AS IT HAPPENED: Panayiotou Trial: Veracity of Facebook data brought into question

2016-11-08 15:30

In the ongoing Panayiotou murder trial, now in its fifth week, it was a day of the defence attempting to poke holes in evidence used in the investigation, including GPS data and Facebook search results implicating the accused.

The accused in the Panayiotou case
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Last Updated at 21:48
08 Nov 15:41
 - COURT IS ADJOURNED UNTIL TOMORROW - 

08 Nov 15:40

MS: May I ask that we stand down for tomorrow?

MS: We intend to deal with the evidence of Siyoni, which is likely to lead to the trial within a trial 

MS: I will give the undertaking to have the officers here who arrested Siyoni 

Chetty: Any objections Mr Price, Mr Daubermann? 

TP: No 

PD: No 

Chetty: Court is adjourned 


08 Nov 15:38

PD: It appears I am now forced to cross-examine you on this evidence 

PD: So this is the entry you received when you typed in the number? 

SK: That is correct 

PD: You never went into his profile? 

SK: That is correct 

PD: And his cell number did not appear next to this entry 

SK: That is correct 

PD: And you are not a computer expert who has any understanding of how Facebook works? 

SK: That is correct 

PD: And the "See All" at the bottom, does that not imply there are other entries? 

SK: It is possible 

PD: Do you not know how the Internet works? 

SK: It is possible that there were additional entries 

PD: So it could be possible there were other entries? 

SK: That is correct 

PD: And you do not know how that number was associated to Mr Nenembe? 

SK: That is correct 

PS: No further questions 

MS: No further questions 


08 Nov 15:33

TP: Your statement was only made recently. Is there a reason you made your statement so late, this is a year and a half after the incident 

SK: I was only asked 

TP: I have no further questions, but I would like to see the pocket book 

MS: I have read the entry, the full name of the informant is in the book 

TP: I have no interest in the name, my lord, I just want to see the entry 

TP: I have given them a pen, they can cross out the name if they like 

MS: My apologies, it is just the initials 

TP: That is fine, I just want to see the entry 

[MS hands over the pocket book]


08 Nov 15:27

TP: Thank you. If I understand, your discussions with the informant, this happened on two occasions on the 22nd 

SK: That is correct 

TP: Was Constable Koen with you both times? 

SK: No, just in the evening 

TP: We have his pocket book, he did not mention it 

SK: He should have 

TP: Did you? 

SK: Yes 

TP: Can we get your pocket book? 

SK: Yes 

TP: If you can, in your time, provide your pocket book to Stander 

TP: This informer, is he registered? 

SK: Yes 

TP: Is he your informer? 

SK: No, he is not mine 


08 Nov 15:23

MS: Not too long ago, you were asked to access the Facebook account of one, Luthando Siyoni 

MS: Could you find any photos depicting Mr Siyoni? 

SK: There were several photos depicting Siyoni 

MS: [shows photos of Siyoni] Are these the photos? 

SK: Yes 

MS: I am not on Facebook, how would one get the information of a person? 

SK: Usually a name or cellphone number is sufficient, you can access their profile and then their photos, posts, etc 

MS: How did you get this profile? By name or phone number? 

SK: Cellphone 

MS: No further questions 


08 Nov 15:20

The FB photo of Nenembe. 

(Derrick Spies/Supplied) 


08 Nov 15:19

MS: If I can take you back to the number, can you explain the process? 

SK: I entered the number into Facebook on my phone and the result came up, and this is a screenshot taken

MS: Page number 2 - this photo 

SK: This is just an enlargement of the photo linked to the profile on page 1 


08 Nov 15:15

PD: If I may have another bite at the cherry then

PD: My learned friend has now conceded that this evidence is worth zero 

PD: The previous evidence submitted in relation to this number he has also said is worth zero 

PD: If my maths serves me, my lord, zero plus zero is still zero 

Chetty: The objection is overruled 


08 Nov 15:13

Chetty: Anything to add, Mr Daubermann? 

PD: I am going to invite you to look at the numerous cases in the US dealing with this evidence

PD: This evidence is nonsense, my lord. It should not be admitted, it carries no probative value 

PD: This is not just a page that came up, I pointed out that this is not a Facebook account, it is a search result generated 

MS: If the court may allow me. It is irrelevant in the absence of other evidence. 

MS: Surely the court can't rule now in light of the other information that is still coming 

MS: But that evidence hasn't been submitted yet. The court can rule on this matter at a later stage.


