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The law of evidence should not be subtle and difficult to understand. And fine distinctions should only be tolerated if both unavoidable and . . . easy to make. (Re M and R (Minors) [1996] 4 All ER 239 (CA), 254)
193 IN MAY 1994 THE LAW COMMISSION RELEASED Preliminary Paper 22, Evidence Law: Documentary Evidence and Judicial Notice. That paper was released as part of the Commission’s evidence reference, the purpose of which is to make the law of evidence as clear, simple and accessible as practicable and to facilitate the fair, just and speedy resolution of disputes. Final recommendations on the evidence reference will be made later this year and will include recommendations on the topic of documentary evidence. The Commission considers that the recommendations it proposes to make in its final Evidence Report will meet the needs of electronic commerce by facilitating the production of electronically generated evidence. In appendix C we set out draft legislation dealing with documentary evidence which (subject to refinement) will form part of the draft Evidence Code in the final report. In this chapter we address not only the recommendations in the final report but also the present state of our evidence law.
194 It is a fundamental principle of the law of evidence that all evidence which is relevant to the issues between parties to a cause is, prima facie, admissible. The term “admissible” in this sense means admitted in evidence for consideration by the trier of fact. Therefore, all electronically generated information which is relevant should be admissible in evidence and be considered by any trier of fact in the absence of compelling reasons to the contrary.
195 The law of evidence has traditionally made distinctions between “primary” and “secondary” evidence. Primary evidence is “the best evidence, or that kind of proof which, under any possible circumstances, affords the greatest certainty of the fact in question . . .” whereas secondary evidence “is all evidence falling short of this . . .” (Documentary Evidence and Judicial Notice para 152 citing Greenleaf 1972 and Thayer 1898). The law has, therefore, tended to restrict the admissibility of secondary evidence, particularly when primary evidence is available. Thus an original document has been considered better evidence than a copy. The so-called “best evidence” rule was intended to perpetuate this distinction and the “secondary evidence” rule was a natural consequence. Under these rules original documents were usually required to be produced in evidence.
196 Electronically generated information does not have an “original” in the sense in which that term is generally understood in the law of evidence. If there was an “original” it is likely to be regarded as the binary digits encoded into the computer after words have been typed on the keyboard.75 A New Zealander will generally see on his or her computer screen, or printed out on hard copy, a translation of that information into the English language. That translation can properly be regarded as a “copy” of the information stored in the computer.
197 Difficulties have arisen in the application of the primary and secondary evidence rules to machine generated evidence: examples are videos and tape recordings. There are conflicting decisions in England as to whether it is necessary for an “original” tape recording or video (rather than a “copy”) to be offered in evidence: compare Kajala v Noble (1982) 75 Cr App Rep 149, 152 with R v Stevenson [1971] 1 WLR 1. The point has been left open explicitly in New Zealand: R v Wickramasinge (1992) 8 CRNZ 478 (CA) at 481 (see also Documentary Evidence and Judicial Notice para 156).
198 The practical difficulties which are caused by an inability to determine whether a particular item of electronically generated information is an original or a copy means that the law, as it currently stands, is in a state of uncertainty. Fortunately, judges have adopted pragmatic and robust approaches to avoid some uncertainty. Yet, any uncertainty is undesirable in this area of the law.
199 Our paper, Documentary Evidence and Judicial Notice, was prefaced with the following observations:
The present law in this area is out of date and at risk of failing to keep up with the changes in technology, especially the increasing use of computer systems for the production and storage of documents. Overall, the rules have become too complex and technical. The bulk of statutory law is too detailed – dealing with specific problems as they have arisen rather than approaching the issues from a principled perspective. Much of the law in this area is found in ancient English cases or relatively obscure sections of the Evidence Act 1908 and other statutes. The consequence of these failings . . . is that the rules are not well understood and can operate as a trap for the unwary. In civil cases the rules are often bypassed when counsel consent to an agreed bundle of documents being placed before the court. Though judges have, for efficiency reasons, encouraged this practice, it must be based on satisfactory rules governing documentary evidence. (para 2)
200 The rules relating to documentary evidence to be recommended in the draft Evidence Code will follow the 6 principles identified in the discussion paper:
. . . documentary evidence rules should:
201 The Commission’s objective is to address questions of evidence by enabling all relevant electronically-generated information (not rendered inadmissible on public policy grounds, eg, legal professional privilege) to be considered by a trier of fact. A sharp distinction must be drawn between questions of admissibility of evidence and the weight to be attached to the evidence by the trier of fact.
