Transcript THE ADMISSIBILITY OF AUDIOS, VIDEOS AND COMPUTER …

The Admissibility of
Electronically Generated
Evidence in a Court of Law
Presented by
Advocate Roux Krige
THE ADMISSIBILITY OF
EVIDENCE EMANATING
FROM ELECTRONIC
EQUIPMENT
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ELECTRONICALLY EMANATED EVIDENCE MAY BE
ADMITTED IN EVIDENCE IN A CRIMINAL COURT
UNDER THE:
 Common Law
 Criminal Procedure Act No 51 of 1977
 Section 3(1) of the Law of Evidence
Amendment Act No 45 of 1988 (Hearsay)
 Electronic Communications and
Transactions Act No 25 of 2002 (ECT Act)
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DEFINITION OF DOCUMENT UNDER
THE COMMON LAW
 Any written thing capable of being evidence. See R v Daye 1908 KB 330
at 340;
 “Everything that contains the written or pictorial proof of something. It
does not matter much of what material it is made”. See Seccombe v
Attorney-General 1919 TPD 270, 272, 277-278. This definition
includes a photograph. See Mpumlo 1986 (3) SA 485 (E) which was
agreed to by Baleka 1986 (4) 192 (T) 196H.
 If it in fact contains written proof of facts, (in writing or ciphers), it is a
document. See Seccombe v Attorney-General, supra p.277-278;
 The ordinary meaning of the word ‘document’ is wide enough to include
computer printouts. See Harper 1981 (1) SA 88 (D) 96C-F; De Villiers
1993 (1) SACR 574 (Nm) and Ndiki 2008 (2) SACR 252 (Ck).
 It includes a “coin” according to Protea Assurance v Waverley
Agencies 1994 (3) SA 247 (A) 249H-I.
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DOCUMENTS

COMPUTER PRINTOUTS CAN BE PROVED EITHER AS:
 DOCUMENTARY EVIDENCE, OR AS
 REAL EVIDENCE
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CLASSIFY THE TYPE OF PRINT-OUT ACCORDING TO
THE FUNCTION OF THE COMPUTER

THE PURPOSE WITH THE CLASSIFICATION IS:

TO DISTINGUISH BETWEEN DOCUMENTARY EVIDENCE AND
REAL EVIDENCE OF A DOCUMENTARY NATURE:
DOCUMENTARY EVIDENCE CAN BE HEARSAY EVIDENCE;
REAL EVIDENCE CANNOT BE HEARSAY EVIDENCE :





WHEN PRINTOUTS ARE DOCUMENTARY EVIDENCE, THE
EVIDENTIAL WEIGHT OF THE EVIDENCE DEPENDS ON THE
CREDIBILITY OF A PERSON.
WHEN PRINTOUTS ARE REAL EVIDENCE, THE EVIDENTIAL
WEIGHT OF THE EVIDENCE DEPENDS ON THE
“CREDIBILITY” OF THE ELECTRONIC SYSTEM BASED ON
ITS HARDWARE AND SOFTWARE.
DIFFERENT LAW APPLIES RELATIVE TO THE
ADMISSIBILITY OF DOCUMENTARY EVIDENCE ON THE
ONE HAND AND REAL EVIDENCE ON THE OTHER.
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DOCUMENTS AND COMPUTER PRINTOUTS:


PRINCIPLES RELATIVE TO PROVING DOCUMENTARY
EVIDENCE UNDER THE COMMON LAW:
 PRIVATE DOCUMENTS:
 ORIGINAL: VARIOUS; DUPLICATE ORIGINALS
 AUTHENTIC: PURPORTS TO BE WHAT IT IS
 TRUTH OF THE CONTENTS: VERACITY
PRINCIPLES RELATIVE TO PROVING REAL EVIDENCE OF A
DOCUMENTARY NATURE UNDER THE COMMON LAW:
 REAL EVIDENCE:
 IDENTIFY / “AUTHENTIC”
 RELIABILITY OF THE EQUIPMENT
 NO NEED FOR THE ORIGINAL: MDLONGWA 2010 (2) SACR

