We represented CH in seeking to challenge his convictions following a detailed and extensive forensic investigation, which required the Court to grant an extension of time of 2022 days. Such lengthy extensions are not to be taken for granted and would invariably have to be refused as they offend the principle of finality in criminal proceedings, but in this case, there was a detailed history of an extensive investigation with 2 forensic scientists and 4 reports which took 2-3 years to fully unravel.
The applicant had expressed reservations at trial over the extent of text messaging which was available as he did not believe this represented the message history between the parties. After conviction he maintained that strong belief and pursued the matter directly with a forensic expert himself.
When we saw that report, we came to view that the material identified was limited and following further assessment could not be advanced by the expert he had instructed. Accordingly fresh experts were instructed, and detailed work commenced manually reconstructing a significant number of messages generated through a messaging application “google hang-ups”.
One of the problems with such messaging services driven through specific applications is that they can store their data in ways which are not immediately apparent from a routine examination of the phone or computer equipment, even though to the applicant using the phone it appeared it was all just one general messaging system. This was because on some versions of the application on android phones it would integrate with the phones messaging system – so it would appear as one messaging system. As a result, at the time of the original investigation the applicant never gave a thought to it and the Crown were not at fault as they investigated the material at the time based on the information they had received.
The consequence was that a significant number of messages were uncovered by the fresh expert which raised significant concerns over a trip to York by the parties. On the complainants account it had led to a serious sexual assault in the presence of a child whilst they were in a hotel. The applicant denied that any sexual activity had taken place.
The new messages however wholly undermined this account this included a message thanking the applicant for a brilliant weekend in York and saying she had enjoyed it so much. Other messages talked with affection about the York trip and the totality of the messaging was to support a narrative which offered little support to the complainants original account. Interestingly whilst Counsel for the Crown pointed to an inconsistency in the evidence namely that the applicants account at trial was that no intercourse had taken place, but the new text messages supported the fact that there may have been consensual sexual intercourse, the Court discounted this point on the basis that it must concentrate on the impact on the complainants evidence for that was the material upon which the conviction was based.
Whilst a more general description of events after York was supported by a specimen count 7 the text messages had revealed an expressed desire for the complainant to become pregnant again which was opposite to the impression given at trial and so that conviction was also rendered unsafe in the Courts view.
The Applicant had already prior to appeal benefited from a very careful approach by the jury following very clear and precise directions from the experienced trial judge with a number of allegations on the indictment not convicted upon. He was however convicted of 3 other convictions, and these were not touched upon by the text messages discovered which had a time span relating to Counts 6 and 7 and possibly Count 8 (but this was a very specific count).
Accordingly whilst the Court considered whether this left the convictions as a whole undermined this was always going to be an uphill battle in view of the fact that the jury had already demonstrated a very careful approach to the case acting upon a meticulous direction on separate consideration and the fact that the fresh evidence could not touch upon the remaining counts.
This case demonstrates the complexities that do arise in digital evidence cases and the fact that if a defendant says there are missing messages, then it may just be possible that is the case and perseverance is required to get to the bottom of the issue.