08 Nov 15:09

MS: It is one thing to object to evidence 

MS: It is quite another to try and sneak information in through the back door 

MS: My learned friend is saying he has evidence that the search is flawed, surely he should raise it in cross-examination 

MS: If he is of the opinion that it is not Accused Number 3's number, he must put it to the witness 

MS: If it is an acquaintance then he should put it to him 

MS: This is a social media platform, the information was submitted and we see the accused's name pop up. Surely this is relevant. 

MS: Surely it cannot be that we cannot access information in say, a telephone directory... the information is accessible to the police and this officer is merely stating that he accessed it 

MS: Those are my submissions, my lord


08 Nov 15:04

PD: The same way a Google search on this number would have no probative value 

PD: Further, it is hearsay evidence. It depends on another person who input this number into the system. 

PD: He hasn't even applied to allow this hearsay evidence to be placed in front of you 

PD: All this shows is a number was punched into the Internet and this picture came up 

PD: The witness accessed his own Facebook account, he typed in a number and this name appeared. There is any way this number can be associated with this profile. It may be that this number is that of an associate of his. 

PD: It would be different if that number was entered into his Facebook account. The police never went into his Facebook profile and determined that that number was entered by Nenembe. 

PD: This just shows, with respect [to] the State's evidence they have against Accused Number 3, this is the best they have against my client. 

PD: I ask that you rule this evidence is inadmissible 


08 Nov 14:56

MS: I want to refer you to Exhibit AU, can you take us through this document? 

PD: I am going to object to this evidence 

PD: My learned friend is trying to deduce out and out hearsay evidence 

PD: He is going to lead evidence that this witness typed in a number on Facebook and Accused Number 3's name appeared on the screen. My learned friend is trying to deduce that this is then the number of the accused. 

PD: This is trial by Facebook or trial by Google 

PD: If you look at this evidence, you will see a link that says "See All", which would lead one to assume that there were additional hits 

PD: A number was typed in and my client's profile came up, but there is no way to determine how this number is associated with my client 

PD: So this evidence can have no value whatsoever. It cannot prove anything. It is irrelevant. 


08 Nov 14:51

MS: I now want to take you to October, and is it correct you were asked to try and determine who a certain telephone number belongs to? 

SK: That is correct 

MS: I want you to explain to the court, how would you go about trying to determine who a telephone number belongs to? 

SK: At the office, we have simple ways to check. In this case, I went to Facebook and entered the number in Facebook 

SK: There are other means we check, but in this case we checked on Facebook 


08 Nov 14:47

SK: The owner was contacted, who then gave permission for the detail to be made available to us 

SK: I had in my possession a memory stick on which I had the data placed 

MS: Why did you take possession of this and not Swanepoel 

SK: He did not have a memory stick to put it on and I had one with me, and Swanepoel did not have a laptop at that stage 

MS: And what did you do with this info? 

SK: I kept the memory stick, downloaded it onto my laptop, so that Captain Swanepoel could have it available to review 

MS: What did you do with it thereafter? 

SK: I handed it over to Warrant Officer Bekker from Forensics 

MS: Did you alter this data in any way while it was in your possession? 

SK: No, I did not 


08 Nov 14:41

MS: Were you involved any further? 

SK: At this stage, with the investigating officer being with us, that is where we stopped 

MS: The investigating officer at that time, can you identify them? 

SK: It was Constable Koen 

MS: We heard your name mentioned in relation to a Cartrack report 

MS: Do you have any knowledge of that? 

SK: That is correct. At that stage, myself and Lieutenant Swanepoel (now Captain) went to Cartrack in Newton Park 

SK: At Cartrack we requested if there was any detail available around a certain vehicle 

SK: The registration number was given to Cartrack by Swanepoel 

SK: The company informed [us] detail was available and that they needed to get permission to make the data available to us 

MS: Who did they need permission from? 

SK: The owner of the vehicle 


08 Nov 14:35

MS: I don't want you to tell the court what was conveyed to you, all I want to know, was Accused Number 1 (CP) identified as a suspect, yes or no? 

TP: Are we not resorting to hearsay evidence? 

MS: From the plea explanation it would appear that he was someone who was not a person of interest up until the arrest of Siyoni. This evidence is to show that this is not the case. 

TP: The accused plea explanation is based through meetings with Koen and Eksteen 

Chetty: Can there be any principle objection that his name was mentioned? 

TP: How do I test that?

Chetty: I see your point 

MS: Besides Accused Number 1, is there any other name mentioned to you? 

SK: There was another person mentioned, a bodybuilder who was known to the deceased's husband 

MS: Were you taken anywhere? 

SK: The informant took us to an address in Zwide, where the bodybuilder was believed to reside 

TP: I believe the witness is being shown a house, this is very suggestable... 

