The Uniform Evidence in Australia - Research Paper Example

DOCUMENTARY EVIDENCE Name Institution Course Date Documentary Evidence Introduction The uniform evidence act 1995 (cth), in Australia was initiated after the Australian Law Review Commission sought to carefully review the law with regard to the use of evidence in court1 The Commission also reviewed the nature of the evidence and how it is supposed to be used in court. It is through this process that the documentary evidence was reviewed. This was mainly aimed at determining how the electronic evidence could be used in a court of law and also the delicate nature of the electronic evidence as it can easily be manipulated and hence affecting the outcome of a court case. The purposes of the uniform evidence act were also to ensure that a comprehensive law of evidence is put in place with respect to the current conditions. Due to the advancement in technology, it was thus important to put in place measures that would guide the use of the documentary evidence. However, it is important to note that the use of documentary evidence is only practiced in a number of countries. In order for the documentary evidence to be admissible in court, it is required that the source of the evidence be determined2. The main purpose is to avoid any chances of manipulation. It is due to the manipulation issues that the documentary evidence is considered suspect in countries like Ireland3. Several amendments are also required for the purposes of fully benefiting from the documentary evidence. This includes section 60 which has details of the hearsay rule and section 102-104 which deals with the credibility issues. The paper discusses the documentary evidence in relation to the uniform evidence act Victoria, Australia 1995 (cth). Discussion The documentary evidence provisions are contained in section 47-51 of the uniform evidence act. The provisions are aimed at providing guidance on how the evidence should be used. Proving the documentary evidence is one of the main tasks of ascertaining the creditability of the evidence. Section 48 outlines the procedures that can be used to prove the credibility of the document4. The main method involves tendering of the documentary evidence itself. This is to ensure that the evidence is original and has not been manipulated or tampered with. A party to the proceeding also has to admit about the contents of the document and its use in the court. The admission by the party to the proceeding ensures that the one will be liable to prosecution in case the documentary evidence is not credible or has been manipulated. The tendering of the document is also required in court according to section 48. This serves the purpose of extracting the contents of the document for the purposes of using it in court. The tendering process of the documentary evidence is the main step that is involved in terms of determining the credibility of the evidence5. The party or parties in the proceeding presenting the documentary evidence must also take an oath. This is to ensure that they can be held accountable incase the evidence is false or manipulated. This therefore dispels the fears that are associated with the use of documentary evidence in some countries like Ireland6. The uniform evidence act 1995 (cth), also allows for the use of public documents for the provision of evidence during a court proceeding. However it is important to note that section 48(1) (f) clearly defines what a public document is in relation to the documentary evidence. A document that has been printed by the government printer or recorded by the government is considered a public document7. Records that have been recorded by foreign governments are also considered as a public document and can be used to provide evidence in court. On the other hand, section 58(1) outlines the steps that should be taken if questions are raised with regards to the credibility of the documentary evidence. According to the common law, the court has the powers to examine the documentary evidence to be able to determine its authenticity. Upon the examination of the document, the court is allowed to make any decision in relation to the use of the document. However, the courts should be in a position to satisfy all the parties that the document is relevant to the case and it is also credible. This is to avoid the chances of parties lacking faith in the court process. It is also for this reason that the use of documentary evidence is not common in most of the countries like Ireland8. The fear being that the courts may use the documentary evidence in favor of a certain party in case there is no clear way of proving the authenticity of the document. During a court proceeding, it is also important to note that the documentary evidence can only be used on parties that adduced the evidence of it or made the admission9. The uniform evidence act 1995 (cth), also has provisions that deal with documents produced by processes. The production by processes in this case means the use of machines and other devices to record the evidence. This is aimed at ensuring that the right materials are used as documentary evidence during a court proceeding. Under the documentary evidence, the use of commonwealth documents and public documents are allowed10. This is also considering that some of the documents could be classified. Documentary evidence is also important in such cases as it is the only evidence that can be relied upon in such circumstances. This was noted in the Australian case Butera vs. DPP for the State of Victoria where an audio tape was used in the case11. In the case, Butera had been accused of conspiracy to traffic heroin. An audiotape which had the conversation was thus presented in court. Sub-Section 163 of the uniform evidence act 1995 (cth) also defines how the documents that have been received or sent should be handled. This is done with an aim of ensuring that the documentary evidence being used is original and has not been tampered with. The sub-section 166-169 of the uniform evidence act also gives the courts the powers to call witnesses and request for the production of the documentary evidence to be used during the court proceeding. The witnesses may also be requested to provide written statements regarding the documentary evidence being produced in the courts. Affidavits may also be required for binding the evidence to the witness producing it. It is for this purpose that the use of documentary evidence is convenient just like the other evidence being used in court. The processes being involved in the use of documentary evidence is for the purposes of ensuring that any doubt is completely eliminated before the evidence is used in court12. Balancing the interest of parties is one of the important issues that are related to the documentary evidence. The reliability of the computer based evidence is also an issue that is related to the documentary evidence. An example is the case of King