Documentary and Electronic Evidence - Law Reform Commission

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CHAPTER 5D(4) Authenticating Commercial and BusinessRecords in Australia (Victoria) 119(5) The Production of Documents in Evidenceunder the Bankers‘ Books Evidence Acts 121(6) When is a Document (Particularly anElectronic Document) ―Kept‖ by a Bank? 123(7) The Extent of a ―Record‖ under the Bankers‘Books Evidence Acts 124(8) Documentary Evidence of Bank RecordsProduced by Electronic Means in Australia 127(9) The Evolution of and Amendments to theBankers‘ Books Evidence Act and Counter moneyLaundering Provisions- Still Relevant Today? 130(10)Determining the Authenticity and Integrity of aBusiness Record 131Modern Applications of the Bankers‘ BooksEvidence Act- A Tool Against Fraud 132(1) Developments at European Level 132(2) Gaining Access to Business Records and theDirector of Corporate Enforcement 132(3) The Foreign Dimension to the Operation of theBankers‘ Books Evidence Act 1879 134(4) Need to retain Bankers‘ Books exemption to theexclusionary rules of evidence. 137(5) Concluding Remarks on the Business RecordsExemption 138AUTHENTICATING DOCUMENTS GENERALLYAND THE LAW OF EVIDENCE 141A Authenticating Documentary Evidence 142(1) Production 142(2) Original Form 142(3) Integrity 143(4) Authentication of Electronic and AutomatedDocumentary Evidence 143(5) The Emergence of Electronic Documents 143(6) The Changing Evidential Environment 144B Laying a Suitable Foundation for Authentication- theCornerstone of Admissibility 146(1) Documentary Evidence; Overcoming the OralTradition for the purposes of Admissibility andAuthenticity 146xii
CHAPTER 6CDE(2) The Rule Against Hearsay as a Barrier toAdmissibility of Documentary Evidence 147(3) Electronic Evidence in Ireland and theProblem of Hearsay v Real Evidence 149(4) Laying a Suitable Foundation for ElectronicEvidence 151(5) Reform 160Tests to be Proposed- Testing the Integrity andReliability of the Electronic System 162(1) Advantages In Favour of an Integrity Test forAdmissibility 164(2) Arguments Against an Integrity Test forAdmissibility 165(3) What Options are Available to Test the Integrity ofElectronic and Automated Documents? 166When is Electronically Derived Evidence Admissibleas Real Evidence? 169(1) Real Evidence in Ireland; The HearsayQuestion 169(2) Digitally-Born Records 171(3) Authenticating Electronic and AutomatedDocuments as Admissible Evidence in Ireland 177(4) Analogies between the Irish and Englishprovisions 181(5) Admitting Documentary Evidence Issues ofHearsay in South Africa 183(6) Authenticating Electronic and AutomatedDocuments as Admissible Evidence in Victoria,Australia 185(7) Authenticating Electronic and AutomatedDocuments as Admissible Evidence in the US 186(8) Reform 189The Authentication and Recognition of PublicDocuments for Evidentiary Purposes 190(2) Documents Originating From or Intended forUse in Another Jurisdiction 192(3) Irish legislation implementing the 1961 HagueApostille Convention 196(4) Authenticating Documents for use in CountriesNot Party to the Hague Convention 1961 197AUTHENTICATING SPECIFIC FORMS OFELECTRONIC AND AUTOMATED EVIDENCE 201xiii
Page 2 and 3: LAW REFORM COMMISSION‘S ROLEThe L
Page 4 and 5: LAW REFORM RESEARCH STAFFDirector o
Page 6 and 7: CONTACT DETAILSFurther information
Page 9 and 10: TABLE OF CONTENTSTable of Legislati
Page 11: (2) The Best Evidence Rule 72CHAPTE
Page 15 and 16: (2) Authentication of Electronic Do
Page 17 and 18: TABLE OF LEGISLATIONBankers' Books
Page 19 and 20: Interpretation Act 1978 1978 c. 30
Page 21 and 22: TABLE OF CASESAG v Kyle [1933] IR 1
Page 23 and 24: Cooper Flynn v Radio TelefisEireann
Page 25 and 26: Lanigan v Chief Constable [1991] NI
Page 27 and 28: People (DPP) v O'Donoghue [1991] 1
Page 29 and 30: Assurance Company ofAustralia LtdSa
Page 31 and 32: INTRODUCTIONBackground to the Consu
Page 33 and 34: law of evidence and ought to be abo
Page 35: signing as a means by which to veri
Page 38 and 39: thing capable of being evidence‖.
