DOCUMENTARY EVIDENCE
Documentary evidence is evidence that derived from material source or substance. Section 3 of Evidence Act 1950 defined “evidence” as all documents produced for the inspection of the court, and such documents are called documentary evidence. Documentary evidence can be categorized into two which are:
a. Primary Evidence
b. Secondary Evidence
Primary evidence is the actual or original writing or non-testimonial evidence sought to be admitted whereas secondary evidence is a copy of original document or non-testimonial evidence. Just like other evidence, documentary evidence must be material and relevant and subject to the best evidence rule that requires the original document to be produced unless there is a good reason not to do so.
Photographs, tape recordings, films, letters, bills, contracts, and printed emails are all forms of documentary evidence. The proposition is that no document can be admitted as evidence without some proof of authentication. Thus, for these documents to be admitted in court, it has to be properly identified and authenticated .
So How Authentication of Document is Done in Civil Proceedings?
Generally, authentication in the eyes of evidence is the process by which documentary evidence and other physical evidence is proven to be genuine, and not forgery. In other words, it is a rule that requires evidence to be sufficient to support a finding that the matter in question is what its proponent claims. It must be genuine in order for it to be admissible in court. These are among the common methods of authentication of a document:
1. A witness who is present during the signing of the document can identify and attest to the existence of the document
2. Non-expert witness who is familiar with the handwriting or signature of the person who sign the document can also testify that document
3. An expert- a document examiner who can compare handwriting samples and give his opinion regarding the document
4. By so-called "trier of fact", in which the jury or the judge would compare a known example of a signature with the signature on a disputed document
5. Records of business transactions can be identified and authenticated by the custodian of the records
6. Certified copies of public records, official documents, and newspapers are self-authenticating documents that do not require outside authentication to be admitted as court evidence
7. Ancient documents also do not require outside authentication to be used as evidence. When presented with a corroborating circumstances or possession, ancient documents can be admitted as evidence in a trial if it can be shown to be more than twenty years old, and found in a place and condition that a document of that age would likely be found.
However, there are also several documents which do not require validation to be considered as original documents. These documents have been generally deemed to be self-authenticating documents. Self-authenticating documents or documents that do not require outside authentication are the following:
1. Acknowledge documents to prove receipt of such
2. Some commercial paper and related documents
3. Certificates of business records
4. Certified copies of public records
5. Newspapers
6. Official documents
7. Periodicals
8. Trade inscriptions
Why Document Authentication is Important?
The reason is quite simple because if the document is properly authenticated, it can provide the court with necessary information and help a judge to evaluate the case. Besides that, proper documents also provide resoultion of the issue in question and in civil litigations, documentary evidence is an important part in determining the outcome of a case.
Case
Hanafi bin Mat Hassan v Public Prosecutor [2006] 4 MLJ 134
Facts:
The accused was charged in the High Court with rape and murder of the deceased on 7 October 2000. It was alleged that the accused raped and murdered the deceased while she was travelling in the bus driven by the accused. Learned counsel for the accused submitted that the evidence presented by the prosecution was inadmissible because (i) the bus ticket produced by a ticket machine in a bus belonging to the bus company of the accused was inadmissible for failure of the prosecution to tender a certificate pursuant to section 90A(2) of the Evidence Act 1950; (ii) summary of the DNA profiling result prepared by prosecution witness was inadmissible for non-compliance with section 90A of the Evidence Act 1950. The court dismissed the appeal and found the accused guilty for both rape and murder.
Issue:
Whether the bus ticket and DNA profiling result admissible as electronic evidence?
Before any evidence produced by electronic means can be admissible as evidence in court, these sections must be complied with-
Section 90A(1) of the Evidence Act 1950 states that any document produced by computer in the course of its ordinary use shall be admissible as evidence, whether or not the person tendering the same is the maker of such document.
Section 90A(2) of the Evidence Act 1950 provides that a certificate must be signed by a person responsible for the management of the operation of that computer or for the conduct of the activities for which the computer was used. If the person responsible for that computer is present then the certificate is not required as oral testimony of that person is sufficient and shall be admissible as evidence.
Section 90A(4) of the Evidence Act 1950 provides for the presumption of the computer referred to in certificate was in good working condition throughout the material part of the period during which the documnt was produced.
Section 90A(6) of the Evidence Act 1950 deals with the admissibility of a document which was not produced by a computer in the course of its ordinary use and is only deemed to be so.
In this case, there was evidence to show that the ticket machine was a computer by virtue of section 3 of the Evidence Act 1950 and that the ticket was produced in the ordinary course of business of the ticket machine. Therefore, the learned trial judge had dispensed with the need to tender in evidence the certificate required by section 90A(2). The presumption in section 90A(6) was sufficient even in the absence of evidence to show that the ticket was produced by the machine in the ordinary course of its business. Subsequently, the evidence shows that the ticket machine was in good working condition. The issue of the tickets by the machine shows that it was operating properly in all respects at all material times. With proof of these two elements whatever is presumed to exist pursuant to section 90A(4) has been proved by way of oral evidence. The failure of the prosecution to tender a certificate pursuant to section 90A(2) is irrelevant in this case. Hence, the issue of inadmissibility of the bus ticket as electronic evidence should now be unquestionable.