202 Article 9(1) of the UNCITRAL Model Law on Electronic Commerce provides that “nothing in the application of the rules of evidence shall apply so as to deny the admissibility of a data message in evidence” whether on the sole ground that it is a data message or, if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.
203 Article 9(2) of the Model Law then addresses the assessment to be made of the evidential weight of a “data message”. The term “data message” is defined by article 2(a) as “information generated, sent, received, or stored by electronic, optical or similar means, including but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy”. In assessing evidential weight, the trier of fact is to have regard to the following factors:
204 Although there is a reference to the term “best evidence” in article 9(1) of the Model Law, the practical effect of the provisions of article 9 (read as a whole) is to remove the “best evidence rule” in circumstances where the Model Law applies (see also the Guide to Enactment, paras 70 and 71). Article 9(1) ensures that nothing in the rules of evidence shall deny the admissibility of a data message in evidence in whatever form, while, on the other hand, article 9(2) allows the court to take into account questions of reliability and authenticity in determining the weight to be given to the evidence. No doubt, in general terms, any data message introduced into evidence (other than by consent) would be supported by oral testimony as to its provenance.
205 The Uniform Law Conference of Canada has drafted and recommended adoption of a Uniform Electronic Evidence Act. To date, that draft legislation has not been enacted by any Canadian jurisdiction. Section 3 of the draft Act provides that, subject to various exceptions, a person seeking to introduce an electronic record as evidence must prove its authenticity with evidence showing that the electronic record is what the person claims it to be. The commentary to s 3 states that that provision codifies the common law and extends its application to electronic records (Consultation Paper on a Proposed Uniform Evidence Act, 6). However, the Uniform Law Conference of Canada had previously argued that no change to common law authentication procedures was necessary to deal with electronic records (para 18). It is difficult to understand why the Uniform Law Conference thought it necessary to recommend a specific statute dealing with the topic of electronic evidence if that enactment was solely intended to codify the common law. The only explanation can be an intention to clarify the law.
206 The United Kingdom Parliament passed legislation to deal specifically with the reception of evidence from computers.76 The English legislation was criticised because there was
no intrinsic reason why different regimes should apply to different forms of record-keeping, and every reason why they should not when the different forms are not readily distinguishable upon their face. There may be no obvious difference in appearance between a document produced by the use of a computerised word processing system and one produced by the use of a manual typewriter, nor is there the slightest justification for subjecting them to different hearsay rules. To do so creates nothing but anomaly and confusion. (Tapper 1989 395)
207 The Commission agrees with that criticism. Any reform of the law of evidence to address electronic commerce issues should provide an appropriate (and, preferably, a standard) definition of the term “document” for the courts to apply.
208 This report is concerned with electronic commerce. Commercial disputes will, normally, involve civil issues. For that reason it is proposed to limit discussion of evidence to civil proceedings. It is, however, clear that issues can arise in the criminal jurisdiction, for example, proceedings relating to alleged contraventions of the Customs and Excise Act 1996. In a prosecution under that Act, the New Zealand Customs Service is likely to rely on many pieces of information which have been generated electronically. The Commission’s final report on evidence will address issues arising in both civil and criminal proceedings.
209 Why might someone wish to rely on electronically generated evidence? The answer to that question in a commercial context is twofold:
210 Where parties are engaged in an exchange of views to establish facts or, indeed, in the process of mediation or arbitration, they have the ability to make their own rules as to what information can be used and what weight will be placed on it. When they go to court or to arbitration to resolve a dispute they must abide by the rules of evidence laid down by law or by the Arbitral Tribunal. An internal auditor or an external auditor is likely to want to be satisfied that information in his or her possession or control can be verified to a standard which will be upheld if matters in issue go to court. Whatever the forum or occasion, the criterion of reliability will need to be met if a person is to act upon the basis of the evidence adduced.
