Five cellphone recordings taken on the night of an alleged drunken-driving accident involving Pretoria High Court Judge Nkola Motata are admissible as evidence, the Johannesburg Magistrate’s Court ruled on Friday.
”I find that the hurdle in respect of authenticity and originality … quality, and the potential to reflect the events as they relate to the incident has been passed,” said Magistrate Desmond Nair.
”This court accepts the recordings from the laptop … The five recordings and transcript are admissible.”
This ruling concluded a trial within a trial to determine if the recordings, taken on the night of January 6 2007 when Motata crashed his Jaguar into the wall of a Hurlingham property, allegedly while drunk, were admissible.
The recordings were made by the owner of the property Richard Baird on the random access memory of his cellphone.
He then downloaded the recordings on to his laptop and a secure digital (SD) card, which was later stolen.
Nair said on Friday that the recordings on the laptop could be considered the same as those on the stolen SD card.
He said Baird had testified that the manner in which they were downloaded meant ”they are not different siblings of different agents. They are identical twins”.
The recordings were relevant in determining the sobriety and conduct of the judge on the night of the incident.
The recordings captured events free from manipulation, and the defence’s arguments that digital data, such as the recordings, could easily be manipulated, were not sufficient.
”That these digital recordings may be manipulated is not an issue. What is an issue is if these recordings were manipulated,” Nair said.
The defence would need to have pointed out, or got witnesses to point out, actual examples within the recordings which they disputed as accurate.
”To my mind a more visible challenge to the recordings could come to the fore and this did not happen.”
He said Motata’s decision not to testify on the accuracy of the recordings was ”an important factor and maybe a crucial one”.
Independent observers
The testimony of the four state witnesses — Baird, his tenant Lucky Melk and two metro police officers, Frieda Ramasemo and Daniel Moratlhodi Madibo — served as ”independent observers called together
unexpectedly by the events of that night”.
”No witness said to the court, as I would have expected if there was a problem with the recordings, that this was something strange … no one stated that this was different to what transpired.
”The recordings were audible, intelligible and clear. The recordings appear to relate to the occasion they are meant to relate to,” Nair said.
Legislation around matters of digital evidence, such as the Electronic Communications and Transactions Act, was faciliatory and inclusionary by nature.
Legally, the original of the recordings was not needed in court.
The court needed only the best evidence that could reasonably be obtained.
Nair said Baird was someone who came to the scene of an unexpected accident. Therefore, he had come to court on what he had at that time.
Incidents, such as the fact Baird dropped the phone twice and it became unusable for the court, did not discount his reliability.
”The individual did not deliberately cause loss or deduction of data”.
Nair said although digital data may need to be treated with caution ”our law has to advance at the same pace as technology does”.
”The inherent birthright of audio visual evidence remains real.”
‘Solid’ ruling
Nair said the trial within a trial had given Motata a fair chance to challenge the admissibility of the recordings.
”I’m satisfied, there are safeguards in place.”
He would now treat the recordings like any other piece of evidence.
”I will be considering the recordings with the rest of the evidence and the door is opened for the defence to attack the recordings. … The weight of the recordings would be determined at the end of the trial.”
Speaking after the ruling, prosecutor Zaais van Zyl said the state was very satisfied with the outcome.
”It is very important that this kind of evidence is accessible and admitted for court,” he said.
”Our environment revolves around the digital. It is so important that the court keeps up with the times.”
Van Zyl said the ruling was ”very solid” and left little room to appeal.
Defence attorney Marinus van Jaarsveld said it was too early for the defence to decide if they would want to take the ruling on review.
The defence would now be studying the judgement in detail.
The trial within a trial had been an important test for how courts should consider evidence in a digital format.
”It’s a new development in the law and we believe we need to test the evidence,” he said.
The full trial is expected to resume on Wednesday.
Motata is facing a charge of driving under the influence of alcohol or drugs with an alternate charge of driving with an excess of alcohol in his blood or reckless or negligent driving.
He also faces a charge of defeating the ends of justice with an alternate charge of resisting arrest. – Sapa