We often hear: “You have the right to remain silent, but anything you say can be used as evidence in court.” Here, “say” refers not only to spoken words — messages on SMS, WeChat, Facebook, email, Twitter, Skype and other social platforms can also be used as “evidence in court”. With the rise of social media and mobile devices, beyond oral and written evidence, more and more evidence is gradually shifting to call histories, screenshots and similar records.

What is evidence?

Evidence generally refers to material submitted to the court to help the judge analyse the case and reach a decision. Because a judge’s decision is limited to the evidence placed before them, it is important for a party to provide as much relevant evidence as possible to support their case. Whether acting for the plaintiff or the defendant, the first step for a party’s lawyer is usually to gather all evidence that may be relevant to the matter.

What types of evidence are there?

Oral evidence

Oral evidence generally refers to a witness testifying that a person made an oral statement about a matter or issue. Proving that the person did make such a statement can be relatively difficult. In addition, there is the possibility of misunderstanding oral evidence or errors of memory. For these reasons, oral evidence is the weakest form of evidence and generally needs to be supported and corroborated by other evidence.

Real evidence

Real evidence refers to any object or trace that can prove the true circumstances of a case. In criminal cases, real evidence may include the instrument of the offence, bloodstains, or fingerprints; in tort cases, it may be a card or clothing bearing an infringing design.

Documentary Evidence

Documentary evidence is defined very broadly. It generally refers to material that stores information — such as text, images or symbols — where the content of the material is used to prove facts relevant to the case. Documentary evidence is an extremely important form of evidence in civil litigation.

Some common examples of documentary evidence include:

– contract documents;

– documents relating to pre-contract negotiations;

– government search documents (for example, company registration certificates; certificates of title);

– phone and SMS records;

– Facebook posts and message records;

– photographs;

– video (CCTV or dashcam);

– receipts;

– audio recordings (subject to rules restricting secret recordings);

– emails; and

– IT forensic evidence, including various computer logs.

Procedures differ slightly between courts. Today we will focus mainly on the criminal courts and the Family Court.

You may leave a trail without realising it

For example, at a hearing in the Federal Circuit Court, a judge ordered the Sheriff to investigate posts a father had made on Facebook concerning a child custody dispute — the father was said to have strongly criticised the court system on social media.

In another matter, a mother in a custody dispute was found to be boasting about the case on her Facebook page. After her lawyer became aware of this, she was advised to close the Facebook page, because the information on it had already become a “weapon the other side could use against them”.

This is a mistake many people make without realising it. In fact, emails and text messages have now become one of the most heavily relied upon forms of evidence in Australian family law proceedings, and such evidence is often uncontested, which gives it even greater weight.

Not just admissible — potentially decisive

Even where a dispute does not reach court, many everyday disputes turn on whether one party or the other received or read a message, email or communication on a social platform.

For example, in one dispute the father insisted that, on the day the child was to be returned to the mother, he had sent her an email in advance informing her that the child was unwell and might therefore be returned late. A dispute eventually arose because the child was returned late, and the mother claimed she had never received the email — that the so-called “email” was simply something the father had fabricated to justify the delay. The father argued that, because the parents did not get along, email was their standard means of communication, but he could not provide any further proof. With each side maintaining its own version, the court was ultimately unable to investigate the matter further.

That single email therefore became a pivotal issue in determining the credibility of both parties.

In criminal law: widespread, and capable of providing a great deal of information

Likewise, the use of SMS, email and social media messages as evidence is becoming increasingly common in criminal law.

For instance, they can show whether a text message denying or admitting an offence was sent, whether a person lied to police, or help establish a timeline that may contradict the account they have given.

SMS, email and social media messages can be retained and can also be deleted. Once you realise a message may be relevant to a case, it is important to preserve as complete a version as possible in good time, and sometimes it will be necessary to contact the telecommunications company or the social media platform itself as early as possible.

In short, social software such as WeChat has now become an integral part of our daily lives, work and business activities. Carelessness may turn it into “a handle for someone to grab”, but used well it can also be a “weapon”.