Basic rules of video evidence

2019-04-30 12:26
A file image of a CCTV camera in London after attacks. (AP)

A file image of a CCTV camera in London after attacks. (AP)

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Smile. You could be on candid camera.

Now more so than ever before, with an increase in the use of digital devices.

Videos are being made at every opportunity by just about anyone. Gone are the days when one needed an expensive video camera and perhaps a special skill. Now, all that is required is a smart phone, to point in the right direction and press record.

The easy video making process along with social media platforms has resulted in a surge of videos flooding online platforms.

This includes videos of criminals committing minor to serious crimes.

But can one be convicted of a crime based solely on video evidence? No.

That’s according to legal expert Patrick Stillwell. He said that in the law of evidence, photographs and film are considered documentary evidence. There are two basic rules that apply. One is that the document must be proved to be authentic. “It must actually be what it purports to be and it must be proven,” he said.

The second rule is that the contents must be true. However, this inquiry is less important. He said to prove a video is authentic, the person who shot it can be called as a witness. He explained why this was necessary using an example of a “play” of an assault that is videoed. While an assault is seen to be taking place, the people were just acting.

He said that in labour law cases where there are videos all over the workplace, what one sees is usually what happened. “There is little scope to argue it’s not the truth,” he said.

Professor Karthy Govender, a research fellow in law at UKZN, shared similar views.

“The evidence must be authenticated and that’s the key issue,” he said.

Govender added that this has to be shown that videos are not tampered with. He said courts generally look for authentication or corroboration.

“Judges assign weight to various factors,” he said.

In cases where the above criteria are met and the victim refuses to testify, perhaps out of fear, the state can still can prosecute.

KZN Director Public Prosecutions Moipone Noko said: “... If it is in the interest of justice we may, in some cases, proceed with a prosecution irrespective of what the complainant’s wishes are.”

Recent incidents captured on camera

Recent incidents that were videoed and circulated on social media platforms include:

• Babes Wodumo being assaulted by her ex-boyfriend Mandla “Mampintsha” Maphumulo. The assault video sparked anger on social media.

• A Carletonville nursery school caregiver was arrested after she was seen on video assaulting a toddler enrolled at the school. 

• In Pietermaritzburg, Roxanne Naicker, her husband Karl and two brothers Ryan and Riley Reddy are seen on CCTV footage as part of a group allegedly assaulting Yashveer Kesari while he lay on the floor. They are facing charges.

Read more on:    pietermaritzburg  |  video evidence

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