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’.
- ASIC v Rich  NSWSC 417 (5 May 2007)
- Albrighton v Royal Prince Alfred Hospital  NSWLR 542
- Daw v Toyworld  NSWCA 25
- Nab v Rusu  NSWSC 539 (4 June 1999)
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)
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).
Do policies make any difference? You can have all the policies in the world but, like the horse, you cannot make it drink.
If you have policies for managing records, do people manage them better? Why is there so much confusion about the management of records, but a massive volume of electronic information out there now ….
On Google Wave for a few weeks now… what is the future of this thing? It is SO different, some say an email killer, maybe, some say a collaboration tool, maybe so too. Whatever it is, it takes a little getting used to and I’m still using email and Office and all the others…