R v Youseff (No 2) [2024] NSWSC 1260

Supreme Court New South Wales

Medium Neutral Citation: R v Youseff (No 2) [2024] NSWSC 1260 Hearing dates: 03-04 September 2024 Date of orders: 04 September 2024 Decision date: 08 October 2024 Jurisdiction: Common Law - Criminal Before: McNaughton J Decision: The Cellebrite report purportedly depicting the activity sensor data recorded on an Apple iPhone is excluded. Catchwords: EVIDENCE – iPhone health app data – admissibility of hearsay evidence – where Cellebrite extraction report records iPhone activity sensor data – where extraction report purports to contain data showing number of steps taken at a particular time – whether evidence admissible as an exception to the hearsay rule – whether evidence is misleading – evidence excluded Legislation Cited: Evidence Act 1995 (NSW), ss 48, 55-56, 69, 135, 144, 146-147, 183 Cases Cited: Norvill v Stokes [2006] NSWLEC 622 Texts Cited: J Peter van Zandwijk and A Boztas "The iPhone Health App from a forensic perspective: can steps and distances registered during walking and running be used as digital evidence?" (2019) 28 Digital Investigations S126-S133 Category: Procedural rulings Parties: Rex (Crown) Bahra Youseff (Accused) Representation: Counsel: S Sloane (Crown) J Stratton SC (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Just Defence Lawyers (Accused) File Number(s): 2022/259263 Publication restriction: Nil

JUDGMENT 1. This judgment provides more detailed reasons for my ruling given on 4 September 2024 that the Cellebrite report depicting the activity sensor data recorded on an Apple iPhone should not be admitted into evidence in the trial of the accused for the offence of murder. I note at the outset that the objection to this evidence was made well into the trial, and it was assumed by the Crown, prior to that objection, that there was no contest to the evidence. Accordingly, the Crown attempted to adduce the evidence without any expert, purportedly pursuant to s 146 of the Evidence Act 1995 (NSW). As can be seen from the following analysis, in my view, this evidence does not easily fit within any of the provisions of the Evidence Act.