9
HH 547-23
CA 480/19
As regards the sentence, the State submitted that the sentence was appropriate and there
was no justification, in the circumstances of this case, for this court, sitting as a court of appeal,
to interfere with the sentencing discretion of the trial court. The trial court had given adequate
reasons for the sentence and had not misdirected itself or committed an irregularity. In any event
the sentence did not induce a sense of shock.
We accept the case law cited by the appellant on the legal principles which apply to the
assessment of the reliability of video evidence. The admissibility of and weight to be given to
electronic evidence is set out in s 379 of the Criminal and Procedure and Evidence Act [Chapter
9:07] (Criminal and Procedure and Evidence Act). In this case the appellant consented to the
production of the video evidence. He contested, only, the weight to be placed on the video
evidence. I quote 5379 E (2) below: “379E Admissibility of electronic evidence
(1) …
(2) In assessing the admissibility or evidential weight of the evidence, regard shall be given to—
(a) the reliability of the manner in which the evidence was generated, stored or communicated;
(b) the integrity of the manner in which the evidence was maintained;
(c) the manner in which the originator or recipient of the evidence was identified; and
(d) any other relevant factors.
(3) The authentication of electronically generated documents shall be as prescribed in rules of
evidence regulating the integrity and correctness of any other documents presented as evidence in
a court of law.
(4) This section shall apply in addition to and not in substitution of any other law in terms of
which evidence generated by computer systems or information and communications technologies
or electronic communications systems or devices may be admissible in evidence.”
The person who uploaded the video on YouTube is not known. However, the absence of
such evidence is not the end of the enquiry. That is only one of the factors the court takes into
account. The court is, therefore, entitled to take into account other relevant factors. That the
video was showing on YouTube and thus circulating on the internet was an undeniable fact. The
source of the video produced in court was therefore known and easily accessible by the
appellant. The state witness simply downloaded and preserved the video for production in court.
It was common cause that the Police did not change the video showing on YouTube. The second
witness was able to download it without changing its contents and preserved it professionally. He
did not interfere with its contents. The attack on the second witness’ evidence was therefore
baseless because his role was simply to download and preserve the evidence for production in
court.
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