MS: It's very simple, it is or isn't the house 

TP: There's a huge 'S' pointing to the house 

MS: [to SK] Is this the house? 

SK: It looks like the house, yes


08 Nov 14:26

MS: Can I assume that the person you went to see is an informer? 

SK: Yes 

MS: During the initial meeting, was any information provided? 

SK: The information that was provided was that he had information and he wanted to clarify that information in relation to the kidnapping and subsequent death of Mrs Panayiotou 

MS: During the first meeting, was either Captain Swanepoel or Detective Koen present? 

SK: No 

MS: Later that day, was a second meeting arranged with informant? 

SK: That is correct, the informant called me and asked if we could meet 


08 Nov 14:21

MS: We call 22. D/W/O Shane Kuhn (SK), Directorate Priority Crimes Investigations (DPCI), SA Police Services, PORT ELIZABETH

MS: Is it correct that Detective Captain Swanepoel is in your office? 

SK: That is correct 

MS: We have heard of a task team that was established to investigate this matter, were you part of it? 

SK: No 

MS: I want to take you to the 22nd of April. On that particular day, did you have any undertakings with this matter? 

SK: Not until that afternoon 


08 Nov 14:17
 - COURT IS BACK IN SESSION - 

08 Nov 13:12
 - COURT IS ADJOURNED UNTIL 14:15 - 

08 Nov 13:12

PB: That is correct. I want to say that although I did receive this electronically, I received it from a police officer and as such did not treat it as a data communication as per the Communications Act, but rather as a normal piece of evidence provided to me, in the same way that I would handle a piece of evidence such as a firearm given to me by a police officer. 

PD: We are not questioning the way you did your job, what I am saying is that you can't comment on the way in which the data was generated, stored or communicated 

PB: That is correct 

PD: Or the reliability of that information 

PB: That is correct 

PD: Or the manner in which the data originated 

PB: That is correct 

PD: So you can only testify that the data was safe while in your possession 

PB: That is correct 

PD: No further questions 

MS: No further questions, my lord 

Chetty: You are excused 

Chetty: Court is adjourned for lunch 


08 Nov 13:06

PD: I want to take you to the Electronic Communications Act of 2002 

PD: Particularly, Section 15, Subsection 3 

PD: It deals with the way in which the court needs to deal with a data message 

(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. 

PD: Do you agree you cannot comment on this matter? 


08 Nov 13:03

PD: Do you know who you received the data from? 

PB: Yes 

PD: Who was it? 

PB: The PDF I received from WO Koen from Organised Crime, and the spreadsheet from Captain Swanepoel 

PD: You also testified that the data you had received did not appear to be tampered with 

PB: Yes 

PD: And you said that this was based on the fact that some of the readings matched with readings you had taken 

PB: That is correct 

PD: Would you concede that there is absolutely no way you could say whether the data had been tampered with before you received it? 

PB: Yes, my lord 


08 Nov 12:59

PD: So that means whoever sent you the files, could do likewise 

PB: That would be a reasonable assumption 

PD: Let's deal with the PDF file 

PD: Did you receive the file in a protected file format? 

PB: No 

PD: A PDF file can be edited as well, can you not 

PB: Yes 

PD: For example, you can stop the file from being printed or opened without a password 

PB: That is correct 

PD: So my understanding is that the file was unprotected when you received it 

PB: That is correct 

PD: It is most likely that the PDF file could have been created from the Excel file 

PB: I can't testify how the PDF file was generated 

PD: But you can create a PDF file from the spreadsheet 

PB: Yes 


08 Nov 12:55

PD: That is just a protocol used to prevent people from opening spreadsheet files that are infected with a virus, not so? 

PB: Yes, it is not to protect the data that is being offered 

PD: When you receive a file via email, you are given the option to open it in an editable file or not 

PB: Yes 

PD: And you could edit it? 

PB: Yes 


08 Nov 12:53

PD: An algorithm is a set of rules that has been put into the programme that tells it how to deal with the data that has been entered 

PB: I would agree with that 

PD: I am sure you would agree, you cannot vouch for the accuracy of this software 

PB: No 

PD: I would like to deal with the data you received from Cartrack 

PD: You testified you received the data as a spreadsheet and as a PDF file 

PB: That is correct 

PD: And you compared the PDF with the spreadsheet and the two appeared to correspond 

PB: Yes 

PD: The spreadsheet file, was it locked in any way, or could you edit it? 

PB: The security status was set to protected view, which is standard when sent via email, but it was unlockable 


08 Nov 12:48

PD: And you then load the data, press a button and you get a result 

PD: And the result in this instance is numerous waypoints on a map 

PB: That is correct 

PD: Then you can also do further details, such as animate the route, as you did 

PB: That is correct 

PD: As you have said, you do not know anything about the inner workings of the programme or the algorithms used in the programme 

PB: That is correct 


08 Nov 12:45

PD: Did it then leave the area? 