The DNA result was produced by more than one computer which are the analysers and a thermalcycler. This raises the question of whether all the computers involved or only one of them and, if so, which one, must be proved for the purposes of section 90A. Pursuant to section 3 where two or more computers carry out the function of recording, storing, processing, retrieving or producing any information, as in this case, in combination or in succession or otherwise howsoever conjointly, they shall be treated as a single computer. What is relevant for the prosecution is not the document produced by the computer but the statements contained in it. Thus what requires to be established in order to comply with section 90A is the condition of the computers that produced the results as contained in the DNA result and not the computer itself. The evidence showing that the DNA analyser and the thermalcycler were running at their optimum level was sufficient to prove the requirements of section 90A(4) in the absence of a certificate having been tendered. In order to comply with the requirements of s 90A the tendering in evidence of a certificate prescribed in section 90A(2) will ordinarily render a document produced by a computer in the course of its ordinary use admissible in evidence. In this case no certificate was tendered in evidence with regard to the admissibility of the statements in DNA result. Oral evidence is therefore required to establish the condition precedent in section 90A(1) in order to show that the statements in DNA result were produced by computers in the ordinary course of their use.
Challenge in the authentication and reliability of the electronic evidence
Main characteristic of document; should contain and convey information. Computer or electronic evidence now plays an important role as a method of proof. With the advancement and modernisation of the technologies, a lot of information can be recorded, stored, processed, retrieved or conveyed using electronic means. Computer evidence or evidence in electronic format has been accepted by court in Malaysia after the amendment had been made in our Evidence Act in 1993. Computer evidence in Malaysia is admissible as documentary evidence and primary evidence. However, there is one biggest disadvantage of the evidence by electronic means which is, it is easily tempered. Things will be more complicated if the case involve cyber-related cases and various jurisdictions. Certain countries have updated their technology and developed certain measures to deal with evidence derived from electronics means. In India for instance, a proposal was made to develop a national digital forensic response model for efficient response to incidents of cyber crimes. This model focuses on processing digital evidence during an investigation process. In Malaysia, we still lack of expert in computer forensic. Technology can change the landscape and the method of proving computer evidence. Technology changes very rapidly and we need to cope with it. Therefore, the problem of inadequacy in the laws and lack of technological advancement need to be addressed by our country so that more complicated cases can be deal with.
Prepared by,
Sarah Shaqeena Binti Abdullah (A132959)
Norehan Binti Asmaran (A132958)
Documentary evidence is evidence that derived from material source or substance. Section 3 of Evidence Act 1950 defined “evidence” as all documents produced for the inspection of the court, and such documents are called documentary evidence. Documentary evidence can be categorized into two which are:
a. Primary Evidence
b. Secondary Evidence
Primary evidence is the actual or original writing or non-testimonial evidence sought to be admitted whereas secondary evidence is a copy of original document or non-testimonial evidence. Just like other evidence, documentary evidence must be material and relevant and subject to the best evidence rule that requires the original document to be produced unless there is a good reason not to do so.
Photographs, tape recordings, films, letters, bills, contracts, and printed emails are all forms of documentary evidence. The proposition is that no document can be admitted as evidence without some proof of authentication. Thus, for these documents to be admitted in court, it has to be properly identified and authenticated .
So How Authentication of Document is Done in Civil Proceedings?
Generally, authentication in the eyes of evidence is the process by which documentary evidence and other physical evidence is proven to be genuine, and not forgery. In other words, it is a rule that requires evidence to be sufficient to support a finding that the matter in question is what its proponent claims. It must be genuine in order for it to be admissible in court. These are among the common methods of authentication of a document:
1. A witness who is present during the signing of the document can identify and attest to the existence of the document
2. Non-expert witness who is familiar with the handwriting or signature of the person who sign the document can also testify that document
3. An expert- a document examiner who can compare handwriting samples and give his opinion regarding the document
4. By so-called "trier of fact", in which the jury or the judge would compare a known example of a signature with the signature on a disputed document
5. Records of business transactions can be identified and authenticated by the custodian of the records
6. Certified copies of public records, official documents, and newspapers are self-authenticating documents that do not require outside authentication to be admitted as court evidence
7. Ancient documents also do not require outside authentication to be used as evidence. When presented with a corroborating circumstances or possession, ancient documents can be admitted as evidence in a trial if it can be shown to be more than twenty years old, and found in a place and condition that a document of that age would likely be found.
However, there are also several documents which do not require validation to be considered as original documents. These documents have been generally deemed to be self-authenticating documents. Self-authenticating documents or documents that do not require outside authentication are the following:
1. Acknowledge documents to prove receipt of such
2. Some commercial paper and related documents
3. Certificates of business records
4. Certified copies of public records
5. Newspapers
6. Official documents
7. Periodicals
8. Trade inscriptions
Why Document Authentication is Important?
The reason is quite simple because if the document is properly authenticated, it can provide the court with necessary information and help a judge to evaluate the case. Besides that, proper documents also provide resoultion of the issue in question and in civil litigations, documentary evidence is an important part in determining the outcome of a case.
