A woman was cleared on appeal of hacking her estranged husband’s Facebook account and downloading a Messenger chat featuring a topless photo of his new partner which she used in a bid to prove his adultery. 

The 38-year-old Qormi woman and her husband were locked in separation proceedings when the incident took place back in June 2016.

After her husband had moved out of the matrimonial home, the woman turned up at his parents’ home very early one morning asking for a laptop so that she could share with her in-laws the compromising data.

In the presence of her mother-in-law and five-year-old child, the woman logged into her husband’s Facebook account and proceeded to show the explicit image to the concerned relatives.

Minutes later while still at his parents’ home, she called her husband, accusingly telling him of his partner’s intimate photo in his Messenger chat.

Prior to that call, her estranged husband had allegedly received a notification email alert that his Facebook password had been changed. 

The downloaded chat, including the topless image, was subsequently presented by the woman in proceedings before the Family Court in support of her claims about her husband’s adultery. 

Months later, the man and his partner filed a police complaint and criminal action was instituted against the wife for the allegedly unauthorised access to her husband’s Facebook account and her disclosure of the data therein. 

The woman argued that she had never hacked her husband’s Facebook account, stressing that the password was “stored” on the laptop which the couple used to share when still living together.

Eventually, her husband’s partner dropped her complaint.

However, proceedings against the woman continued and she was found guilty by a Magistrates’ Court and fined €6,000.

When the case moved to the appeal stage, the court observed that evidence put forward by the prosecution was “weak and scarce”.

Circumstantial evidence had to be unambiguous and all evidence had to be assessed as a whole in such a manner as to prove the allegations beyond a reasonable doubt.

In this case, the court could only rely on the testimony of the investigating officer who had not personally witnessed the incident, together with that of the appellant’s husband and his mother.

The laptops involved were not seized, service providers were not summoned to testify and no information was sought from Facebook Incorporation to prove who had actually accessed the husband’s account. 

The prosecuting inspector testified that he had relied on the complaint by the husband and the statement subsequently released by his estranged wife.

Yet, that statement was not produced in the records of the case and thus could not be referred to.

Nor had the police questioned the appellant’s brother who had allegedly received a copy of the downloaded chat, topless image and all, from his sister. 

The court could not even confirm the identity of the woman in that photo and her intimate exchange with the appellant’s husband.

A transcript of her testimony could not be found in the records of the case and when summoned to testify again, the woman was declared unfit to do so by her doctor. 

When all was considered the Court of Criminal Appeal, presided over by Madam Justice Consuelo Scerri Herrera, concluded that in view of great lingering doubts, the court could not confirm the conviction.

Circumstantial evidence together with the testimony of the husband and his mother, “who would doubtlessly confirm her son’s version in such circumstances”, was not enough to prove the case beyond a reasonable doubt.

Separation proceedings often gave rise to similar problems between warring couples and against such a background the court certainly did not feel comfortable in confirming the conviction.

Madam Justice Scerri Herrera acquitted the appellant of all criminal liability and revoked the €6,000 fine.

Lawyer Arthur Azzopardi assisted the appellant.