PROOF AND ESSENCE OF IMAGES ON CELL PHONE

S v BROWN 2016 (1) SACR 206 (WCC)

Evidence — Admissibility — Cellphone data evidence — Digital images — Section 15 of Electronic Communications and Transactions Act 25 of 2002 not rendering data message admissible without further ado — Provisions of section did not exclude common law of evidence — Images more appropriately dealt with as documentary rather than real evidence — Images had to be original and authenticity of document had to be proved — Images did not constitute hearsay evidence.

The court was required in a trial-within-a-trial to rule whether images found on a cellphone were admissible as evidence. The accused stood trial on two counts of attempted murder and one count of murder. The state’s principal witness testified that she had seen something fall from the accused’s pocket during the shooting, and after he left the scene she returned and retrieved the object and discovered that it was a cellphone. She then gave the phone to a member of the gang to which her partner belonged. A police witness testified that the phone had been handed to him later that same night by a member of the local neighbourhood watch who said that it had come from a member of the gang that was the target of the attempted assassination. The policeman booked the phone in as an exhibit. The phone was then sent to a specialised police unit which retrieved the data on the phone, including five images which the investigating officer wished to use in the criminal proceedings against the accused. These images were traced back to another phone which could be identified. The images were apparently of the accused. The defence objected to the evidence on a number of grounds inter alia that the integrity of the chain of safekeeping of the phone, from the time that it was allegedly picked up to the time that material was downloaded from it, had not been proved; that the evidence sought to be admitted was both hearsay and irrelevant; that such evidence was not covered by the terms of a subpoena issued by a magistrate in relation to the phone in terms of s 205 of the Criminal Procedure Act 51 of 1977; and that, in any event, any material downloaded from the phone without the authorisation of a magistrate was unlawful and an invasion of privacy.

Held, that the Electronic Communications and Transactions Act 25 of 2002 (ECTA) was introduced to provide inter alia for the admissibility of evidence generated by computers since its predecessor, the Computer Evidence Act 57 of 1983, was generally considered to have failed to achieve its purpose in this regard and, in any event, had not regulated criminal proceedings. ECTA followed an inclusionary rather than an exclusionary approach to the admission of electronic communications as evidentiary material, and the overall scheme of the Act was to facilitate the admissibility of data messaging as electronic evidence.
Held, further, that s 15 of ECTA, which dealt with the admissibility and evidential weight of data messages did not render a data message admissible without further ado. The section did not exclude our common law of evidence and, this being so, the admissibility of an electronic communication would depend, to no small extent, on whether it was treated as an object (real evidence) or as a document.
Held, further, that, given the potential mutability and transient nature of images which were generated, stored and transmitted by an electronic device, they were more appropriately dealt with as documentary evidence rather than as real evidence and, adopting this approach, the ordinary requirement of our law for the admissibility of such evidence was that the document itself had to be produced, which meant that it had to be the original and the authenticity of the document had to be proved.
Held, further, that there had been no evidence or even a suggestion that any person had tampered with the phone or the images stored on it during the period unaccounted for. Furthermore, what evidence there was indicated that the phone was in the hands of lay persons in that four-hour period and it was thus improbable that any tampering with the images in question had taken place. On a conspectus of the evidence it appeared that the requirements of original form and of s 14 of ECTA were met. In any event, s 15(1)(b) of ECTA gave messages a further exemption from the requirement of original form in the event of their being the best evidence that the person could reasonably be expected to obtain. In the light of the lack of any evidence as to who originally transmitted the images to the phone and the limited purposes for which the evidence was tendered, namely to prove that the phone belonged to the accused, the state could not reasonably be expected to have produced better evidence of these images. Their authenticity was in fact not disputed.
Held, as to the contention that the images constituted hearsay evidence, that the images were more akin to being real evidence, but, however they were classified, they did not constitute hearsay evidence.
Held, as to the contention that the images were unlawfully obtained as they were downloaded without the authority of a magistrate, the provisions of the CPA relating to the obtaining of a search warrant were not applicable in the present case and the police were moreover entitled to seize the phone in terms of s 20 of the CPA when it was presented to them by the member of the neighbourhood watch with the explanation that it had been found at the scene of the crime. Nor was any particular authority necessary from a judicial officer in order to download the material from the phone with a view to identifying its owner or possessor. Clearly that information was reasonably necessary in order to trace a suspect. The accused consistently denied that the phone was his and in the circumstances it would be untenable for him to deny, on the one hand, ownership or possession of the phone or the disputed images stored on it, and on the other hand to assert a right to privacy over such images. The evidence was ruled admissible.

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