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Motata: Cell evidence attacked
21/07/2008 20:11 - (SA)
Johannesburg - The defence in the drunken-driving trial of Judge Nkola Motata mounted a sharp attack on Monday on the credibility of the State's main witness.
"The evidence of (Richard) Baird is riddled with contradictions, untruths and improbabilities," argued defence advocate Danie Dorfling in the Johannesburg Magistrate's Court.
Baird is the owner of the Hurlingham property where Motata crashed his car into a wall on January 6 2007.
At issue was the admissibility of five cellphone recordings he took on the night of Motata's alleged drunken driving.
They are at the centre of a trial within a trial that is to be completed on Tuesday. A ruling on the matter was expected to be given on Friday.
Dorfling said: "Mr Baird cannot be trusted with the manner in which he handled the data at the level of storing it, communicating it and even maintaining it.
Zip files apparently lost
"It is submitted that the said data cannot be considered reliable."
Dorfling said Baird had dropped the phone twice causing it to become eventually unusable.
A secure digital card used to make photographs on the scene was lost.
Some zip files of the recordings were also apparently lost when making a copy for the court.
"Despite describing himself as being fastidious, the aforesaid catastrophes belie this very claim of Mr Baird."
Dorfling said some of Baird's explanations did not fully add up.
For example, Baird apparently changed his explanation several times as to why he switched from recording with a digital camera to a cellphone.
Dorfling said there was also improbability in Baird's evidence in respect of events before he started making recordings.
Baird said the first words he uttered to Motata were "Hello Judge" after which Motata responded by allegedly saying "Fuck you".
"It makes no sense that the accused would have reacted in the manner Mr Baird described when Mr Baird, on his own version, very politely greeted the accused.
"It is far more probable that Mr Baird would have made a remark that antagonised the accused".
Dorfling also said Baird was biased. "Mr Baird quite clearly had an axe to grind with the accused."
'Scoop story'
Dorfling said other bystanders had wanted him to settle with Motata right there.
He said Baird had taken his "scoop" story to the media 1½ days before even laying a criminal charge.
"These factors clearly demonstrate Baird's bias. At this leve, his evidence is therefore circumspect," said Dorfling.
"This honourable court needs to rely on Baird's evidence on issues of completeness and authenticity of the record.
"It is submitted that his word cannot be trusted," said Dorfling.
Dorfling said the testimonies of four State witnesses who had confirmed that the recordings captured events as they happened were "not particularly helpful".
He said: "The evidential weight to be attached to their evidence is minimal as a result of their evidence being no more than self-corroboration.
"The reliability of the data messages does not stand on its own feet. There is simply no assurance for the reliability of the data with mere reference to the data itself," he said.
Dorfling said even if the recordings were relevant, this did not make them admissible.
Cellphone 'was broken'
"The evidential weight is so limited and the potential prejudice to the accused so severe that you can disregard it," he said.
Legislation like the Electronic Communications and Transactions Act stated that if original data was not available, the best evidence that could reasonably be expected to be obtained could possibly be admitted as evidence.
Dorfling said the copy of the recordings the court was using "fell foul" of this requirement.
The cellphone on which the recordings originally were made was broken and the secure digital card that carried an earlier copy had been stolen.
An encrypted version that was apparently available on Baird's laptop had not been used in court.
Instead, the court had been listening to a version of the recordings downloaded on to Baird's laptop that was in a different file format than the original cellphone recordings.
Accuracy 'hadn't disputed'
"The evidence should be afforded very little, if any weight," he said.
Earlier, the State said the accuracy of the recordings had never been disputed.
"Neither of the defence's expert witnesses testified that they (the recordings) had been tampered with or that they are inaccurate," said State advocate Zaais van Zyl.
He said Motata had chosen not to testify in the trial within a trial.
"The accused is in an excellent position to testify to any alleged inaccuracies in the recording... (If you don't testify) you can't cry wolf because then the evidence remains unassailed."
He said four witnesses had testified to the court that the recordings were accurate.
Van Zyl said there was no allegation of and no indication of any interference with the recordings.
"It is, in the end, a decision about the integrity of State witnesses."
He said the best evidence that could reasonably be expected to be put before the court had been submitted.
'Prima facie accurate'
Having possession of the originals was not a requirement for the court.
"There is no real original when it comes to digital data.
"The evidence is clearly relevant. It is prima facie accurate. The test should be put no higher than that at this stage."
Van Zyl said Baird was a victim in that his property had been damaged.
"He simply protected his rights as well as he could. He clearly had no reason to tamper with the contents of the five recordings."
The State will be given a chance to reply to the defence on Tuesday.
A ruling in the trial within a trial is expected on Friday morning.
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