USING SMS, WHATSAPP AND SOCIAL MEDIA MESSAGES AS EVIDENCE IN NSW CRIMINAL TRIALS
With the widespread use of smartphones and encrypted messaging platforms, electronic communications such as SMS, WhatsApp, Facebook Messenger, Signal and other app-based messages are increasingly relied upon as evidence in criminal proceedings.
Text message evidence can be highly persuasive in criminal cases and may either strengthen or weaken the prosecution case. In many matters, messages are used to allege admissions, planning, intent, association between parties, or consciousness of guilt.
However, like all evidence, text messages must satisfy the safeguards contained in the Evidence Act 1995 (NSW) before they can be admitted in a Local Court hearing or District Court trial.
For text messages to be admissible:
- the evidence must first be relevant;
- the evidence must not be excluded under discretionary exclusionary provisions; and
- the court must ultimately determine the weight to be given to the evidence based on its reliability and credibility.
The weight given to electronic communications depends on the circumstances of each case.
For advice regarding criminal charges and electronic evidence, contact Criminal Lawyers Group.
WHEN ARE TEXT MESSAGES ADMISSIBLE AS EVIDENCE IN NSW?
Under sections 55 and 56 of the Evidence Act 1995 (NSW), evidence is admissible if it is “relevant”, unless excluded by another provision of the Act.
Evidence is considered relevant if, assuming it were accepted, it could rationally affect the assessment of the probability of a fact in issue in the proceedings.
In criminal matters, the “facts in issue” are generally:
- the elements of the offence charged; and
- any defence raised by the accused.
This principle was confirmed in Smith v The Queen.
The court will usually ask:
- What fact does the text message seek to prove?
- What inference can be drawn from the wording?
- Is the inference logically available?
For example, a message stating:
“Don’t tell anyone what happened last night”
may be relied upon by the prosecution as evidence of consciousness of guilt.
Whether the message is relevant depends on the inferential reasoning connecting the communication to the alleged offending.
CAN SCREENSHOTS OF MESSAGES BE USED IN COURT?
Yes. Screenshots of text messages may be admissible, although the court may require proof that the screenshots are authentic.
Section 57 of the Evidence Act 1995 (NSW) allows evidence to be provisionally admitted pending further proof.
For example:
- a screenshot may be provisionally admitted while the prosecution establishes authenticity;
- a conversation may only become relevant once authorship is proven.
Issues commonly raised include:
- whether the messages were altered;
- whether the account belonged to the accused;
- whether messages are incomplete or taken out of context.
CAN TEXT MESSAGE EVIDENCE BE EXCLUDED?
Even if text messages are relevant, they may still be excluded under various provisions of the Evidence Act 1995 (NSW).
SECTION 135 – GENERAL DISCRETION TO EXCLUDE EVIDENCE
Under section 135, the court may exclude evidence if its probative value is substantially outweighed by the danger that the evidence might:
- unfairly prejudice a party;
- mislead or confuse the court or jury; or
- cause undue waste of time.
Text messages may be excluded where:
- conversations are incomplete;
- screenshots distort context;
- large volumes of messages risk confusing the jury; or
- inflammatory language creates unfair prejudice.
SECTION 136 – LIMITING THE USE OF EVIDENCE
Section 136 allows the court to limit the purpose for which evidence may be used.
For example, messages may be admitted solely to show association between parties rather than proving the truth of the contents.
SECTION 137 – EXCLUDING UNFAIRLY PREJUDICIAL PROSECUTION EVIDENCE
In criminal proceedings, section 137 requires the court to refuse prosecution evidence where its probative value is outweighed by the danger of unfair prejudice to the accused.
This provision is frequently relied upon in defended hearings and jury trials involving disputed electronic communications.
ILLEGALLY OBTAINED TEXT MESSAGES AND RECORDINGS
SECTION 138 – IMPROPERLY OR ILLEGALLY OBTAINED EVIDENCE
Section 138 gives courts discretion to exclude evidence obtained improperly or illegally unless the desirability of admitting the evidence outweighs the undesirability of admitting improperly obtained evidence.
This commonly arises where:
- police unlawfully access phones or devices;
- messages are obtained through improper searches;
- surveillance laws are breached; or
- conversations are secretly recorded.
The court balances competing public interests, including:
- the importance of convicting wrongdoers; and
- the need to discourage unlawful conduct by investigators.
This balancing exercise was discussed by the High Court in Kadir v The Queen.
For assistance challenging illegally obtained evidence, visit Criminal Lawyers Group – Criminal Defence Lawyers Sydney.
SECRET RECORDINGS AND THE SURVEILLANCE DEVICES ACT NSW
Recorded conversations may also be subject to the Surveillance Devices Act 2007 (NSW).
Secret recordings made without consent can potentially be excluded under section 138 of the Evidence Act.
However, exclusion is not automatic. Courts conduct a balancing exercise to determine whether the evidence should nevertheless be admitted.
SECTION 90 – UNFAIR ADMISSIONS
Section 90 of the Evidence Act 1995 (NSW) protects accused persons from unfair admissions.
The court may refuse to admit admissions made in circumstances where it would be unfair to use the evidence against the accused.
This may arise where police:
- engage in trickery or subterfuge;
- improperly induce admissions;
- create a false belief that statements will not be used in evidence.
The principles were considered in R v Sophear EM.
WHAT IS “PROBATIVE VALUE”?
“Probative value” refers to the extent to which evidence could rationally affect the assessment of a fact in issue.
Text messages may have strong probative value where they:
- contain admissions;
- demonstrate planning or intention;
- show contemporaneous knowledge; or
- indicate consciousness of guilt.
However, probative value may be weakened where:
- context is missing;
- messages are incomplete;
- sarcasm or slang is involved; or
- authorship is disputed.
The High Court addressed this issue in IMM v The Queen.
RELIABILITY WARNINGS FOR TEXT MESSAGE EVIDENCE
Even where text messages are admitted, the court may still warn a jury or fact-finder about reliability concerns under section 165 of the Evidence Act 1995 (NSW).
A section 165 warning may address issues such as:
- disputed authorship;
- incomplete conversations;
- misleading screenshots;
- fabrication or alteration concerns.
The court may direct caution when determining:
- whether to accept the evidence; and
- the weight to give the evidence.
CAN PHOTOS, VIDEOS AND VOICE MESSAGES BE USED AS EVIDENCE?
Yes. Courts may admit:
- photos of conversations;
- screenshots;
- videos;
- voice recordings;
- recorded phone conversations; and
- multimedia app communications.
However, admissibility depends on compliance with the Evidence Act 1995 (NSW) and, where applicable, the Surveillance Devices Act 2007 (NSW).
NEED ADVICE ABOUT TEXT MESSAGE EVIDENCE?
If you have been charged with a criminal offence and police are relying on text messages, WhatsApp communications, recordings or electronic evidence, obtaining early legal advice is critical.
Contact Criminal Lawyers Group for advice regarding:
- defended hearings;
- District Court trials;
- admissibility challenges;
- section 138 applications;
- exclusion of improperly obtained evidence; and
- criminal defence representation throughout New South Wales.