S v Brown

• Jurisdiction: South Africa
• Citation: 2016 (1) SACR 206 (WCC)

S v Brown
2016 (1) SACR 206 (WCC)

2016 (1) SACR p206

Citation	2016 (1) SACR 206 (WCC)
Case No	CC 54/2014
Court	Western Cape Division, Cape Town
Judge	Bozalek J
Heard	August 17, 2015
Judgment	August 17, 2015
Counsel	S Mohamed for the accused, instructed by the Legal Aid Board, Cape Town.; A van der Merwe for the state.

Flynote : Sleutelwoorde

H Evidence — Admissibility — Cellphone data evidence — Digital images — Section 15 of Electronic Communications and Transactions Act 25 of 2002 not rendering data message admissible without further ado — Provisions of section did not exclude common law of evidence — Images more appropriately dealt with as documentary rather than real evidence — Images had to be original and authenticity of document had I to be proved — Images did not constitute hearsay evidence.

Headnote : Kopnota

The court was required in a trial-within-a-trial to rule whether images found on a cellphone were admissible as evidence. The accused stood trial on two counts of attempted murder and one count of murder. The state's principal J witness testified that she had seen something fall from the accused's pocket

2016 (1) SACR p207

during the shooting, and after he left the scene she returned and retrieved A the object and discovered that it was a cellphone. She then gave the phone to a member of the gang to which her partner belonged. A police witness testified that the phone had been handed to him later that same night by a member of the local neighbourhood watch who said that it had come from a member of the gang that was the target of the attempted assassination. The policeman booked the phone in as an exhibit. The phone was then sent B to a specialised police unit which retrieved the data on the phone, including five images which the investigating officer wished to use in the criminal proceedings against the accused. These images were traced back to another phone which could be identified. The images were apparently of the accused. The defence objected to the evidence on a number of grounds inter alia that the integrity of the chain of safekeeping of the phone, from the C time that it was allegedly picked up to the time that material was downloaded from it, had not been proved; that the evidence sought to be admitted was both hearsay and irrelevant; that such evidence was not covered by the terms of a subpoena issued by a magistrate in relation to the phone in terms of s 205 of the Criminal Procedure Act 51 of 1977; and that, in any event, any material downloaded from the phone without the authorisation of a magistrate was unlawful and an invasion of privacy. D

Held, that the Electronic Communications and Transactions Act 25 of 2002 (ECTA) was introduced to provide inter alia for the admissibility of evidence generated by computers since its predecessor, the Computer Evidence Act 57 of 1983, was generally considered to have failed to achieve its purpose in this regard and, in any event, had not regulated criminal E proceedings. ECTA followed an inclusionary rather than an exclusionary approach to the admission of electronic communications as evidentiary material, and the overall scheme of the Act was to facilitate the admissibility of data messaging as electronic evidence. (Paragraphs [16]–[17] at 213d–214b.)

Held, further, that s 15 of ECTA, which dealt with the admissibility and evidential F weight of data messages did not render a data message admissible without further ado. The section did not exclude our common law of evidence and, this being so, the admissibility of an electronic communication would depend, to no small extent, on whether it was treated as an object (real evidence) or as a document. (Paragraph [18] at 214c.)

Held, further, that, given the potential mutability and transient nature of images G which were generated, stored and transmitted by an electronic device, they were more appropriately dealt with as documentary evidence rather than as real evidence and, adopting this approach, the ordinary requirement of our law for the admissibility of such evidence was that the document itself had to be produced, which meant that it had to be the original and the authenticity of the document had to be proved. (Paragraph [20] at 214h – 215c.) H

Held, further, that there had been no evidence or even a suggestion that any person had tampered with the phone or the images stored on it during the period unaccounted for. Furthermore, what evidence there was indicated that the phone was in the hands of lay persons in that four-hour period and it was thus improbable that any tampering with the images in question had I taken place. On a conspectus of the evidence it appeared that the requirements of original form and of s 14 of ECTA were met. In any event, s 15(1)(b) of ECTA gave messages a further exemption from the requirement of original form in the event of their being the best evidence that the person could reasonably be expected to obtain. In the light of the lack of any evidence as to who originally transmitted the images to the phone and the J

2016 (1) SACR p208

A limited purposes for which the evidence was tendered, namely to prove that the phone belonged to the accused, the state could not reasonably be expected to have produced better evidence of these images. Their authenticity was in fact not disputed. (Paragraphs [23]–[24] at 215g–216d.)

