THE REPUBLIC OF UGANDA

JUDICIAL TRAINING INSTITUTE

“PRESENTATION AND ADMISSION OF DIGITAL AND FORENSIC EVIDENCE IN COURT”

BY
HON. JUSTICE DUNCAN GASWAGA

JUDGE OF THE INTERNATIONAL CRIMES DIVISION AND DEPUTY HEAD OF THE COMMERCIAL COURT

07TH MAY 2021, KABIRA COUNTRY CLUB KAMPALA

Content

 Introduction and definitions

 Presentation of D & F evidence
 Requirements for admissibility of D & F evidence
 Metamorphosis of the ‘best evidence rule’
 Cases demonstrating evolution of digital evidence
 The practice in International Criminal Courts (Tribunals)
 Considerations by a Judicial Officer
 Likely challenges
 Conclusion
 NOTE: The presentation is about admissibility of digital evidence and not analysis of
or attachment of weight to digital evidence presented.
Introduction

 The increasing use of Digital & Forensic (D & F) evidence offers new
opportunities and challenges as well.
 Evidence of email, a satellite intercept or a video may help establish linkage
evidence between a defendant and the commission of a crime thereby
strengthening a party’s case.
 Depending on the technology, digital evidence can also provide information
on the time, place, and manner of an event to supplement viva voce evidence
or live testimony.
 But digital evidence can also be altered or degraded. It is divorced from its
source; for example, a photograph captures only one perspective of a location
at a specific time, and email does not capture the demeanor or tone of voice
of the author.
Definition of terms

Digital Evidence: information transmitted or stored in a digital format that a

party to a case may use at a proceeding. Form: photographs, video and audio
recordings,emails,blogs and social media(facebook,twitter and whatsapp),text
messages, files and documents extracted from hard drives, electronic financial
transactions e.g. mobile money, any server or device that stores data e.g. GPS
Cyber crime : criminal activities carried out by means of computers or the
internet.
Forensic evidence: is evidence obtained by scientific methods such as ballistics,
blood test, and DNA test and used in court
Common cases: terrorism, corruption and money laundering, maritime piracy,
international crimes e.t.c
Definition Cont…

 In Amongin Jane Francis Okili Vs. Lucy Akello and Electoral Commission
[2015] UGHC 1 it was stated that;
“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.”

 Electronic evidence is further defined by George Madson as all information

with probative value that is included in an electronic media or is transmitted
by media.
Examples of devices
Presentation of D and F Evidence

 This is the actual bringing of evidence into court/proceedings to prove

a case.

 The burden of proof is on the party presenting the evidence.

 What form and shape is the evidence? - size, weight

 Who to present the evidence – why, how, when

 Compare: how track dog evidence is adduced – by dog or the handler?

 Note: - preparation is very crucial (lay a foundation)

Admissibility of D & F Evidence

 Admissibility: is a concept in the law of evidence that determines whether or

not evidence can be received by the court.
 Without admissible evidence there is no case.

 In Uganda Vs David Kamugisha & Anor [1988-90]HCB 77, Tsekooko, Ag J

“the question of admissibility of evidence be it oral or documentary basically

depends on whether it was relevant to the issue before court.”
Admissibility Cont…
Amongin Jane (supra)
“Before accepting electronic evidence, 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.  It is apparent that the use of
digital evidence has increased in the recent past and that is why courts
which were hesitant to admit it have now accepted it as one of the best
evidence.  But like any other evidence the proponent of electronic or
digital evidence must lay the proper foundation which makes the
evidence reliable. Courts are mainly concerned about reliability of such
digital or electronic evidence.”
Requirements for admissibility

 The Evidence Act, Cap 6 of Uganda: generally guides the conduct of

proceedings and determines facts admissible as evidence.
 In general, at Common law admissible evidence must be relevant to the issues in
the proceedings and will be admitted where its probative value outweighs its
prejudicial value, unless there is another rule of evidence to exclude it.
 The “Best Evidence rule” required that only original documents in a written
form could be admissible in court, if not, that its absence be explained before a
copy can be admitted as evidence in its place “Secondary Evidence rule”.
Omychund Vs. Baker(1745) 1 Ack, 21,49;26 ER 15,33
 The rationale for this rule was to protect against the risk of inadvertently
receiving errors through the manual copying process as well as the prevention
and detection of fraud.
Advancement in the legal regime

 The definition of a document under Section 2 of the Evidence Act did not
anticipate the advent of computer disks or other modern information storage
devices until the Electronic Transactions Act 2011(ETA) was enacted.
 According to Section 8(1) (a) & (b) of ETA , original documents now include
electronic documents or evidence.
“In legal proceedings the rules of evidence shall not be applied so as to deny the
admissibility of a data message or an electronic record— (a) merely on the
ground that it is constituted by a data message or an electronic record; (b) if it is
the best evidence that the person adducing the evidence could reasonably be
expected to obtain;” (See also Section 5;)
Advancement Cont….

