Posted in Electronic records, Legal, Records management

Integrity

Integrity is a key element in recordkeeping.  According to AS ISO 15489, integrity of documents means that they are complete and unaltered.

These words mirror s.11(3) of the Electronic Transactions Act 2000 (NSW) which notes that the integrity of information contained in a document is maintained if, and only if, the information has remained complete and unaltered, apart from:

(a) the addition of any endorsement, or

(b) any immaterial change, which arises in the normal course of communication, storage or display.

Posted in Electronic records, Legal, Records management

Processes, machines and devices

s.146 of the Evidence Act notes that:

  • Where a document or thing is produced wholly or partly by a device or process, AND
  • the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome, THEN
  • it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document or thing on the occasion in question, the device or process produced that outcome.
Posted in Electronic records, Legal, Records management

Proof of contents

Provence evidence is a key element in ensuring the authenticity of documents in evidence. Proving that the contents of a document are authentic could be critical to the outcome of a court case.

According to s.48 of the Evidence Act (NSW), the proof of contents of a document may be obtained (summarised):

  • Via an admission made by another party to the proceeding as to the contents of the document in question
  • Tendering a document that
    • is or purports to be a copy and has been produced by a device that reproduces the contents
    • is or purports to be a transcript of the words
    • was or purports to have been produced by use of a device
    • forms part of the records of or kept by a business
Posted in Uncategorized

Inferences

Inferences may also impact on questions relating to the authenticity of documents.

s.183 (Inferences) of the Evidence Act 2005 (NSW) notes that if a question arises about a document or thing, the court may:

(a) examine the document or thing, and

(b) draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.

However, Justice Austin in ASIC v Rich said that:

Authentication cannot be achieved solely by drawing inferences from the face of the document where there is no other evidence to indicate provenance. ASIC v Rich at 117

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Do children learn to read English words like pictures?

I have an almost six year old son learning to read.  This is my fourth child, my other daughters are 18, 20 and 23.  My son is learning to read without the benefit of siblings around him to help him learn.

It struck me recently that he is learning to read partially by saying the letters in a word (e.g., ‘ke’, ‘ah’, ‘t’ – ‘cat’), but there are many other words that don’t seem to make sense to him when ‘sounding’ the letters in the word.  For example, ‘bear’.  Given that there are at least two ways to say words with the letters ‘ear’ in them (for example, ‘bear’, ‘tear’ (from an eye), ‘tear’ (the fabric)), I was curious to see how he sounded it out.  In the end, he appeared to be recognising that a string of characters (e.g., b, e, a, r) in the context of a story about bears what probably the word for bear, pronounced (at least in Australia) exactly like ‘bare’.

I wondered, then, do some children learn to read not by being able to string the letters together into a recognisable sound, but by recognising the ‘set’ of words, perhaps in the same way that Chinese children learn characters?  After all, no matter what some might say, the lines in a Chinese character are just that – lines on a page.  The ‘package’ of lines is a picture that the child learns, and learns to pronounce in their own dialect or language.

This theory may be more true in languages that are not pronounced as they are written (for example, Chinese, Vietnamese, English, French, Portuguese), and less so in languages that are pronounced more or less exactly how they are written (for example, Italian, Bahasa Indonesia, Tagalog).  Semitic languages like Arabic and Hebrew are a little different – Arabic (with which I am very familiar) is a non-sensical set of letters without knowing how the vowels (a, i, u) work.

English is full of homonyms that can have different spelling (for example, ‘rose’, ‘rows’, ‘bough’, ‘bow’) as well as words that look like they should have the same pronunciation but clearly don’t (the best examples are the ‘ough’ words – tough/rough, bough, through, slough/enough, though, thought).  How is a child supposed to learn these words?  ‘A man rose, then rows his boat to pick a rose among the rows’.  ‘Though the sloth thought it was tough, he fell through the bough and so fell into a slough’.

I believe children learn many words initially by recognising them as pictures. Eventually they learn the letters, and what the word means and how to put it in context with other words that make sense.  And, possibly, as we grow older, we forget words because we forget the picture that we learned when we were young.

Posted in Electronic records, Legal, Records management

The balance of probabilities

s. 142 (Admissibility of evidence: standard of proof) of the Evidence Act 2005 (NSW) notes that evidence will be usually admitted if the Court is satisfied that the facts have been proved on the balance of probabilities.  The matters that the court must take into account include (summarised – see legislation for full version): (a) the importance of the evidence in the proceeding, and (b) the gravity of the matters alleged in relation to the question.

David Hamer, in his very interesting and informative article ‘Chance Would Be a Fine Thing: Proof of Causation and Quantum in an Unpredictable World’, for the Melbourne University Law Review in 1999, noted that

It is well established that, while the civil standard is the balance of probabilities, the precise meaning of this expression depends upon the circumstances of the case and, in particular, what is at stake for each of the parties.  … Where the plaintiff’s allegations have moral overtones, as in fraud or adultery cases, the civil standard may be higher than where mere negligence or breach of contract is alleged.


