Uniform Evidence Law and Acts - Research Paper Example

Uniform Evidence Law Introduction: In Australia, evidence acts are the domain of the constituent members of the federation or the states of the country thereby making it a genre of law and legal studies that is often difficult to harmonies and quantify1. Evidence law is an area where the Commonwealth, States, and Territories all have responsibilities. All these jurisdictions have evidence legislation. The primary source of statutory evidence law applying in relation to proceedings in federal courts is the Evidence Act 1995, which also applies in the Australian Capital Territory courts. Similar Acts have been passed in New South Wales, Tasmania and Norfolk Island. These Acts are sometimes referred to as the uniform Evidence Acts. Most of these laws are based on the ALRC recommendations that were made in 1979 as the Terms of Reference to review Australia ’s evidence laws2. To this effect, there were a number of research reports and discussion papers along with an Interim Report-Evidence (ALRC 26) that were published by ALRC. These also included a draft legislation in 1985; and a final report-Evidence (ALRC 38) in 1987. the standing recommendations from both these documents was to the effects that ALRC 26 and ALRC 38 there was a need for uniform law of evidence that could be applicable to all federal and Territory courts. To this effect in 1991, the Commonwealth and New South Wales governments introduced legislation mostly founded on the ALRC’s draft legislation. The Commonwealth and New South Wales parliaments each passed an Evidence Bill in 1993, to come into effect from 1 January 1995 . The Acts were in most respects identical and are often colloquially referred to as the ‘uniform Evidence Acts’—but perhaps would be better described as ‘mirror’ legislation. Uniform Evidence Acts: A Summary The law of evidences regulates the means by which facts can be proved in litigation. In the vast majority of civil and criminal proceedings, the major point of disagreement between prosecution and plaintiff often turns out to be the admissibility of proof3. In this context therefore, evidence law is usually described as being an aspect of ‘procedural’ or ‘adjectival’ law in order to distinguish it from substantive law such as the law of contract or criminal law. The act (1968) had been criticized as been too technical and wound up in setting a number of erroneous conditions that needed to be met for computer evidence to be admissible in courts. The issue therefore was that the act was obsessively concerned with regularity and technical malfunctions of computers with only the slightest concerns for input reliability. These were corrected in 1995. the rule of hearsay has not been abolished but legislative modifications have been made in all Australian jurisdictions to the common law rules regarding documentary or computive hearsay. Australian jurisdictions and most other hi-tech jurisdictions have enacted laws in order to modify the hearsay rules to enhance the admissibility of computer evidence. The approaches taken toward the determination of the admissibility of computer data in Australia are not uniform. There are tow main approaches to this rule-the computer specific approach and the business records approach. The computer specific approach employs legislative provisions that are specifically directed to the admissibility of computer produced evidence while the business model approach sees computer produced evidence as just a part of the general question of admissibility of business records whether stored on electronic or paper media. The Evidence Act 1995 (cth & NSW) codified the hearsay rule as stated in s59. there was however the provision for many exceptions, including an exception for business records. Section 69 provides for the admission of business records and excepts the hearsay rule from applying to such records. Section 147(2) presumes proper operation of devices and processes that produce business records. A party against whom a business record of an event is adduced can tender evidence to prove that there is no record kept, in accordance with the business system, of the occurrence of that event. Section 69(4) of the Evidence Act also extended the exception to the hearsay rule to evidence adduced to disprove the business record. Unlike the provisions of the other jurisdictions, the evidence Act 1995 does not require calling the compiler or the supplier of the recorded information as a condition for admissibility. Moreover, the act does not require the representation concerned to be one in respect of which direct and oral evidence would be administered, although of course, representation will not be admissible if it fails to pass the relevancy test4. It might be noted here that the Evidence Act, moved from the position of the other enactments where parties are required to prove proper operation for such devices and processes. In Sections 146 and 147 it is presumed that a general reliability and trustworthiness of processes, machines and other devices. Unless evidence sufficient to raise doubts about the presumption of the machine could be garnered, data produced by a computer will not be expunged on the ground that the party seeking to rely on the data has not proved proper operation of the computer that produced the data. The common law principles and rules related to the means aof proving the contents of documents is also abolished by