Smartphone data and proof of innocence or guilt in criminal trials
Seven years ago, in 2010, I defended a 60-year-old male client who was falsely accused of rape by an 18-year-old woman, the daughter of one of his friends.
The pair had had a three month affair before the rape allegations were made, without any warning, in August 2009. My client was charged with six counts of rape and it was a case of his word against hers.
Forensic expert retrieves deleted iPhone data which undermines rape allegations
What eventually led to the charges being dropped and the Director of Public Prosecutions being ordered to pay $30,000 of my client’s legal costs was a treasure trove of data retrieved by a forensic and surveillance expert from my client’s iPhone.
Even though my client had deleted all of the text messages he had received from the young woman in order to conceal their relationship, the forensic expert was able to retrieve the data which showed that she had rung and texted him 326 times over the course of three months. The content of some of the text messages cast doubt on the young woman’s allegations.
Phone and social media records now a standard feature of criminal trials
Since this matter, the arrival and growth of social media has been phenomenal. Very few criminal cases today do not have social media, data from iPhones, smartphones and other electronic devices and related records as a major ingredient. The concept that “nothing is ever deleted” is a truism and we have kept pace with it.
Electronic records and applications for AVOs
Apprehended violence orders (AVOs) have also exploded numerically, and the majority of these feature electronic activity of direct relevance. This is particularly the case if a criminal charge is part of the proceedings. Many AVOs are issued as part of family law proceedings and expertise in exposing a “phony” AVO in the local court can be invaluable across jurisdictions.
Electronic communication – including by third parties – is frequently a breach of an AVO and we have designed written advice in an attempt to assist clients.
Criminal law now an electronic battleground between prosecutors and defence lawyers
A lot has flowed from the 2010 matter and our learning process has kept up with developments in the “electronic warfare” that is a feature of today’s criminal law.
The police use electronic surveillance and on-the-spot downloads from devices as a basic tool today.
We use similar methods to verify client claims and to assist in defended matters.
For information on the powers of the police to access computers, please see New laws extend police power to hack suspects’ personal computers and What do new critical infrastructure laws mean for Australian businesses?
For information on extraction of data from mobile phones by the police, please see Concerns over police reliance on Cellebrite data extraction technology.
For more information, please see Quantum computing, encryption and the law.