Australia: Evidentiary issues with social media and confessions and admissions

Last Updated: 31 January 2016
Article by Paul Venus

Most Read Contributor in Australia, September 2017

Tips for practitioners

  • Existing evidentiary principles apply to confessions made on social media. Ensure that you strictly comply with the requirements at Common Law or under the Evidence Act.
  • It is necessary to prove that the person who is supposed to have made the confession actually posted the statements that are alleged to be a confession. This can be difficult to prove unless you can lead evidence of the act of a person making a post.
  • Authentication of a post may involve reliance on circumstantial evidence. Be aware that the timing of a post, content of a post or context of an exchange of posts may be useful to authenticate it.
  • The social media confession must be voluntary, and fair to admit into evidence, just like any other confession.


There is an old proverb that "open confession is good for the soul". Recently, it seems that users of social media have taken this message to heart. Every month, news services report on criminals who have confessed on Facebook. Murder, rape, theft and all manner of socially abhorrent behaviour are paraded on social media.1 Facebook and other social media sites even have "confession pages", which are meant to enable people to share statements, including confessions on an anonymous basis. Since 2013, many of these pages have gone viral on the internet.

The law relating to confessions is relatively established. A confession is an admission which is a direct and express acknowledgment of facts suggesting guilt. Both at Common Law and under s 81 of the Evidence Act 1995 (Cth), the hearsay rule does not apply to evidence of a confession. However, courts have the discretion to exclude evidence of a confession in certain circumstances.2 There are a number of legal requirements that must be met before a confession will be allowed as admissible evidence. Once a confession is admitted, the weight which should be attached to the confession is a matter for the jury.

But does the confession made on a social media platform, in a Facebook post, in a tweet or on some other form of medium easily fit within these rules of evidence? The answer is that the existing evidentiary principles that relate to confessions made other than on social media will also apply to social media confessions. But, that being noted, social media does present specific issues that need to be addressed when determining if a post on that media is admissible as evidence of a confession.

Provenance of the social media post

The first problem that arises with confessions made on social media sites is one of provenance. It is necessary to prove that the person who is supposed to have made the confession actually posted the statements that are alleged to be a confession.

It is always possible that a person did not make a post, and unless someone can give evidence that they saw the person make the post there can be arguments from a defendant that the post was not made. In the absence of an admission that a post has been made by a person, it is necessary to lead evidence to prove the provenance of the post having been made.

It may be possible to prove that a post has been made by leading evidence to show the origin of a post in circumstances where only one person had access to the computer or device on which the post was made.

In 2014 in the Western Australian case of Dabrowsk v Greeuw, 3 the defendant to a defamation case denied making a post on a Facebook page. She claimed that she had typed the words for the post but not posted them and that someone unknown to her must have remotely accessed her computer, cut and pasted the words she wrote, changed them to add further information and then posted the words on her behalf. She also denied that the post was made by her on the day alleged that it had been made.

Against this five witnesses gave testimony that they saw the post on Facebook on the day it was alleged to have been made. In a defence and in statements to the court, the defendant had also made prior inconsistent statements that led the court to conclude that the post had actually been made by the defendant. No evidence was led in the case by either party to explain how someone else could have remotely accessed the defendant's computer and made the posts that the defendant asserted she did not make.

Showing that the post contains information only one person would know can help to authenticate the author of a post. In 2012, in the case of Tienda v State, 4 the Texan Court of Criminal Appeals made findings on the provenance of pages from a MySpace account. The court found that the pages belonged to the appellant because they had photographs of the appellant showing distinctive features, information about the alleged victim of the appellant, references to the appellant's gang and messages referring to an ankle monitor worn by the appellant.

Leading evidence that the post was part of an exchange of posts to circumstantially prove the provenance of a post is also possible. In 2014 in the South Australian case of R v Usher, 5 it was alleged that the provenance of a post could not be proven. In that case the timing of correspondence fitted the chronology of a complaint concerning an alleged rape and that was considered instructive as to the provenance of the post.

