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APPENDIX C

Law Commission draft Evidence Code (extracts)

THIS APPENDIX SETS OUT EXTRACTS from the Law Commission’s draft Evidence Code relevant to electronic commerce. Note that these provisions are in draft form only, and are subject to further refinement before publication of the final Evidence Report.

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4 Definitions

In this Act

. . .

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.

. . .

7 Fundamental principle – relevant evidence is admissible

(1) All relevant evidence is admissible in a proceeding except evidence that is inadmissible in accordance with this Code or any other Act or is excluded in accordance with this Code or any other Act.

(2) Evidence that is not relevant is not admissible in a proceeding.

(3) Evidence is relevant for the purposes of this Code if it has a tendency to prove or disprove any thing that is of consequence to the determination of the proceeding.

Definitions: proceeding, s 4

8 General exclusion

In any proceeding, a judge must exclude evidence if its probative value is outweighed by the risk that the evidence will

(a) have an unfairly prejudicial effect; or

(b) mislead the jury; or

(c) result in unjustifiable consumption of time; or

(d) result in unjustifiable expense.

Definitions: judge, proceeding, s 4

9 Admission by consent

With the consent of all parties, the judge may admit evidence in a proceeding that is not otherwise admissible, but this section does not allow the admission of evidence required to be excluded under section 8.

Definitions: judge, party, proceeding, s 4

13 Establishment of authenticity of document or thing

If a question arises concerning the authenticity of a document or thing, the court may examine it and draw any inference from it.

Definitions: document, s 4

. . .

PART 6

DOCUMENTARY EVIDENCE AND EVIDENCE PRODUCED BY A MACHINE, DEVICE OR TECHNICAL PROCESS

123 Summary of voluminous documents

(1) A party may, with the leave of the judge, give evidence by means of a summary or chart as to the contents of a voluminous document or a voluminous compilation of documents.

(2) A party offering evidence by means of a summary or chart must, if the judge so directs on the request of another party or on the judge’s own initiative, either produce the voluminous document or compilation of documents for examination in court during the hearing or make it available for examination and copying by other parties at a reasonable time and place.

Definitions: document, judge, offer evidence, party, s 4

124 Proof of signatures on attested documents

An attesting witness need not be called to prove that a document was signed, executed or attested (whether by handwriting, digital means or otherwise) as it purports to have been signed, executed or attested.

Definitions: document, witness, s 4

125 Offering documents in evidence without calling a witness

(1) A party may give notice in writing to every other party that the party 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.

(2) A party who on receiving a notice wishes to object to the authenticity of the document to which the notice refers or to the fact that it is to be offered in evidence without being produced by a witness must give a notice of objection in writing to every other party.

(3) If no party gives notice of objection to a proposal to offer a document as evidence without calling a witness to produce it or if the court dismisses an objection to the proposal, the document, if otherwise admissible, may be admitted in evidence and it will be presumed, in the absence of evidence to the contrary, that the nature, provenance, and contents of the document are as shown on its face.

(4) A party must give notice of a proposal to offer a document without calling a witness to produce it

(a) a sufficient time before the hearing to provide all the other parties with a fair opportunity to consider the proposal; or

(b) within such time, whether before or after the commencement of the hearing, as the court may allow and subject to any conditions that the court may impose.

. . .

127 Presumption as to translations

(1) A party may offer a document which purports to be a translation into English of a document in a language other than English if notice is given to the other party no less than 10 working days before the translation is tendered in evidence.

(2) The translation will be presumed to be an accurate translation unless evidence sufficient to raise doubt about the presumption is offered.

(3) If information or other matter is recorded in a code (including shorthand writing or programming codes) or in such a way as to be capable of being reproduced as sound or script, a party may offer a document that purports to be a transcript of the information or matter.

Definitions: document, party, working day, s 4