419 (SCA) 427b – g; DE VILLIERS 1993 (1) SACR 574 (NM);
HNP v SEKRETARIS VAN BINNELANDSE SAKE 1979 (4) SA 274 (T)
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THE PURPOSE IS USUALLY TO PROVE THE
TRUTH OF THE CONTENTS OF A PRINTOUT
 DOCUMENTARY EVIDENCE:
 THE AUTHOR
 REAL EVIDENCE OF A DOCUMENTARY
NATURE:
 WE PROVE THE TRUTH OF THE CONTENTS
VIA PROVING THE RELIABILITY AND CORRECT
FUNCTIONING OF THE COMPUTER AND ITS
SOFTWARE.
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RELIABILITY OF THE COMPUTER
SYSTEM
“THE RELIABILITY AND ACCURACY OF THE COMPUTER AND
ITS OPERATING SYSTEMS ARE QUITE OBVIOUSLY RELEVANT
FACTORS TO BE CONSIDERED IN THE EXERCISE OF THE
COURT’S DISCRETION.” Ndiki 2008 (2) SACR 252 (Ck) 261d-h
(par 54).
REAL EVIDENCE:
FUNCTIONAL RELIABILITY:
COULD “BE SUPPLIED BY CIRCUMSTANTIAL EVIDENCE OF
THE USUAL HABIT OR ROUTINE REGARDING THE USE OF THE
COMPUTER.”
THIS IS SOMETIMES REFERRED TO AS THE PRESUMPTION OF
REGULARITY WHICH IS A COMMONSENSE INFERENCE, WHICH
MAY BE DRAWN WHERE APPROPRIATE.
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KEEP THE FOLLOWING IN MIND WHEN
INTENDING TO PROVE A COMPUTER PRINTOUT
 Ndiki 2008 (2) SACR 252 (Ck) 261d-h:
“It is not desirable to attempt to deal with computer printouts as
documentary evidence simply by having regard to the general
characteristics of a computer.”
 DETERMINE:
 The contents of the computer printout;
 What it is that you wish to prove with the computer printout
(which facts);
 The function performed by the computer; and
 The requirements of the relevant section relied upon for the
admission of the computer printout/document in question.

THERE ARE THREE POSSIBLE CLASSIFICATIONS:
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THREE POSSIBILITIES:
1.
WHERE THE INFORMATION IN THE PRINT-OUT CAME
ABOUT AS A RESULT OF THE COMPUTER HAVING
PROCESSED RAW DATA, WHICH DATA WAS ENTERED
ONTO THE COMPUTER BY A PERSON?
 THE COMPUTER WITH ITS SOFTWARE CALCULATES,
SORTS, COLLATES AND SYNTHESISES THE ENTERED
DATA.
 THE COMPUTER THEN GIVES IT BACK IN A DIFFERENT
FORMAT AS IT WAS ENTERED ONTO THE COMPUTER.
 THIS IS REAL EVIDENCE.
 THE EVIDENTIAL WEIGHT OF SUCH A PRINTOUT
DEPENDS ON THE “CREDIBILITY” OF THE COMPUTER,
SOFTWARE AND OPERATING SYSTEM.
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Aaaaaaaaaaaaaaaaaaaa
Aaaaaaaaaaaaaaaaaaaa
BBBBBBBBB
DDDDDDDDDD
1234565677U888
2. WHEN THE INFORMATION IN THE PRINT-OUT
WAS ENTERED ONTO THE COMPUTER BY A
PERSON IN CIRCUMSTANCES WHERE THE
COMPUTER DID NOT PROCESS THE
INFORMATION SO ENTERED?
 A PERSON CREATED THE DATA ON THE
COMPUTER.
 THE COMPUTER THEN GIVES IT BACK IN THE
SAME FORMAT AS IT WAS ENTERED ONTO
THE COMPUTER.
 THIS IS DOCUMENTARY EVIDENCE.
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Aaaaaaaaaaaaaaaaaaaa
Aaaaaaaaaaaaaaaaaaaa
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Aaaaaaaaaaaaaaaaaaaa
Aaaaaaaaaaaaaaaaaaaa
3.
WHEN THE INFORMATION WAS RECORDED BY MECHANICAL MEANS
WITHOUT THE PERSONAL INVOLVEMENT OF A HUMAN BEING?

A PERSON ONLY ACTIVATE THE ELECTRONIC SYSTEM.

THE SYSTEM THEN GENERATES INFORMATION BASED ON ITS
SOFTWARE

THE SYSTEM MAINLY RECORDS AND STORES.

