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APPENDIX D

Extracts from the Evidence Code relating to documentary evidence and evidence produced by machines, devices or technical processes

Part 6 Documentary evidence and evidence produced by machine, device or technical process 117 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 objects to a proposal to offer a document as evidence without calling a witness to produce it or if the judge 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, origin, 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 judge may allow and subject to any conditions that the judge may impose. (5) A party must give notice of objection to 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 notice; or (b) within such time, whether before or after the commencement of the hearing, as the judge may allow and subject to any conditions that the judge may impose. 6) The judge may dispense with the requirement to give notice under subsection (1) or (2) on such conditions as the judge may impose. Definitions: copy, document, judge, party, proceeding, public document, witness, s 4. 118 Summary of voluminous documents (1) A party may, with the permission of the judge, give evidence of the contents of a voluminous document or a voluminous compilation of documents by means of a summary or chart. (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.	PART 6 DOCUMENTARY EVIDENCE AND EVIDENCE PRODUCED BY MACHINE, DEVICE OR TECHNICAL PROCESS C406 This Part of the Code contains provisions on the admissibility and authenticity of documentary evidence. It also contains a provision about evidence produced by a machine, device or technical process. C407 Part 6 aims to simplify, shorten and clarify the existing rules. Current technology can assure accuracy in many instances without the need to produce the original, and indeed, it is often impossible to distinguish a copy from the original. It will, of course, always remain open to a party to dispute the accuracy of secondary evidence. C408 If the authenticity of documents is not in dispute, as is often the case – especially in civil proceedings – the Code allows the documents to be admitted without the need to produce them through a witness – s 117. This follows logically from s 13, which allows a judge to look at a document and draw inferences about authenticity from the document itself. C409 The provisions contained in this Part have no bearing on the application of the hearsay rule. The two rules are complementary. Unless the operation of the hearsay rules is expressly excluded, any document that contains hearsay must also comply with the hearsay rule in the Code. Section 117  Offering documents in evidence without calling a witness C410 Section 117 is intended to simplify the process of producing documents in evidence, including public documents (defined in s 4). This section introduces a new procedure whereby a party who wishes to offer a document in evidence without calling a witness to produce the document, gives notice of its intention to do so and annexes a copy of the document to the notice. It is expected that in the case of a paper document (as opposed to an audiotape or video record) the copy will be a photocopy. If no other party objects, or if the judge dismisses the objection, the document will be admitted and will be presumed to be what it purports to be and to contain what it purports to contain on its face. C411 The notice requirement is in addition to any disclosure that occurred during discovery. Its purpose is to indicate to other parties which documents will be produced in evidence without calling a witness to produce them. Compliance should be a simple matter. For instance, parties may indicate by reference to the list of documents provided at discovery which documents will be produced in this way. C412 Both notice and counter-notice must be given in sufficient time before a hearing to enable other parties to consider the issues, or within the time the judge allows. This is to promote efficiency and economy by ensuring that problems are dealt with before the hearing. However, the judge has a discretion to allow notice to be given even after the hearing has commenced. C413 Under s 117(6), the judge may dispense with notice altogether, subject to any conditions thought necessary. Subsection (6) also enables the judge to develop a specific regime for a particular case – for example, a complex case with a large volume of documents. This may be done in the context of a system of case management or an application for directions under Rules 438 or 446H of the High Court Rules or Rule 434 of the District Courts Rules. C414 The procedural requirements in s 117 are additional to the admissibility requirements elsewhere in the Code; for example, the hearsay rules. Section 118  Summary of voluminous documents C415 Section 118 allows a party, with the permission of the judge, to produce the contents of a voluminous document or compilation of documents in the form of a summary or chart. The section is modelled on Rule 1006 of the United States Federal Rules of Evidence and is designed to meet a practical need. Section 118(2) obliges a party who has given evidence in this way to produce (if the judge so directs) the voluminous document in court or elsewhere at a reasonable time and place for examination by other parties.