Posted in Electronic records, Legal, Records management

The need for authenticity

In NAB v Rusu, Justice Bryson said that:

At its simplest, the authenticity of a document may be proved by the evidence of the person who made it or one of the persons who made it, or a person who was present when it was made, or in the case of a business record, a person who participates in the conduct of the business and compiled the document, or found it among the business’ records, or can recognise it as one of the records of the business. NAB v Rusu, at 17, ASIC v Rich at 98

Therefore, as noted by Justice Austin in ASIC v Rich

Authentication is about showing that the document is what it is claimed to be, not about assessing, at the point of the adducing of the evidence, whether the document proves what the tendering party claims it proves. ASIC v Rich at 118

All records management professionals should already be very familiar with the definitions of authenticity, reliability and integrity in AS ISO 15489.  In my mind, ensuring that documents are kept in line with this standard is a very good first step in ensuring that your documents will stand up as evidence in court.

The following are the definitions of authenticity, reliability and integrity from AS ISO 15489:

  • To ensure authenticity, organisations should implement and document policies and procedures which control the creation, receipt, transmission, maintenance and disposition of records to ensure that records creators are authorised and identified and that records are protected against unauthorised addition, deletion, alteration, use and concealment.
  • A reliable record is one whose contents can be trusted as a full and accurate representation of the transactions, activities or facts to which they attest and can be depended upon in the course of subsequent transactions or activities.
  • Integrity – complete and unaltered.

The Uniform Civil Procedures Rules (UCPR) that govern court processes state (in summary) that, if a party receiving documents as part of discovery does not dispute their authenticity, then the authenticity of the documents will be taken to be accepted.  However, the admitting party may withdraw such admission with the leave of the court.

Judgments as to the authenticity of scanned documents may be influenced by:

  • The balance of probabilities
  • Inferences that can be drawn
  • Proof of their contents
  • How they were produced – for example by processes, machines and devices
  • Integrity

Sources:

  • ASIC v Rich [2005] NSWSC 417 (5 May 2007)
  • Albrighton v Royal Prince Alfred Hospital [1980] NSWLR 542
  • Daw v Toyworld [2001] NSWCA 25
  • Nab v  Rusu  [1999] NSWSC 539 (4 June 1999)
Posted in Electronic records, Legal, Records management

Admissibility

Justice Bryon commented on the admitting in evidence of documents in NAB v Rusu.  He said that:

Documents are not ordinarily taken to prove themselves … Before a business record or any other document is admitted in evidence it is obviously necessary that there should be an evidentiary basis for finding that it is what is purports to be. NAB v Rusu at 17, also quoted in ASIC v Rich at 98

This is often know as the ‘evidentiary basis’ for documents, sometimes also known as ‘provenance evidence’.

Sources:

  • ASIC v Rich [2005] NSWSC 417 (5 May 2007)
  • Albrighton v Royal Prince Alfred Hospital [1980] NSWLR 542
  • Daw v Toyworld [2001] NSWCA 25
  • Nab v  Rusu  [1999] NSWSC 539 (4 June 1999)
Posted in Electronic records, Legal, Records management

Admitting documents as evidence

How do documents end up being admitted as evidence?  In Australian jurisdictions that follow the Uniform Civil Procedure Rules, there is, usually:

  • Two (or more) parties
  • An order for discovery (UCPR 21.2)
  • A list of documents that the parties produce (UCPR 21.3)
  • The production and inspection of documents (UCPR 21.10, 21.11)
  • The (eventual) admission of documents (UCPR 17.4, 17.5)

Source: Uniform Civil Procedure Rules 2005 (UCPR)

Posted in Electronic records, Legal, Records management

Authenticity and reliability

Whether any document is accepted or admitted as evidence in court depends on a range of factors.  Electronic documents are no different.

Proof of the authenticity and reliability of documents may be influenced by a range of factors including:

  • The accuracy of the process the systems used to create them
  • The source of the information on the record
  • The method and time of their preparation

According to Allison Stanfield (‘Turning data into evidence’, 23 October 2009, IDM Magazine):

If appropriate standards and procedures have been followed in the creation and maintenance of electronic documents, the party endeavouring to prove the evidence will be in much better stead compared with the situation that might arise if there are minimal standards and procedures.  It is important to show that the chain of custody remains intact when electronic evidence has been handled. IDM Magazine, page 32

The value of evidence is often referred to as weight.  According to Stanfield, the evidential ‘weight’ of documents can be affected by its:

  • Accuracy (copies were made accurately – eg the process)
  • Reliability & integrity (retained in a robust and secure environment)
  • Authenticity (not tampered with)
  • Accessibility (can be accessed in years to come).

It’s worth remembering that the requirement to provide the original document in evidence was abolished some time ago.  See s.51 of the Evidence Act 1995 (NSW).