevenson v The Queen (2020) 61 VR 624, [71] (Croucher AJA, with whom Whelan JA and Kyrou AJA agreed). -- 25 of 28 -- [2023] SASCA 117 The Court 24 metadata evidence, no substantial miscarriage of justice actually occurred in this case.46 108 The circumstantial evidence concerning the identity of the appellant as one of the two offenders, even without the impugned evidence, was overwhelming. It followed that the circumstantial evidence of the appellant’s guilt adduced by the prosecution in this case was overwhelming:47 No single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty. 109 Acknowledging the jury’s verdict of guilty, an independent review of the record in this case, particularly the evidence earlier described in these reasons, shows that the appellant was otherwise clearly proved to be guilty of the charged offending beyond reasonable doubt. 110 Appeal ground 1 should be dismissed. Appeal ground 2 – the appellant’s contentions 111 On the afternoon of the first day following the empanelment of the jury, a juror passed a note to the court which read: The defendant has a similar size and build as someone who broke into my mother’s garage 11 years ago. I don’t think it will affect my impartiality. 112 The trial judge disclosed the note to counsel for the parties and they were given an opportunity to take instructions overnight. The following morning the prosecution asked that the juror be discharged but for the balance of the jury to remain. The appellant’s counsel asked that the whole jury be discharged. She contended that there was a risk of contamination and, in addition, there was a risk of “running out” of jurors if the trial continued with 11 jurors. 113 The trial judge discharged the juror but declined to declare a mistrial or discharge the balance of the jury. 114 Before this Court, the appellant made no oral submissions in support of this ground of appeal. The appellant submitted that the failure to discharge the jury occasioned a miscarriage of justice.48 The appellant contended that there remained scope for “contamination” of the jury because it cannot be known precisely when the juror first recognised the appellant. There may have been discussions amongst 46 See s 158(2) of the Criminal Procedure Act 1921 (SA). 47 Weiss v The Queen (2005) 224 CLR 300, [44] and [35]-[41]. 48 Maric v The Queen (1978) 52 ALJR 631, 634-635 (Gibbs ACJ); Kingston (a pseudonym) v The Queen; Maxwell (a pseudonym) v The Queen [2022] SASCA 90, [8], [72] (Kourakis CJ), [107]-[110] (Lovell JA) cf [132] (David JA, in dissent). -- 26 of 28 -- [2023] SASCA 117 The Court 25 the jurors in which the relevant juror took part and during which the relevant juror expressed strong views about the appellant. Determination of appeal ground 2 115 It is necessary for this Court to decide for itself whether there was a miscarriage of justice.49 The appellant accepted that, rather than determine whether it was an error for the trial judge to refuse to discharge the jury, it must be determined whether a reasonable apprehension might be formed by a fair-minded and informed member of the public that the jury might not have impartially discharged its task.50 116 A brief chronology of jury interaction taken from the transcript of the proceedings shows: 2.21 pm – The jury panel was brought into court. At that stage, the jury knew nothing about the case. 2.31 pm – Jury empanelment began. The jury heard the charge of Aggravated Robbery and saw the accused in the dock. The judge gave the standard direction to keep an open mind. Between 2.50 pm and 3.06 pm, 16 minutes, the jury were allowed a break in the jury room. 3.06 pm – The prosecution opened. Between 3.22 pm and 3.26 pm, there was a formal break and the jury were allowed into the jury room together. 3.26 pm – The defence opening began. Again, the jury was asked to keep an open mind. Immediately after the defence opening, Crime Scene Officer Bowman gave evidence. No images or descriptions of the offenders were tendered. 4.00 pm – The jury left the court and it was at that point that the judge was handed the note. 117 It would appear to be from this time that the Sheriff’s Officer separated that juror from the balance of the jury. Enquiries were made. It was learned: 1. The juror had been separated from the balance of the jury as soon as the note was raised. 49 See s 158(1) of the Criminal Procedure Act 1921 (SA). 50 Webb & Hay v The Queen (1994) 181 CLR 41, 53 (Mason CJ and McHugh J); Smith v Western Australia (2014) 250 CLR 473, 486 [54]-[55]; HCF v The Queen [2023] HCA 35, [11]-[14] (Gageler CJ, Gleeson and Jagot JJ). -- 27 of 28 -- [2023] SASCA 117 The Court 26 2. That juror was kept separate from the balance of the jury the next morning and told not to discuss the content of the note. 3. When questioned by the trial judge, that juror confirmed that the note or its contents had not been “shared” with any other juror. 4. The trial judge discharged that juror but declined to discharge the balance of the jury. The trial proceeded with 11 jurors. 118 Whilst there is no rigid rule that can be adopted, on the material made available to this Court, two things are clear. First, the relevant juror was discharged notwithstanding that the juror expressed the view that the juror’s impartiality had not been affected. Secondly, there is no basis to suspect, let alone conclude, that the relevant juror’s views were communicated with anyone else on the jury. That the note was produced very early on in the trial meant that the issue arose at a time when it was unrealistic to think that there had been any meaningful discussion between jurors, even putting to one side the small amount of time they spent outside of the court room. 119 The trial judge, and this Court, may presume that the juror approached that juror’s task correctly and diligently.51 And, given that the juror told the judge that there had been no discussion of the content of the note with any other juror, there is no reason to doubt that assurance.52 120 There was, accordingly, no real risk of “contamination”.53 In the circumstances of this case, there is no basis for a reasonable apprehension that the jury did not impartially discharge its task. Section 56(2) of the Juries Act 1927 (SA) clearly contemplates and permits a trial to continue after a juror has been excused. 121 Appeal ground 2 should be dismissed. Conclusion 122 The appeal must be dismissed. 51 Quist v The Queen (2021) 140 SASR 16, [70]. 52 VIM v Western Australia (2005) 31 WAR 1, [256]. 53 R v Goodall (2007) 15 VR 673, [27]-[42] (Redlich JA, with whom Buchanan AP and Neave JA agreed). See also Tipping v The King (No 2) [2023] SASCA 17, [27]-[32]. -- 28 of 28 --