 Section 29 Computer Misuse Act, 2011

(1) In any legal proceedings, the rules of evidence shall not be applied so as to
deny the admissibility of a data message or an electronic record-
(a) merely on the ground that it is constituted by a data message or an electronic
record;
(b) if it is the best evidence that the person adducing it could reasonably be
expected to obtain; or
(c) merely on the ground that it is not in its original form
CASES demonstrating evolution of law

R Vs Raojibhai Girdharbhai Patel and Anor (1956) 29 KLR 112 a wire recorder, the
recording and transcription therein were held to be inadmissible because the law at
the time (Evidence Act) had restricted what should be taken as evidence.

In Salau Dean Vs Republic (1966) EA 272, tape recordings were admitted as

admissible evidence with guidance that judicial officers should listen to/hear
evidence from such devices in open court since a lot of information can be gathered
from the tone of voice used by the recorded individuals.

According to R Vs Senat (1968) 52 Cr. App. Rep 282 there is no difference in

principle between a tape recording and a photograph. The same premise applies to
all other electronic records that are tendered into court as main evidence or in a
corroborative capacity.
Cases cont….
In Kajala Vs Nobel (1982) 75 Cr. App R 149, Ackner, LJ observed that the best
evidence rule has evolved over time. He held: “The old rule that a party must
produce the best evidence that the nature of the case will allow and that any
less good evidence is to be excluded has gone by the board long ago. The only
remaining instance of it is that if the original document is available in one’s
hands, one must produce it; that one cannot give secondary evidence by
producing a copy. Nowadays we do not confine ourselves to the best evidence.
We admit all relevant evidence. The goodness and badness of it goes only to
weight, and not to admissibility. The old rule is limited and confined to written
documents in the strict sense of the term and has no relevance to tapes or films.
Cases cont….

In R Vs Dodson and Williams [1984] 79 Cr App Rep 220 the English Court of
Appeal held that a photograph taken by a video camera of a building society was
admissible as evidence. (Also Nooner Vs State of Arkansas, 907 S.W 2d 677
1995, Supreme Court)

In R Vs Cook (Christopher) [1987] QB 417 the English Court of Appeal permitted

a photo fit sketch to be admitted as real evidence. The court was of the opinion
that it was not hearsay and was analogous to a photograph as it was a graphic
representation of a witness’s memory and was admissible as documentary
evidence.
Cases cont…

R Vs Governor of Pentonville ex p Osman[1989]3 All ER 701 computer

printouts were adduced and it was argued that these were inadmissible in the
absence of proof from the prosecution that the computer had been in proper
working order at the relevant time. Loyd, J held however that, “where a lengthy
computer output contains no internal evidence of malfunction…it may be
legitimate to infer that the computer which made the record was functioning
correctly.
Cases cont…….(Uganda)

The above decision was upheld in, Sematimba Peter & NCHE Vs Sekigozi Stephen,
Election Appeal No. 10 of 2016 where copies of documents downloaded off a
website were accepted as the best evidence as the original documents could not be
readily acquired.

In Commodity Export International Ltd Vs MKM Trading Co. Ltd CA No. 84 of 2008
court relied on, Aguimatang Vs Carlifornia State Lottery 234 Cal. App. 3d 769,798,
where it was stated, “the computer printout does not violate the best evidence rule,
because a computer printout is considered an original.”
Cases cont….

In Attorney General of the Republic of Uganda Vs The Secretary General & Anor, Application
No. 17 of 2014 court accepted evidence of a DVD recording and further stated, “the technical
focus of proving the authenticity of digital objects is on having the checks and balances in
place to demonstrate the history of how the data was managed, which leads to assertion that
data has not been modified, replaced or corrupted and must therefore be original”

Wen Jie Vs Nabimanya & Anor, Civil Suit No. 605 of 2014[2018] UG COMM 62 (24 April 2018)
whatsapp messages were held as admissible although they could not relate the conversation to
proof of ownership of a consignment in question.

