Description
Electronic evidence – history of admissibility of electronic evidence –admissibility of a VCD – Electronic Transactions Act – Electronic evidence recorded by a mobile phone – electronic data – recorded or stored in the usual and ordinary course of business – chain of custody – election petitions – standard of proof – beyond reasonable doubt
- Meaning of electronic evidence (pp. 9 – 10).
- This decision gives a history of admissibility of electronic evidence in Tanzania from 2000 in Trust Bank Tanzania Ltd Vs Le-Marsh Enterprises Ltd & 2 Others, before the enactment of the Electronic Transactions Act until the enactment of that Act (pp. 10 – 20).
- A VCD is a document (p. 20).
- The hallmark of the conditions for admissibility of an electronic evidence under the provisions of S. 18(1) of the Electronic Transactions Act is in its authenticity (p. 24).
- Electronic evidence was recorded by a mobile phone then stored in a VCD. It was alleged that the mobile phone was lost. The evidence was rejected on the following grounds:-
- There was no evidence showing that the device used to record and the computer that generated the data sought to be tendered were at all material times working properly and if not, whether their not operating properly did not affect its integrity (p. 26).
2. No evidence was brought on whether or not the person other than PW6 could access the devices (p. 26).
3. The court was not told how long PW6 stayed with the electronic data before sending it to the petitioner, and how long the petitioner stayed with it, and how long PW6 stayed with it again before producing the VCD and eventually seeking to produce the VCD in evidence in court (p. 26).
4. The fact that electronic data changed hands physically and electronically to that extent waters down its authenticity (p. 26).
5. The device (a cell phone) which was used to record the data had been lost, hence the electronic data sought to be tendered was not original. No sufficient reason had been given as to why the court should accept secondary evidence. That is so because there was no proof that the cell phone had been lost (p. 28). No police loss report was produced to that effect (p. 29).
6. PW6, the witness who sought to produce the VCD, was neither a party to the dispute nor was that witness adverse in interest against the party seeking to introduce the evidence as stipulated under S. 18(3) of the Electronic Transactions Act (p. 29).
7. It was not sufficiently established that the electronic record sought to be introduced in evidence was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not record or store it under the control of the party seeking to introduce the record.
8. Also, the fact that PW6 sent the recording to the petitioner after recording it suggests that he was acting under the control of the petitioner in whose interest the electronic evidence is sought to be tendered (p. 29).
- The authorities on chain of custody namely Paulo Maduka & others vs R, Abuhi Omari Abdatlah and Others vs R, Onesmo s/o Mlwilo vs R, and Oscar Nzelani vs R, can be applicable in any proceedings and specifically in election petitions (pp. 27 – 28).
- In election petitions the standard of proof is beyond reasonable doubt (p. 28).
