INFORMATION TECHNOLOGY AND THE LAW OF EVIDENCE1 — RECENT LEGISLATIVE INITIATIVES

• Date: 01 December 1997
• Citation: (1997) 9 SAcLJ 119
• Published date: 01 December 1997
• Author: CHARLES LIM AENG CHENG

Proving Cyberspace in Court

Information Technology has created a virtual world where virtual reality exists in a fifth dimension (also known as Cyberspace) that knows no physical bounds. It is a world which can be seen and heard but which cannot be touched or grasped physically. With the phenomenal global growth of the Internet, it is a world which eradicates geographical boundaries. It makes nonsense of traditional channels of distribution. These features raise novel legal issues. One of the most pressing legal issues posed by the IT revolution is how one can prove the existence and reality of this metaphysical world in a court of law. The lack of paper, the absence of any hand written signature and the transient nature of the data pose legal challenges to our courts which traditional concepts of law cannot adequately address. In the faceless world of cyberspace, identity and authentication are also important issues especially in relation to electronic commerce. The courts themselves are increasingly using information technology and departing from the paper-based environment.

IT 2000 Vision

Nevertheless the Singapore Government has pressed on to create a national IT infrastructure with the establishment of TradeNet2 and other EDI off-springs and the futuristic IT 2000 programme3 initiated by the National Computer Board.

In order to support the earlier introduction of Electronic Data Interchange in the TradeNet System and the IT 2000 vision, the Attorney-General’s Chambers with the expert assistance of the Law Faculty’s Dean began to put into place the requisite legislative framework. Provisions in the GST Act 1993, the Regulation of Imports and Exports Act 1995 and the Customs (Amendment) Act 1996 were enacted from 1993 onwards to provide for TradeNet.

The Evidence (Amendment) Bill 1995 was introduced in Parliament on 5 December 1995 and passed on 18 January 1996. It was assented to by the President on 30 February 1996. The Evidence (Amendment) Act 19964 was published on 16 February 1996 and came into force on 8 March 19965. Exactly one year later on 8 March 1997, Order 63A of the Rules of Court was introduced to provide for Electronic Filing and Service. The Straits Times6 aptly described the Act as paving the way for the admissibility of computer generated evidence and the use of information technology in court. The Bill also introduced two other amendments unrelated to Information Technology. I will not deal with them in detail in this paper but they are mentioned for completeness. The purpose of these amendments are:

1. (a) to reverse the common law rule (known as the rule in Hollington v Hewthorn[1943] 2 All ER 65) that excludes evidence of judicial findings of convictions or acquittals in subsequent cases; and

2. (b) to abolish the irrebuttable presumption of law that a boy under the age of 13 years is incapable of committing rape.

Drafting and Consultation

The amendments to the Evidence Act were drafted by a committee led by the Dean of the Law Faculty comprising members from the Judiciary, Attorney-General’s Chambers, MINDEF Legal Services and Nanyang Technological University. The committee looked at legislation from Australia, Canada, Malaysia, New Zealand, South Africa, UK and the USA. The Judiciary, the National Computer Board, the Auditor-General, the Ministry of Information and the Arts and the Ministry of Finance (Budget Division) were consulted and they supported the amendments.

The Law Society and the Institute of Certified Public Accountants (ICPAS) were also consulted and their views have been taken into account in the final draft of the Bill.

Scope of Amendments to Evidence Act

The amendments to the Evidence Act were made for the following purposes:

1. (a) to provide for the admissibility and weight of computer output produced by any computer or computer network as evidence in both criminal and civil proceedings;

2. (b) to enable Rules of Court to be made for the filing and receiving of evidence in court by the use of information technology (electronic filing);

3. (c) to allow accurate reproductions of documents produced by electronic, electrochemical, chemical, magnetic, optical or other technical processes to be admissible as secondary evidence;

4. (d) to allow voluminous or complex evidence to be given in the form of charts, summaries or computer output in both criminal and civil proceedings;

5. (e) to allow evidence to be given by live video or live television links in certain civil proceedings.

How New Computer Output Provisions Will Work

This paper will explain the three ways of admitting computer output by reference to a practical scenario. It will also explain the amendments which will facilitate the use of technology in the court-room.

