GABLE Tostee’s obsession with technology helped prove he did not murder Warriena Wright.
In a landmark case, the audio recording Tostee took the night the Kiwi tourist died and their conversations online were pivotal in the jury finding him innocent.
Less than a decade ago a jury would never have been asked to listen to a recording from a smartphone, or to read social media conversations to determine guilt or innocence.
The trial was a benchmark case for all of that.
INSIDE THE TRAGIC TINDER DATE
Private Tinder conversations between Tostee and Ms Wright, who fell to her death from his 14th-floor Surfers Paradise apartment, to Facebook posts showing the Kiwi’s travels in Australia were presented as evidence for all the world to see.
A Facebook conversation between Ms Wright and her sister where she gushed over Tostee, comparing him to Sam Winchester from the TV show Supernatural, was read out in the Supreme Court in Brisbane.
Gold Coast criminal lawyer Brooke Winter said technology and social media evidence had the potential to make or break trials but only if combined with other types of evidence.
“There is no such thing as a private conversation on social media,” he said.
“There has been a lot of cases where comments made by a person on social media have come back to be a prior inconsistent statement to a defence being run in court.
“Other times, comments or conversations from social media are used in evidence to support a defence case.
“Evidence like that is just a piece in the jigsaw puzzle.
“In isolation, it may not change the course of events (in a trial) but when it’s plugged in with other evidence, it could well make or break a case.”
The most compelling piece of evidence in Tostee’s murder trial was the audio recording the 30-year-old made on his smartphone the evening Ms Wright fell to her death.
The court was never told the reason Tostee pressed record on his smartphone.
It was described by defence Barrister Saul Holt QC as the “key to the case” and the reason Tostee did not take the stand to give evidence.
Bond University criminologist Terry Goldsworthy said without the recording it would have been difficult for Tostee to raise a defence.
“If he didn’t have the recording ... there would have been no real evidence and I think it would have been a much harder case for him to prove the case,” he said.
Oddly, the audio evidence became key to both prosecution and defence cases and ensured crucial facts of the case were not in dispute — including agreement Ms Wright was not pushed by Tostee. She tried to climb down after he locked her out on the balcony.
Mr Holt said the audio showed Ms Wright had acted aggressively and thrown rocks at Tostee during the evening.
He said it showed she was “massively drunk”, hit Tostee with a metal clamp and acted “irrationally”, proving Tostee was not responsible for her death.
“Can you imagine for a moment this case if that recording had not existed?” Mr Holt said in his closing address.
“Would anybody, anybody, have believed without bursting out in unmitigated laughter an account in which Ms Wright throws rocks at Mr Tostee.
“ ... This case would have involved what neighbours heard, that messed-up scene inside the house and the fact she’s dead, on the floor, 14 storeys below.”
Mr Holt described the recording as “the only thing that really matters”.
“ ... Notwithstanding the incredibly detailed and proper forensic work done in this case, what really matters here is the recording …” he said.
“It is at the heart of this case … all the rest is context.”
Crown prosecutor Glen Cash QC said the final six minutes of the recording showed Ms Wright was in fear of her life, screaming “No, no, no, no” and “I want to go home”.
He said it showed she was in “abject terror” after being strangled by Tostee and saw no other means of escape but to climb from his apartment balcony.
“You have heard for yourselves the panic and desperation in her voice ... and that speaks more powerfully than I ever could about the cause of her death,” he said in his closing address.
Mr Goldsworthy said the rise of social media evidence in court cases was reflective of a changing society.
He said the way police gather evidence had also changed, thanks to the internet.
“In major operations, the first thing police would look for would be a person’s electronic fingerprint,” Mr Goldsworthy said.
“Facebook is one of the first points of call if you’re looking to build a profile around someone and find out who their associates are.
“Police would then go on to look at what their financial situation is and that would help in finding a motive for the offence and narrowing the suspect pool.”
Mr Goldsworthy said in order for social media evidence to be admitted in court, police needed to show the suspect was using the account and no one else could access it.
Originally published as How social media shaped the trial