211 In civil proceedings, a requirement exists for each party to disclose the existence of documents which are relevant to the matters in issue between the parties to the cause (High Court Rules 1985, rule 293; District Courts Rules 1991, rule 315). Usually, the documents will be listed by the party and verified as such on oath. The inspection provisions of the relevant rules of court then apply so that the parties have ample opportunity to inspect the relevant documents and determine whether they wish to introduce those documents into evidence (High Court Rule 306; District Courts Rule 320). The mere fact that a document has been discovered in civil proceedings does not, of itself, mean that the document will be produced in evidence. First, a decision to produce the document in evidence must be made by at least one of the parties. If the document is to be produced in evidence it will normally be produced either by the author of the document or by its recipient, or it will be admitted by consent. Procedures in place in both the High Court and the District Court at present tend to encourage consensual production of agreed bundles of documents both to assist the trier of fact and to save time and costs.79
212 Both the High Court Rules (rule 293; form 27) and the District Courts Rules (rule 315; form 26) provide for lists of documents to include documents which were formerly in the possession or control of the party but which are no longer, for whatever reason, in that party’s possession or control. Thus, files which have been deleted from the computer system will be subject to obligations of discovery, and may even be subject to inspection rights if reconstruction of those files is possible having regard to the computer system in question (High Court Rule 307; District Courts Rule 329).
213 What electronically generated records are required to be disclosed by way of discovery in civil proceedings?
214 The term “document” is defined in High Court Rule 3(1) and District Courts Rule 3 as follows:
“Document” means a document in any form whether signed or initialled or otherwise authenticated by its maker or not; and includes
(a) Any writing on any material:
(b) Any information recorded or stored by means of any tape-recorder, computer, or other device; and any material subsequently derived from information so recorded or stored:
(c) Any label, marking or other writing that identifies or describes anything of which it forms part, or to which it is attached by any means:
(d) Any book, map, plan, graph or drawing:
(e) Any photograph, film, negative, tape, or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced: (emphasis added)
The definition set out above is also the definition of “document” under s 2(1) of the Evidence Amendment Act (No 2) 1980, and is further replicated in many other statutes.80 Part 1 of the 1980 Amendment Act deals with admissibility of hearsay evidence, including documentary hearsay evidence (ss 3–6). But, the need for consistency is highlighted by the Customs and Excise Act 1996 when it changed, inexplicably, a part of the definition of “document” set out above. In addition to making it clear that information “recorded or stored” by means of (among other things) a computer was a document, the definition also includes the word “transmitted”. However, this addition seems superfluous as it is difficult to understand how something may be transmitted without having previously been either recorded or stored on the computer or other device in question.81 Yet, the change might be perceived as vital in a particular case.
215 More problematic is the fact that, save for a definition relevant to production of evidence for use in or by foreign authorities, there is no definition of the term “document” in the principal Evidence Act 1908. And, yet another definition of the same word appears in s 2 of the Evidence Amendment Act 1945 which simply defines it as including books, maps, plans, drawings and photographs. These examples show the need for a consistent definition of the term “document” to avoid inconsistent interpretation of that base term, particularly in the context of electronically generated information. Distinctions “should only be tolerated if both unavoidable and . . . easy to make”: Re M and R (Minors) [1996] 4 All ER 239 (CA) 254.
216 What approach should be adopted towards standardisation? The Model Law on Electronic Commerce uses the drafting technique of defining the term “data message” to achieve its end. Is this necessary? In our view the answer is no. It is unnecessary to venture into technically specific language by using words such as “data message”.
217 A computer which stores information is no more a “document” than is a filing cabinet contained in the office of a managing director. Just as the managing director may well lock his or her filing cabinet for security reasons, the computer is also locked off from the outside world through the use of a password. In each case it is necessary to gain access to the “filing cabinet” through a private key: in the case of the filing cabinet, the private key is, literally, a key which will open the filing cabinet; in the case of the computer the private key is the password of the author who has access to the computer. In completing discovery of documents one would not list a filing cabinet in the verified list of documents; equally, one should not list a computer.
218 Within the computer are stored various files on which information is to be found. The word “information” is the key. It is the information “recorded or stored by means of . . . computer or other device” which is discoverable through the definition of “document” in both the High Court Rule 3(1) and District Courts Rule 3(b). This means that there is an onus, under the present law, on those completing discovery to identify the precise information which is relevant to the dispute and to list it in the verified list of documents.
