/ 7 November 2007

Trial within a trial set to begin in Motata case

The trial within a trial to decide on the admissibility of certain evidence in the drunk-driving case of Pretoria High Court judge Nkola Motata begins on Wednesday.

Last month magistrate Desmond Nair ruled that the authenticity of the recordings needed to be determined before they could be used by the prosecution.

The evidence is question involves five video recordings — with sound but no video footage — taken by state witness Richard Baird. Baird is the owner of the home Motata drove his car into in January.

”What about authenticity and originality in the 21st century?” asked the magistrate in October.

”Are risks not greater because of how technology has consumed us all?”

”If copies are capable of manipulation, should the defence be given the opportunity to test them before the court admits them?”

Nair said the process of how the recordings were made had to be tested for authenticity.

The recordings were originally made on a cellphone, then put on a memory card, downloaded on to a laptop, saved on to a memory stick and then saved on to another laptop, he said.

”I’m not entirely convinced that the issue of originality [of the recordings] does not play a part in admissibility,” said Nair.

He said the court should first determine if it was ”safe” for such evidence to be presented and then to deal with its authenticity.

Motata is facing charges of driving under the influence of alcohol or drugs with an alternate charge of reckless or negligent driving and a charge of defeating the ends of justice, with an alternative charge of resisting arrest. – Sapa