FEATURE


This article examines the benefits of the amendments introduced by the Evidence (Amendment) Bill 2012 but highlights as well the potential risks associated with admission of electronic evidence. Comparison is made with the Canadian approach to admission of electronic evidence to suggest a possible way forward.

A Commentary on the Amendments to the Electronic Evidence Provisions in the Singapore Evidence Act

Introduction
 
The creation and storage of documents have, over the decades, been dramatically altered with the advent of the digital revolution. In one study, it was reported that over 90 per cent of the documents produced in many organisations today originate in digital format, of which 70 per cent are never printed.1 In addition, a vast new array of computer evidence,2 which would have been unheard of years ago, has surfaced in courtrooms in recent years.
 
Such evidence differs from documentary evidence in several ways. First, the contents of a physical document, including any handwritten notations, will be immediately visible on its face. In contrast, an electronic document will contain information generated by, or stored in the computer, which will be readable, but it will also contain other information – metadata – which is not immediately viewable.3 Second, the computer material can be modified in the process of collecting it as evidence. Common examples include instances where the file or application is opened, or copied from the computer system into an external hard drive. These acts in fact create changes although they are not immediately visible.4 Further, it is easy to modify computer data without leaving any obvious trace of such alteration.5
 
Given the unique nature of computer evidence, its admissibility raises practical considerations such as the appropriate threshold for admitting it as evidence; the burden of proof on the proponent or opponent of the evidence; and the procedural requirements and/or safeguards that need to be put in place to ensure that the electronic evidence tendered before the Court is properly examined.
 
These considerations are particularly important because technology today “has become the habitat of modern humanity”.6 Cognisant of this fact, numerous jurisdictions around the world, including Singapore, have taken steps to address the admissibility of computer output, with many making changes to their respective legislations to facilitate the admission of computer output.
 
This article will discuss the recently proposed amendments to the provisions relating to the admissibility of computer output in the Singapore Evidence Act and analyse its implications vis-à-vis the current evidential rules.
 
Amendment to Computer Output Provisions in the Singapore Evidence Act
 
Admissibility of Computer Output Pre-amendment

 
Prior to the amendments introduced by the Evidence (Amendment) Bill 2012,7 ss 35 and 36 of the Evidence Act governed the admissibility of what was then known as “computer output” evidence. Sections 35 and 36 of the Evidence Act were intended to apply to “traditional computer print-outs as well as multi-media and graphical outputs”.8 The provisions would also “cover outputs from a stand-alone or portable computer and those from local area or wide area networks. They also apply to both civil and criminal proceedings”.9
 
Under s 35(1) of the Evidence Act, computer output is admissible if it is relevant and if it falls under any of the three modes of admissibility, namely:
1.Where parties to the proceedings expressly agree that neither the authenticity of the computer output nor the accuracy of its contents are disputed;
 
2.Where the output is produced in an approved process;10 or
 
3.Where the party tendering the output shows that the output is accurate and reliable, having been produced by a properly operating computer which was properly used.
 
Section 36 of the Evidence Act consists of supplementary provisions to s 35 and relates, inter alia, to the calling of further evidence where the Court is not satisfied as to the accuracy of the computer output.11
 
The s 35 admissibility provisions are not easily applicable on a practical level. For example, where the computer output contains information which is adverse to the opposing party’s interests, that party would inevitably refuse to agree that the computer output is authentic or that its contents are accurate.
 
The second admissibility criterion also poses difficulties for parties. In order for the process to be approved, the party must take steps to have the process audited and certified by an agency that is appointed by the Minister in accordance with the regulations.12The audit will need to be carried out by an independent body whose audit will be based on a set of compliance criteria established by the authority. Not only is this process lengthy and tedious, it is also costly to appoint an auditor to evaluate the process. This is very prohibitive for parties who do not have the resources or time to have the process audited and certified.
 