Let us take for example a simple scenario where the defendant is charged for forging someone else’s signature on a cheque. The forger steals the victim’s cheque book issued by Bank A. He forges the victim’s signature on the cheque for $10,000 made payable to himself. The forger then banks the cheque into his account at Bank B. The cheque is cleared and presented for payment at the victim’s bank, Bank A. Bank A which has a computer image processing system then scans in a copy of the cheque into its computer image storage system using optical disks as a storage medium. The original cheque is destroyed by Bank A.

Based on the victim’s complaint, the CID (Criminal Investigations Department) initiates investigations and charges the forger in court for the criminal offence of forgery. The cheque then becomes crucial prosecution evidence. However, the original cheque has been destroyed and it is now necessary to admit the computer print-out of that cheque from Bank A’s computer imaging system as prosecution evidence. There are three routes to admissibility.

Section 3S(1)(a) — by agreement

If the Deputy Public Prosecutor and the defence counsel agree that the computer output is admissible, then it can be admitted under the new section 35(1)(a) without anything further being done. However, if the defendant is not represented by a lawyer, section 35(2)(a) does not allow such output to be admitted by agreement. Section 35(2)(a) provides that in criminal proceedings, the accused must be represented by a lawyer on this issue. This is apparently to ensure that there is no room for any allegation that the prosecution tricked the accused into agreeing to admit such evidence. The precedent for such an approach can be found in the Criminal Procedure Code as regards formal admissions (see section 376). In the author’s view, this approach is correct because rules of evidence are technical matters and even well educated lay persons may not be able to give their informed consent without proper legal advice. An agreement can also be vitiated or set aside by proof of duress, fraud, misrepresentation or mistake (section 35(2)(b))7. Note that the agreement, by virtue of section 35(1)(a), can be made at “any time” even during the course of a trial. The agreement need not be in writing but presumably implied agreements are excluded by the use of the phrase “expressly agreed”. What is to be expressly agreed is that neither the authenticity nor the accuracy of the contents of the computer output in question is disputed.

Section 35(1)(b) — approved process

Even if there is no express agreement, the DPP can still seek to admit the computer print-out if Bank A’s computer imaging system has been certified as an “approved process”. If Bank A’s system has adequate physical, hardware and software controls, Bank A can hypothetically get a certifying authority (such as ABC Ltd) to audit its system for compliance with a set of compliance criteria prescribed in the First Schedule to the Evidence (Computer Output) Regulations 1996. ABC Ltd would be appointed by the Minister for Law as a certifying authority so long as it meets certain qualifications. If Bank A’s system meets the requirements, ABC Ltd will then issue a certificate under section 35(3) to certify that Bank A’s system is an “approved process”. This is similar in a loose sense to ISO 9002 certification. The person who is authorised to sign this certificate is a person holding a responsible position in relation to the operation or management of the certifying authority i.e. ABC Ltd. He could thus be the General or senior manager of ABC Ltd.

Knowing that Bank A’s computer imaging system is an approved process is not sufficient because the prosecution has still to show the court that this particular print-out of the cheque was obtained from or printed out from

Bank A’s system. This can be shown by producing another certificate under section 35(4) to close the loop. This certificate is signed by the person holding a responsible position in relation to the operation or management of Bank A’s computer system ie Bank A’s systems operator (sysop) or information systems manager (ISM).

With these two certificates tendered in court by the DPP, the court may accept the computer print-out of the cheque as admissible evidence which accurately reproduces the contents of the original document unless the defendant is able to prove to the contrary (section 35(4)). No witness need at that point of time be called. Of course if the defendant is able to produce evidence to challenge the authenticity of the print-out, the court is empowered under section 36 to call for further evidence in the form of affidavits or if it is still not satisfied it may call for oral evidence by the respective technical experts or an independent expert. The use of affidavits is intended to save valuable court time because the technical matters and expert opinion evidence will be reduced into writing.

More on the Approved Process

Where computer output is produced from an “approved process”, the presumption is that the output is accurate unless proven otherwise. Such a process is approved when it is checked and certified...