Fairness of using social media confessions

Assuming the confession can be authenticated, the next issue to arise is whether the confession on social media is actually admissible. This is a matter for the court to decide and it is commonly the subject of a pre-trial hearing.

In the High Court of Australia case of Tofilau v R, 6 Gummow and Hayne JJ at [28] held that:

There are three separate, but overlapping, inquiries that may have to be made in deciding whether evidence of an out of court confessional statement is admissible. First, there is the question, commonly described as a question of "voluntariness" presented when the confession in issue is made to someone identified as a "person in authority". Secondly, there may be the consideration of exclusion of evidence of the confession based upon notions of "basal voluntariness". Finally, there is the discretion to exclude evidence of the confession for reasons of fairness, reliability, probative value or public policy.
Their joint judgment in Tofilau held at [68] that:
The chief focus for the discretionary questions that arise remains upon the fairness of using the accused person's out of court statement, rather than upon any purpose of disciplining police or controlling investigative methods.

The District Court of Queensland had reason to consider these principles in 2013 in light of confessions made on a Facebook account in the case of R v Hasanov. 7 In that case, the defendant, a foreign student studying in Australia with the support of a government scholarship, was charged with the indictable offence of rape of a fellow student. The defendant had been interviewed by police about the alleged rape and then afterwards there had been an exchange of messages on Facebook between the complainant and the defendant.

The defendant was alleged to have made the following post:8

I am really sorry. I apologise for that night. But I ask you to think before acting. We both adult. We both were drunk. I did not mean to do anything that make you uncomfortable. If you don't want to see me again it is ok. But please understand me, you have always been respected person for me. If you want tell me your place I can come and solve the problem. I have also sister and believe me I can understand you never wanted to behave you disrespected.

The complainant then posted that she was not going to the police but wanted the defendant to admit what he did and apologise. In response, the defendant replied with a post that materially stated:

"I am sorry, I apologise for that. I did wrong ..."9

The defendant argued that the posts should not be admitted as evidence. He argued that the complainant was a person of authority and as such induced the defendant to make the subsequent post and so the confession in that post was not made voluntarily. He also argued that the post was not a reliable confession because the defendant may have been prepared to offer the apology just to avoid the matter being taken to the police by the complainant.

The court held that the complainant could not be seen to be a person in authority and that there was no aspect of their relationship that created an imbalance of power. The court also held that the will of the defendant was not overborne by the Facebook messages.

However, the court exercised its discretion to exclude evidence of the Facebook posts of the defendant after the initial post. The judge did this because he considered that it was possible the post was made in order to avoid police involvement for the foreign student and therefore the reliability of it as a confession was questionable.


Police around the world are embracing social media as a way to obtain valuable information about criminal conduct and bring perpetrators to trial.10 The number of users of social media is now staggering. Facebook alone has over 1.49 billion users worldwide.11 But for there to be effective use of this veritable gold mine of evidence the authorities must ensure that they comply with the long standing rules about the admissibility of confessions as evidence. As the cases cited above have demonstrated, this can be a complex task. The intricacy of the social medium in use can and often does lead to more onerous requirements to establish proof of the confession. However, as the cases have shown, those intricacies do not make the task insurmountable and it is therefore likely that in the future social media confessions will continue to become an important form of evidence in many criminal law cases.


1 See, for example, Listverse, 10 Chilling Social Media Confessions to Murder,
2 See Evidence Act 1995 (Cth), s 90.
3 Dabrowsk v Greeuw [2014] WADC 175.
4 Tex Crim App 2012.
5 R v Usher(2014) SASCF 32; (2014) 119 SASR 22; BC201402568.
6 Tofilau v R (2007) 231 CLR 396; [2007] HCA 39; BC200707276.
7 R v Hasanov [2013] QDC 342.
8 Above n 8, at [9].
9 Above n 8, at [11].
10 See for example, MashableAsia, 20 cases solved using Facebook,
11 Statista: The Statistics Portal,

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.