EVIDENCE OF CELLULAR COMMUNICATION ADMISSIBLE

S v Miller and others [2015] 4 All SA 503 (WCC)
Criminal procedure – Evidence – Police captain’s evidence – Analysis of cellular phone communications between the accused – Admissibility – Argument that certain cell phone records procured by the State under section 205 of the Criminal Procedure Act 51 of 1977 had been obtained unlawfully since the subpoenas presented to the issuing magistrate in terms of section 205 were allegedly fatally defective – Objection that the primary data which was loaded onto the police computer was unlawfully obtained in breach of section 205 – Court was not persuaded that the defence had established that the subpoena was wrongly issued or that it fell to be declared invalid.
Criminal procedure – Evidence – Police captain’s evidence – Analysis of cellular phone communications between the accused – Admissibility – Argument that the rights of the accused to privacy protected under section 14 of the Constitution of the Republic of South Africa, 1996 had been unlawfully breached when the police captain accessed the data on the cell phones lawfully seized by the police without prior authorisation – Court balanced the right to privacy against the interests of the administration of justice, and found that this defence failed.

The accused were charged with a number of offences under the Prevention of Organised Crime Act 121 of 1998 and the Marine Living Resources Act 18 of 1998, it being alleged that they collectively ran an enterprise involving the unlawful processing, packaging and export of abalone. The trial proceeded in fits and starts for various reasons. On the 38th day of the trial, the State called a police captain (“Capt Brink”) to the witness box to testify regarding, inter alia, his analysis of cellular phone communications between the accused inter se as well as with several of the State witnesses and other parties.

In the present application, the applicants sought to strike out all of the evidence of Capt Brink relating to cell phone traffic and usage. The challenge to Capt Brink’s evidence was founded on two bases. Firstly, it was alleged that certain cell phone records procured by the State under section 205 of the Criminal Procedure Act 51 of 1977 had been obtained unlawfully since the subpoenas presented to the issuing magistrate in terms of section 205 were allegedly fatally defective. Secondly, it was said that the rights of the accused to privacy protected under section 14 of the Constitution had been unlawfully invaded when Capt Brink had accessed the data contained on the cell phones of the accused, which cell phones had been lawfully seized by the police during their arrests.
Held – The cell phones had been released to Capt Brink in terms of subpoenas issued in terms of section 205 of the Criminal Procedure Act. The objection of the defence was that the primary data which was loaded onto the police computer was unlawfully obtained in breach of section 205. In addition, it was said that Capt Brink breached the accused’s rights of privacy by interpreting the data furnished to him, and in particular that he should not have had access to any data on any cell phone lawfully seized by the police without prior authorisation. The Court was not persuaded that the defence had established that the subpoena was wrongly issued or that it fell to be declared invalid. The first attack by the defence on the admissibility of Capt Brink’s evidence, that the subpoenas were unlawfully issued, therefore failed.
On the second defence, the Court balanced the right to privacy against the interests of the administration of justice, and found that this defence also had to fail.
Unable to find the evidence of Capt Brink inadmissible, the Court dismissed the application.

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