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• The Evidence Reference
• The Model Law Provisions

7 Evidence

THE EVIDENCE REFERENCE

115 IN 1989 THE THEN MINISTER OF JUSTICE referred the reform of the law of evidence to the Law Commission. The main object of the reform project was:

To make the law of evidence as clear, simple and accessible as practicable, and to facilitate the fair, just and speedy judicial resolution of disputes.²¹⁹

116 It was necessary to review the law of evidence systematically. The Commission published a number of discussion papers on various discrete aspects of the law of evidence. One of those discussion papers concerned documentary evidence and judicial notice.²²⁰ As a touchstone for dealing with evidential issues in the context of an electronic environment we cited with approval, in ECom 1,²²¹ an observation made by Butler-Sloss LJ in Re M & R (Minors)²²² where her Ladyship said –

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.

117 We expressed the view in ECom 1 that the proposed Evidence Code (which would be the final product of the evidence reference) would provide sufficient clarity to evidence law as it applies to electronic commerce. We said that:

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.²²³

118 The Evidence Code recommended by the Law Commission deals, in Part 6, with documentary evidence and evidence produced by machines, devices or technical processes. We refer to sections 117–123 (inclusive) of the Evidence Code which, ²²⁴  for convenience, are reproduced as appendix D to this report. The commentary contained in paras C406–C429 (inclusive) of the Evidence Code summarises the effect of these provisions.

119 Two submissions had been made to us questioning whether the proposed definition of the term “document” in the Evidence Code did meet the needs of electronic commerce. We set out below excerpts from the Commission’s report Evidence – Reform of the Law containing our comments on those submissions.²²⁵

513 In Electronic Commerce Part 1: A Guide for the Legal and Business Community (NZLC R50, 1998) the Commission considered the recommendations proposed for documentary evidence in the final Evidence Report would “. . . meet the needs of electronic commerce by facilitating the production of electronically generated evidence” (para 193). In response to the Electronic Commerce Report, two submissions questioned the proposed definition of “document” in the Code because the definition appeared to include not only the information stored in a computer, but the computer itself.
514 The Code defines “document” as a “record of information”. Thus, a computer would be a document only if, for example, its service contains writing that is relevant evidence in a proceeding. Ordinarily the “document” would be that part of the computer that contains the relevant electronic data, i.e. a particular portion of the hard disk. The problems identified by the commentators to the Electronic Commerce Report relate not so much to the definition of “document” as to the process of discovery. The concern is that the existence of relevant information stored on a computer would make the computer itself discoverable. That, however, is not an evidentiary issue, but one of procedure which has to be left to the exercise of common sense by counsel and the judiciary. (For further clarification on the distinction between “discovering” information contained on a computer and “discovering” information contained on paper see paras 217 and 218 of the [first] Electronic Commerce Report).

THE MODEL LAW PROVISIONS

120 Articles 8 and 9 of the Model Law deal, respectively, with the need for “original” information and the admissibility and evidential weight of electronically generated messages. In our view, the provisions of the Evidence Code meet the evidential problems which articles 8 and 9 of the Model Law seek to cure.²²⁶ Article 8, however, continues to have relevance to the need for information to be “retained” by other provisions in the law. We deal with that retention aspect of article 8 separately.²²⁷

121 We recommend that the Evidence Code, which allows for electronic material to be used as evidence in legal proceedings, be enacted at the same time as our proposed Electronic Transactions Act. In this way, all immediate barriers to electronic commerce can be addressed contemporaneously in appropriate legislation.