Australia: Evidentiary issues with social media and confessions and admissions

Last Updated: 31 January 2016
Article by Paul Venus

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.

Introduction

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.

Conclusion

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.

Footnotes

1 See, for example, Listverse, 10 Chilling Social Media Confessions to Murder, www.listverse.com.
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, www.mashable.com.
11 Statista: The Statistics Portal, www.statista.com.

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.

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