Electronic Evidence

ISCUSSION PAPER ON THE REVIEW OF THE LAW OF EVIDENCE, DEALING WITH HEARSAY, RELEVANCY AND ADMISSIBILTY OF ELECTRONIC EVIDENCE IN CRIMINAL PROCEEDINGS

Summary

The purpose of this paper is to review how documentary evidence and electronic evidence, which is treated as a form of documentary evidence, is used in criminal proceedings in Australia1 with the view to make some suggestions for possible adoption as recommendations to the Uniform Act for effective application in criminal trials. The aim is to maintain an efficient and effective justice system in which a clear and comprehensive laws of evidence play a fundamental role

Introduction

The law of Evidence in Australia is a mixture of statute and common-law together with rules of the court. Based on the complex role documentary evidence plays in criminal trials there is the need to examine the process of gathering

such evidence and how it is adduced to the court including discovery of documents and subpoena of documents for presentation in a court2 which in my opinion warrants a clear examination of the process for proper enhancement of quality evidence. With this physical position in mind i will therefore start by examining the research along the following lines:
Documentary and Electronic Evidence
First hand documentary hearsay
Previous representation by a witness
Computer- produced evidence

Documentary and Electronic Evidence
At common-law a document clearly includes reference to any part of the document, any copy, sound, images3, reproduction or duplicate which can be proved by tendering the document. Tendering a document can include copy of a document which can be a photocopy, record or a transcript of words such conversation, or a print out from a computer4. Similarly if the document is a public document and is not accessible or available at the time of the request, a party may adduce evidence of its content by tendering a document that is a copy of or an extract or summary of the document or adduce oral evidence of the content5 Clearly the proof of the existence of this evidence is not a criterion for admission, but depends on its relevance to the issue before the court of law and in line with the party’s claims.
The key to this is to enable the other party to investigate the circumstances and assemble contradictory evidence, as, if the document is received in evidence there will be no opportunity to cross-examine the person who made the previous representation. Again, where a person who made the representation is available, the hearsay rule does not apply to a document for it contains the representation6
On most occasions there will be no bona fide issue as to the accuracy of record. It is more appropriate to allow the party, or leave the party against whom the evidence is lead to raise any queries and advance challenges to it. This cut across Australia and international jurisdiction7.
The reason for the exclusion from the exception of representation is to prevent receipt in exceptions to the hearsay rule if hearsay materials that have not be verified (tested) by clear cross-examination in proceedings. Within the documentary record process8 s.50 of UAE provides a practical means of simplifying the issues where there is a huge quantity of documentary records to be admitted (correspondence and copies kept) by summarizing them.

Hearsay Rule

The rule against hearsay provides that a statement made by a person cannot be admitted as evidence of any fact or opinion contained in the statement unless the statement is actually made by a person as a witness. The aim is to exclude evidence ‘of a previous representation made by a person’. The rule in general term applies to documents because most documents contain information supplied by a person9. However, the application of such rule is debatable as most electronic record has been completely generated by computer. In such a case it is not clear which person if any one provided the information contained in the document. Evidence of this nature ‘is not admissible to prove the existence of a fact the person intended to assert by the representation’. In order to understand the position clearly it will involve further discussion of some of its terms as per representation’, ‘previous representation’ ‘made by a person’, and the requirement of intention’. The court of Lee v R10 held in its decision that a ‘representation’ may not only apply to ‘words that are intended to induce action or inaction by the person who hears or reads them’, but may also apply to ‘statements and to conduct and was used to encompass all that those statement or that conduct would convey to the observer’. Similarly, it was held in the court of R v Rose11that a ‘representation’ may also extend to ‘a person’s silence or failure to respond and whether it does arise will depend upon the circumstances’. The court went on to state that it will also depend upon ‘whether an inference’ could possibly be drawn by this inaction, ‘regardless of whether or not the person intended to convey the representation12.

Another requirement to the hearsay rule is a statement that is made by a person which may include institutions or corporations as well as a person. There is the believe that if it was human and non human activities involved data entered by humans may fall within the given scope of the hearsay rule13.
Section 59{1} applied the word intended to assert14 which was amended by ALRC in legislation to include s.2A15. Section 59 state that in determining whether it could reasonably be supposed that the person intended to assist a particular fact by the representation, the court may have regard to the circumstances in which the representation was made. It concluded that the party wishing to submit the previous representation into evidence is required to prove that the maker of the representation did not intend to assert the particular fact16.

Exception to the Hearsay Rule
As earlier emphasized such exception is permitted if it is relevant for a purpose other than proof of the fact that is intended to be asserted by the representation. See the court of Watson [a dying declaration]. See other exception under s.59 [3] which categorically state that the hearsay rule is inapplicable to a document or certificate or as otherwise regulated by the Act and the basis is to avoid perjury.
Another term used is ‘previous representation’.

As defined under the dictionary of the Evidence Act 1995 (Cth) a previous representation means a representation made or otherwise than in the course of giving evidence in the proceedings in which the evidence of the representation is being sought to be adduced. This covers the time of when the events were witnessed up until the trial. In addition, it also includes an account made during previous legal proceedings, statements made by the witness other than during the course of their testimony. Section 59(1) uses the term ‘intended to assert’ and in response to the term the Australian Law Reform Commission amended the legislation to include s 2A. S. 59(2A) states that in determining whether it can be reasonable supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made. Therefore, the party wishing to submit the previous representation into evidence is required to prove that the representation is not intended to assert the particular

fact17.