THIS IS REAL EVIDENCE.
i.
A COURT MAY TAKE JUDICIAL NOTICE OF THE GENERAL
RELIABILITY OF THE TYPE OF EQUIPMENT THAT WAS USED:
 Inference reliability relative to the specific equipment that was used
ii.
WHEN A COURT CANNOT TAKE JUDICIAL NOTICE OF THE GENERAL
RELIABILITY OF THE EQUIPMENT:
 Viva voce evidence relative to the general reliability:
 Inference of reliability relative to the specific equipment that was
used.
 Direct Viva voce evidence of reliability relative to specific equipment.
 (Equipment that must be tested or calibrated)
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COMPUTER GENERATED
I0847114-3
0826820293
Ms WILHELMINA CECILIA GERNANDT WILH Page 1
Date
Time
Duration
Number Dialed Charge
Calls - Category 1 (082 6820293)
Vodacom to Other Mobile Network
01/10/2009
08:51:44
00:01:21
27834708633
0.00
01/10/2009
08:54:42
00:00:31
27834708633
0.00
01/10/2009
10:58:33
00:02:44
0832578282
0.00
01/10/2009
16:31:41
00:00:42
27832578282
0.00
02/10/2009
11:41:29
00:00:18
27832578282
0.00
02/10/2009
13:56:35
00:02:29
27836986789
0.00
05/10/2009
16:50:56
00:01:04
27832578282
0.00
05/10/2009
17:24:37
00:10:32
0842472976
0.00
06/10/2009
12:18:58
00:01:37
27848155322
0.00
06/10/2009
17:42:11
00:00:25
0834708633
0.00
CLASSIFICATION 1 AND 3:
 REAL EVIDENCE:
 PROOF OF THE TRUTH OF THE CONTENTS
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THE FOLLOWING DO NOT BELONG TO
CLASSIFICATION 3:
NOT PROOF OF THE TRUTH OF THE CONTENTS




E-MAILS
SMS’S
SCANNED DOCUMENTS
FACSIMILES
 ONLY PROOF OF THE CONTENT THAT WAS
ENTERED ONTO THE EQUIPMENT;
 WHAT STANDS TO BE PROVED WILL
DETERMINE WHETHER IT IS
 REAL EVIDENCE OR
 DOCUMENTARY EVIDENCE
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
EVIDENCE EMANATING FROM ELECTRONIC EQUIPMENT
(ALL THREE CLASSIFICATIONS), AND

VIDEOS, AUDIOS, RECORDINGS FROM SURVEILLANCE
EQUIPMENT AND THE LIKE, CAN BE ADMITTED UNDER
THE ELECTRONIC COMMUNICATIONS ACT 25 OF 2002.
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1ST CLASSIFICATION
(REAL EVIDENCE)
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
THE COURTS ALREADY IDENTIFIED REAL EVIDENCE OF A
DOCUMENTARY NATURE IN 1976, WITHOUT REFERRING
TO IT AS SUCH.

THIS IS THE CASE WHERE THE PRINTOUT CAME ABOUT
BY THE COMPUTATION, SORTING, COLLATING AND
SYNTHESISING OF DATA BY THE COMPUTER AND NOT BY
A PERSON.
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CASE LAW
1st CLASSIFICATION
1. NARLIS v SOUTH AFRICAN BANK OF ATHENS 1976 (2)
SA 573 (A): Holmes JA, Jansen JA, Rabie JA, Kotzé AJA, and Viljoen AJA
 SECTIONS 33 TO 38 OF THE CIVIL PROCEEDINGS
EVIDENCE ACT 25 OF 1965;
 SECTION 222 OF THE CRIMINAL PROCEDURE ACT 51
OF 1977
 Subsection (4) of section 34
2. HARPER 1981 (1) SA 88 (D): Milne J
3. DE VILLIERS 1993 (1) SACR 574 (Nm): O’Linn J, Teek J
4. NDIKI 2008 (2) SACR 252(Ck) (EXHIBITS D5-9): Van Zyl J
 SECTION 221 OF THE CRIMINAL PROCEDURE ACT 51
OF 1977
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2ND CLASSIFICATION
(DOCUMENTARY EVIDENCE)
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CASE LAW
2nd CLASSIFICATION
1. NDLOVU v MINISTER OF CORRECTIONAL SERVICES
[2006] 4 All SA 165 (W): Gautshi AJ



