Documentary and Electronic Evidence - Law Reform Commission

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TABLE OF CONTENTSTable of LegislationxviiTable of CasesINTRODUCTION 1CHAPTER 1CHAPTER 2Background to the Consultation Paper 1Outline of the Consultation Paper 2DEFINING “DOCUMENT” AND“PUBLIC DOCUMENT” 7A Defining a Document and a Record in theLaw of Evidence 7(1) The ―Document‖ at Common Law 7(2) The wide scope of electronic evidence 8(3) Statutory definitions of ―document‖ in Irish law 8(4) Statutory definitions of documents and recordsin the English Criminal Justice Act 2003 12(5) The Definition of a document in the AustralianUniform Evidence Act 1995 13(6) An Expanded Notion of an Electronic Documentin New Zealand 14(7) The definition of documentary evidence in the1996 UNCITRAL Model Law on ElectronicCommerce 14(8) Reforming the Definition of a ―Document‖ 15B Defining a ―Public Document‖ 16C Electronic Terms and E-Document CharacteristicsDiscussed in the Consultation Paper 18THE EXCLUSIONARY RULES OF EVIDENCERELEVANT TO DOCUMENTARY EVIDENCE 21A The Law of Evidence and Documentary Evidence 22(1) How Oral and Documentary Evidence is Givenin Court 22(2) The Rules of Evidence 23(3) Relevance 24(4) Factors Affecting the Weight of the DocumentaryEvidence (Other than Real Evidence) 26B The Best Evidence Rule; the Rule as to SecondaryEvidence of the Contents of a Document 27ixxxi
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 10 and 11: (1) The Best Evidence Rule 28(2) Th
Page 12 and 13: CHAPTER 5D(4) Authenticating Commer
Page 14 and 15: ABCDThe Application of Evidential N
Page 16 and 17: CHAPTER 8DThe Current Climate for E
Page 18 and 19: Criminal Justice Act 1994 No. 15/19
Page 20 and 21: Statute of Frauds 1677 1677, c. 3 E
Page 22 and 23: Bishop Meath v Marquess ofWincheste
Page 24 and 25: Goodman v J Eban [1954] 1 QB 550 En
Page 26 and 27: Narlis v South African Bank ofAthen
Page 28 and 29: R v Jones [1978] 1 WLR 195 EngR v K
Page 30 and 31: Ulster Bank Limited v Byrne High Co
Page 32 and 33: preference applied to any particula
Page 34 and 35: 11. Chapter 5 also addresses the di
Page 37 and 38: 1CHAPTER 1 DEFINING “DOCUMENT”
Page 39 and 40: legislation which adapted the view
Page 41 and 42: 1.16 In considering the language to
Page 43 and 44: (5) The Definition of a document in
Page 45 and 46: (8) Reforming the Definition of a
Page 47 and 48: evidence. Certain public documents
Page 49: (vi)Meta-data1.48 Meta-data is the
Page 52 and 53: evidence as documentary evidence, t
Page 54 and 55: then seek to weight to the evidence
Page 56 and 57: 2.20 In considering the standard of
Page 58 and 59:
document. These exceptions are not
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efore the proponents of a document,
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evidence of documents. This Primary
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secondary evidence of the content o
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view that the Best Evidence Rule, a
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(6) The Applicability of the Best E
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When an audiotape recording is avai
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2.78 The High Court of Australia in
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This can be undertaken at a superfi
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means (including enlarging), of inf
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documents lost and sufficient notic
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upon them were merely ―assertions
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period was not such as to affect th
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(2) It is immaterial for this purpo
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1995, includes any medium from whic
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useless except by means of the prin
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destroyed without fraudulent intent
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providing oral testimony of a witne
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M'Callan 102 ) or even where the in
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documents in electronic form, parti
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2.179 The question was whether sect
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generally be inadmissible. This is
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But courts have struggled with the
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―Of course, some modes of proof a
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3CHAPTER 3PUBLIC RECORDS AND DOCUME
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suitability of a candidate for a go
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3.15 Therefore a matter can be cons
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Chláraitheoir, an officer duly aut
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inspection. 34 Under section 7, con
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House of the Oireachtas printed und
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3.57 These Evidence Acts remain in
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presumed to have been printed under
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where appropriate, the identity of
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included where the issue stated was
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permissible. The comparison underta
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4CHAPTER 4BUSINESS DOCUMENTS AND TH
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encompass records kept by a “char
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4.19 It should be noted that the do
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the documents are purposefully gene
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facie evidence of such entry, and o
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4.42 While these are broadly simila
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the records were admitted. 25 As of
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4.57 The Civil Evidence Act 1995 al
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4.66 Section 133 permits the use of
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that, in certain circumstances, an
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(b) on the basis of information dir
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Commission had been held to be busi
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judge may make an order that the ap
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jurisdiction to make an order under
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eferred to the amendment of the 187
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infer that sections 46 and 47 encom
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Act also inserted section 7A into t
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under section 4(1)(a). This then ha
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the legislation lends itself toward
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duty to the public to disclose, whe
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that it is created contemporaneous
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5CHAPTER 5AUTHENTICATING DOCUMENTS
