S v Ramgobin and Others

• Jurisdiction: South Africa
• Citation: 1986 (4) SA 117 (N)

S v Ramgobin and Others
1986 (4) SA 117 (N)

1986 (4) SA p117

Citation	1986 (4) SA 117 (N)
Court	Natal Provincial Division
Judge	Milne JP
Heard	May 7, 1986; May 12, 1986; May 13, 1986; May 14, 1986; May 15, 1986; May 19, 1986; May 22, 1986
Judgment	June 5, 1986

Flynote : Sleutelwoorde

Criminal procedure — H Evidence — Admissibility of — Audio and video tape recordings — Requirements for their admissibility set out — Onus on State to prove such requirements beyond reasonable doubt — Requirement of proof of accuracy of recording means that there must be a witness to the I event recorded testifying that it accurately portrays the event.

Criminal procedure — Evidence — Admissibility of — Evidence of witness who deciphered unintelligible and inaudible tape recording from repeated listening thereto — Such evidence amounting to witness' opinion of what is recorded on the tape — Witness not an expert — Necessary for such J evidence to be audible so that parties and Court can consider it — Evidence accordingly inadmissible.

1986 (4) SA p118

Criminal procedure — A Trial — Trial within a trial on question of admissibility of evidence — State having closed its case on that question — Application for re-opening of State case — When granted — State, during very long trial, not appreciating need at the stage of the trial within a trial to lead certain evidence on admissibility issue — Need B for a trial within the trial not appreciated until fairly late stage of trial — Also difficult to draw line between questions of admissibility and cogency of the evidence in question — Misapprehension by counsel for the State as to what authorities on the question had decided and as to what the attitude of defence counsel to the evidence was — Court, in the C circumstances, granting application to re-open State case — Semble: but Court will not permit a matter which has been fully canvassed to be recanvassed immediately after it has made an interlocutory order — Would be different, however, where further evidence came to light during the course of either party advancing evidence it was entitled to lead.

Criminal procedure — D Evidence — Expert evidence — Nature and content of such evidence — Where there is a serious challenge of expert's conclusions, it is insufficient for him simply to describe in general terms the nature of his investigation and his conclusion therefrom — Expert must be in a position to give detailed reasons for his conclusions E and an accurate account of his investigations — Written report not essential.

Headnote : Kopnota

For audio tape recordings and video tape recordings to be admissible in evidence in a criminal trial, it must be proved that the exhibits sought to be put in (a) are the original recordings and (b) that, on the evidence as a whole, there exists no reasonable possibility of "some interference" with the recordings.

S v Singh and Another1975 (1) SA 330 (N) approved and applied.

F The above requirements, as laid down in Singh's case, are not the only requirements for admissibility because in that case the Court did not intend to lay down an exhaustive set of rules for admissibility. The State must also prove that the tape recordings (and video recordings) do relate to the occasion to which it is alleged they relate, and that they are faithful and prove the identity of the speakers. These requirements overlap G to some extent but they are not identical. There may be proof that the tape has not been altered, added to, edited or in any way interfered with, but the tape may not be accurate because it fails to reflect faithfully what it purports to reflect, eg because of apparatus malfunction. In regard to the need for proof of accuracy, there must be a witness to the event purportedly recorded on the tape who testifies that it accurately portrays that event. It need not be the person who H made the recording, but may be anyone who witnessed the event. A further requirement is that it must be proved that the tapes are sufficiently intelligible "to be placed before the jury", ie the Court.

The onus of proof in respect of the requirement for admissibility of audio and video tape recordings in a criminal trial rests on the State and the standard of proof, laid down in Singh's case supra is proof beyond reasonable doubt.