Page 40 and 41: developments at that time, includin
Page 42 and 43: at this stage, the Commission is co
Page 44 and 45: (6) An Expanded Notion of an Electr
Page 46 and 47: within a statutory framework and su
Page 48 and 49: CElectronic Terms and E-Document Ch
Page 51 and 52: 2CHAPTER 2THE EXCLUSIONARY RULES OF
Page 53 and 54: 2.09 In the vast majority of cases,
Page 55 and 56: electronically generated. Courts ar
Page 57 and 58: surrounding the creation or transmi
Page 59 and 60: to be an incontestable rule, that t
Page 61 and 62: 2.37 The issue has been addressed b
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far the most conspicuous feature of
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with this general approach. While i
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degrees of secondary evidence‖ an
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documentation, it is now acknowledg
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this ―document‖ can be admitted
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written documents in the strict sen
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2.90 In Attorney General v Kyle 60
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2.98 Such a situation often arises
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documents to be adduced by secondar
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(a)excluded, has gone by the board
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have taken advantage of raising tec
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of the document which need not be a
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question, the device or process pro
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e admitted by means of the provisio
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protection in civil cases and, with
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exceptions for specific categories
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the court retains a general residua
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authenticity of a copy of, or extra
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consideration of the application of
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of difficulty to admit a statement
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2.203 Broadly speaking electronic d
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legible form (including a printout)
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e met by simply showing that they a
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3.12 Section 188 of the English Cri
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3.21 FitzGibbon J noted that to be
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3.28 The Commission now turns to ex
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―county, barony, parish etc marke
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ankers‘ books for the purposes of
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(b)Judicial Notice of Domestic Docu
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which continue in force. 48 These s
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(4) Public Records and Reports3.76
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(1) Proof of Handwriting3.85 Where
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produce documents has been served,
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documents such as those retained by
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c. That the information is containe
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(2) Concluding Remarks Documents Pr
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4.32 The Bankers' Books Evidence Ac
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(2) Proof to which subsection (1) o
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authenticity of business records on
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4.52 For the purposes of manageabil
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documentary evidence be it traditio
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―public administration and any bu
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―Here [under s93] there is no que
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for subsequent reference‖ meaning
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in gambling. As a result of the con
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(7) The Extent of a “Record” un
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4.111 The 2005 case of Volkering an
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eason to question the reliability o
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approach and held that the ―diari
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y which to ensure the integrity and
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mechanical or electronic device and
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4.151 The issue was also addressed
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Act, the Commission considers it is
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master-software have become more co
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5.05 Part E examines the means of a
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and cogitative format. A bitmap is
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Boolean search or trawl for a key w
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DPP. 13 In that case the trial judg
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electronically and read out from a
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that a certificate be issued by a p
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attempting to adduce electronic evi
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foundation regarding the computer a
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―(a) that there are no reasonable
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the perceived fallibility of the ma
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mean that certain electronic docume
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was part of the normal course of bu
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(a) There exists a reliable assuran
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systematic and rigorous system of i
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5.127 The Commission is of the opin
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(a)(i)The Reliability of the Comput
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The prints as seen represent situat
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5.149 A manually inserted code inpu
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5.158 Section 5 of the 1992 Act is
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―in any criminal proceedings info
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5.176 Section 27 of the Criminal Ju
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5.185 In 1987 the South African Law
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allowance for secondary evidence to
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5.200 Yet the authenticity and ther
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creating it) could not be guarantee
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omnia praesumuntur rite et solemnit
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prospective applicant must pass a t
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signing the document has acted and,
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e used, and it is left to the discr
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here, as it has done previously in
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6.04 Part D briefly looks at the me
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6.14 Image distortion has, therefor
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telephone call made are automatical
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defendant had been undertaken by a
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one should consider the entirety of
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6.42 These cases illustrate that th
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State (D&D) v Groarke. 31 Although
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various circumstances including whe
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they record which is the evidence t
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machine contained a computer compon
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(5) The Authentication and Admissib
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less prone to being challenged as f
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6.93 There are also issues where a
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for Finance 77 which approved the n
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6.109 Before the court orders discl
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6.117 This style of e-disclosure al
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(8) Compelling Disclosure of Encryp
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emphasise a proactive approach to t
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may be needed as evidence in any po
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6.148 The Electronic Commerce Act 2
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(3) Admissibility of Electronic Evi
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devices and allows for any discrepa
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user‘s name, a serial number, exp
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or in requesting suspension or revo
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6.181 The Commission does not wish
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7.04 In Part D, the Commission disc
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personally signed the registration
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or her name with his or her hand on
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(2) The increasing need to provide
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not purely one of law and there rem
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as to stamping were valid, as even
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establishing a reasonable belief th
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7.64 This aids in the authenticatio
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supply the pavement for the e-comme
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or damage sustained through fraud,
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authentication 39 and the resulting
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7.101 The UECA 46 is silent on evid
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7.109 For this reason, any legislat
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7.117 As far as the Act's interacti
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(a)The US Approach7.126 The US in t
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epresents one of a series of Direct
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signatures and stamps so long as it
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However, it could in theory be reta
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its incorporation in all provinces
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7.176 The Court then examined the d
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eceived as being the same as the te
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(c)The Success of the Electronic Co
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to verify e-documents, it does not
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states that the provisions regardin
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7.219 Section 29 of the Electronic
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(ii)The NSAI’s role in certificat
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independently undertaken on an ad h
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7.246 Wilson has described electron
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7.256 Electronic signatures are a v
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lawyers argue and the courts decide
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industry representatives in connect
Page 344 and 345:
proceedings where the court is sati
Page 346:
authority with the intention of aut
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