R v Jenkin (No 14)

On Wednesday 23 May 2018, over the objection of the accused and following a relatively brief voir dire, I ruled that an electronic video file recovered from a mobile telephone was admissible in the Crown case. The file, which had the name “MOV_0051.mp4_fixed.mp4”, became part of Ex CC. Ex CC is a disc that contains two other video files to which objection was not taken. These are my reasons for deciding that the evidence is admissible.

On the Crown case, the video file in question was “recovered” from another video file (“MOV_0051.mp4”) located on a telephone seized from the accused at the time of his arrest on 8 April 2015. The evidence will be that the recovered file depicts the deceased in the accused’s bathroom in the days or weeks prior to his death. According to the data recovered from the ‘phone, the video was recorded on 22 March 2015 at about 4:20pm. The accused is charged with the deceased’s murder. The Crown case is that the accused was filming the scene and that his voice can be heard speaking to, or abusing, the deceased.

At the heart of the objection (in its various formulations) is the fact, not disputed by the Crown, that the original video file on the mobile telephone was unable to be played either (as I understood the evidence) on the telephone itself or when the file was first downloaded (or extracted) by police using a well-known computer programme called Cellebrite. As it could not be played, the Crown expert witness, Senior Constable Yang, described the file as being “corrupted”. This description, and the manifestation of the problem with the file, was somewhat circular: the file was corrupted because it could not be played; it could not be played because it was corrupted. There was no evidence of the nature of any “corruption” to the file. Mr Yang gave evidence that he used another computer programme – Untrunc – to “recover the broken video file to make it playable”. [1] He said that there were many programmes available to recover video files that could not be played. He could not explain why he chose Untrunc over the other programmes available at the time. However, he was satisfied that the process was successful in recovering the file.

It appears, from viewing and listening to the video file, that the audio component cuts out towards the end. Mr Yang could not explain why this occurred. Nor could he explain the technical operation of Untrunc and the way it worked to enable the user to play, view and hear the file. He could not rule out the possibility that the recovery process itself may have caused the difficulty with the audio. However, he had not encountered any such difficulties with Untrunc before. He could not rule out with any certainty the possibility that there were other problems with the recovered file.

All of that having been acknowledged, viewing the file suggests that what was recovered is a continuous visual and audio narrative. There are no obvious gaps or breaks in the recording as recovered. The “corruption” of the file, however it occurred, may have impacted the beginning and end of the recording but it does not seem to have affected the continuous portion upon which the Crown seeks to rely.

In outlining the nature of the objection, Mr Lowe indicated that the primary question was “whether the Crown can satisfy your Honour under ss 47 and 48 of the Evidence Act”: T 1082. He said that there were supplementary objections under ss 135 and 137 of the Evidence Act 1995 (NSW). He indicated that there was no question that the file came from the ‘phone “but the issue is the expertise of this particular witness; whether it is, as identified in his report, that he was – we say that there are real problems with the authenticity of the actual file”: T 1082.

In cross-examination, there was some challenge to Mr Yang’s expertise. However, no submission was made under ss 76-79 of the Evidence Act concerning the officer’s qualifications to give the evidence. In particular, there was no evidence suggesting that he was not qualified to operate the Cellebrite or Untrunc programmes or that his selection of the Untrunc programme was the manifestation of some deficiency in his qualifications or expertise. It is clear that he was not an expert in the functions or technical operation of the particular model of telephone in question (a Sony Experia D 2005) and that he could not give technical evidence as to how the Untrunc and Cellebrite programmes actually worked. But those were not the areas of expertise upon which his opinions were based. In the absence of any submissions to the contrary, I proceeded on the basis that the witness was qualified to use the relevant programmes to extract and repair the movie files from the mobile telephone and to provide an opinion as to the usual result of that process.

I will deal very briefly with the supplementary objections under ss 135 and 137. There is no substance in these submissions.

The basis of these objections was that the evidence is misleading (s 135) or is unfair or prejudicial (s 137), and that these matters outweigh the probative value of the evidence. I was unable to accept these submissions. I have explained the fundamental factual contest between the parties in previous judgments. The Crown says the deceased was detained against his will, subject to violence and abuse, with the intention of using his cash card. The defence case, insofar as it is known, is that the accused was assisting the deceased by letting him stay at his flat while the deceased was drying out from alcoholism.