PB: Yes 

PD: Let us go to the software you used. Did you use the Garmin baseware software to plot the data from GPS? 

PB: Yes 

PD: You are not a software expert 

PB: No, I am not 

PD: Do you have any idea how the Garmin software works? 

PB: I am familiar with the interface and how to operate the software 

PB: I have no idea of the coding or the algorithms behind it 

PD: It is ultimately a software programme and you load the information into the system 

PB: That is correct, either manually one point at a time, or batch import 

PD: You also have to load the map. It has a basic map, but you have to load a detailed map 

PB: That is correct 


08 Nov 12:40

PD: The State's case is that this transpired before 7am 

PD: If we can go to point T 

PD: There is no allegation that he went to the scene on that day by the way, but for completeness, was the vehicle at his house that day? 

PB: No 

[Note: Point U is Nenembe's home and Point T is Sibeko's home] 

PD: Let us go to Accused Number 3's house, Point U 

PD: Did the vehicle go to his house at any stage? 

PB: No. The closest waypoint was on 12:17:05 

PB: And the closest during the timeframe before 7am was ... the vehicle travelled from Njoli up Mboko up to Kulati street 

PD: What was the closest point? 

PB: [checks] At 05:30, the vehicle was travelling up Njoli 

PB: It appears, at 05:53, it was recorded at the furthest up Kulati street, which is about 250m away 


08 Nov 12:34

PD: I now take you to the 21st of April 

PD: This allegation relating to this date is summarised in paragraph 9 

9. On the morning of 21 April 2015 accused 2 again travelled from his residence to Kwazakhele/New Brighton where he fetched accused 3. From there they travelled to Stellen Glen Complex. They arrived at the complex shortly after 06:00. Accused 2 was dropped off outside the complex whilst accused 3 circled the area with the Toyota Etios. As the deceased exited the complex accused 2 telephoned accused 3 to return to the complex. The deceased was kidnapped just outside the complex. The deceased was manhandled and forced into the motor vehicle. Her cellular phone was immediately taken from her and the sim card was removed from the phone. 


08 Nov 12:32

PD: Now that allegation also points out to events prior to 7am on that date 

PD: I take you again to point U, which is Accused Number 3's house, for that period 

PB: The only time the vehicle was recorded close to it was 06:34 in the New Brighton area 

PB: That is approximately 2.6km from point U and approximately 4.1km from point T 

PD: So you would agree that on that date at no point did the vehicle go to Accused Number 3 or Accused Number 4's house? 

PD: In fact, it never even went to Kwazakele 

PB: Yes, that is correct 


08 Nov 12:28

PD: If we look at Accused Number 4's house, the same can be said 

PB: That is correct 

PD: Would you agree with the statement that the vehicle appears to bypass both Accused Number 3 and Accused Number 4's houses on the 15th 

PB: Yes 

PD: Can I take you to the 16th of April? 

PD: I read to you paragraph 8 of the substantive facts 

8. On the morning of 15 April 2015 accused 2 travelled from his residence to Kwazakhele/New Brighton where he fetched accused 3 and accused 4. From there they travelled to the Stellen Glen Complex in Deacon Road, Kabega Park, the residence of the deceased. They circled the complex on a number of occasions between 06:08 and 06:21 looking to find the deceased. They were however unsuccessful. The morning of 16 April accused 2, accused 3 and accused 4 again returned to the Stellen Glen Complex. They again circled the complex between 05:55 and 06:21 looking for the deceased. From here they travelled to the Swanepoel residence trying to trace the deceased. They were unsuccessful and again returned to the Stellen Glen Complex looking for the deceased. 


08 Nov 12:24

[PD says he wants to look at the information provided in terms of GPS in relation to the State's opening] 

[PB calls up data relating to the 15th of April] 

PD: What is quite clear from the data is that the vehicle never went to the accused's house or stopped there 

PB: That is correct 

[PB asks if he can sit down] 


08 Nov 12:21

[TP asks PB if he had tested the keypad in front of the complex, to which PB responds, "No."] 

[TP asks if he was told that a woman had seen a black man fiddling with the keypad on the morning of Jayde's disappearance, to which PB also responds, "No."] 

