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The Admissibility of Electronically Generated Evidence in a Court of Law . Presented by Advocate Roux Krige. THE ADMISSIBILITY OF EVIDENCE EMANATING FROM ELECTRONIC EQUIPMENT. ELECTRONICALLY EMANATED EVIDENCE MAY BE ADMITTED IN EVIDENCE IN A CRIMINAL COURT UNDER THE:. Common Law
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Presented by Advocate Roux Krige
“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).
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.
“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.”
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
EVIDENCE EMANATING FROM ELECTRONIC EQUIPMENT (ALL THREE CLASSIFICATIONS), AND
THE COURTS ALREADY IDENTIFIED REAL EVIDENCE OF A DOCUMENTARY NATURE IN 1976, WITHOUT REFERRING TO IT AS SUCH.
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 rebuttable proof of the facts contained in such record, copy, printout or extract.
Robbery of a truck carrying a large consignment of cigarettes. See from par 92 of the report.
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.”
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.”
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.”
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.”
21 September 2012