In light of that factual dispute, evidence of the way Mr Dower was being treated a few weeks before his body was found in a nearby laundry has (potentially at least) a high degree of probative value. The recording shows him being held up by another man (allegedly Paul Turner) while being abused for losing control of his bowel movements. He is called, amongst many other things, “a dirty cunt” and a “filthy little fucken animal”. He is told how to stand and not to move. Mr Turner is directed to “turn him around” and throw him in the bath. At the end of the recording, Mr Jenkin is heard to say something like “I’m gonna kill him.” The Crown accepts that those final words could not be used to support an intention to kill for the purpose of the murder charge. However, the scene viewed and heard as a (possibly truncated) whole has a not insignificant capacity to affect the existence of a fact in issue – namely, the circumstances in which, and the reason or reasons why, Mr Dower was at Mr Jenkin’s unit.

The fact that the audio cuts out at the end is not misleading or unfair in any significant sense. As the tribunal of fact, I am able to understand that the context in which this scene unfolded is not known and that the scene is not determinative of the ultimate issues in the trial or even the intermediate question identified in the final sentence of the last paragraph.

Nevertheless, it remains important evidence and its probative value outweighs the danger that it might be misleading (s 135) and the danger of unfair prejudice (s 137).

I turn then to the primary basis of the objection which is based on the provisions in ss 47 and 48 of the Evidence Act. Those sections provide:

The word “document” is defined in the Dictionary to the Evidence Act as follows:

The argument commenced with the proposition that the disc containing the recording was a document under the definition. This is undoubtedly correct.

The argument proceeded that the only avenues under s 48 through which the Crown could tender the document were sub-ss (1)(b) or (1)(d). Those subsections were not satisfied because the document did not “purport to be a copy” of the original file and was not produced by a device designed to retrieve “it” (that is, the original file). So it was put (at T 1116):

The Crown Prosecutor submitted that the “document” with which we are concerned is the recovered file (not the file on the ‘phone) which is, on the Crown’s argument, “a document in its own right”. He observed that the provision in s 48 was facilitative rather than being concerned with admissibility. He also relied on s 48(4) and the decision of the Victorian Court of Appeal in Wade v The Queen [2014] VSCA 13; (2014) 29 A Crim R 29 and referred to the abolition of the original evidence rule (s 51 Evidence Act) and the presumption that a device or process produces the expected result (s 146 Evidence Act).

I accepted the Crown Prosecutor’s primary submission.

The video file (or “document”) that became Ex CC is a copy of a “document” for the purpose of s 48. However, it does not purport to be a copy of the corrupted (or, I think more accurately, unplayable) video file on the accused’s mobile telephone. Rather, it was a copy of the video file (or document) created by the Untrunc programme when it repaired or recovered a (playable) version of the original file that was on the telephone (and/or downloaded by means of the Cellebrite programme).

The application of s 146 allows for the presumption that the programme produced the result that it would ordinarily produce. That is, the Untrunc programme created an accurate (even if truncated) version of the video file that was corrupted or unplayable when extracted or downloaded from the mobile telephone.

Once this is understood, s 48 operates to allow the tender of the copy of the document rather than as an exclusionary provision whereby the tendering party is required to establish that the recovered file is a precise copy of the corrupted file.

Even if the assumptions in the foregoing paragraphs are not correct, ss 47(2) or 48(4) would apply to facilitate or permit the tender of the document. On what I believe is the incorrect assumption that the “document” in question is the corrupted (unplayable) file on Mr Jenkin’s telephone (which is impossible given that it cannot be played), s 47(2) would allow a copy of a document that is “not an exact copy” but is identical in all material respects. The copy tendered is not an exact copy because the data and technical details must, presumably, have changed in the recovery process. Further, it at least appears that part of the document is different in that it contains no sound at the end, although there is an element of speculation in this. Even so, “in all relevant respects” it is identical to the corrupted file on the telephone. This accords with the opinion of Mr Yang at paragraph [13] of his statement.

Section 48(4) would allow evidence to be given of the contents of the document (that is, the data, images and audio on the corrupted video file) because it “is not available to the party”. In Wade v The Queen, the Victorian Court of Appeal held that the section allowed a police officer to recount details of CCTV footage that had been lost. I accept the Crown’s submission in this case that the file recovered or repaired by means of the Untrunc programme falls within the provision in s 48(4).

It is for those reasons that I held the evidence to be admissible.