It was inevitable that the attempts our law makes to deal with electronic evidence would, one day, be tested. It is not surprising that a particularly nasty case turned out to be the test.
Three boys allegedly drugged two girls, and gang-raped one, on the premises of the Jules High School, in Jeppestown, Johannesburg. The victim, aged 15, could only identify two of her attackers, aged 14 and 16, but the incident was allegedly recorded on video using cellphone cameras belonging to the perpetrators.
It is unclear why exactly the National Prosecuting Authority (NPA) decided not to bring charges against the two boys. It merely says there is insufficient evidence, and declined to elaborate on the nature of the evidence "due to the sensitivity and age of the complainant".
Let's leave aside the fact that the sensitivity and age of the complainant seems like a great reason to be extremely clear about why the authorities deem graphic video of the alleged rape to be insufficient evidence.
The problem of electronic evidence is addressed in the Electronic Communications and Transactions (ECT) Act number 25 of 2002. In particular, chapter 3, section 15 states:
1) In any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a data message, in evidence
a) on the mere grounds that it is constituted by a data message; or
b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.
2) Information in the form of a data message must be given due evidential weight.
3) In assessing the evidential weight of a data message, regard must be had to
a) the reliability of the manner in which the data message was generated, stored or communicated;
b) the reliability of the manner in which the integrity of the data message was maintained;
c) the manner in which its originator was identified; and
d) any other relevant factor.
4) A data message made by a person in the ordinary course of business, or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self regulatory organisation or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.
It is important to note that this does not change the general rules of evidence and admissibility. It merely establishes functional equivalence between data messages and paper evidence. The key clause is that evidence cannot be excluded "merely" because it is in electronic form. This implies that it can be excluded on other grounds, as is the case with any other evidence.
The emotions such a gruesome crime stirs up make it easy to lose sight of these very valid legal questions.
Ivo Vegter, ITWeb contributor
It still needs to be produced, which in legal terms means that the person who is responsible for creating the message (in this case, the cellphone video of the alleged rape) has to testify as to its provenance and authenticity. This is also true for a written statement. The signatory has to turn up in court to produce the evidence. Further, the prosecution has to prove the time and date of the recording, as well as that it has not been tampered with, and that it technically constitutes a reliable record of what occurred.
Failure to do any of the above will render the evidence inadmissible. It might be that nobody is willing or able to testify to having produced the video. I'm no lawyer, but it would seem the right to silence for fear of self-incrimination might give the accused a lifeline in this regard.
These questions about the form of the message must be answered before the content of the message is considered. What might the video show? Does it clearly and unambiguously identify the alleged perpetrators? Does it identify the alleged victim? Does it show that the alleged victim is unwilling, or drugged? In other words, does it clearly depict rape, rather than merely intercourse? Does it even conclusively show intercourse, or could it be simulation?
We know none of this, because the NPA has not said anything about the evidence. Meanwhile, the emotions such a gruesome crime stirs up make it easy to lose sight of these very valid legal questions.
There are many cases in which audio or video recordings are used as evidence. Is a cellphone audio recording of a hijacking or a police bribery incident admissible? Does it clearly identify the perpetrator, and can it be proved that the recording is genuine?
Such questions need to be answered if the public is to understand the nature and legal admissibility of electronic evidence.
Since the law is so vague and broad, it would be helpful if the NPA were more forthcoming about the reasons why this piece of evidence is deemed insufficient to even bring the case to trial. Surely it can do so without compromising the case or the identity of the victim?
It may very well have good reasons to consider cellphone video in general problematic as evidence. It may have good reasons not to accept this particular cellphone video.
Either way, the public has a right to know. As long as the NPA keeps the public in the dark, it is a fair target for righteous anger.
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