vs. State ex rel Murdock Acceptance Corp. Information stored in a computer was used as evidence13. The sub-section 146-147 of the uniform evidence act has provisions that are aimed at ensuring that the documentary evidence being used in court is accurate14. Then evidence of official records is also part of documentary evidence and it is admissible in court. This is for ensuring that the official records can be brought to court to be used as evidence. In most instances the use of official records is forbidden in most of the countries like Canada15. This is because of the delicate nature of the documents. Self incrimination during the court cases is also an issue that is factored in when using the documentary evidence. This is especially common in recordings where one can make statements that may link them to a particular crime. The courts therefore have the responsibility of ensuring such evidence is well scrutinized16. In some instances, it is important to note that records such as banking records may be required in court. This forms part of the documentary evidence and it is admissible in court. Proofs are also required when dealing with documentary evidence. This is especially common in the electronic mails to show that the transaction took place between the parties involved. The use of documentary evidence is thus important in terms of delivering justice as it may prove difficult to use other forms of evidence17. The facilitation of proof of the electronic based evidence is also an important aspect of documentary evidence. This is considering that the computers being used to process the electronic messages can be prone to errors. This means that a proof is required in order to show that a particular computer was used to carry out the function. Section 45C also relies on the approved process of determining whether the electronic evidence should be used in court or not. During the process of proving the credibility of the electronic record, it is important to ensure that the records were produced at the normal working hours in case of a business process18. This is however a weakness in the act as it does not consider the safeguards in relation to the software and the hardware used. This weakness also lowers the credibility of the process in relation to the use of the electronic evidence. A test which is commonly referred to as redundancy test is also used in determining the credibility of computer evidence. This also exposes the process to some weaknesses. The weaknesses include the use of the computer to test the same evidence. The levels of accuracy may be low and hence affecting the use of the electronic evidence. The use of machine generated information may also be prone to errors and hence a proper means of dealing with the errors is required. However, it is important to note that no wrongful conviction has ever been made in Victoria due to computer generated errors19. Section 71 of the uniform evidence act 1995 (cth) also has provisions that deal with the use of electronic communication20. This section also outlines where the hearsay rule is not applicable when dealing with the electronic message. The hearsay rule is not represented in a message that is transmitted through an electronic mail, fax and lettergrams. This therefore deals with the issue of the identity of the persons whom the message was sent to or the sender of the message. On the other hand, the section also deals with the time of the message and the destination of the message. It is thus important to note that the hearsay rule is affected by the use of the electronic communication when producing evidence in court. However it is also important to note that the definition of electronic communication is questionable. This is due to advancement of technology that has changed the meaning of communication21. Some of the communication methods are not defined in the act and yet they form a crucial aspect of electronic communication. Future technologies may also change the meaning of communication as it is applied in the uniform evidence act 1995 (cth). The transmission device used to transmit the information is also an important aspect of determining the electronic communication. The modes of transmitting messages electronically have also been changed over time due to the use of technology in most of the aspects of communication. This has also contributed to the change in definition of electronic communication. Section 155 of the evidence act 1995 outlines the importance of proving that a document is official. When using an official document as evidence in court, one has to produce documents that prove that the document is official22. This may also include a signature from the minister or the authorities who are in custody of the official document. The issue of the use of official documents was brought to light after a case involving Nezovic vs. The minister of immigration and multicultural and indigenous affairs23. The case was presided over by Justice French. It is through this case that it was decided that an official document must be proofed. This is a.lso applicable to the electronic communication which may have taken place in public offices or within the government. However it is also important to note that the use of the official documents is only applicable to certain cases. In order to reduce the incidences of manipulation of the evidence, it is important to ensure that the proper proof is produced and it must be signed. It is also important for the court to ensure that the official document can be proved in order to eliminate any uncertainties. However, it is also important to note that the courts have the powers to subject the documents to further investigations in case of uncertainty24. Action should be taken against the party presenting the evidence in case it is found to have been tampered with the aim of influencing the outcome of the case. Section 60 of the uniform evidence act 1995 (cth) deals with the hearsay rule25. The hearsay rule deals with the concepts of representation. It is for this reason that the section outlines provisions under which the hearsay rule should not be applicable in the court proceeding. The evidence of representation made out of the court mainly constitutes the hearsay rule. It is also important to note that most of the electronic communications are made outside the court. It is for this reason that the documentary evidenced is closely linked to the hearsay rule. According to the hearsay rule, statutory exceptions are also applicable in the case of business recordings and computer evidence26. The computer evidence and business recordings form an important part of the documentary evidence although its accuracy must be proved. This was noted in the case of DPP v Jones27. In this case, there was an error in the accuracy of the computer record that was produced. The timing of the evidence produced from the computer was slower by one and a quarter hours and hence the lack of