Electronic evidence is best defined in the case of Amongin Jane Francis Akili v Lucy AKello & Anor HCT-02-CV-EP0001-2014 in which Hon Justice Margaret Mutonyi defined it as, ‘Electronic evidence is any probative information stored or transmitted in digital form like compact disc in this case that a party at a trial or proceeding may use. It is used to prove a particular proposition or to persuade court of the truth of an allegation.’
The question of admissibility of evidence whether oral or documentary will depend on whether it was relevant to the fact in issue before court.
This principle was stated by Tsekooko, Ag. J(as he then was) in the case of Uganda vs David Kamugisha & Anor [1988-90] HCB 77 where he stated that
‘A court will determine if the evidence is relevant, whether it is authentic, or hearsay, or whether a copy is acceptable or the original is required.
Our legal regime has since incorporated the validity of Electronic Evidence as elaborately stated under section 5 of the THE ELECTRONIC TRANSACTIONS ACT, 2011.
that gives the Legal effect of electronic records. The Act goes ahead to state under section 5 that
(1) Information shall not be denied legal effect, validity or enforcement solely on the ground that it is wholly or partly in the form of a data message. (2) Information incorporated into a contract that is not in the public domain is regarded as having been incorporated into a data message if the information is— (a) referred to in a way that a reasonable person would have noticed the reference to the information or incorporation in the contract; and (b) accessible in a form in which it may be read, stored and retrieved by the other party, whether electronically or as a computer printout as long as the information is reasonably capable of being reduced into electronic form by the party incorporating it. (3) Where— (a) an act; (b) a document; or (c) information, is required to be in writing, produced, recorded or retained, it may be written, produced, recorded or retained in electronic form. (4) For purposes of subsection (3) the requirement for a document or information to be in writing is fulfilled if the document or information is— (a) in the form of a data message; and (b) accessible in a manner which is usable for subsequent reference.
The above position is a clear indication that the law on electronic evidence has since gained legal backing in our Jurisprudence, however the courts have since breathed life into the provisions and given rules for a party that intends to rely on that form of Evidence.
More still, with the enactment of the The Constitution (Management of Exhibits) (Practice) Directions, 2022 Practice directive 4 defines “Digital evidence” to means any information or data of value to an investigation that is stored on, received by, or transmitted by an electronic device. It further defines “Electronic devices” which includes the GPS devices, cell phones, tablets, computers, and digital storage devices that can retain vast amounts of information and potential digital evidence.
WHO MAY TENDER IN AN AUDIO VISUAL RECORDING IN LAW?? The law under Section 43 of the EA Cap 6 provides that
(a) referred to in a way that a reasonable person would have noticed the reference to the information or incorporation in the contract; and
(b) accessible in a form in which it may be read, stored and retrieved by the other party, whether electronically or as a computer printout as long as the information is reasonably capable of being reduced into electronic form by the party incorporating it.
(3) Where— (a) an act; (b) a document; or (c) information, is required to be in writing, produced, recorded or retained, it may be written, produced, recorded or retained in electronic form. (4) For purposes of subsection (3) the requirement for a document or information to be in writing is fulfilled if the document or information is— (a) in the form of a data message; and (b) accessible in a manner which is usable for subsequent reference.
As earlier highlighted, our legal regime under the The Constitution (Management of Exhibits) (Practice) Directions, 2022 Practice directive 15. on Electronic devices. states how they should be managed and tendered in. (1) The officer collecting electronic data shall ensure that he/she is accompanied by a person with basic knowledge in ICT. (2) The Officer shall ensure that the computer system or any other similar device is operating properly or if it was not, the fact of its not operating properly cannot affect the integrity of the data or the records stored on the system. (3) The officer shall file a statement stating the circumstances the information on the electronic device was collected or recorded. (4) The experts analysing the computer system shall also provide a statement confirming that the evidence was collected or recorded in conformity with Electronic Transactions Act, 2011
The above provision clearly indicates who can be able to tender in electronic evidence to be non other than a person with basic Knowledge of ICT.