In United States Vs Lundy, it was held that testimony by one party to a chat that the chats are
as he recorded them is enough to meet the low threshold for authentication.
Cases Cont…
United States Vs. Ellis 676 F.3d 444 (5 th Cir. 2012), it was held that the defendant’s possession of a

cellphone that received messages addressed to him by name or moniker was, among other circumstantial

evidence (such as his possession of the device), sufficient to establish that he was the author of outgoing

text messages from the same phone.

In Tukaram S. Dighole Vs Manikaro Shivaji Kokate SCC Appeal No.2928 of 2008 on admissibility and

authentication involving recordings (tape) of speeches stated that; “tape records of speeches are

documents and stand at no different footing than photographs.” it was further held that the conditions to

be satisfied when dealing with tape recordings of speeches are: the voice of the person alleged to be

speaking must be duly identified by the maker of the record or by others who know it; accuracy of what

was actually recorded had to be proved by the maker of the record and direct circumstantial evidence had

to be there so as to rule out possibilities of tampering with the record; the subject matter recorded had to

be shown to be relevant; the primary evidence of the recording device (in this case a cassette) has to be

produced in court
The Practice in International Criminal
Courts/Tribunals
ICC, ICTY, ICTR, ECCC, SCSL, STL (ICJ)
 They incorporate elements of Common law and Civil law traditions to varying
degrees.
 Generally, the common law system contains more prohibitions and rules on
excluding irrelevant and unreliable evidence.
 Civil law (inquisitorial) system admits all evidence and Judges assess its
probative value. (It’s a question of Admissibility Vs weight attached)
 The Rome Statute created a system that eschews generally the technical
formalities of the Common law system of admissibility of evidence in favour of
the admissibility of the Civil Law system. (Rule 69(4) ICC RPE)
 ICC digital evidence standards: “e-Court protocol” designed to ensure
authenticity,accuracy,confidentiality and preservation of the record.
 JUDICIARY: Electronic Court Case Management Information System ECCMIS?
D & F Evidence Considerations for a
Judicial Officer to note :
1. Admissible evidence must be relevant
2. It must be authenticated. See Section 7 of ETA
3. Provenance (chain of custody not broken)
4. Preservation of evidence (integrity / reliability)
5. Hearsay evidence: digital evidence may easily raise raise hearsay concerns
because it is not live testimony, and is removed from the originating source
but as discussed above, digital evidence is not hearsay and is generally
admissible.

Burden and standard of proof – Civil/Criminal cases

Authenticity of data message
S.7 of ETA: Authenticity of data message.

(1) Where a law requires information to be presented or retained in its original

form, the requirement is fulfilled by a data message if— (a)the integrity of the
information from the time when it was first generated in its final form as a data
message or otherwise has passed assessment in terms of subsection (2);
(b)that information is capable of being displayed or produced to the person to
whom it is to be presented. (2) For the purposes of subsection 1(a), the
authenticity of a data message shall be assessed— (a) by considering whether the
information has remained complete and unaltered, except for the addition of an
endorsement and any change which arises in the normal course of
communication, storage or display; (b) in light of the purpose for which the
information was generated; and (c) having regard to all other relevant
circumstances.
General Considerations for admissibility:
 Reliability of the equipment used.
 The manner in which the basic data was initially entered.
 The measures taken to ensure the accuracy of data as entered.
 The method of storing the data and precautions taken to prevent loss or alteration.
 The reliability of the computer programs used to process the data.
 And the measures taken to verify the accuracy of the program
 What software was used to preserve digital evidence in its original form and to
authenticate it for admissibility?
 The competence of the person who accessed the original data.
 This person must be competent to do so and able to give evidence explaining the
relevance and implications of what he did.
 An independent third party should be able to examine the process and achieve the
same results.
Likely challenges to admissibility

 A claim that records were altered, manipulated or damaged

 Reliability of the computer program that generated the record may be questioned
 The identity of the author of mail or sms may be in dispute
 The evidence from a social networking site may be questioned as to its reliability
since it is possible to create an internet profile with a pseudonym
 Whether the person alleged to have used their pin, password or clicked the “I
accept” icon was the person who actually carried out the action
 For digital signatures, authentication may not be achieved by identifying the
holder of the user name and password
 Electronic evidence may not be in the language of court thereby requiring
translation
Conclusion

At the end of it all, the decision to admit or not to admit a particular piece of evidence lies in
the province of the Judicial Officer.
A lot of advancement is taking place in this area of the law and Judicial Officers are advised
to keep an open mind, think outside the box and be creative.

THANK YOU FOR LISTENING TO ME

***
I would like to appreciate Counsel Kenneth Muhangi of KTA Advocates, Kampala for the materials and cases compiled and provided to
me during the preparation of this presentation .