The third admissibility criterion requires the party tendering such output to “show through an affidavit and certificate from the Systems Operator or Information Systems Manager that there is no reason to doubt the truth or reliability of the output, and that at all material times, the system was operating properly or, if not, that the accuracy of the output was not adversely affected”.13 It would appear that over the years, Courts have recognised the practical difficulties of getting a specialist or expert in the system to testify, and have relaxed the criterion by requiring only persons who are familiar with the operations of the system to be the witness.14 Despite this, in a report by the Law Commission of the UK discussing, inter alia, the admissibility requirements of computer evidence, the Commissioners highlighted the practical problems of assessing the reliability of computers and their output, noting that it was becoming “increasingly impractical to examine (and therefore certify) all the intricacies of computer operation”.15 
 
Sections 35 and 36 EA were introduced in 1996, at a time when “computer technology was then in its infancy”.16 As such, a “cautious approach”17 had to be taken. However, since then, the variety and complexity of digital information systems have increased, and record-keeping systems have similarly become increasingly digitized. It gradually became apparent that Singapore’s evidentiary provisions were fast falling behind the pace at which record-making and record-storing systems were developing.
 
The above were recognised by the Singapore Parliament at the Second Reading of the Evidence (Amendment) Bill, where the Minister for Law Mr K. Shanmugam said that the processes for determining the admissibility of computer output evidence was a “somewhat cumbersome process not consonant with modern realities”, and that “computer output evidence should not be treated differently from other evidence”.18
 
Cognisant of the need to update the provisions in the Evidence Act to meet the changing demands of technological advances, the Singapore Parliament passed the Evidence (Amendment) Bill 2012 on 14 February 2012, which would introduce, amongst other amendments, major changes to the provisions governing the admissibility of computer output evidence.
 
Admissibility of Computer Output Post-amendment
 
The Evidence (Amendment) Bill 2012 sought to repeal ss 35 and 36 of the Evidence Act and introduce three new presumptions to the Evidence Act.
 
The three new presumptions relating to electronic records will be found in s 116A of the amended Evidence Act, and are as follows:
Presumption relating to accuracy and reliability
1.Where the device or process is of a kind that ordinarily produces or communicates an electronic record when properly used, then the Court will presume that in producing or communicating the record, the device or process had produced or accurately communicated that record;
 
Presumptions relating to authenticity
2.Where the electronic record was created in the usual and ordinary Court of business by a person who was not party to the proceedings, and the proponent of the record did not control the making of the record, the record will be presumed to be authentic; or
 
3.Where the electronic record was created by a party who is adverse in interest to the proponent of the record, and the record is being used against the adverse party, the record will be presumed to be authentic.
 
The first two presumptions were based on the Canadian Uniform Electronic Evidence Act 1998 (“UEEA”) and the third and last presumption was based on the Australian Commonwealth Evidence Act 1995.19
 
The definition of “computer” and “computer output” or “output” was also deleted, and substituted with the definition for “copy of document”, which includes a transcript of sound or other data embodied in a document,20 a reproduction or still reproduction of images embodied in a document, a transcript together with a still reproduction and a reproduction of a visual image embodied in a document.
 
The definition of “electronic record”, which was previously not available in the old Evidence Act, was also introduced by the Evidence (Amendment) Bill 2012, and it refers to a record that is generated, communicated, received or stored in an information system, or transmitted from one information system to another.
 
Implications of Amendments
 
Modification of Traditional Rules of Admissibility

 
It was stated in the Ministry of Law website that following the amendments to the Evidence Act, electronic evidence will “be subject to the same rules of admission as all other types of evidence, such as the hearsay rule and the rules on authentication”.21
 
However, owing to the very nature of electronic evidence, it is doubtful whether the traditional evidentiary rules of admissibility will similarly apply to electronic evidence as they do to other types of evidence. As numerous authors and law reform committees22 have noted, the nature of electronic records present unique challenges to the traditional rules of admissibility and have “complicated matters of establishing authenticity and foundation.”23
 
Best evidence rule
 
Under the best evidence rule, the proponent of the document must prove its contents by producing the original document for verification by the Court,24 unless the exceptions apply, in which case secondary evidence may be used to prove the contents of a document.25 The purpose of the rule is to “eliminate the possibility of admitting an erroneous fabrication or inaccurate document”26 and to enable the Court to determine whether the integrity of the record has been compromised such that there are differences between the record and its original version.27
 
In the context of electronic records, it is unclear what an “original document” is for the purposes of the best evidence rule. It has been argued that where the electronic print-out is accurate, it would qualify as an “original” and, therefore, overcome any objections based on the best evidence rule.28 It is perhaps for this reason that a new “Explanation 3will be added under s 64 of the Evidence Act, stating that “if a copy of a document in the form of an electronic record is shown to reflect that document accurately, then the copy is primary evidence”.29 As such, where electronic records are concerned, it is likely that the best evidence rule will eventually be redundant when the proposed amendments take effect.
 