Case
Hanafi bin Mat Hassan v Public Prosecutor [2006] 4 MLJ 134
Facts:
The accused was charged in the High Court with rape and murder of the deceased on 7 October 2000. It was alleged that the accused raped and murdered the deceased while she was travelling in the bus driven by the accused. Learned counsel for the accused submitted that the evidence presented by the prosecution was inadmissible because (i) the bus ticket produced by a ticket machine in a bus belonging to the bus company of the accused was inadmissible for failure of the prosecution to tender a certificate pursuant to section 90A(2) of the Evidence Act 1950; (ii) summary of the DNA profiling result prepared by prosecution witness was inadmissible for non-compliance with section 90A of the Evidence Act 1950. The court dismissed the appeal and found the accused guilty for both rape and murder.
Issue:
Whether the bus ticket and DNA profiling result admissible as electronic evidence?
Before any evidence produced by electronic means can be admissible as evidence in court, these sections must be complied with-
Section 90A(1) of the Evidence Act 1950 states that any document produced by computer in the course of its ordinary use shall be admissible as evidence, whether or not the person tendering the same is the maker of such document.
Section 90A(2) of the Evidence Act 1950 provides that a certificate must be signed by a person responsible for the management of the operation of that computer or for the conduct of the activities for which the computer was used. If the person responsible for that computer is present then the certificate is not required as oral testimony of that person is sufficient and shall be admissible as evidence.
Section 90A(4) of the Evidence Act 1950 provides for the presumption of the computer referred to in certificate was in good working condition throughout the material part of the period during which the documnt was produced.
Section 90A(6) of the Evidence Act 1950 deals with the admissibility of a document which was not produced by a computer in the course of its ordinary use and is only deemed to be so.
In this case, there was evidence to show that the ticket machine was a computer by virtue of section 3 of the Evidence Act 1950 and that the ticket was produced in the ordinary course of business of the ticket machine. Therefore, the learned trial judge had dispensed with the need to tender in evidence the certificate required by section 90A(2). The presumption in section 90A(6) was sufficient even in the absence of evidence to show that the ticket was produced by the machine in the ordinary course of its business. Subsequently, the evidence shows that the ticket machine was in good working condition. The issue of the tickets by the machine shows that it was operating properly in all respects at all material times. With proof of these two elements whatever is presumed to exist pursuant to section 90A(4) has been proved by way of oral evidence. The failure of the prosecution to tender a certificate pursuant to section 90A(2) is irrelevant in this case. Hence, the issue of inadmissibility of the bus ticket as electronic evidence should now be unquestionable.
The DNA result was produced by more than one computer which are the analysers and a thermalcycler. This raises the question of whether all the computers involved or only one of them and, if so, which one, must be proved for the purposes of section 90A. Pursuant to section 3 where two or more computers carry out the function of recording, storing, processing, retrieving or producing any information, as in this case, in combination or in succession or otherwise howsoever conjointly, they shall be treated as a single computer. What is relevant for the prosecution is not the document produced by the computer but the statements contained in it. Thus what requires to be established in order to comply with section 90A is the condition of the computers that produced the results as contained in the DNA result and not the computer itself. The evidence showing that the DNA analyser and the thermalcycler were running at their optimum level was sufficient to prove the requirements of section 90A(4) in the absence of a certificate having been tendered. In order to comply with the requirements of s 90A the tendering in evidence of a certificate prescribed in section 90A(2) will ordinarily render a document produced by a computer in the course of its ordinary use admissible in evidence. In this case no certificate was tendered in evidence with regard to the admissibility of the statements in DNA result. Oral evidence is therefore required to establish the condition precedent in section 90A(1) in order to show that the statements in DNA result were produced by computers in the ordinary course of their use.
Challenge in the authentication and reliability of the electronic evidence
Main characteristic of document; should contain and convey information. Computer or electronic evidence now plays an important role as a method of proof. With the advancement and modernisation of the technologies, a lot of information can be recorded, stored, processed, retrieved or conveyed using electronic means. Computer evidence or evidence in electronic format has been accepted by court in Malaysia after the amendment had been made in our Evidence Act in 1993. Computer evidence in Malaysia is admissible as documentary evidence and primary evidence. However, there is one biggest disadvantage of the evidence by electronic means which is, it is easily tempered. Things will be more complicated if the case involve cyber-related cases and various jurisdictions. Certain countries have updated their technology and developed certain measures to deal with evidence derived from electronics means. In India for instance, a proposal was made to develop a national digital forensic response model for efficient response to incidents of cyber crimes. This model focuses on processing digital evidence during an investigation process. In Malaysia, we still lack of expert in computer forensic. Technology can change the landscape and the method of proving computer evidence. Technology changes very rapidly and we need to cope with it. Therefore, the problem of inadequacy in the laws and lack of technological advancement need to be addressed by our country so that more complicated cases can be deal with.
Prepared by,
Sarah Shaqeena Binti Abdullah (A132959)
Norehan Binti Asmaran (A132958)