The case of a woman alleged to have breached a protection order taken out by her former partner, whom she claimed had fabricated evidence of an abusive Whatsapp message using Photoshop, has collapsed due to a defect in the charge sheet.
The 24-year-old woman had been charged with breaching the protection order, which barred her from contacting her former partner. The court heard that she made no reply when cautioned and has no previous convictions.
The 25-year-old complainant told Tallaght District Court that the woman sent him an abusive message on January 3rd last. The man said he showed the phone message to a garda and again at a garda station, while he also printed out a screenshot of the message.
However, the man said his phone is not working due to water-damage and cannot be examined – leaving only the paper printout, which the defence submitted was “photoshopped”.
Solicitor Michael Hennessy, representing the woman, argued that the alleged message – which was said to have read “You’re a prick – I’ll have you arrested every weekend if I have to” – never appeared on his client’s phone. He said if it had been sent and deleted, there would be a visible notification saying ‘message deleted’.
“You can’t completely erase a WhatsApp message without leaving a digital footprint,” he told the court. “There’s nothing; no message, no deletion record, no notification.”
He submitted that the message had been fabricated using photo-editing software – and said the woman offered her phone to gardaí at the time to prove her innocence, but they declined to examine it.
Prosecutor for the DPP, Dr Seán Smith, said the printed message matched what gardaí saw on the complainant’s phone and said digital evidence doesn’t need expert analysis unless tampering is proven.
However, the defence pointed out the State was relying on a legal precedent that’s nearly 20 years old – from before WhatsApp existed – and argued the law hasn’t caught up with modern technology.
“If that’s the case, then a digital security expert should be called,” Dr Smith responded.
However, the case ultimately collapsed when Judge Patricia Cronin noticed the final page of the charge sheet listed a completely different name and address for the defendant – appearing to relate to another case entirely.
“I can only go on what I’m handed,” she said.
Citing Order 38 of the District Court Rules, the judge said that where the evidence doesn’t match the summons, the court can’t fix the paperwork during proceedings and ruled there was no admissible evidence to support the charge.
“I must grant the defence application for a direction – and dismiss,” she said.