Although the modern-day, technologically progressive approach to storing, retrieving and creating documents may lead to the best evidence rule being obsolete, this concurrently presents new challenges and risks relating in particular to the question as to whether the electronic record reflects the actual document accurately. In the absence of forensic evidence being presented concurrently, there remains a possibility that the contents of such electronic documents could have been fabricated or tampered with and presented as unadulterated “originals”.30
 
In a report31 summarising the responses from the public consultation for the proposed amendments to the Evidence Act, the Technology Law Development Group (“TLDG”) acknowledged that there can be no “pure legal solution” to this, and that this is “still largely an issue for systems and records management”.32
 
The difficulty for an opposing party is that it seldom has knowledge of or access to understanding how the electronic records of the proponent are kept. It can only assume the originality of the electronic records unless there is evidence on the face of record which suggests that it had been altered or tampered with. However, with the advance of technology especially, it may be extremely difficult to detect such unlawful modifications to documents.
 
Further, even where one seeks to trace the origins of a copy of an electronic record, there could be problems arising, say, for example, where such record had been deleted.
 
While recently deleted files may be recovered using tools built into the operating system, files which have been deleted for sometime may become partially overwritten by newer files. This is because the specific disk space which has been allocated to the older file may have been re-used by a new file. Although digital forensic specialists may recover fragments of the older file, interpretation of the file fragments would be required to ascertain its contents. The inherent risk in interpreting such fragments is that a specialist, in the course of reconstructing a document, may become influenced by other aspects of the investigation,33 with the result that the reconstructed document may not be completely accurate.
 
The presumptions that come with the amendments to the Evidence Act may, therefore, remove one level of deterrence to the falsification of documents where the best evidence rule had previously presented at least a measure of safeguard against a party seeking to admit a document.
 
Authentication rule
 
Given the ubiquitous nature of computer-generated and computer-stored documents, the newly introduced
s 116A of the amended Evidence Act reduces the burden on the proponent of such records by introducing three presumptions, two of which relate to the authenticity of the electronic record.
 
The authentication presumptions are, however, not without their limitations.
 
For one, online communications pose several challenges as to verifying their authenticity.34 With the ease of impersonation over the internet, as well as the falsification of information in the digital realm, this gives rise to issues of verifying the authenticity and integrity of the information put up on various social media platforms.35 In general, it is insufficient to prove that the online post or electronic communication was created or transmitted by one party, simply by showing that the party’s name was displayed as the author of the post or message.36 It may be necessary to require the authentication of such electronic communications as it is easy for a user to masquerade as another user’s online persona or otherwise gain access to another user’s social media account.
 
Moreover, with the multitude of various types of photo-editing software readily available on the market, photographs posted online can be easily altered.37 Without proper detection software at hand, it would be difficult to verify whether the photograph has been modified or not.
 
Rule against hearsay evidence
 
The hearsay rule is premised on the principle that a maker of a statement must be examined in Court on the truth of the statements made. Out-of-court statements which are not verified by its maker cannot otherwise be used to affirm the truth of the facts contained in these statements.
 
Generally, computer-generated records which do not contain human information are not subject to the hearsay rule.  Computer records may also be admitted in evidence as business records (see s 32(1)(b) of the amended Evidence Act).   
 
Where electronic records include statements made by humans, however, it may not always be possible to have the maker attend in Court. Problems may arise, for example, in internet communications where authors of various statements remain anonymous.  Records of online group discussions may also involve multiple parties from different jurisdictions and it may not always be possible or practical to locate or subpoena all the makers of these statements to verify the truth of such statements recorded electronically.
 
