Sergey Ivanov is a Russian-born computer hacker working for an underground hacking organisation in South Africa. He has been arrested on suspicion that he hacked into Standard Bank’s client lists and client accounts, resulting in the theft of millions of Rands and sensitive financial data. The prosecutor in the case against Sergey will adduce the following evidence in the case for the state:
Electronic evidence: Captain Pitso Mphatsane is a digital forensic analyst with the Forensic Science Laboratory of the South African Police Service (SAPS). He will testify that in scrutinising Sergey’s computer, he discovered incriminating e-mails, documents and encrypted messages that reveal Sergey’s involvement in the cyber attack.
Digital signatures: The prosecutor in the case will adduce evidence of digital signatures on key documents that link Sergey to the cyber attack.
Expert opinion evidence: Dr Reabetswe Bota is a genetics expert with the Biology Unit of the Forensic Science Laboratory of the SAPS. In her expert report, she explains that in using new DNA technology obtained from Germany and never before employed in South Africa, she managed to identify individual skin cells from bank documents handled by Sergey, which connect him to the cyber attack.
You are an attorney with a large law firm in Johannesburg. The director of the firm requests you to draft a legal opinion on the prospects of a successful prosecution in Sergey’s case, as the firm will take on Sergey’s defence. In your research, investigate thoroughly the admissibility of the types of evidence the prosecution will adduce, and comment critically on the reliability and probative value of the types of evidence. You are more than welcome to consider 2 international law in your legal opinion. Your legal opinion should consider the nuances and challenges presented by this set of facts, demonstrating a comprehensive understanding of the legal issues surrounding the relevant types of evidence.
In considering the admissibility of the types of evidence that the prosecution will adduce in Sergey's case, it is important to evaluate each type of evidence separately and determine whether it meets the requirements of admissibility under South African law.
1. Electronic evidence: The evidence collected by Captain Pitso Mphatsane from Sergey's computer, including emails, documents, and encrypted messages, would likely be admissible under South African law. Electronic evidence is generally admissible if it can be authenticated, meaning that the prosecutor must establish a chain of custody to demonstrate that the evidence has not been tampered with. In this case, Captain Mphatsane can testify to how he obtained the evidence from Sergey's computer and took precautions to preserve its integrity.
2. Digital signatures: Evidence of digital signatures on key documents linking Sergey to the cyber attack would also likely be admissible in court. Digital signatures are considered reliable and generally admissible under South African law as long as it can be shown that they were created by the purported signatory. The prosecutor would need to demonstrate the authenticity and reliability of the digital signatures through expert testimony or other corroborating evidence.
3. Expert opinion evidence: The expert opinion evidence provided by Dr Reabetswe Bota, connecting Sergey to the cyber attack through DNA technology, may face more challenges in terms of admissibility. While expert opinion evidence is admissible in South African courts, the evidence must meet certain requirements such as relevance, reliability, and the expert's qualifications. In this case, the use of DNA technology obtained from Germany and never before employed in South Africa may raise questions about the reliability and validity of the evidence. The defence may challenge the admissibility of this evidence on the grounds of lack of familiarity with the technology in South Africa, potential errors in the analysis, or the qualifications of the expert.
Overall, while the electronic evidence and digital signatures are likely to be admissible and carry probative value in proving Sergey's involvement in the cyber attack, the expert opinion evidence involving new DNA technology may present more challenges in terms of admissibility and reliability. As Sergey's defence attorney, it will be important to closely scrutinize the evidence presented by the prosecution, challenge any weaknesses in the evidence, and consider possible legal arguments to undermine the credibility of the prosecution's case.