Thursday, June 13, 2024


Litigants and accused persons can now present secret audio recordings in court as evidence, following a ground breaking decision last week by Francistown High Court Judge Lot Moroka.

These relate where there is sufficient proof that the recording has not been tempered with in any manner.

Presiding in the case in which Atholang Mujangi is charged with the murder of Bokani Socks on or about the 3rd January 2014 at or near Francistown, the presiding judge, Justice Lot Moroka opened a trial within trial to adjudicate over the audio recording adduced by the prosecution in evidence must be held admissible or not.

Justice Moroka’s decision to hold a trial within trial was precipitated by the prosecution’s calling into the witness box one Pastor Milidzani Sox of Breath Life Ministries who testified that the accused visited him complaining that he “was being tormented by a person he had killed and asked him to counsel and pray for him to exorcise these visions”.

However, Pastor Socks agreed to assist the accused to come to him on a future date and in the time being tipped off the police about the accused’ visit to him. the police in turn handed to the Pastor a secret recording device for him to record the conversation between the accused and himself.  

During the trial, the prosecution sought to adduce the evidence of the Pastor on what the accused had told him and the audio recording of the accused confession to the Pastor. The deference marshalled by attorney Segabo objected to the admission of the audio recording evidence, prompting the presiding judge to order a trail within trial to determine the admissibility or otherwise of the audio recording.

Justice Moroka said the decision to conduct a trial within trial was intended to afford the accused person the safeguard of having the authenticity of the recording and other related questions determined prior to the admission of the audio recording evidence. However, the accused elected not to testify during the trial within trial and hence the onus rested on the prosecution to beyond doubt the authenticity of the recording i9ncluding that the recording had not been tempered with.

During the trail within trial the Pastor testified on circumstances around which the conversation between himself and the accused was conducted and that as part of his civic duties informed the police about what the accused told him.

The accused who arrived in the company of a woman but was absent during the consultations told the Pastor of his spiritual troubles and went into detail about where he met the deceased leading up to her death. The Pastor recorded all this in the secret recording device that he was given by the investigating officer.

During the trail within trial, the compact disc (CD) was played back to the Pastor in its entirety and within the hearing of the prosecution and the defence. The recording was very clear and conversation lucid

Justice Moroka observed that the accused elected not to testify and did not dispute the fact that he had visited the Pastor and that the voice recorded is not his. That notwithstanding, Segabo raised technical points around authenticity mainly that the state has not discounted possibility of tempering with contents of the recording; that being no voice analysts, the police cannot state with certainty that the recorded voice3 belongs to the accused person, and sought to make voice identification a precondition to the admission of the recording; and that the CD is not the original of the recording and only a copy and thus inadmissible in terms of the best evidence rule.

The defence also objected to the admission of the evidence of the Pastor categorizing it as an improperly obtained confession statement.

Applying the question of admissibility on the law on documentary evidence, Justice Moroka held that the question to be determined is whether the evidence sought to be admitted is relevant and will only be relevant if it has probative value to the issue at hand and will only have probative value if it is linked to the issues to be decided.

Justice Moroka explained in his judgment that in the Botswana jurisdiction, rules of criminal procedure are derived primarily from the common law and statutory law. In the hierarchy of legal norms statutory law ranks above common law, and therefore, where there is a statute regulating a particular field of law, the court cannot disregard the statute in preference to common law.

According to Justice Moroka, in recognition of the growing need for clarity in the area of admissibility of electronic documents, the legislature promulgated the Electronic Records (Evidence) Act of the Laws of Botswana whose preamble states;”Act to provide for the admissibility of electronic records in legal proceedings and the authentication of electronic records; to provide for the admissibility in evidence of electronic records as original records and for matters incidentally connected thereto.

The presiding judge said Section 5 (1) of the Act is significant in that it categorically states that an objection to the admissibility of electronic records cannot be based solely on the fact that the evidence is in electronic form. Conversely put, electronic evidence is admissible subject to the fulfillment of other rules on admission of documentary evidence.

Justice Mo0roka held that unlike in South Africa, proof authenticity of the recording is statutory pre-requisite to the admissibility of the electronic recording “and not a matter of judicial decree”.

On the authenticity of the recording, Justice Moroka held that other than casting general aspersions of possible tempering, the defence has not placed anything before the court upon which to found any genuine ground for tempering. The defence has not suggested the presence3 of a strange voice in the recording neither does it suggests missing bits suggestive of editing.

“As a matter of fact, the accused did not take the witness box and disputed the voices in the recording”, held Justice Moroka adding that he is satisfied with the authenticity of the audio recording. And that “even where there is suggestion of deletion or distortion or interference in the recording, that necessarily may not lead to the exclusion of the recording. The recording will be admitted if it is relevant and substantially a reflection of what it purports to be”.

On the question of the absence of the original device used to record the conversation between the Pastor and the accused, Justice Moroka relied on Section 7 (1) (a) of the Electronic Record (Evidence) Act that provides that there is no need to tender the original recording device which was used secretly to record the conversation between the accused and the Pastor so long as the prosecution has adduced proof of the integrity in the transfer of the recording from the secret recording device to the CD.

“The admissibility of the audio recording can therefore not be impugned for any of the points raised by the defence. It meets the requirement of both the common law and the statutory law on the admissibility of electronic evidence. The audio recording is for these reasons admissible”, held Justice Moroka.


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