219 The proposed definition of the term “document” in the proposed Evidence Code is:
Document means any record of information and includes:
(a) anything on which there is writing or any image; and
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and
(c) anything from which sounds, images or writing can be reproduced with or without the aid of anything else.
The all encompassing language renders it unnecessary to use the device of the Model Law’s definition of “data message” in article 2(a) (see the Guide to Enactment, paras 30–32). The use of the term “record of information” in the definition both emphasises this and ensures consistency of approach with the provisions of the High Court and the District Courts rules. The Commission is of the view that the width of the definition is sufficient to capture electronically-generated information. The robust and sensible approaches of New Zealand judges to arguments which have sought to exclude evidence produced by, or in, a form which was not invented at the time that the definitions were written confirms our view. In these cases the judges have admitted evidence as a “document” under the statutory definition in question.82
220 An example of the problems caused by failing to adopt that type of approach is Derby & Co Ltd v Weldon (No 9) [1991] 1 WLR 652. Vinelott J was faced with an application for access to a complete computer database and the question arose whether a computer database was, for the purposes of RSC Ord 24 of the English rules, a document of which discovery had to be given. The relevant rules of the Supreme Court (UK) do not, in fact, contain any definition of “document”. Although Vinelott J gave a decision and reasons for his decision, the whole question of access to the computer database had been resolved effectively by the parties through co-operation before judgment was delivered. Vinelott J said:
However, these problems arise not at the initial stage of discovery when disclosure must be made of the extent of relevant information recorded in a computer database, but when application is made for production for inspection and copying of a document. It is clear in the light of the decision of the Court of Appeal in Dolling-Baker v Merrett, [1990] 1 WLR 1205, that the Court has a discretion whether to order production and inspection and that the burden is on the party seeking inspection to satisfy the court that it is necessary for disposing fairly of the case or cause or matter or for saving costs. At that point the Court will have to consider, if necessary in the light of expert evidence, what information is or can be made available, how far it is necessary for there to be inspection or copying of the original document (the database) or whether the provision of printouts or hard copy is sufficient, and what safeguards should be incorporated to avoid damage to the database and to minimise interference with every day use if inspection is ordered.
As I have said, in the instant case the experts were able to agree the extent of the information available and the extent to which it could be restored and transferred to magnetic tape or diskette, and, in the light of their reports, a programme was agreed. (659; emphasis added)
221 From a practical perspective the issue is one that arises at the initial stage of discovery, contrary to what Vinelott J said. It is the obligation of the solicitor acting for the party to disclose all relevant documents in his or her client’s possession or control relating to the matters at issue between the parties to the cause.83
222 Had the Derby & Co Limited case arisen for decision in New Zealand, in terms of both the High Court and District Courts rules, the issue would have been approached by reference to the definition of document contained in those rules. The definition of document in those rules puts the emphasis on “information” rather than on the nature of the receptacle (ie, filing cabinet or computer system) in which it may have been stored. This again highlights the need for consistency of approach.
223 Only relevant information contained on the computer database should be discovered, rather than the whole database. This information will include historical information which may only be retained on back-up tapes or be capable of reconstruction from the computer’s hard drive.
224 If the definition of document contained in the Evidence Amendment Act (No 2) 1980 and the High Court and District Courts rules is applied, there is, in our view, unlikely to be any circumstance in which a court would hold that electronically-generated information is not a “document” for the purposes of evidence or court procedure. Likewise, applying the definition of document in the draft Evidence Code, the result is the same.
225 In our view, definitions of document should be standardised in legislation to ensure that illogical or aberrant results do not arise. Such aberrant decisions are likely to occur when different words are used to convey the meaning contained in the High Court Rules.
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Are there any circumstances in which it would not be appropriate to use a
standard statutory definition of “document” which includes documents
in electronic form?
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226 When seeking to have evidence admitted in court it is necessary to understand the nature of the evidence and the purpose for which it is claimed to be admissible. In the case of electronically-generated information it is necessary to determine at the outset whether reliance is being placed upon the evidence for the purpose of proving the truth of the matters contained on its face or for some other purpose. Such an analysis is required, among other things, to establish whether the evidence is to be admitted as “real evidence” or as “documentary evidence”.