The traditional exceptions to the hearsay rule are, however, likely to remain applicable and electronic records may still fall within such exceptions to constitute admissible evidence. In Perfect 10, Inc. v Cybernet Ventures, Inc.,38the plaintiff sought to rely on approximately 2,000 e-mails sent by a third party to the defendant notifying the defendant of copyright infringement on its system, as evidence that he had knowingly provided material assistance to operators of websites that contained infringing images. The defendant’s objection to the admission of these e-mails was overruled by the Court which held that it was admissible for the limited purpose of showing knowledge of infringing or potentially infringing activity.
 
Reliability of Electronic Records May Remain to be Challenged, and Increasingly Complicate Trial Proceedings
 
Despite the presumption of reliability and accuracy of records generated by a device or process that ordinarily produces or communicates an electronic record, it is crucial that this presumption must be premised on a device or process that was functioning properly. That a computer record had been generated without any human intervention increases the probability that the resulting record is reliable and accurate but this reliability remains to be challenged if a party believes that a specific computer program or device which generated the record was not functioning properly at the material time.
 
A related concern is that errors of computer-generated records such as login time entries are difficult to detect unless there is an obvious error on the face of record, or if there are circumstantial evidence which point towards a mistake in record. Otherwise, it may be difficult for a party to seek further evidence on the functioning of a computer device or process which generated the record sought to be admitted against a statutory presumption of accuracy and reliability. 
 
The statutory presumption of reliability is introduced as part of the new amendments to facilitate the admission of electronic evidence. However, this remains a rebuttable presumption. As more and more crucial evidence is tendered in electronic form, there may increasingly be “trials” within a trial to determine the reliability or authenticity of electronic records. 
 
For example, in McKeown v DPP39the Court in interpreting s 69 of the Police and Criminal Evidence Act 1984,40 had to determine whether the print-out from a machine which had malfunctioned was admissible, if the malfunction did not affect the accuracy of the print-out.
 
On appeal, the House of Lords overturned the decision of the Judge below and allowed admission of the evidence in question. It was held that the electronic evidence is inadmissible only if the malfunction had affected the way the computer had processed, stored or retrieved information used to generate the print-out. In this case, however, it was found that while the clock in the Intoximeter machine had malfunctioned, the print-out reflecting the alcohol reading was found to be accurate and the evidence was, therefore, admissible.
 
Weight of Electronic Evidence to be Assessed by Reference to Technology Involved
 
Apart from the statutory presumptions on reliability and authenticity introduced by the new amendments, the admission of electronic evidence should also be considered by reference to the technology involved.
 
Software and programs which are subjected to encryption are likely to be an accurate copy of the original. Electronic communications which are password protected are also more likely to be correctly attributable to the author who had electronically signed off.
 
Conversely, data or records generated by means of human intervention using computer program or device should be assessed with circumspection. For example, a series of calculations generated in an Excel sheet program may not necessarily be accurate as the computations are based on mathematical formulae created by a human author. 
 
The Future for the New Electronic Evidence Provisions in Singapore’s Evidence Act
 
Given the rapid development of information and communication technologies, and the increasing reliance on and use of electronic devices, it is clear that the trend amongst various jurisdictions is to facilitate the admission of electronic evidence.
 
In as early as 1998, Canada had reformed its evidentiary provisions on the admissibility of electronic evidence, as they were inadequate in dealing with evidence derived from a computer.41 The Uniform Law Conference of Canada42 had officially adopted the UEEA as its model legislation, which sought to reform the traditional evidential requirements of proof of authenticity and best evidence to make them applicable to electronic records. The new approach taken by the UEEA was well-received by most Canadian jurisdictions, and it governed the admissibility of electronic records in all criminal and most civil, quasi-criminal, and administrative proceedings.43 However, despite the widespread adoption of the UEEA in Canada, one study44has reported that the UEEA has in fact “received very little judicial consideration or application”45 since it first came into force. This is largely due in part to the fact that the UEEA still places particular emphasis on requiring proof of authentication and the best evidence rule, which have been criticized to be an incomplete codification of the common law principles.46 The UEEA also does not adequately address the hearsay rule or the business records exceptions.
 
