Admissibility of Electronic Evidence in Criminal Proceedings: An Outline of the South African Legal Position

Abstract

1. Introduction to electronic evidence A few years ago the Internet, cyberspace, information and communication technology and criminal conduct in cyberspace were regarded as science fiction, but today these are the realities that face countries in the 21st century. Most societies function within a physical and electronic medium. The electronic medium evolve around the use of information and communication technological devices such as computers, mobile phones, printers, iPods, digital cameras to name but a few. The electronic medium, similar to the physical medium, creates many opportunities for the commission of crimes, such as phishing, 'identity theft', Internet child pornography and distributed denial of service attacks among many others. When a crime is committed, one of the parties in the subsequent criminal proceedings may wish to rely on information generated, distributed or stored on electronic devices such as spreadsheets, emails, text messages, databases and traffic data. Electronic information is often relevant in proving or disproving a fact or point in question relating to the guilt or innocence of the accused and as such, the information forms part of the totality of evidence before the court. This information constitutes electronic evidence and the rules of the law of evidence are applicable thereto in deciding its admissibility. Galves and Galves (2007, p.9) states 'Technology can live up to its billing of making life easier and more efficient for all of us, despite how criminals may employ it, if we effectively use electronic evidence to prosecute those criminals and reduce the opportunities for technology to be used against us'. The question immediately arises as to whether the traditional law of evidence, which originates from a physical medium, has developed sufficiently to provide for the question of admissibility of electronically recorded and transmitted information. Although one may easily be seduced into believing that electronic evidence is trustworthy, reliable and easily admissible, challenges inherent to electronic evidence face most criminal courts in the electronic age (Solovy and Byman, 2007, p.1). 2. Sources of South African law of evidence governing electronic evidence The focus in this discussion will be on admissibility of electronic evidence from a South African legal perspective. For purposes of this discussion, it will be assumed that the evidence was lawfully obtained, as evidence obtained unlawfully will in all probability be inadmissible. In this regard, section 35(5) of the Constitution of South Africa finds application. Section 35(5) states that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence render the trial unfair or will otherwise be detrimental to the administration of justice. The constitutional court stated in Key v. Attorney-General, Cape Provincial Division (1996 (6) BCLR 788 (CC)) '(b)ut there will be times when fairness will require that evidence, albeit obtained unconstitutionally, nevertheless be admitted'. The legal system does not always keep up with the pace of technological development. The South African law of evidence consists of common and statutory law. The need for legislative intervention was highlighted with the decision in Narlis v. South African Bank of Athens (1976 (2) SA 573 (A)). In this matter it was held that section 34 of the Civil Proceedings Evidence Act 25 of 1965 did not provide for admissibility issues relating to computer printouts. The section provided for the admissibility under specific circumstances of a statement made by a person in a document, but a computer was not regarded as a person. The Computer Evidence Act 57 of 1983 was thereupon placed on the statute book to regulate the admissibility of computer evidence. This act did not achieve its purpose mainly due to an over-cautious approach in placing a high premium on authenticity and reliability. …