227 Generally speaking, real evidence is evidence which the court can actually see, hear or touch in the form of an exhibit which can be analysed either by the court or by expert witnesses. Examples of electronically-generated evidence which may (potentially) be admitted as real evidence are film strips of radar images: The Statue of Liberty [1968] 2 All ER 195, 196; and Partlow Charts (used for recording the temperature in a refrigerated container): OEM International Limited v The Ship “Wellington Maru” (1997) 11 PRNZ 142. Provided a proper evidential foundation is laid to show that electronically-generated charts or analyses relate to the item in question then that information may be admissible as real evidence without needing to comply with rules relating to documentary evidence: OEM International Limited 144.
228 Issues arise as to when electronically-generated evidence will be categorised as “real evidence” or as “documentary evidence”, to which hearsay rules apply. No litmus test exists. It is desirable that any avoidable uncertainty in the law be removed.
229 There are also uncertainties in the way courts have expressed presumptions about the reliability of electronically-generated evidence. This includes:
230 The law currently permits evidence from a machine to be admitted if it can be proved that the machine:
Provided this evidence is given the machine will be presumed to have done that which it was intended to do.
231 In Marac Financial Services Limited v Stewart [1993] 1 NZLR 86, it was suggested that, once a contract had been entered into, evidence produced by a computer without human input may only be excluded if the party opposing the admission of evidence can prove that the technology which created it had been recently invented or that its reliability had not been established by use over a period of time. This test creates a presumption that electronically-generated records are reliable in the absence of evidence to the contrary.
232 However, in Ministry of Agriculture and Fisheries v Thomas [1994] DCR 486, in the context of a prosecution under the Fisheries Act 1983, it was held that, in addressing the question whether technology was recently invented or reliable, it was not the restricted community of users to be taken into account but, rather, the “community at large” (505). In so holding the judge took the view that the reference in the Court of Appeal, by Richardson J (in Holt v Auckland City Council), to “a matter of common knowledge” could not include, in the community, only those who might be expected to come across the system concerned in the course of their careers.85
233 In some cases, questions will arise as to whether electronically-generated or stored evidence is inadmissible under the hearsay rule. Evidence in such cases is likely to be admitted by consent or fall within the “business record” exception to the hearsay rule under the Evidence Amendment Act (No 2) 1980 s 3(1)(b). Hearsay issues arise because the information contained in the electronically-generated record may not be the evidence of the person against whom it is sought to be produced and no witness may otherwise be available to say how the computer was told (programmed) to respond in any given situation.
234 Electronically-generated information is a manifestation of the intent of that computer’s owner or user (possibly translated by a programmer or someone expert in the art of reading the particular computer language) and as such would be admissible in most cases.86 It is more problematic when what is in issue is the reliability of a computer record generated by a third party with which neither of the parties to the case have had any involvement. Under the Law Commission’s recommendations for the draft Evidence Code, all documentary evidence (including electronically-generated information) can be admitted without production through a witness if there is no challenge to authenticity under the notice provisions of the Code. In the absence of any other issue existing which would discriminate against electronically-generated evidence, no further changes to the law are required.
235 There appear to be no legal difficulties in authentication which are unique to electronic documents. An electronic document is not inherently more anonymous than, for example, a typewritten document. Indicia of authenticity (relating to the identity of the creator of the document) such as signatures may have technological equivalents, such as digital signatures. Similarly, the date on which a document is created or amended is not inherently more difficult to prove than any other form of document: indeed, sometimes it may be easier to discover the date on which an electronic document was created than the date on which a hand-written or typewritten document was created. Thus, for example, the sender of an electronic message should be in no worse a position to offer oral evidence to authenticate that message than the sender of a paper message. Further, in cases where a computer (or, presumably, the software package) is not novel or recently invented, the courts may assume the reliability and accuracy of the evidence without resorting to the test adopted in Holt v Auckland City Council [1980] 2 NZLR 124 and requiring parties to adduce expensive and time-consuming expert evidence: for example, Marac Financial Services v Stewart [1993] 1 NZLR 86.