s51 of the Act. This would therefore serve to remove problems that could arise from the common law rules related to the authentication and the adduction of original documents. In order to permit a greater admissibility of hearsay evidence under the act, s167 permits a party to make reasonable request to another for determining a question that relates to a previous representation or the authenticity. Section 71 of the Act excepts the hearsay rule from applying to a telecommunications message adduced to show the identity of the sender of the message, the date or time of the message, or the destination or identity of the recipient. Evidence is admissible of a representation contained in a document recording a message that has been transmitted by electronic mail or by a fax, or a telex so far as the representation is a representation as to the identity of the sender of the message, the date or time of the message was sent or the destination or identity of the person to whom the message was being addressed. The information itself must still, of course, be relevant and admissible; s 48(1)(d) merely makes it easier to prove what the information is. Section 48(1)(d) is not, in other words an exception to the hearsay rule. This contrasts with the approach taken in some jurisdictions, which have created special hearsay exceptions for computer-generated evidences5. The key changes that have been brought about within the uniform Evidence Acts over years as it has been operative has been primarily in the focus of the amendments to the hearsay provisions, credibility evidences, Aboriginal and Torres Strait Islander traditional laws and customs De facto partners, and Advance evidentiary rulings6. Hearsay is in essence a test of the intention that the evidence seeks to promote. Section 59(1) of the Evidence Acts state that, “evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. The underlying factor in the determination of whether or not evidence would fall under the category of hearsay is decided by the intention clause- whether the intent that the evidence would serve be objective or subjective. The act was amended further to confirm objective intention: i.e., what the maker of the representation ‘can reasonably be supposed to have intended’ by reference to circumstances in which the representation made.” In 2005, the Australian Law Reform Commission released a review of the various Australian uniform evidence acts. The section titled “Reliability and Accuracy of Computer Produced Evidence” examines the Australian legislative framework that facilitates the proof of electronic evidence. The ALRC analysis identifies several viewpoints. One viewpoint, which relies heavily on Spenceley’s work, emphasizes that “a higher threshold for the admission of computer-produced output into evidence needs to be established7.” Citing Spenceley’s research, the ALRC review notes that a question could be raised about the reliability of computer-generated output because, “it is impossible to test for either the inaccuracy or accuracy of computer operations and impossible to give a statistical rate of failure, and that there is therefore no rational basis for assuming a high rate of reliability.” To negate the impact of questions about reliability the ALRC review notes that, “Spenceley builds a case for adopting an approach that relies on implementing a ‘redundant mechanism’ in the environment in which the computer is used to address the problem of reliability of computer output”. The purpose of the redundant mechanism is the prevention or the mitigation of unreliability by helping “provide some level of verification that a failure in the computer has not occurred”. In order to achieve this goal, the ALRC review cites a test of admissibility, “It should be demonstrated that 1. Some mechanism(s) of redundancy (however formulated and implemented) was or were utilized in connection with the production of particular material in the setting in which it was produced; and 2. That it is reasonably likely that any error(s) in the operation of that computer that affected the accuracy of information contained in that material would have been detected by such mechanisms8.” Reliability and completeness are the two most critical properties of evidence with respect to digital and computer generated evidence. If the reliability and/or completeness of any potential evidence is questionable, its evidentiary value would obviously be greatly diminished9. Obviously, the question of evidentiary weight and in particular the question of the admissibility would need to be legal question that would ultimately be decided by the courts. It is for example at times imperative that a digital forensic process be undertaken in a manner that it does not diminish the authenticity and/or the veracity of the evidentiary support. Relevance The requirement o relevance is the fundamental rule of the law of evidence. Evidence that can be proved as being relevant is admissible, unless excluded by the operation of one of the exclusionary rules of evidentiary law. Relevance is in fact a pretty ordinary and non-legal concept. Put simply, something is relevant to the determination of an issue (or argument or question) if it were to help with a decision in a rational manner. If one was to explain the concept with a more legal terminology, it could be stated “evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding10. Relevant evidence would also mean evidence that has the tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without evidence. A great deal of information is stored on computers and computer aided devices-mostly part of the modern genre of the information storage media. The information that is stored on such media cannot be accessed directly by a human being; instead it must be accessed by the means of a device such as a computer. For example, business records stored on a computer can only be accessed by opening the records through the correct computer program; similarly a document written through the use of a word-processing program can only be accessed in its intended form by means of that program. In such cases s48(1) (d) of the uniform evidence legislation provides that, “if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it”, then the contents of the document that was or purpose to have been produced by use of the device. This means that the contents of a computer disk can proved by tendering a printout of the information contained on it. If an issue about the accuracy or the reliability of the device is raised, then the effect of ss146 and 147 is that it will be presumed that the device was either of a kind that is ordinarily reliable (s146) or was being used by a business for its purposes (s147). A review of the nee for reduction in importance given to computed and computer device generated evidence is a must given the contemporary environment. It is acceptable that for the primary purpose the rule of hearsay has been applied to such evidence and that for the most part, it is treated as hearsay evidentiary support rather than testimonial evidences11. There is however the need for a better understanding of the fact that digital evidence is fundamentally different from existing types of evidence. Unlike regular document oriented evidence, computer evidence found on computer storage media such as floppy disks convey no information per se. The information contained in a computer file is latent; that is, in order to understand the content of a file, one requires software to interpret it. For example, in order to read the contents of a word processing file, one needs to open it with a word processor such as Microsoft Word. Unlike paper documents, computer evidence is highly volatile, and can be easily and undetectably modified or manufactured. Consequently, establishing authenticity of evidence has tends to be problematic12. New types of artifacts of evidentiary value are being discovered and deleted files can now be recovered. There is even the scope of “slack space” containing portions of old versions of files extracted. Digital evidence today is voluminous and complex, with growth continuing to accelerate. This complicates investigation; finding digital “smoking guns” becomes more of a needle-in-a-haystack problem. With the scope of computer technology development and the advancements that are made in this technology, there is also the danger for human manipulation of evidences to be adduced in court. This is in fact a danger that needs to be focused on in a clearer manner before one goes on to accept the authenticity of the computer generated proofs. The majority of information, especially business records, are now created and maintained in digital form. As such, document discovery and disclosure in civil litigation must address the fact that the subject of discovery is now fundamentally digital evidence. Discovery will increasingly rely on digital forensics techniques to address the problems of identifying potential evidence, verifying authenticity, and finding critical evidence. In conclusion therefore it maybe stated that there is a need to amend the lwvarage the computer evidentiary support enjoy as part of the Evidence Acts in orde to make the process a more democratic and just one. This is not to say that digital evidence be made inadmissible but simply that there be affected a more stringent set of guidelines to regulate their administration. Reference: Shatz B, 2009, Digital Evidence: A Fundamental Shift in the Nature of Information, accessed October 1, 2009, < http://www.hearsay.org.au/index.php?option=com_content&task=view&id=171&Itemid=48> Australian Government Attorney General’s Department, Evidence, accessed September 30, 2009, < http://www.ag.gov.au/www/agd/agd.nsf/Page/Evidence_Evidence> Australian Law Reforms Commission, 2006, Submission to House of Representatives Standing Committee on Legal and Constitutional Affairs Inquiry into Harmonization of Legal Systems, accessed September 30, 2009, < http://www.alrc.gov.au/submissions/ALRCsubs/2006/1603.htm Palmer A and Gans J, 2001, Australian principles of Evidence, pub, Routledge Cavendish, pp153-162 Ray I, Advances in Digital Forensics IV, pub, Springer Publications, pp10-12 Australian Law Reform Commission, 2005, Review of Uniform Evidence Acts, ALRC Discussion paper 69, Sydney Australia, accessed September 30, 2009, < www.austlii.edu.au/au/other/alrc/publications/dp/69/index.html Crimmon L M, 2008, Reform of Uniform Evidence Act, pub, Presentation to Young lawyer’s Seminar, accessed October 1, 2009, Evidence Act (1977) Qld, s95; Evidence Act (1929), ss59a-59c; and Evidence Act 1958 (Vlc), a55B Laryea E T, 2002, Paperless trade: opportunities, challenges and solutions, pub, Kluwer law International, pp16-22 Pacioco D, 2001, Evidence about Guilt: Balancing the Rights of the Individual and Society in Matters of truth and proof, pub, Canadian Bar Review, 433,436 Read More