Documentary and Electronic Evidence - Law Reform Commission

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Criminal Justice Act 1994 No. 15/1994 IrlCriminal Justice Act 2003 2003 c.44 EngDocumentary Evidence Act 1868 31 & 32 Vict., c.37Documentary Evidence Act 1882 45 & 46 Vict., c.9EngEngDocumentary Evidence Act 1895 1895 c. 9 EngDocumentary Evidence Act 1925 No. 24/1925 IrlElectronic Commerce Act 2000 No. 27/2000 IrlElectronic Communications Act 2000 2000, c. 7 EngElectronic Signatures in Global and NationalCommerce Act 200015 U.S.C. 7001 USElectronic Transactions Act (Victoria) 2000 No. 20/2000 VictElectronic Transactions Act 1999 1999:26 BMElectronic Transactions Act 1999 No. 162/1999 AustElectronic Transactions Act 2002 No. 35/2002 NZEvidence (Colonial Statutes) Act 1907 1907 c. 16 EngEvidence (Document Unavailability) Act 2006 No. 53/2006 AustEvidence Act 1845 8 & 9 Vict., c.113Evidence Act 1851 14 & 15 Vict., c.99EngEngEvidence Act 1935 1938 c. 28 EngEvidence Act 1995 No. 58/1995 AustEvidence Act 1997 No. 76/1977 QldEvidence Act 2006 No. 69/2006 NZEvidence Act 2008 No. 47/2008 AustFinance Act 1983 No. 15/1983 IrlInsolvency Act 1986 1986 c. 45 EngInterception of Postal Packets and TelecommunicationMessages (Regulation) Act 1993No. 10/1993Irlxviii
Interpretation Act 1978 1978 c. 30 EngInterpretation Act 2005 No. 23/2005 IrlInvestment Funds, Companies and MiscellaneousProvisions Act 2006No. 41/2006IrlLand and Conveyancing Law Reform Act 2009 No. 28/2009 IrlLaw of Evidence Amendment Act 1988 No. 45 of 1988 SAMagistrate's Court Act 1980 1980 c. 43 EngMalaysian Digital Signature Act No. 562 of 1997 No. 562/1997 MAMedical Practitioners Act 1978 No. 4/1978 IrlNational Standards Authority of Ireland Act 1996 No. 28/1996 IrlNew Brunswick Evidence Act on Electronically StoredDocuments 1996SNB 1996 c. 52CAPerjury Act 1911 1911 c. 6 EngPersonal Information Protection and ElectronicDocument Act 20002000 c. 5 CAPharmacy Act 2007 No. 20/2007 IrlPostal and Telecommunications Services(Amendment) Act 1999Public Records Act 1958 (Admissibility of ElectronicCopies of Public Records) Order 2001No. 5/1999S.I.No.4058/2001IrlEngRegistration of Birth and Deaths (Ireland) Act 1863 26 & 27 Vict, c.90EngRoad Traffic (Amendment) Act 1978 No. 19/1978 IrlRoad Traffic Act 1994 No. 7/1994 IrlRules of the Superior Courts (No. 2) 1993 SI No. 265/1993 IrlRules of the Superior Courts (Proof of Foreign,Diplomatic, Consular and Public Documents) 1999SI No. 3 1999IrlSafety, Health and Welfare at Work Act 2005 No. 10/2005 IrlSocial Welfare (Miscellaneous Provisions) Act 2002 No. 8/2002 IrlStatute Law Revision Act 2007 2007, No 28 IrlStatute of Frauds (Ireland) 1695 1695, c. 12 Irlxix
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 and 12: (2) The Best Evidence Rule 72CHAPTE
Page 13 and 14: CHAPTER 6CDE(2) The Rule Against He
Page 15 and 16: (2) Authentication of Electronic Do
Page 17: TABLE OF LEGISLATIONBankers' Books
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
Page 63 and 64: far the most conspicuous feature of
Page 65 and 66: with this general approach. While i
Page 67 and 68: degrees of secondary evidence‖ an
Page 69 and 70:
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
Page 256 and 257:
6.93 There are also issues where a
Page 258 and 259:
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
Page 308 and 309:
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
Page 340 and 341:
lawyers argue and the courts decide
Page 342 and 343:
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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