SECTION 3(1)(c) OF THE LAW OF EVIDENCE AMENDMENT ACT 45 OF
1988;
DECLINED TO APPLY SUBSECTION (4) OF THE ECT ACT.
SECTION 15(1), (2) AND (3) OF THE ELECTRONIC COMMUNICATIONS
ACT 25 OF 2002 (ECT);
2. NDIKI 2008 (2) SACR 252 (CK); (Exhibits D1-D4): Van Zyl J


SECTION 222 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977;
SECTION 3(1) OF ACT 45 OF 1988
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SECTION 15 OF THE ECT ACT
Admissibility and evidential weight of data messages
15. (1) In any legal proceedings, the rules of evidence must not be applied
so as to deny the admissibility of a data message, in evidence (a) on the mere grounds that it is constituted by a data message; or
(b) if it is the best evidence that the person adducing it could reasonably be
expected to obtain, on the grounds that it is not in its original form.
(2) Information in the form of a data message must be given due evidential
weight.
(3) In assessing the evidential weight of a data message, regard must be
had to (a) the reliability of the manner in which the data message was generated,
stored or communicated;
(b) the reliability of the manner in which the integrity of the data message
was maintained;
(c) the manner in which its originator was identified; and
(d) any other relevant factor.
(4) A data message made by a person in the ordinary course of business,
or a copy or printout of or an extract from such data message certified to
be correct by an officer in the service of such person, is on its mere
production in any civil, criminal, administrative or disciplinary proceedings
under any law, the rules of a self regulatory organisation or any other law
or the common law, admissible in evidence against any person and
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rebuttable proof of the facts contained in such record, copy, printout or
extract.
3RD CLASSIFICATION
(REAL EVIDENCE)
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3rd
1.
EX PARTE ROSCH [1998] 1 ALL SA 319 (W): (Full Bench)
Flemming DJP, Leveson and Blieden JJ

3.
CASE LAW
CLASSIFICATION
COMMON LAW (LANDLINE TELEPHONE PRINTOUT)
DOS SANTOS 2010 (2) SACR 382 (SCA) (CELLPHONE AND
SURVEILLANCE RECORD)
4.
MDLONGWA 2010 (2) SACR 419 (SCA) (SURVEILLANCE)
(BANK ROBBERY OF BUILDING SOCIETY AT DUNDEE)
5.
S v NINGISE AND OTHERS CASE NO: CC4/2002 (HIGH
COURT OF NAMIBIA): Silungwa J Delivered 22/2/2006. (This
case can be found on GOOGLE).

SECTION 221 OF THE CPA (CELLPHONE RECORD)
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HARPER 1981 (1) SA 88 (D)
v
S v NINGISE AND OTHERS, CASE NO: CC4/2002 (Nm)
 “‘document’
includes any device by means of
which information is recorded or stored” see definition
in section 221 of the Criminal Procedure Act.
 Harper: Applied the ordinary meaning of the word
‘document’ which is wide enough to include computer
printouts, to admit computer processed information
(clasification 1). See 96C-F;
 Ningise: Applied the extended definition of ‘document’ to
admit a printout where the device which printed the cell
phone records, only records and stores (classification 3) the
information, where interconnectivity is in issue.
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RELIABILITY
CASE LAW
1.
S v DE VRIES (67/2005) [2008] ZAWCHC 36 (10 JUNE 2008)
(WESTERN CAPE HIGH COURT) See from par 92 of the
report. www.saflii.co.za (CELLPHONE RECORDS)
2.
MDLONGWA 2010 (2) SACR 419 (SCA) 424g – 4215b
3.
DOS SANTOS 2010 (2) SACR 382 (SCA)
4.
S v VAN DER VYVER (SS 190/06) [2007] ZAWCHC 69 (29
November 2007) www.saflii.co.za
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THE EFFECT OF EX PARTE ROSCH ON THE
LAW OF EVIDENCE
 EXTENDS THE LAW RELATIVE TO THE ADMISSIBILITY OF
VIDEOS AND AUDIOS (FUHRI 1994 (2) SACR 829 (A)) TO
COMPUTER PRINTOUTS FROM MECHANICALLY OPERATED
EQUIPMENT: :
 REAL EVIDENCE
 PROOF OF THE TRUTH OF THE CONTENTS
 NOT HEARSAY EVIDENCE
 ORIGINAL NOT IN QUESTION
 PROOF OF FUNCTIONAL RELIABILITY BY:
 JUDICIAL NOTICE
 EXPERT EVIDENCE
 LAYMEN’S EVIDENCE
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THE EFFECT OF NDIKI (EXHIBITS D5-D9) ON
THE LAW OF EVIDENCE