119 Translations and transcripts (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 all other parties a sufficient time before the hearing to provide those other parties with a fair opportunity to scrutinise the translation. (2) The translation will be presumed to be an accurate translation unless evidence sufficient to raise doubt about the presumption is offered. (3) A party may offer a document which purports to be a transcript of information or other matter that is recorded (a) in a code (including shorthand writing or programming code); or (b) in such a way as to be capable of being reproduced as sound or script, if notice is given to all other parties a sufficient time before the hearing to provide those other parties with a fair opportunity to scrutinise the transcript. (4) A party who offers a transcript of information or other matter in a sound recording under subsection (3) must play all or part of the sound recording in court during the hearing if the sound recording is available and the judge so directs, either on the application of another party or on the judge’s own initiative. Definitions: document, judge, party, s 4. 120 Proof of signatures on attested documents The signature, execution or attestation of a document (including a testamentary document) that is required by law to be attested may be proved by any satisfactory means and an attesting witness need not be called to prove that the 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.	Section 119  Translations and transcripts C416 Section 119(1) and (2) introduce a presumption that a translation into English of a document in another language is an accurate translation if notice is given in sufficient time before the hearing to enable other parties to examine the translation. For the presumption to apply, however, the contents of the original document must be admissible under the Code. C417 Section 119(3) enables a party to offer evidence of information recorded in a code, sound recording or script (such as a microfiche) in the form of a transcript. The words “information or other matter” are deliberately wide in order to include matter not consisting of words – for example, figures, symbols, music and other sounds, such as radar blips. However, the transcript will be admissible only if the information it transcribes is admissible. The notice requirement will enable opposing parties to apply to have the sound recording played in whole or in part if the accuracy of the transcript is in doubt. Section 120  Proof of signatures on attested documents C418 Section 120 is based on s 18 of the Evidence Act 1908. It abrogates the old rule that one of the subscribing witnesses to an attested document must be called unless all such witnesses are unavailable. Section 120 allows any relevant evidence of due execution or attestation to be given to prove these issues, whether or not the attesting witness is available. Unlike s 18 of the Evidence Act 1908, s 120 applies to wills.
121 Evidence produced by machine, device or technical process (1) If a party offers evidence that was produced wholly or partly by a machine, device, or technical process and the machine, device, or technical process is of a kind that ordinarily does what a party asserts it to have done, it is presumed that on a particular occasion the machine, device, or technical process did what that party asserts it to have done, unless another party offers evidence sufficient to raise a doubt about the presumption. (2) 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, a party may offer a document that was or purports to have been displayed, retrieved, or collated by use of the machine, device, or technical process. Definitions: document, offer evidence, party, s 4.	Section 121  Evidence produced by machine, device or technical process C419 The general words “machine, device or technical process” are intended to encompass technological developments, both current and future. A “machine” or a “device” will include, for example, a photocopier, a computer, word processor or a fax machine. “Technical process” is intended to cover a chemical or other process that might not aptly be described as carried out by a machine or device. C420 In outline, s 121 provides that if the proponent of machine-produced evidence adduces evidence of the operation that a machine of that kind ordinarily performs (or if the fact-finder is able to take judicial notice of the machine’s operation), it is presumed that on the particular occasion the machine did what it ordinarily does. The presumption is rebuttable by evidence sufficient to raise a doubt about it, a lower standard than the formula “evidence to the contrary”. C421 The objective of the presumption is to facilitate the proof of documents and other things by reducing the need for complex and expensive technical evidence about the workings of a machine when those matters are not seriously in issue. When the presumption is successfully challenged, in addition to evidence on the workings of the class of machines to which the particular machine belongs, the proponent will also have to offer evidence that the particular machine was reliable and was properly operated on the occasion in question. This will enable the fact-finder to infer what would otherwise be presumed: ie, that on the occasion in question, the machine did what it ordinarily does. C422 Section 121(2) offers a practical solution to the obvious problem that information stored in a computer or on microfiche, for example, or on sound and video recordings, cannot be accessed without display on a screen or conversion to paper form. The subsection provides that a party may offer a document that purports to display, retrieve or collate such information. “Document” is widely defined in s 4. C423 The hearsay and other rules apply to evidence produced by machines. The effect of s 5 is that s 121 will be overridden by other legislative provisions on evidence produced by machines.
