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Incriminating Evidence On Cell Phones

March 2021

Cell phones are very useful – for telephone calls, text messaging and photographing. However, the information contained on the cell phone can be incriminating.

An abandoned cell phone

In a recent Court of Appeal case, the police were pursuing a young male driver who was driving at 160 kilometres per hour. During the chase, the driver drove off the main road into a forestry track and crashed his car into the tree. He fled the car and ran into the forest to avoid the police. When the police arrived at this car, a female passenger who was still in the car refused to identify the driver but upon being question by the police pointed at the cell phone at the passenger’s footwell and confirmed that it belonged to the driver.

A Constable picked up the phone, swiped the screen and found it unlocked. The Constable came across a text message thread between the driver and another man (Mr R) including a photograph of a truck which was stolen in the area a few days ago.

A prosecution 

The police used the evidence obtained from the cell phone to obtain a production order against Mr R and found the truck resulting in the arrest of Mr R, who was charged with receiving the truck stolen from commercial premises in Kawerau. He was found guilty in the District Court but appealed that conviction.

A lawful search of property

Mr R applied to the Court of Appeal to have the evidence obtained against him by the Constable on the cell phone deemed unlawful. The Court of Appeal ruled that police are entitled to lawfully search property that has been abandoned. Search and surveillance laws against unjustified intrusions of privacy do not apply to abandoned property. In this case, the cell phone had been abandoned and the police were lawfully entitled to search it and that is how they came across Mr R and the stolen truck. The Court of Appeal concluded that the evidence obtained from the cell phone could be used against Mr R. The appeal was dismissed.

Conclusions

 

This case highlights how cell phone evidence can be used by both the prosecution and the defence to their advantage. Whilst cell phone evidence will not be determinative of a case, it might assist in corroborate evidence one way or another. The convenience of cell phones is unquestionable. But you need to be aware that in certain circumstances the information contained on your cell phone can be used in evidence against you.