TP: No further questions 

[PD takes up cross-examination] 


08 Nov 12:18

[TP questions Phillip Bekker (PB) about an aerial view of the Stellen Glen complex, about the flats and about Makro, which is approximately 720m away "as the crow flies"] 


08 Nov 12:14

 - COURT IS BACK IN SESSION - 

[Phillip Bekker (PB) is sworn in] 


08 Nov 12:08

08 Nov 11:59
 - COURT IS ADJOURNED TO SET UP SPECIALISED EQUIPMENT - 

08 Nov 11:58

MS: We ask for a short adjournment 

MS: We are going to be recalling Phillip Bekker and we will need to reset the equipment for him 

Chetty: Court is adjourned 


08 Nov 11:56

MS: With regard to H1a and H1b, is it possible to say that it is human blood? 

SO: I will not be able to go that far, because our cut-offs are so low already, I cannot go further than that 

MS: I now draw your attention to F11a and F11b 

MS: I want to ask you along the same lines as H1a and H1b SO: F11b didn't have any DNA 

SO: F11a, the concentration was 0.0017 nanogram per microlitre... (needs to be at least 0.005) so I can once again confirm the presence of DNA, but I can't confirm that it was human blood. 

MS: So the reason you cannot confirm the presence of human blood is due to the small amount of DNA present? 

SO: That is correct 

TP: We have no questions 

PD: We have no questions 

Chetty: Witness is excused 


08 Nov 11:53

MS: So you say that there [was] no DNA evidence, does this mean there was no DNA at all? 

SO: There are two variations, which means that there was either nothing at all, or that there were minute traces, but [not] sufficient to make a DNA analysis 

MS: My interest is in swabs H1a and H1b, and the previous witness said she did a presumptive test using luminol to determine if there was blood 

SO: For these two swabs we could isolate DNA, but our cut-off point for usable DNA is 0.005 nanogram per ml... that is the cut-off point to determine if it is human 

SO: In this instance, we isolated 0.0021 nanograms, which is less than half of what we need to determine a decent DNA profile 

SO: The best I can tell the court is that that small amount of DNA can confirm the presence of blood, but very little 


08 Nov 11:49

MS: Ms Otto, is it correct you work for the biology unit of the forensic science laboratory based in Cape Town? 

SO: That is correct 

MS: [calls up a document on screen] Is this your affidavit and your covering letter? 

SO: That is correct 

MS: In your covering letter, you refer to the fact that no DNA records were obtained on the sweater 

SO: That is correct 


08 Nov 11:46

TP: My lord, we have no objections to this witness, if Mr Stander would like to lead her on specific matters we have no objection. 

PD: No objection here 

[Sharlene Otto (SO) takes to the stand] 


08 Nov 11:45

TP: Ma'am, I just want to clarify one thing. Luminol is not a precise test for blood and can give false positives. 

HH: That is correct 


08 Nov 11:43

MS: I want to take you to two [in] particular, swab F11a and swab F11b 

MS: And also H1a and H1b 

HH: So to test for the presence of possible blood. I took a sterile swab, wet with sterile water and rubbed against the swab that was received, and tested that against the chemical reagent... 

MS: And H1a and H1b? 

HH: In that instance I did a luminol test and immediately noted the blue reaction I have mentioned 

MS: Can you read 5 and 6 into record please 

[HH reads into record] 

MS: Thank you 

TP: There is just one thing, my lord 


08 Nov 11:39

MS: So if we return to the graph under Section 4, would that be every sample you received? 

HH: That is each item on which a presumptive test was performed 

MS: In which cases would you not conduct a presumptive test? 

HH: In cases of touch DNA swabs from the crime scene. There [are] no presumptive tests for touch DNA, so we don't include it on the table. 

MS: Can you confirm the correctness of this table? 

HH: Yes, it is correct 


08 Nov 11:34

HH: The second test we use for where blood is not visible, we use a chemical called luminol, which is used in a dark room. In the presence of possible blood, the chemical fluoresces 

MS: How accurate is luminol? 

HH: It is very accurate and can detect small, trace amounts of blood 

MS: And the test for possible semen? 

HH: We use another chemical reagent, which reacts with elements in seminal fluid, which reacts from a colourless to a purple colour. 


08 Nov 11:30

MS: Before we deal with the schedule you have drafted... it is my understanding that these tests show possible hair recovered, possible high friction removed, possible blood detected, and possible semen detected. 

MS: Before we go through this, can you explain how each would be determined? 

HH: For hair, it is a visual inspection 

HH: For high friction, it is a test to determine possible skin cell transfer, and involves the use of a swab that is similar to a cotton bud

HH: For blood, we have two tests; one is for where there is visible blood. It is similar to when you use a urine dipstick to test for blood in urine. In the presence of possible blood, the strip will change from yellow to green. 


08 Nov 11:25
 - COURT IS BACK IN SESSION - 

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