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)
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