236 Long-standing American authority suggests that the authenticity of computer documents may be established by the evidence of a person responsible for the custody and control of the records, notwithstanding that the information contained in the documents may have been entered by someone else.87
237 We can see nothing in the current law which requires a specific change to be made to accommodate any difficulties in the authentication of computer documents. Specific difficulties caused by legislative provisions requiring “documents” to be “in writing” and “signed” by the parties to a contract are addressed elsewhere.88
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Are there any circumstances in which evidence would be inadmissible only by
reason of having been created or stored electronically?
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238 The Commission is of the view that changes to be proposed
in its final Evidence Report will provide sufficient clarity to evidence law as it applies to electronic commerce. The draft Evidence Code will enable those engaged in electronic commerce to carry on business without avoidable uncertainty as to whether electronically-generated information can be admitted as evidence in court. The Commission is also of the view that the changes it will propose to the law relating to documentary evidence will meet concerns of professionals such as auditors.
239 The present proposals for documentary evidence reform differ from those set out in the draft Act and commentary in the Commission’s 1994 discussion paper, Evidence Law: Documentary Evidence and Judicial Notice. Present proposals for documentary evidence are set out in appendix C. The proposals remain subject to review before publication of the draft Evidence Code later this year. Some general conclusions are identified below.
240 All relevant evidence will be admissible in a proceeding unless specifically excluded in accordance either with the terms of the draft Evidence Code or any other enactment. Evidence is “relevant” for the purposes of the Code if it has a tendency to prove or disprove a fact that is of consequence to the determination of a proceeding.
241 The term “document” means any record of information and includes
242 With the consent of all parties, the judge can admit evidence in a proceeding that is not otherwise admissible. This gives the parties a degree of autonomy over the introduction of evidence and accords with the current practices in the High Court and District Courts of requiring agreed bundles of documents to be lodged prior to the commencement of a civil trial.
243 If a question arises concerning the authenticity of a document or thing, the court can examine it and draw any inference from it.
244 There will be a new rule under which a party to a proceeding can give notice in writing to every other party that it proposes to offer a document, including a public document, as evidence in the proceeding without calling a witness to produce the document: a copy of the document must be attached to the notice. A party to a proceeding who, on receiving a notice, wishes to object to the authenticity of the document in question must give a notice of objection in writing to every other party to the proceeding. If no objection is lodged, or if the court dismisses the objection, the document can be admitted in evidence if it is otherwise admissible. It will be presumed in the absence of evidence to the contrary that the author, recipient, date, and contents of the document are all as stated on the face of the document. This rule will apply equally to information generated by the party and, for example, to information downloaded from a third party’s internet website. If there is an objection to admissibility then evidence will need to be led to prove the point in issue. Costs consequences are likely to result from unwarranted objections.
245 It will be possible to introduce into evidence, with leave of the court, a summary or chart of the contents of a voluminous document or voluminous compilation of documents.
246 An attesting witness will not need to be called to prove that a document was signed, executed or attested, whether by handwriting, digital means or otherwise. In the absence of evidence to the contrary the document will be taken to have been signed, executed or attested in the manner shown on its face.
247 Where a party offers evidence that was produced wholly or partly by a machine that ordinarily does what is asserted to have been done on the particular occasion then, unless evidence sufficient to raise a doubt about the presumption is offered, it will be presumed that on the particular occasion in question, the machine did what it was asserted to have done. Furthermore, there is an express provision that if information or other matter is stored in such a way that it cannot be used by the court unless a machine, device or technical process is used to display, retrieve, produce or collate it, then the document may be offered in evidence through use of the machine, device or technical process required to view it.
248 A translation of a document into the English language will be presumed to be an accurate translation if notice is given to the other party no less than 5 working days before the translation is tendered in evidence and no evidence sufficient to raise doubt about the presumption is offered. This provision will apply not only to foreign languages but also to codes such as programming languages, shorthand and private encryption systems.
249 These amendments to the law will, in the Commission’s view, meet the demands of electronic commerce. Avoidable uncertainty in relation to the admission of documentary evidence will be removed (guiding principle 1; see paras 30–33). Further, the provisions are expressed in a sufficiently technology-neutral manner to ensure that changes to the law are not restricted only to existing technology but can apply equally to technology yet to be invented (guiding principle 3; see paras 40–42).
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Do the Commission’s recommendations for reform of the law of evidence
meet the needs of electronic commerce?
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