The 2012 amendments to Singapore’s Evidence Act avoid the pitfalls encountered by Canada’s UEEA. As explained above, Singapore’s proposed amendments presume the authenticity and reliability of the electronic record where the proponent of the record can satisfy the Court that it falls within the three presumptions in s 116A of the Evidence Act. Further, Singapore’s Evidence Act sets out clearly the various hearsay exceptions in s 32.
 
Nevertheless, as desirable as it is to have our evidentiary provisions current with the times, this should not result in an over-compromise of the standard of proof of the cogency and integrity of the evidence to be adduced in Court. It should be borne in mind that there always exists the danger that electronic evidence can be fraudulently created, tampered with, or manipulated, and such evidence, when wrongly admitted, will cause injustice to the party opposing the evidence.  Further, if the rules of evidence are over-liberalised to make it easier to introduce electronic evidence (without ensuring that there are proper safeguards), there is the risk of a “trial by ambush”,47 as the opponent of the electronic record may not have sufficient warning or resources to investigate the reliability, accuracy and authenticity of the record prior to trial.48
 
On the other hand, it is also recognised that having specific standards of admissibility for electronic evidence is counterproductive. Where there is no evidence or suspicion of tampering, interception or manipulation, it is inefficient to require proponents of the record to produce further proof that the evidence is admissible. Not only would unnecessary time at trial be wasted, the legal costs of proving such evidence would also be increased. Further, in the event that, for some reason, the specific admissibility requirements are not met, this would result in the loss of reliable evidence.49
 
It is suggested that the practical benefits of the amendments introduced by the Evidence (Amendment) Bill 2012 outweigh the costs, and the safeguard introduced in s 116A(5)50 ensures, to some extent, that the evidence adduced in Court is accurate. Further, Courts still retain the discretion to accord little or no weight to evidence which it deems to have insufficient probative value.
 
The 2012 amendments to the Evidence Act are of course not an end-all, be-all to the admissibility of electronic evidence. As Canada’s experience demonstrates, there is a need to ensure the continued relevance of the electronic evidence provisions, given the pace of technological development.51 As one Court has said, “[t]he potentially limitless application of computer technology to evidentiary questions will continually require legal adaptation”.52
 
 
 
 ► Wendy Low*
     Rajah  & Tann LLP
     E-mail: wendy.low@rajahtann.com
 
* Wendy Low is a partner of the iTec practice group in Rajah & Tann LLP. She specialises in all aspects of IT and IP law. Her strength lies in contentious IP litigation, particularly patent litigation and enforcement against media piracy. Some of her most interesting work had involved representing one of the defendants against the proprietor of the thumbdrive patent and acting for Japanese anime copyright owners in copyright infringement claims against BitTorrent downloaders. Other cases which she had handled includes the recent Court of Appeal decisions reported in Martek Biosciences Corp v Cargill International Trading Pte Ltd[2010] SGCA 51 and MFM Restaurant Pte Ltd and another v Fish & Co Restaurants Pte Ltd and another appeal[2010] SGCA 36.


