Can Text Messages Be Used As Evidence?

This article is written and reviewed by experienced criminal defence lawyers and is not intended to be relied upon as legal advice. For legal advice, call our office for a consultation.

With the proliferation of smartphones and encrypted messaging platforms, electronic communications, including SMS, WhatsApp, Facebook Messenger, Signal and other app-based messages, are increasingly relied upon in criminal proceedings as evidence. Text message evidence can be highly persuasive and may strengthen or weaken the prosecution case in criminal trials.

However, like all evidence, it must satisfy the safeguards under the Evidence Act 1995 (NSW) before it can be admitted as evidence in a District Court trial or Local Court hearing. The evidence must first be “Relevant”. If the Evidence “relevant”, it may nonetheless still be excluded under the discretionary exclusionary provisions under the Evidence Act 1995 (NSW).

If the evidence is still not excluded, then it will remain admitted in evidence and will be given certain weight dependent upon its reliability and credibility. Some evidence at this stage is given very little weight, while other evidence may be given significant weight. This is determined by the court at the relevant time and is done so on a case by case basis based on the characteristics of the evidence in question.

Let’s delve into the key evidentiary principles that govern the admissibility of text message evidence in criminal trials in New South Wales.

Legal Admissibility of Text Messages | Whan Text Messages Are Considered Valid Evidence?

Evidence is relevant if, if it was accepted, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. In other words, is the evidence is capable of bearing of the assessment of a fact that is in dispute.

In order for any evidence to be permitted to be used in a criminal trial, it must first pass the test of “relevance”. This is the starting point to determine admissibility of any evidence. Pursuant to sections 55 and 56 of the Evidence Act 1995 (NSW) (“The Evidence Act”), evidence is admissible if it is “relevant”, unless it is excluded by another provision of the Evidence Act.

In a criminal proceeding, the “facts in issue” are the elements of the charged offence and any defence raised: Smith v The Queen (2001) 206 CLR 650

As stated in Washer v Western Australia (2002) 234 CLR 492, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of a fact in issue at the trial. Explaining the process also makes it easier to apply the exclusionary rules, which dictates the admissibility of the evidence in relation to the way in which it is being used.

In the context of text message evidence, a court is likely to ask:

• What fact or element of the charge does the text message(s) purport to prove?
• What inference can be drawn from the words used?
• Is the inference logically available?

For example, a text sent by an accused person that reads “Don’t tell anyone what happened last night” could be argued to be evidence of a consciousness of guilt. The relevance will depend on the inferential reasoning connecting the message to the alleged offence.

Section 57 of the Evidence Act 1995 (NSW) contains a provisional relevance provision. The section allows a court to deem evidence relevant subject to further evidence being admitted at a later stage.

In the context of text message evidence, a court may decide:

• A screenshot of a conversation may be provisionally admitted pending proof that the screenshot is authentic.
• A message only becomes relevant once authorship is established.

Once the evidence is found to be relevant, it is admissible and can therefore be used as evidence in court for or against the accused person, unless it is excluded by any of the exclusionary rules of evidence.

How The Law Excludes Evidence in Trials | Challenges and Limitations of Text Message Evidence

Section 135 of the Evidence Act 1995 (NSW) gives a court a general exclusionary power, allowing a Court to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

• be unfairly prejudicial to a party; or
• be misleading or confusing; or
• cause or result in undue waste of time.

Text messages could be excluded under section 135 of the Evidence Act 1995 (NSW) if the extract distorts context, large volumes of messages risk confusing a jury, or inflammatory language creates unfair prejudice.

Section 136 of the Evidence Act 1995 (NSW) gives a court the power to limit the use to be made of evidence if there is a danger that the evidence might be unfairly prejudicial to one party or be misleading or confusing. For example, a text may be admitted only to show association between parties, not to prove the truth of the contents of the messages in certain cases.

In all criminal trials, section 137 of the Evidence Act 1995 (NSW) stipulates that a court must refuse to admit evidence adduced by the Prosecution if its probative value is outweighed by the danger of unfair prejudice to the defendant.

Section 138 of the Evidence Act 1995 (NSW) grants the court the power to exclude improperly or illegally obtained evidence, unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. In making that determination, the section provides a guiding non exhaustive list of criteria that the court can take into account, including the probative value of the evidence, the importance of the evidence in the proceeding, the gravity of the impropriety or contravention, whether the impropriety or contravention was deliberate or reckless, whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Text messages obtained through unlawful search, improper access to devices, or contravention of surveillance legislation may be excluded under section 138 unless the desirability of admitting the evidence outweighs the undesirability of admitting improperly obtained evidence.

This focuses on public policy to protect the public interest, not unfairness to the accused, resulting from the illegality or impropriety. It involves balancing and weighing considerations of competing public interests- convicting wrongdoers on the one hand, while on the other, the undesirable effect of giving curial approval or wrongdoing by those whose job it is to enforce the law. This is reflected in the case of Kadir v The Queen [2020] HCA 1.

Section 90 of the Evidence Act is a provision focused on unfairness to the accused if the evidence is accepted in a trial. It focuses on protecting the accused person’s right to a fair trial and includes considering whether any forensic advantage has been obtained by the Crown from the way the accused was treated. Section 90 requires the court to refuse to admit the evidence of admissions or refuse to admit evidence to prove a particular fact if:

• In criminal proceedings,
• The evidence is adduced by the prosecution,
• Having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Section 90 can apply if police have tricked an accused person into believing that their conversation will not be recorded (while knowing he or she probably would not have made admission. An admission made by an accused person in such circumstances will be unfair to admit if there’s subterfuge by police aimed at inducing the accused person to believing that what he or she said will not be used in evidence again that person-in contrast to merely inducing the accused person to believe that what he or she says was not being recorded. This issue was explored in the case of R v Sophear EM [2003] NSWCCA 374.

What is Probative Value?

“Probative value” is defined in the Dictionary of the Evidence Act as the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

Text messages can have high privative value in certain cases, for example where they contain admissions to the offending, demonstrate planning or intention, show contemporaneous knowledge, or reveal a consciousness of guilt.

However, it can be argued that the probative value of a text message is weak, for example where context is missing, the conversation is incomplete, sarcasm has been used.

The Court in IMM v The Queen (2016) 257 CLR 300 said that when the court assesses probative value of disputed evidence in a trial, it does so on the assumption that the evidence will be accepted and so matters of reliability and credibility are rarely relevant unless probative value is little to none, or there is no relevance.

Cautionary and Reliability Warnings

Any evidence that survives the relevance and exclusionary provisions outlined above which makes its way as admissible evidence in a criminal trial can still be subject to a section 165 Evidence Act caution. This requires an unreliability warning, warning that the evidence may be unreliable, with an outline of the matters that may cause the unreliability with a warning of the need for caution in determining whether to accept the evidence and weight to be given to it. This is also referred to as a section 165 direction and may be given in both local court hearings and Higher Court trials.

Can Photos, Videos, and Voice Recordings of Text Messages Be Used as Evidence in Court?

Photos, videos and text messages (all types of media messages) are potentially admissible as evidence in court. This can include recorded phone conversations, although there is limitation to this under the Surveillance Devices Act 2007 (NSW) (SDA). If the recording of a conversation is secretly recorded without the consent and knowledge of all relevant parties, such evidence can be excluded under section 138 Evidence Act in the way outlined earlier in this article. As section 138 Evidence Act is a balancing exercise, such evidence may be admissible as evidence in court notwithstanding it being done illegally.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.