We are often asked about what rights flow for individuals with respect to their personal property and in particular their property which is in the possession of the police (having been seized) and personal property that may become the subject of a police investigation (not yet seized).

This blog focuses on important considerations of how people can lawfully act in relation to their property which may tend to be used in evidence.

In the old days, which are not so long ago, our advice may have been limited to evidence of a physical kind, such as blood stains on clothing, shoe imprints, fingerprints and so on.  Our world now is becoming increasingly more technically driven and people increasingly store information on electronic devices rather than in physical form.

Police investigations are also changing and evolving in order to keep up with technological advancements.  There are dedicated units of the police force whom specialise in extracting electronic evidence from devices including deleted data and data stored in cache (temporary files).

Regardless of whether the evidence is physical or electronic the consequences of attempting or actually destroying evidence are serious.  If a person is suspected of having attempted to or actually destroying evidence the police may charge them with any of the following offences:-

  • s129 of the Criminal Code – damaging evidence with intent; and/or
  • s132 of the Criminal Code – conspiring to defeat justice; and/or
  • s133 of the Criminal Code – compounding an indictable offence.

All of these offences carry a head sentence of 7 years imprisonment.  It is very likely that if convicted a person will be sentenced to serve actual time in custody for offences of these kinds, although each individual case varies.

In an attempt to play hard ball with the police people may consider destroying evidence or attempting to destroy or lock the police out of electronic evidence.

Deleted material is recoverable most of the time which includes SMS text messages, call logs, emails, web searches and so on.  Even if a device can be “wiped” data such as text messages and telephone logs are generally also available through network provider for a period in excess of 6 months.  That means for example that even if the police are unable to recover the SMS text messages from a phone itself, they will likely be able to obtain them from the network provider in full form.  We have had matters were the police have successfully obtained text messages by taking that course.

Importantly taking action to destroy electronic evidence may be capable of being evidenced by police electronic evidence experts who will attempt to access a device and its contents.  In taking a forensic image of a device the police may be able to establish that material was “wiped” or “deleted”.  Using specialised programs the police may even be able to recover deleted material either in fragment or in full.  They may also be able to establish how and when data was “wiped” or “deleted” or how a device was “locked” and from what device those actions were initiated.

If you are being investigated for an offence or you have already been charged with an offence it is important that you obtain legal advice about how to manage your circumstances within the law.  Taking steps to “damage control” by attempting to or actually destroying evidence may harm you further and result in further charges.  Obtain legal advice before taking any such action.