Posts Tagged ‘admissibility’

Integrity

November 9, 2009

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.

Inferences

November 9, 2009

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

Admissibility

November 8, 2009

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)

Admitting documents as evidence

November 8, 2009

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)

Authenticity and reliability

November 8, 2009

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).