The technological landscape of criminal law is constantly changing, which requires defence lawyers to be adaptable. In the last few years alone, tech developments have impacted the way that evidence is collected, produced, and relied on in criminal cases. Additionally, increases in internet and social media usage have resulted in a spike in cybercrime and privacy concerns, with fraud, blackmail and data leaks becoming more prevalent.
The Impact of Technology on Criminal Law: Digital Evidence
The digitalisation of evidence has significantly impacted criminal cases. These impacts include changes to the way that crimes are investigated, and evidence is procured. Digital forensic evidence is a rapidly expanding area of forensic science, encompassing computer forensics, audio video analysis and speaker and face comparison. A myriad of techniques have been developed to recover, extract, preserve and analyse data. These have ranged from the recovery of deliberately erased data to the detection and tracking of unauthorized network intrusion and the identification of the origin (or source) of data through analysis of metadata and file artefacts. In criminal cases, police procure evidence from an accused person’s device (such as their mobile or laptop). It is also common for police to rely on GPS metadata extracted from an accused person’s device to determine their location before, during and after an alleged crime has been committed. This can significantly impact the investigation of a crime that is alleged to have been committed, and can often implicate an accused who is placed, through their device, near the purported crime scene. To ensure that such evidence is deemed admissible, police engage the services of telecommunication experts. These experts are used to corroborate information reports and ensure that the data obtained is accurate.
Ultimately, the proliferation of digitalised evidence has dramatically changed the way that criminal cases are conducted. Digital evidence is multifaceted and can be complicated. Accordingly, it is imperative that accused persons engage in representation who have experience navigating this evolving landscape. Given the landscape is always changing, there are often legal questions regarding the admissibility of new forms of evidence. This can range from the validity of warrants used to obtain the evidence, to issues with expert evidence over the accuracy of the evidence. Engaging lawyers and barristers who can cross examine witnesses and determine the admissibility of such evidence may be crucial in determining whether a person is found innocent, or guilty. This issue was pertinent in the Court of Appeal case of Ward v The Queen  VSCA 80. In this case, the Court found that opinion evidence provided by a telecommunications expert was not admissible. The main issue central to the appeal was whether evidence provided by the expert at trial could place the defendant at the scene of the crime. It was alleged at trial that the defendant was guilty as an associated cell phone was active near the location of the offences, at times proximate to their commission. Although the appeal was ultimately dismissed, the Court held that the trial judge erred in admitting the technician’s evidence with respect to the probability, expressed as a percentage, that a mobile telephone was in a particular geographic area at a particular time. This case demonstrates the need for expert criminal lawyers, who can challenge digital forensic evidence.
The Impact of Technology on Criminal Law: Cyber Crime
In addition to changes in the evidentiary landscape of criminal cases, the proliferation of technology has seen an increase in cybercrimes. In Australia, cybercrime is a term used to describe both cyber-dependent crimes, such as computer intrusions and denial of service attacks, as well as cyber-enabled crimes, such as online fraud, identity theft and the distribution of child exploitation material. Cybercrime is criminalised pursuant to Part 7.3, 10.6 and 10.7 of the Commonwealth Criminal Code Act 1995. Offences include:
- dishonestly obtaining or dealing in personal financial information
- online child sexual exploitation and abuse
- cyber abuse including non-consensual sharing of intimate images
- computer intrusions
- unauthorised modification of data, including destruction of data
- unauthorised impairment of electronic communications, including denial of service attacks
- the creation and distribution of malicious software (for example, viruses and ransomware)
- using a carriage service to menace, harass or cause offence
Additionally, each state and territory in Australia have their own cybercrime related offences contained in their respective criminal legislation that complement Commonwealth. In Victoria, such provisions include sections 81 and 82 of the Crimes Act 1958, which deal with obtaining property/finance by deception and section 51, which has several provisions dealing with the creation and circulation of child abuse materials.
These crimes are prosecuted daily and require expert criminal lawyers such as those at Galbally Parker to prepare and navigate a defence. The team at Galbally Parker specialises in cyber crime and has in-depth knowledge and understanding of the legal framework surrounding cyber crimes. We can provide expert guidance and advice tailored to your specific case.