122 Authenticity of public documents (1) A document that purports to be a public document, or a copy of or an extract from or a summary of a public document, and to have been (a) sealed with the seal of a person or a body that might reasonably be supposed to have the custody of that public document; or (b) certified to be such a copy, extract or summary by a person who might reasonably be supposed to have the custody of that public document, is presumed, unless the contrary is proved, to be a public document or a copy of the public document or an extract from or summary of the public document, and may be offered in evidence to prove the truth of its contents. (2) Subpart 1 of Part 3 (hearsay evidence) does not apply to evidence offered under this section. Definitions: copy, document, judge, party, proceeding, public document, witness, s 4.	Section 122  Authenticity of public documents C424 Section 122(1) contains a rebuttable presumption that a sealed public document (“public document” is defined in s 4) or a certified copy (“copy” is also defined in s 4), extract or summary of a public document is presumed to be what it purports to be. The seal must be the seal of a person or body that might reasonably be supposed to have the custody of the public document – for example the Clerk of the House of Representatives may reasonably be supposed to have the custody of Acts of Parliament. Similarly, the certification must be by such a person. C425 The effect of s 122(2) is that a sealed public document or a certified copy of a public document is admissible to prove the truth of its contents without the restrictions of the hearsay rule.
123 Evidence of convictions, acquittals, and other judicial proceedings (1) Evidence of the following facts, where admissible, may be given by a certificate purporting to be signed by a judge, a registrar or other officer having custody of the court records: (a) the conviction or acquittal of a person charged with an offence and the particulars of the offence and of the person, including the name and date of birth of a natural person and the name and date and place of incorporation of a body corporate; (b) the sentencing by a court of a person to any penalty and the particulars of the offence for which that person was sentenced and of the person, including the name and date of birth of a natural person and the name and date and place of incorporation of a body corporate; (c) an order or judgment of a court and the nature, parties and particulars of the proceeding to which the order or judgment relates; (d) the existence of a criminal or civil proceeding, whether or not the proceeding has been concluded and the nature of the proceeding. (2) A certificate under this section is sufficient evidence of the facts stated in it without proof of the signature or office of the person appearing to have signed the certificate. (3) The manner of proving the facts referred to in subsection (1) authorised by this section is in addition to any other manner of proving any of those facts authorised by law. (4) If a certificate under this section is offered in evidence in a proceeding for the purpose of proving the conviction or acquittal of a person, or the sentence by a court of a person to a penalty, or an order made by a court concerning a person, and the name of the person stated in the certificate is substantially similar to the name of the person concerning whom the evidence is offered, it is presumed, in the absence of evidence to the contrary, that the person whose name is stated in the certificate is the person concerning whom the evidence is offered. (5) Subpart 1 of Part 3 (hearsay evidence) does not apply to evidence offered under this section. Definitions: conviction, judge, party, proceeding, s 4.	Section 123  Evidence of convictions, acquittals, and other judicial proceedings C426 This provision sets out the means by which convictions, acquittals, sentences, judgments, orders or pending proceedings may be proved, once it has been determined that evidence of the conviction, acquittal, sentence, judgment, order or pending proceeding is admissible. C427 When a fact described in any of the paragraphs in s 123(1) is admissible, that fact may be proved by means of a certificate signed by the person with custody of court records. The certificate will in itself be sufficient to prove the existence of that fact. It will not be necessary to prove the signature or office of the signatory. C428 Section 123(4) provides a convenient way of proving the identity of the person about whom the facts referred to in subs (1) are sought to be proved. If the name in a certificate given under subs (1) is substantially similar to the name of the person about whom such a fact is sought to be proved, it is presumed that that person was the person named in the certificate. The presumption can be rebutted by evidence to the contrary. C429 Since the hearsay rule does not apply, a certificate issued under subs (1) is admissible to prove the truth of its contents, unless the evidence is precluded by any other provision in the Code.