This same position is backed by Paragraph 25 of the Constitution Management of Exhibits Practice Directions 2022 which provides for who may tender exhibits
(1) Exhibits may be introduced in court during hearing by a party, an attorney, legal counsel or prosecutor.
(2) Exhibits may, during hearing, be tendered through the following; (a) The maker or author of an exhibit; (b) Custodian of the exhibit; (c) Actual or special owner; (d) Arresting, searching or investigating officer; (e) An officer from a corporate entity to which an exhibit relates; or (f) Any person with sufficient knowledge of the exhibit.
DEVELOPMENT OF CASE LAW. The first case we look into is the case of Olega v Alidriga (Civil Appeal No. 6 of 2013) [2016] UGHCCD 63 (29 September 2016) Whose facts are, By a plaint dated 28th January 2013 and filed in court on 28th January 2013, the appellant had sued the respondent claiming general damages for defamation, a permanent injunction against further publication of libelous material, an apology, interest on the general damages and costs. In the body of the plaint, the appellant pleaded that on or about 19th of December 2012, the respondent wrote and published a malicious letter against the appellant, which contained the following defamatory words; Twaha Sebi Olega is a thief who stole solar panels in Matuma Health Centre in the year 2007 and recently he also stole four solar panels from Yumbe Hospital, with the help of police, I arrested him, where he was prosecuted and sentenced to two years’ imprisonment or a fine of 250,000/= (a copy of the letter dated 19/12/2012 is hereto attached and marked Annexure A).
The appellant further contended that those words as contained in the letter were made in bad faith and maliciously against him and that the respondent published those words to some radio journalists, well knowing that the appellant had on 18th November 2012 been acquitted of those charges upon the quashing of his conviction and sentence of the Grade II court by the Chief Magistrates’ Court. He contended that the words complained of in their natural and ordinary meaning meant that he was a thief who was not fit to hold public office. As a result, his reputation as a professional electrician had been severely injured causing him to be shunned and exposing him to public ridicule and odium. His wife had as a result deserted him and he suffered mental anguish and emotional stress, all because of the defamatory words.
It being an appeal in the High court, court had to Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally as seen in the case of (Abdul Hameed Saif vs. Ali Mohamed Sholan (1955), 22 E. A. C. A. 270).
Court had to determine whether the words complained of were defamatory of the appellant? The statements complained of were in two forms, a letter dated 19th December 2012 and a video recording. In paragraph 4 (b) of the plaint, the appellant referred to words contained in a video recording as being defamatory. An attempt was made to introduce this recording in evidence and it was received as I.D.2 and at line 10 of page 16 of the record of appeal it is indicated that it was played before the court. This was erroneous, the recording should have been played to court only after receiving it as part of the evidence. Nevertheless, in his judgment at page 9 line 19 of the record of appeal, the trial magistrate considered it as part of the evidence and in his view “a recording which lasted 10 minutes cannot amount to defamatory engagement.”
Hon Justice Stephen Mubiru ruled that A video recording is in law regarded as a document (see R v Daye 1908 KB 330 at 340 and Seccombe v Attorney-General 1919 TPD 270, 272, 277‑278). he further stated that It has been decided by courts that there is no difference in principle between a tape recording and a photograph (See R v Senat (1968) 52 Cr. App. Rep 282 and Regina v Maqsud Ali, 1965 [1966] 1 QB 688, [1965] 2 All ER 464). Being a document, like any other document being offered in evidence, a recording must be authenticated: a witness must offer evidence establishing that the object is what that witness claims it is. One frequently cited authentication regime was first articulated by the Georgia Court of Appeals. In Steve M. Solomon, Jr., Inc. v. Edgar 88 S.E.2d 167 (Ga. Ct. App. 195), where the court stated:
A proper foundation for [the use of a mechanical transcription device] must be laid as follows: (1) it must be shown that the mechanical transcription device was capable of taking testimony. (2) It must be shown that the operator of the device was competent to operate the device. (3) The authenticity and correctness of the recording must be established. (4) It must be shown that changes, additions, or deletions have not been made. (5) The manner of preservation of the record must be shown. (6) Speakers must be identified. (7) It must be shown that the testimony elicited was freely and voluntarily made, without any kind of duress.'