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addressed and resolved in Chapter 2
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choice must be made either to destr
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to rely upon information contained
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for the purposes of merely proving
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5.48 And with respect to both (1) a
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notes that similar protections gave
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courts in the US as demonstrated in
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11. If the readout contains strange
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―[a]ll that section 69 requires a
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5.88 The Commission would not encou
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system‖ with the direct consequen
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what type of witness would be avail
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5.109 This approach might, however,
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DWhen is Electronically Derived Evi
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it does not attend to give oral evi
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which can be correctly classed as r
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account to another a printout of th
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uses its memory, or processes infor
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5.163 Section 5 can be described as
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(4) Analogies between the Irish and
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hearsay for the purposes of the Cri
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(6) Authenticating Electronic and A
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5.196 Judge Grimm‘s cautionary co
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used as a means to produce electron
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the evidence to determine whether i
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5.219 Outside the EU setting, howev
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5.226 The Apostille is formatted in
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provides for an extremely wide-rang
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Commission notes here that the use
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6CHAPTER 6AUTHENTICATING SPECIFIC F
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done by another party would be dete
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6.18 In State of California v Jacks
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that the process of tracing and pro
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this applied not merely where the e
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that it had not been proven that O2
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(b)Electronic and Automated Documen
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approached. He held that the docume
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(b)answers, with no means of judgin
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evidence devoid of the nuances and
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accuracy of a part of the contents
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embossed symbol which has been affi
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6.90 The extent of the phrase ―ne
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automated evidence. This was made c
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6.105 The 2009 amendment of S.I. No
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streamlined means of disclosure. Th
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to the court. All these advances ma
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6.129 The key was in and of itself
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court held that Crown had a duty to
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6.144 During the Second Reading pri
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6.152 To integrate electronic docum
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digital state. This again reflects
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the Internet‘s unique identifier
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the time when it was first produced
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paper documents with which we are m
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7CHAPTER 7CERTIFYING AND VERIFYING
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7.10 The Commission notes that the
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―the essential requirement of sig
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(1) How digital signatures differ f
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necessary to identify a reliable me
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someone could sign something, place
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7.50 The basic characteristic of th
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access to funds. Tamperproof univer
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sufficient evidential rigour to ena
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The Mandatory Approach7.79 The mand
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sectional interests and technologie
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emains the defining means of produc
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7.105 Unlike the Illinois Electroni
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Commerce which deals with the funct
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signature which is supported by a c
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liability, the UECA 67 allows that
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digital signature is distinguished
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control. This is also, crucially a
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7.161 An important aspect of this d
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espondent company (JPF). The email
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equivalent to a traditional handwri
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7.188 The principles of non-discrim
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7.196 A heavier burden is imposed w
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electronic means of transacting and
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who usually have no prior contractu
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appropriate system for the supervis
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ensure that specific requirements r
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(13) Overcoming Evidential Problems
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(15) A Summary of the Achievements
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signature is, in accordance with te
Page 341 and 342:
distil industry practices to reduce
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8CHAPTER 8SUMMARY OF PROVISIONALREC
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8.14 The Commission provisionally r
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