The five cellphone recordings taken on the night of Judge Nkola Motata alleged drunken-driving incident are not reliable because the man who recorded them was untruthful and careless, the Johannesburg Magistrate’s Court heard on Monday.
”The evidence of Baird is riddled with contradictions, untruths and improbabilities,” said defence advocate Danie Dorfling.
Richard Baird is the owner of the Hurlingham property where Motata crashed his car into a wall on January 6 last year.
Five cellphone recordings that Baird took that night are at the centre of a trial within a trial to determine their admissibility.
Dorfling said Baird took no proper care of the electronic material in his custody. He had dropped the phone twice, causing it to become eventually unusable, He had also lost a secure digital card and some zip files of the recording when making a copy for the court.
”The catastrophe in his handling of the evidence belie his consideration as fastidious,” said Dorfling.
He said Baird was ”less than candid” in some of his explanations. For example, a series of different explanations he provided of why he switched from recording from a digital camera to a cellphone could not all fully add up.
Dorfling also said Baird was biased. ”Mr Baird quite clearly had an axe to grind with the accused.”
He said other bystanders had wanted Baird to settle with Motata on the scene, and that Baird had taken the story to the media a day and a half before even laying a criminal charge.
”These factors clearly demonstrate Baird’s bias. At this level his evidence is therefore circumspect,” said Dorfling. ”This honourable court needs to rely on Baird’s evidence on issues of completeness and authenticity of the record. It is submitted that his word cannot be trusted.”
Earlier, the state said that recordings of Motata’s alleged drunken rantings should be considered as real evidence.
”Evidence is real evidence when it is tendered to show what it was that was recorded,” said state prosecutor Zaais van Zyl.
He said four witnesses had testified to the court that the recordings were accurate. ”[None] of the defence’s expert witnesses testified that they [the recordings] had been tampered with or that they are inaccurate.”
He also said the judge had chosen not to testify in the trial within a trial. ”The accused is in an excellent position to testify to any alleged inaccuracies in the recording … [If you don’t testify] you can’t cry wolf because then the evidence remains unassailed.”
Van Zyl said the different recordings made sense. ”Sentences follow each other logically. There is no break in the recordings. There is no allegation of and no indication of any interference with the recordings … It is, in the end, a decision about the integrity of state witnesses.” — Sapa