EXTENDS THE LAW RELATIVE TO THE ADMISSIBILITY OF VIDEOS, AUDIOS
AND COMPUTER PRINTOUTS FROM MECHANICALLY OPERATED
EQUIPMENT (EX PARTE ROSCH) TO COMPUTER PRINTOUTS WHERE THE
COMPUTER PROCESSED THE INFORMATION:
 REAL EVIDENCE OF A DOCUMENTARY NATURE
 PROOF OF THE TRUTH OF THE CONTENTS
 NOT HEARSAY EVIDENCE
 ORIGINAL NOT IN QUESTION
 PROOF OF FUNCTIONAL RELIABILITY OF COMPUTER SOFTWARE
AND OPERATING SYSTEM BY:
 JUDICIAL NOTICE?
 EXPERT EVIDENCE
 LAYMEN’S EVIDENCE?

HAVING SAID THAT, THE COURT IN NDIKI ADMITTED THE PRINTOUT AS
REAL EVIDENCE OF A DOCUMENTARY NATURE UNDER SECTION 221 OF
THE CPA
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S v DE VRIES (67/2005) [2008] ZAWCHC 36 (10
JUNE 2008) (WESTERN CAPE HIGH COURT)
(CELLPHONE RECORDS)
 THIS CASE CAN BE FOUND ON www.saflii.co.za
Robbery of a truck carrying a large consignment of
cigarettes. See from par 92 of the report.
RELIABILITY:
WITNESS 1 (MTN): “IN ITS BASIC FORM THE DATA IS IN
ELECTRONIC FORMAT AND CANNOT BE MANIPULATED
OR FALSIFIED. IT CAN ONLY BE MANIPULATED WHEN
COPIED TO Excel SPREAD SHEETS BUT CERTAINLY NO
SUCH MANIPULATION TAKES PLACE WITHIN MTN.”
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S v DE VRIES (CONTINUE)
WITNESS 2 (MTN): “ HE IS RESPONSIBLE FOR THE
OPERATION OF THE SYSTEM. … THE OPERATING
SYSTEM ARE PRE-TESTED TO THE HIGHEST
POSSIBLE LEVEL OF SECURITY AND ERROR-FREE
OPERATION AND ARE PROTECTED AGAINST
HARDWARE FAILURE. …PROPERLY MAINTAINED,
MONITORED ON A CONTINUOUS BASIS AND
DELIVER A VERY HIGH LEVEL OF RELIABILITY AND
SECURITY. … NO REASON TO INFER THAT ANY …
RECORDS (ARE) INACCURATE OR HAD BEEN
TAMPERED WITH.”
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S v DE VRIES (CONTINUE)
WITNESS 3 (VODACOM): “… FORENSIC LIAISON
MANAGER. … RECEIVED INTERNAL TRAINING IN
THE USAGE OF CELL PHONES AND THE WORKING
OF THE VODACOM SYSTEMS FROM ENGINEERS …
THE SYSTEMS … ARE THE BILLING AND
ADMINISTRATION SYSTEMS WHEREBY CELL
PHONE DATA AND OWNERSHIP IS DETERMINED.
SHE PERSONALLY DOWNLOADED ALL THE DATA .
THE DATA WAS NEVER TAMPERED WITH NOR
CHANGED IN ANY WAY EXCEPT TO SORT IT INTO
CHRONOLOGICAL ORDER.”
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S v DE VRIES (CONTINUE)
WITNESS 4 (VODACOM): “HE STATED THAT OVER
THE PAST THREE YEARS THE PROVIDER HAD
EXPERIENCED NO PROBLEMS IN RELATION TO
(THE) SAID SYSTEMS AND THAT CELL PHONE DATA
CANNOT BE MANIPULATED.”
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R Krige
21 September 2012
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