Clansman Gang | Admissibility of phone recordings hangs in balance
Published:Tuesday | February 8, 2022 | 12:12 AM
Chief Justice Bryan Sykes signalled on Monday that secret recordings of conversations between alleged members of the Clansman-One Don Gang might not be accepted as evidence in the trial.
The recordings, on which the prosecution is heavily relying to help prove its case against the 33 alleged gangsters, were captured by a former top-tier gang member using three cellular phones.
Justice Sykes put the prosecution on notice that they need to make submissions on Thursday on whether the recordings have met the legal requirements of the Evidence (Amendment) Act, 2015 for them to be admitted into evidence, following which he will make a ruling.
According to Section 31(g), in order for a recording to be admitted, it must be established that the computer that is used to generate the recordings is in good working condition when it was used.
The attempts by the prosecution to have the recordings, cell phones, and transcripts admitted have been fraught with setbacks. So far only, the three phones have been accepted as evidence – after several failed attempts.
Justice Sykes, however, gave the order to the prosecution after a cyber incident response expert who had extracted the recordings from the three phones was unable to tell the court whether the application that was used to capture the recordings was functioning properly at the time.
The judge grilled the expert about whether he would have been able to tell what software was used and if it was working, but the officer said that although there are applications that could determine the condition, it would work on larger devices.
At the same time, he told the court that if the software was malfunctioning at the time of use, the recording would not have opened, or would open and crash.
The expert witness told the court that he did not do a full analysis of the recordings. Instead, he said he did a preliminary report, as he had left the force before the investigator had got back to him with feedback on what he required.
Sykes, after hearing that the investigating officer had not provided the expert with the feedback, described the situation as “shorthand work”.
The prosecution also recalled on Monday one of the cops who had typed two of the three transcripts of a recording in an attempt to get the two transcripts admitted. However, the judge told the prosecution that it would first have to deal with the recordings.
The trial will resume on Thursday.
Reputed leader Andre ‘Blackman’ Bryan and 32 other alleged gang members are being tried on an indictment with 25 counts under the Criminal Justice (Suppression of Criminal Organizations) Act and the Firearms Act.
The One Don Gang is a faction of the Clansman Gang.