Richard Baird, who took five cellphone recordings at the scene of an alleged drunken-driving accident involving Pretoria High Court Judge Nkola Motata, was not careless in his handling of the data, the Johannesburg Magistrate’s Court heard on Tuesday.
Baird had not lost a secure digital card containing the recordings. Instead, it had been stolen, said state prosecutor Zaais van Zyl. He was speaking at the conclusion of a trial within a trial to determine the admissibility of the recordings.
On January 6 last year, Motata crashed his Jaguar into the wall of Baird’s property in Hurlingham, Johannesburg, allegedly while drunk.
On Monday, the defence launched a sharp attack on Baird’s credibility while presenting its heads of argument. Defence advocate Danie Dorfling said at the time that Baird’s handling the data at the level of storing it, communicating it and even maintaining it could not be trusted.
On Tuesday, Van Zyl said the fact that Baird had dropped his phone twice was something that happens. The fact that his CD player was broken on his laptop was no reflection on his care of the data.
He said some compressed ”zip” files of the recordings were not missing but in a different location on Baird’s computer.
Van Zyl said different explanations Baird gave for proceedings on the night he took the recordings were not examples of him changing his evidence, but rather of him providing additional information.
He said it was just human that Baird might not independently remember events more than 18 months after they had occurred.
The state’s four witnesses — two metro police officers, Baird and his tenant Lucky Melk — who listened to the recordings and confirmed they reflected events on the night of the accident were not engaged in ”self-corroboration”, Van Zyl said. They were testifying to the accuracy of the recordings. ”These are requirements set in our law.”
In his reply on Tuesday, Dorfling said the damage of the cellphone and the loss of the secure digital card were still to be considered. He said if one had footage that would be used by a court of law, ”you need to take care of it”.
He also said that Baird did not have an independent recollection of events but was reliant on the recordings. ”It’s something else to remember without the recordings.”
On Monday, the defence said the evidential weight was so limited and the potential prejudice to the accused so severe that the recordings should be disregarded by the court.
The best evidence, as legally required, had not been brought before the court. The cellphone on which the recordings were originally made was broken and the secure digital card that carried an earlier copy had been stolen.
The court had been listening to a version of the recordings downloaded on to Baird’s laptop.
The state said on Monday that the accuracy and relevance of the recordings were undisputed.
Van Zyl said an original version of the recordings was not required by legislation like the Electronic Communications and Transactions Act.
Magistrate Desmond Nair is expected to rule on the trial within a trial on Friday. After that, the full trial is expected to resume.
Motata faces charges of drunken driving and defeating the ends of justice for allegedly resisting arrest. — Sapa