During the course of a trial in which the admissibility of, I inter alia, certain tape recordings was in issue, it appeared that two of the tape recordings were of such poor quality as to be unintelligible and inaudible. The State sought leave to lead the evidence of a witness who listened to the tapes repeatedly for "weeks" and who was able to testify that they were quite intelligible to him. The witness was, however, not an expert in the deciphering of tape recordings. The Court held that the witness would, in effect, be giving his opinion as to what he heard on the tape recordings and opinion evidence was, generally speaking, not admissible unless given by an expert. J Furthermore, the Court held that it was surely a basic requirement of evidence that takes

1986 (4) SA p119

the form of sound that such sound should be audible. If it was A inaudible there was no basis upon which the accused, or their counsel, or the Court, or anyone else, could consider it. The Court held that the evidence of the witness which the State sought to lead would accordingly be inadmissible.

During the course of counsels' argument in a trial within a trial on the question of admissibility in evidence of certain audio and video tape recordings, the State sought leave to re-open its case in the trial within a trial in order to B present evidence as to the accuracy of certain of the recordings as the defence had contended that the failure to lead such evidence resulted in the recordings being inadmissible in evidence. The application was opposed by the defence, inter alia, on the grounds that there was no satisfactory explanation of the failure to lead the evidence at the appropriate stage during the trial within a trial. In granting the application, the Court took into account that the C trial was a very long one, that counsel for the State had not appreciated that it was necessary or appropriate at the stage of the trial within a trial to lead direct evidence dealing with the accuracy of the recordings and that the accused were present at and spoke at the meetings to which the recordings related and what was said was sufficiently intelligible to be admissible. The Court also took into account that the failure to appreciate the need for this evidence so to be led may have D been due in part to the way in which the trial had developed, ie that it had only been appreciated at a fairly late stage that a trial within a trial should be held and was in fact held; partly due to difficulties in drawing the line between admissibility and cogency in respect of the evidence; partly due to a misapprehension as to what the authorities dealing with this aspect of the law actually decided; and partly due to a misapprehension as to what the attitude of defence counsel was to the need for such evidence in relation to the question E of admissibility.

Semble: an order relating to the admissibility of evidence is interlocutory in the true sense if the Court will not permit a matter which has been fully canvassed before it to be recanvassed immediately after it has made an interlocutory order, particularly where the evidence tendered in respect of such a recanvassing was tendered by the party on whom the onus lay. It would be a different matter where further evidence came F to light during the course of either party's advancing his case by evidence which that party was entitled, as of right, to lead.

In regard to the nature and content of the evidence of an expert witness, it is obviously insufficient if he simply describes, in general terms, the nature of his investigation and his conclusions therefrom. Perhaps that might be a reasonable way to approach the matter if there is no challenge, G or no serious challenge, of his conclusions in a particular case. Where there is such a serious challenge, however, the expert must be in a position to give detailed reasons for his conclusions, and an accurate account of the investigations that he carried out for the purpose of arriving at his conclusions. He does not, of course, have to put them in the form of a written report although it is quite usual for experts to do so. Not infrequently, experts are permitted to refresh their memories from reports and notes and the reports and notes are, H not infrequently, put in as exhibits. They are not, however, the evidence. The evidence is the oral evidence given by the expert, and the notes are merely an aide-memoire. If, however, the expert does not keep notes, he must be in a position to describe with exactness all his investigations and the reasons which led him to his conclusions, if those are challenged in cross-examination. I

Case Information

Argument and ruling on the admissibility in evidence of certain audio and video tape recordings. The nature of the various recordings appear from the reasons for judgment. A portion of the judgment not material to this report has been omitted.

J Oberholzer (with him C Meiring) for the State.

C R Mailer for accused Nos 13 and 14. J

1986 (4) SA p120

M T K Moerane for accused Nos 15 and 16. [*] A

Cur adv vult.

Postea (June 5). B

Judgment

Milne JP:

Two matters fall to be decided at this stage. The first is whether certain audio and video tape recordings are admissible evidence against the accused. The second is whether the State should be permitted to re-open its case and lead further evidence as to the admissibility of the recordings.

C It is common cause that both these matters are questions of law which, in terms of s 145 (4) (c) of the...