Posts Tagged ‘reliability’

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.

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Processes, machines and devices

November 9, 2009

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.

Proof of contents

November 9, 2009

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

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

The balance of probabilities

November 9, 2009

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.


The need for authenticity

November 8, 2009

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)

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).