The term 'computer' in the Evidence Act 1950 was recently amended by the Evidence (Amendment) (No 2) Act 2012 in favour of the definition in the Computer Crimes Act 1997 thereby bringing consistency to the two statutes. 'Computer' is now defined as: An electronic, magnetic, optical, electrochemical, or other data processing device, or a group of such interconnected or related devices, performing logical, arithmetic or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device or group of such interconnected or related devices, but does not include (a) an automated typewriter or typesetter; (b) a portable hand held calculator; (c) a device similar to those referred to in para (a) and (b) which is non-programmable or which does not contain any data storage facility.
Section 90A is the principal section and with seven subsections, sets the requirements for admissibility and proof of computer generated documents. Section 90B deals with the probative value to be attached to the evidence, section 90C stipulates that the provisions of sections 90A and 90B shall prevail over any other provision in any other statute.
Section 90A(1) provides as follows:
In any criminal or civil proceeding a document produced by a computer, or a statement contained in such document, shall be admissible as evidence of any fact stated therein if the document was produced by the computer in the course of its ordinary use, whether or not the person tendering the same is the maker of such document or statement.
The subsection makes it a condition precedent that the document should have been produced by the computer in the course of its 'ordinary use'. Although what is 'ordinary use' has not been defined, subsection (2) states how it may be proved.
Section 90A(2) provides as follows:
For the purposes of this section it may be proved that a document was produced by a computer in the course of its ordinary use by tendering to the court a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used.
This provision has caused a great deal of argument on whether a certificate is required in every case where 'computer generated documents' is sought to be adduced. The Court of Appeal went to great lengths to examine and clarify the provisions in the case of Gnanasegaran a/l Pararajasingam v Public Prosecutor. Shaik Daud Ismail JCA clarified that under section 90A(1), there were two ways of proving 'in the course of its ordinary use' in order to admit computer generated documents into evidence:
(i) it may be proved by the production of the certificate as required by sub-s (2). — This is permissive and not mandatory. This can also be seen in sub-s (4) which begins with the words 'Where' a certificate is given under sub-s (2) ... or
(ii) by calling the maker of the document which is the usual method to admit and prove any form of documentary evidence. Therefore a certificate is not required to be produced in every case.
Once the prosecution adduces evidence through a bank officer that the document is produced by a computer, it is not incumbent upon them to also produce a certificate under sub-section (2) as sub-section (6) provides that a document produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use.
As for the certificate, it shall be sufficient under section 90A(3) for a matter to be stated to the best of the knowledge and belief of the person stating it. It shall then be admissible in evidence as prima facie proof of all matters stated in it without proof of signature of the person who gave the certificate.
Once the certificate is produced, there is a presumption under section 90A(4) that the computer referred to in the certificate was in good working order and was operating properly in all respects throughout the material part of the period during which the document was produced. By the provisions of section 90A(5), a document is deemed to have been produced by a computer, directly or indirectly, whether or not there was any direct or indirect human intervention. Section 90A(6) provides a further presumption in relation to a document, whether produced by a computer or not:
A document produced by a computer, or a statement contained in such document, shall be admissible in evidence whether or not it was produced by the computer after the commencement of the criminal or civil proceeding or after the commencement of any investigation or inquiry in relation to the criminal or civil proceeding or such investigation or inquiry, and any document so produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use.
It will be observed that subsections 90A(1) and (6) appear to be prima facie incompatible and inconsistent with each other. The 'deeming' provision in subsection (6) was seen as a way of circumventing the requirement for the certificate as stipulated in section 90A(2) until the Federal Court in Ahmad Najib bin Aris v Public Prosecutor, clarified the distinction between subsections (1) and (6). The Federal Court after analysing the provisions at length, concurred with the findings of the Court of Appeal in Gnanasegaran and Public Prosecutor v Hanafi Mat Hassan. It confirmed that under section 90A(1), computer generated evidence could be admitted in either one of two ways. A certificate could be tendered as specified by sections 90A(2) and (3). Once this was done, the presumption under section 90A(4) as to the proper working of the computer at the material time would be activated. Alternatively, oral evidence could be called to prove that the document produced by the computer was produced 'in the course of its ordinary use'. This also requires further oral evidence to support the presumption in section 90(4) that the computer was in proper working order at the material time. As for section 90A(6), the Federal Court confirmed that the 'deeming' provisions herein were not an alternative to circumvent the provisions of section 90A(1). Instead, it provided for the admissibility of documents that were not produced by a computer in the ordinary course of its use. This could arise for instance where a letter is produced by a computer which has no bearing on the ordinary use of the computer. Yet it is still a document produced by a computer and could be admitted under section 90A(6).
Section 90A(7) precludes an accused in any criminal proceeding from using self-corroborating evidence generated by a computer under his own management or supervision.
Section 62 provides that a document produced by a computer is primary evidence. Thus computer-generated evidence may be admitted in court without difficulty and such evidence is primary evidence, even though it is not possible to distinguish between 'original' and 'copy'. The provisions in section 90A ostensibly provide the necessary safeguards.
Section 90B deals with the weight or probative value to be attached to a document or statement contained in a document, admitted by virtue of section 90A. In estimating its weight, the court may draw any reasonable inference from circumstances relating to the document or the statement, including the manner and purpose of its creation, or its accuracy or otherwise. It shall have regard to:
(a) the interval of time between the occurrence or existence of the facts stated in the document or statement, and the supply of the relevant information or matter into the computer; and
(b) whether or not the person who supplies, or any person concerned with the supply of, such information or the custody of the document, or the document containing the statement, had any incentive to conceal or misrepresent all or any of the facts stated in the document or statement.
the cert pursuant to S.90A, how to prepare it?
ReplyDeleteany samples?