accuracy. It is also important to note that the hearsay rule is for the purposes of protecting the people from being caught by surprise and hence reducing the credibility of the evidence. This may be common in business recordings which most people may be caught off guard and they may also end up incriminating themselves. According to some of the scholars28, the risk of fabrication is also high when dealing with the documentary evidence and hence the support of the hearsay rules. The practice of using the best evidence in court also has some negative impacts on the documentary evidence and in particular the electronic recordings. It is also for this reason that the courts have the powers of determining whether the evidence being used is the best29. Recommendations The recommendations are mainly aimed at strengthening the use of the documentary evidence and for eliminating the doubts that are related to the use of documentary evidence. The timing of the applications should be made so as to increase on the efficiency of using the documentary evidence. Facilitation of proofs with regard to the sending and receiving of the electronic communication is therefore significant. This weakness has greatly contributed to difficulties in courts when handling the electronic communication as evidence in court. In order to strengthen the use of computer based evidence, it is also recommended that an internal mechanism for quality control be put in place. This is opposed to the rigorous tests which do not yield much result. It is also important to note that the rigorous tests are bound to fail due to the current issues facing the use of computers. The problem of hacking can easy lead to the interference with the evidence and the rigorous tests cannot be of much use. The technologies used during the process should also be subjected to further scrutiny. This is mainly for ensuring that the public confidence is restored when using the documentary evidence. The modern technological concepts should also be considered so as to avoid the chances of using the data that is not accurate. The presumption of the accuracy of the computer output should also be maintained. However, it should only be applicable to certain cases only. Complex cases require that the evidence should be thoroughly scrutinized so as to establish the credibility of the evidence. When dealing with the criminal cases, it is important for the courts to ensure that the documentary records are used. However, it is also important to ensure that supporting evidence is provided so as to strengthen the evidence. It is also recommended that section 71 of the uniform evidence act 1995 (cth) should be amended. This is for the purposes of ensuring that a broader term is used instead of electronic mail. This is because the technological advancement has also led to the development of other means of electronic communication. The use of electronic messaging or electronic data transfer should be considered instead of the electronic mail. The use of computers to pass messages and information should not be considered as the only means of electronic communication. It is recommended that other forms that are currently under use should be considered. This is also attributed to the technological advancement and the increasing popularity of the use of mobile phones for messages. Section 71 should therefore be amended in order to accommodate all the issues that have arose due to the technological advancement. A flexible approach should also be developed for dealing conclusively with the documentary evidence being presented in the court. This is also aimed at ensuring that the modern technological trends are factors in when dealing with electronic communication. It is also recommended that the use of voice recording system should be considered for use during the court proceedings. However the laws guiding the use of machines and other devices should also be applicable. It is also recommended that section 161 should be amended for providing a clear guideline of how the electronic communication evidence should be proved. The hearsay rule should also be relaxed for the purposes of enhancing the use of documentary evidence. However, it is also recommended that accused should be given adequate time to give their own versions as there could be no other witness to support some documentary evidence. Conclusion In conclusion, it is evident that the use of documentary evidence has a lot of guidelines and provisions. Several sections are related to the use of the documentary evidence to strengthen it. The electronic message use in courts has some weaknesses and hence the lack of its use in most of the countries in the world. However, in Victoria, it is evident that several measures like procedures for scrutinizing the documentary evidence and oath taking have been put in place so as to ensure that the documentary evidence is admissible in court. It is also evident that the use of documentary evidence is for the purposes of solving both civil and criminal cases. The use of official documents is also part of the documentary evidence. However, it is important for the courts to obtain proof that the document being used is official. This therefore requires a document that proof that the document is official. It is also evident that the documentary evidence may have several weaknesses that may lower its credibility. This is mainly attributed to the advancement in technology which has led to the use of different devices for messaging services. The hearsay rule on the other hand has provisions that hinder the full use of documentary evidence in some cases. It is also evident that the amendments are required in the hearsay rule for the purposes of ensuring that the computer based evidence is fully utilized in the courts. However, relaxing the hearsay rule will be beneficial to the courts when using the documentary evidence. The use of electronic evidence is also gaining a lot of popularity due to the advancement in technology. This is because some of the cases involving technology may not have witnesses and hence making it difficult to make prosecutions. List of References Australian Law Reform Commission, 2005, Uniform Evidence Acts: Discussion Paper, Canberra: Australian Law Reform Commission. Australian Law Reform Commission, 2005, Uniform Evidence Law: Final Report, Canberra: Australian Law Reform Commission. Victorian Law Reform Commission, 2006, Report: Implementing the Uniform Evidence Act, Melbourne: Victorian Government Printer. Odgers, S, et al, 2012, Uniform Evidence Law: Commentary and Materials, Pyrmont: Thompson Reuters Co, 4th ed. Field, D, 2012, Uniform Evidence Law, Sydney: LexisNexis. Peden, E, 2012, Uniform Evidence Law, Sydney: LexisNexis. Faris, P, et al, 2011, Uniform Evidence Law: Principles and Practice, North Ryde: CCH. Schum, D, et al, 2005, Analysis of Evidence, Cambridge: Cambridge University Press. 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