Notes
1 Julian Gillespie, Patrick Fair, Adrian Lawrence, David Vaile, “Coping When Everything is Digital? Digital Documents and Issues in Document Retention” (2004) Baker and McKenzie Cyberspace Law and Policy Centre White Paper, at p 4.
2 These include metadata, e-mails, instant messages, multi-media material downloaded from websites, and digitally enhanced photographs. The Court in Aguilar v Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. 2008) (No. 07 Civ. 8224 (JGK)(FM)) identified three categories of metadata:
(a)Substantive metadata – data reflecting “modifications to a document, such as prior edits or editorial comments, and data that instructs the computer how to display the fonts and spacing in a document”;
(b)System metadata – details about the document such as “the author, date and time of creation, and the date a document was modified”; and
(c)Embedded metadata – such as “spreadsheet formulas, hidden columns, externally or internally linked files (such as sound files), hyperlinks, references and fields, and database information”.
3 For example, metadata embedded within an e-mail can reveal information about the sender, the recipient(s), the creation date, whether there are attachments, as well as the string of users involved in the e-mail exchange. See Setec Investigations, “The Importance of Metadata”, available at <http://www.setecinvestigations.com/resources/whitepapers/The_Importance_of_Metadata.pdf>. See also Mark L. Krotoski, “Effectively Using Electronic Evidence Before and at Trial” (November 2011) Vol 59, No 6  The United States Attorneys’ Bulletin(accessed 3 June 2012).
4 Peter Sommer, “Downloads, Logs and Captures: Evidence from Cyberspace” (2002) 8(2) Computer and Telecommunications Law Review, pp 33-42.
5 Ibid.
6 S. Strijbos, “Ethics and the Systemic Character of Modern Technology”,Society for Philosophy and Technology (1998); 3(4), p 22.
7 Evidence (Amendment) Bill 2012 (Bill 2 of 2012) (hereinafter “Evidence (Amendment) Bill 2012”).
8 Singapore Parliamentary Debates, Official Report(14 February 2012) vol 88, at col 451 (hereinafter “Evidence (Amendment) Bill 2012 Parliamentary Debates”).
9 Ibid.
10 Section 35(3) EA provides that where a certificate signed by a person holding a responsible position in relation to the operation or management of a certifying authority appointed under sub-s (5) and purporting to identify the approved process, including that part of the process that is relevant to the proceedings, shall be sufficient evidence that the process is an approved process for the purposes of that section.
11 Section 36(1)-(3) of the unamended Evidence Act (Cap 97) (hereinafter “old EA”).
12 Singapore Parliamentary Debates, Official Report(18 January 1996) vol 65, at col 452.
13 Ibid, at cols 452-453.
14 See Ng Koo Kay Benedict and another v Zim Integrated Shipping Services Ltd [2010] 2 SLR 860, citing R v Shephard [1993] AC 380, where Lord Griffiths held as follows (at 387):
Documents produced by computers are an increasingly common feature of all business and more and more people are becoming familiar with their uses and operation. Computers vary immensely in their complexity and in the operations they perform. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case.I suspect that it will very rarely be necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly.(Emphasis added).
15 United Kingdom Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics (Consultation Paper No 138), citing S. Castell, “Evidence and Authorisation: Is EDI [Electronic Data Interchange] ‘Legally Reliable’?” (1990) 6(5) Computer Law and Security Report, p 2.
16 Supra n 8, Evidence (Amendment) Bill 2012 Parliamentary Debates, at col 45.
17 Ibid.
18 Ibid.
19 Technology Law Development Group, Computer Output as Evidence: Final Report(September 2003) (hereinafter “TLDG Final Report”), p 9.
20 The illustrations under the old definition of “document” have been incorporated into the new definition of “document” such that it is now more specific. “Document” would include maps, drawings, photographs, devices capable of storing and reproducing sounds such as discs, devices capable of storing and reproducing visual images such as films and negatives, and paper or other material on which there are marks, figures, letters, symbol having a meaning for persons qualified to interpret them.
21 Ministry of Law website, “Proposed amendments to the Evidence Act” (16 Jan 2012), available at <http://app2.mlaw.gov.sg/News/tabid/204/Default.aspx?ItemId=604> (accessed 3 June 2012).
22 Chris Reed, The Admissibility and Authentication of Computer Evidence – A Confusion of Issues5th BILETA Conference  British and Irish Legal Technology Association, p 2, available at <http://www.bileta.ac.uk/content/files/conference%20papers/1990/The%2520Admissibility%2520and%2520Authentication%2520of%2520Computer%2520Evidence%2520-%2520A%2520Confusion%2520of%2520Issues.pdf>. See also Law Reform Commission of Ireland, Consultation Paper: Documentary and Electronic Evidence (December 2009), available at <http://www.lawreform.ie/_fileupload/consultation%20papers/cpDocumentaryandElectronicEvidence.pdf> (accessed 5 June 2012).