Held, as to the contention that the images constituted hearsay evidence, that the images were more akin to being real evidence, but, however they were B classified, they did not constitute hearsay evidence. (Paragraph [25] at 216e–g.)

Held, as to the contention that the images were unlawfully obtained as they were downloaded without the authority of a magistrate, the provisions of the CPA relating to the obtaining of a search warrant were not applicable in the C present case and the police were moreover entitled to seize the phone in terms of s 20 of the CPA when it was presented to them by the member of the neighbourhood watch with the explanation that it had been found at the scene of the crime. Nor was any particular authority necessary from a judicial officer in order to download the material from the phone with a view to identifying its owner or possessor. Clearly that information was reasonably D necessary in order to trace a suspect. The accused consistently denied that the phone was his and in the circumstances it would be untenable for him to deny, on the one hand, ownership or possession of the phone or the disputed images stored on it, and on the other hand to assert a right to privacy over such images. (Paragraphs [27]–[28] at 217a–e.) The evidence E was ruled admissible.

Cases cited

Key v Attorney-General, Cape Provincial Division, and Another 1996 (2) SACR 113 (CC) F (1996 (4) SA 187; 1996 (6) BCLR 788; [1996] ZACC 25): referred to

Ndlovu v Minister of Correctional Services and Another [2006] 4 All SA 165 (W): dicta at 172 followed

S v Ndiki and Others 2008 (2) SACR 252 (Ck) ([2007] 2 All SA 185): followed

S v Miller and Others (WCC case No SS 13/2012, 2 September 2015): followed G

Seccombe and Others v Attorney-General 1919 TPD 270: dicta at 277 followed.

Legislation cited

Statutes

H The Computer Evidence Act 57 of 1983: since repealed by the Electronic Communication and Transactions Act 25 of 2002.

The Criminal Procedure Act 51 of 1977, s 20: see Juta's Statutes of South Africa 2014/15 vol 1 at 2-337

The Electronic Communications and Transactions Act 25 of 2002, ss 14, 15 and 15(1)(b): see Juta's Statutes of South Africa 2014/15 vol 1 at 1-75.

Case Information

S Mohamed for the accused, instructed by the Legal Aid Board, Cape Town. I

A van der Merwe for the state.

J Reasons for ruling in trial within-a-trial.

2016 (1) SACR p209

Order A

The three images set out on pp 4 and 5 of exh S, namely photos 126.jpg, 127.jpg and 128.jpg and their corresponding enlargements in exh T, are held to be admissible evidence, as images found on exh 1 on 26 March 2014. B

Judgment

Bozalek J:

[1] On 17 August 2015, at the conclusion of a trial-within-a-trial, I ruled that certain images found on a mobile phone, exh 1 in the trial (the phone), were admissible in evidence, and these are the reasons for that ruling. C

[2] The accused stood trial on two counts of attempted murder, one count of murder and certain ancillary charges, all of which arose out of an incident in 16th Street, Bishop Lavis, on the evening of 9 March 2014 when an unsuccessful attempt was made on the life of a gang D member. Tragically, a young child was fatally wounded and another bystander shot in the leg in the incident. The state's principal witness identified the accused as the gunman and testified that she observed something drop from his pocket during the shooting. Immediately after the gunman left she returned to the scene and found that it was a phone E which she identified as exh 1. Shortly thereafter she gave the phone to Dylan Botha, a member of the criminal gang to which her partner, one Reagan Baptiste, and who had been the target of the original shooting, also belonged. This witness, Ms Joy Cronje (Cronje), was unable to state what Botha had done with the mobile phone. In later testimony it emerged that Botha had been shot dead in 2015. F

[3] The accused pleaded not guilty to the charges and raised an alibi. In the course of his written plea explanation he stated that he had lost his mobile phone on the day prior to the shooting incident. In addition his counsel, Mr Mohamed, put to the various witnesses that the phone placed before court, exh 1, was not the accused's phone. When the G prosecutor gave notice that she proposed to lead evidence concerning material which had been downloaded from the phone, Mr Mohamed stated that he objected to the admissibility...