Court further ruled that If a participant in the conversation is available to testify, it suffices for the witness to testify that he or she recalls the conversation, has listened to the recording, and is satisfied that the recording accurately captured what was said. It is thereafter sufficient to show a chain of custody which establishes the reasonable probability that no tampering occurred. Minor infirmities in the chain of custody are insufficient to bar admissibility of a recording, but are relevant as to the weight the court chooses to give to it. This requirement can be met when a witness with knowledge testifies generally about how the equipment was set up, the procedures employed, and the records that were kept documenting the process.
The evidentiary value of a recording depends in large measure on who said what, but a court’s ability to use that information depends upon two qualities of the recording: audibility and intelligibility. Audibility relates to whether the listener is able to hear what is on the recording. Intelligibility relates to whether the listener is able to understand what the conversants said.
The issue courts most often focus on is intelligibility. The ultimate test of audibility and intelligibility is whether the party offering the recording has been able to produce a transcript of the recording which accurately reflects the recording’s contents (see R v Rampling [1987] Crim LR 823). For that reason, as required by s. 88 of The Civil Procedure Act, since evidence in all courts has to be recorded in English as the official language of courts, if the recording is in any other language the transcript of the recording should be translated into English before it can be received in evidence. The recording in this case was never transcribed. It therefore was not tested for intelligibility and audibility.
For the reasons stated above, that part of the pleadings and evidence relating to the video recording ought to have been disregarded by the trial court. The other case is the case of Amongin Jane Fances Akili Vs Lucy Akello & Anor (HCT – 02 – CV – EP 0001 – 2014) [2015] UGHCCD 1 (3 June 2015); Which was an election petition that concerned the admissibility of the recordings annexed to the affidavit in support of the petition. Counsel Ogalo submitted that the annexure being recordings are not admissible in evidence and accordingly these parts of the affidavits referring to them be severed from these two affidavits. He started with the annexure on the affidavit of Akena Geoffrey who attaches the CD saying he was requested to translate it by the petitioner. The second affidavit is that of Onen Patrick who used his mobile phone to record.
Court ruled that before accepting electronic evidence, the following steps must be taken into consideration as stated as follows, (1.) Reliability of the equipment used. (2.) The manner in which the basic data was initially entered. (3.) The measures taken to ensure the accuracy of data as entered. (4.) The method of storing the data and precautions taken to prevent loss or alteration. (5.) The reliability of the computer programs used to process the data. (6.) And the measures taken to verify the accuracy of the program. (7.) What soft ware was used to preserve digital evidence in its original form and to authenticate it for admissibility? (8.) The competence of the person who accessed the original data. (9.) This person must be competent to do so and able to give evidence explaining the relevance and implication of what he did. Finally, (10.) An independent third party should be able to examine the process and achieve the same results.’ Courts have further observed that, ‘the person in charge of the process of acquiring information through the electronic process has the responsibility for ensuring that certain standards are met because this kind of evidence can easily be modified and or duplicated.
In Conclusion. Therefore, while tendering in audio or video evidence, courts will ‘if a participant in the conversation is available to testify, it suffices for the witness to testify that he or she recalls the conversation, has listened to the recording, and is satisfied that the recording accurately captured what was said.’
As was stated in the case of Attorney General (Uganda) v The East African Law Society & Secretary General East African Community EACJ, First Instance Division, Application No. 17 of 2014 this simply means that, the relevance of chain of custody, establishes the reasonable probability that no tampering occurred.
Therefore, minor defects in the chain of custody are insufficient to bar admissibility of a video recording but might be relevant to the weight that court chooses to give it. Conclusively, under common law, ‘In the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time’.
By Waboga David Lawyer & Fast forward thinker DISCLAIMER: The information provided is purely general knowledge for academic purposes.
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