23 Jonathan D. Frieden & Leigh M. Murray, “The Admissibility of Electronic Evidence Under the Federal Rules of Evidence” (2011) Vol 17 No 5 Richmond Journal of Law & Technology, available at <http://jolt.richmond.edu/vl7i2/article5.pdf> (accessed 2 June 2012).
24 Section 66 of the old EA. For the definition of “primary evidence”, refer to s 64 of the old EA.
25 Where the exceptions under s 67 of the old EA apply, then the contents of the document may be proved by way of secondary evidence. Secondary evidence is defined under s 65 of the old EA.
26 Law Reform Commission of Ireland, Consultation Paper: Documentary and Electronic Evidence (LRC CP 57, 2009), p 30 (hereinafter “Ireland Consultation Paper).
27 Nance, Dale A., “The Best Evidence Principle” (1987-1988) 73 Iowa Law Reviewp 227.
28 Steven Goode, The Admissibility of Electronic Evidence” (2009-2010) Vol 29 No 1 Rev. Litig.p 58.
29 Evidence (Amendment) Bill 2012, “Amendment of section 64”, cl 64 (at p 11).
30 Supra n 26, Ireland Consultation Paper, p 36.
31 Supra n 19, TLDG Final Report.
32 Ibid, at p 13.
33 Peter Sommer, “Digital Footprints: Assessing Computer Evidence” (December 1998) Criminal Law Review Special Editionpp 61-78, available at <http://www.pmsommer.com/CrimLR01.PDF>
34 Electronic communications refers to e-mails, text messages, blogs posts, posts on social media platforms such as Twitter, Facebook, MySpace, and LinkedIn.
35 Richard Raysman and Peter Brown, “Authentication of Social Media Evidence” (2011) New York Law Journal, available at <http://www.newyorklawjournal.com/>.
36 Ibid.
37 For example, see People v Lenihan(2009) 30 Misc.3d 289 (N.Y. Sup. Ct.), where the defendant was precluded from confronting witnesses with printouts of MySpace photos depicting him in gang clothing because of the easy ability to digitally edit photographs on the computer.
38 CV 01-2595 LBG (SHx), 2002 U.S. Dist. LEXIS 7333 (C.D. Cal. Apr. 22, 2002).
39 [1995] Crim LR 69.
40 The section provides that:
In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown:
(a)that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer;
(b)that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents; and
(c)that any relevant conditions specified in rules of court under subsection (2) below are satisfied.
41 For a discussion of the background to the UEEA, see Ken Chasse, “Electronic Records As Documentary Evidence,” (2007) 6(3) Canadian Journal of Law and Technologypp 141–62, available at <http://cjlt.dal.ca/vol6_no3>.
42 This is the major law reform agency in Canada and it is made up of representatives of the federal, provincial and territorial governments of Canada, and various law reform agencies.
43 Luciana Duranti, Corinne Rogers and Anthony Sheppard, “Electronic Records and the Law of Evidence in Canada: the Uniform Electronic Evidence Act Twelve Years Later” (Fall 2010) 70 Archivaria70 pp 95-124 (hereinafter “UEEA 12 Years Later”).
44 Ibid.
45 Ibid, at p 104, citing Coco Paving (1990) Inc. v Ontario (Transportation)[2009] ONCA 503; College of Opticians of British Columbia v Coastal Contacts Inc.[2008] BCSC 617; and R. v Blumes [2002] BCPC 45.
46 Ibid, at p 111.
47 C.C. Nicoll, “Should Computers be Trusted? Hearsay and Authentication with Special Reference to Electronic Commerce” (Jul 1999) Journal of Business Law332, p 359.
48 Ibid, citing R. Garcia, “Garbage In, Gospel Out: Criminal Discovery, Computer Reliability, and the Constitution” (1991) 38 UCLA Law Review, p 1043.
49 Steven Goode, “The Admissibility of Electronic Evidence” (2009-2010) 29 Review of Litigation1.
50 This section empowers the Minister to make regulations providing for a process by which a document is recorded or stored through the use of an imaging system. This may also include appointing persons or organisations to certify these systems and their use.
51 In Teeuw, W B and Vedder, A H, Security Applications for Converging Technologies – Impact on the Constitutional State and the Legal Order” Telematica Instituut, Enschede, Report TI/RS/2007/039, 50, the authors postulate that “in the future, we may expect our laws to have to deal with quantum computing, miniaturization on near to atomic levels, printable electronic appliances, power-scavenging technologies integrated in sensor networks (sometimes called ‘smart dust‘), body sensors and implantable drug dispensers, household robots and new computing paradigms and sensor networks within the living body”. Such is the level of technology that may confront our evidentiary laws in the future.
52 Penny v Commonwealth, 370 S.E.2d 314, 317 (Va. Ct. App. 1988).