Evidence Act 1893 · 2020 Revised Edition · Part 3 · Production and Effect of Evidence
116A. Presumptions in relation to electronic records
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Unless evidence sufficient to raise doubt about the presumption is adduced, where a device or process is one that, or is of a kind that, if properly used, ordinarily produces or accurately communicates an electronic record, the court is to presume that in producing or communicating that electronic record on the occasion in question, the device or process produced or accurately communicated the electronic record.Illustration A seeks to adduce evidence in the form of an electronic record or document produced by an electronic device or process. A proves that the electronic device or process in question is one that, or is of a kind that, if properly used, ordinarily produces that electronic record or document. This is a relevant fact for the court to presume that in producing the electronic record or document on the occasion in question, the electronic device or process produced the electronic record or document which A seeks to adduce.
evidence
“evidence” includes —(a)all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry: such statements are called oral evidence; and(b)all documents produced for the inspection of the court: such documents are called documentary evidence;
Unless evidence to the contrary is adduced, the court is to presume that any electronic record generated, recorded or stored is authentic if it is established that the electronic record was generated, recorded or stored in the usual and ordinary course of business by a person who was not a party to the proceedings on the occasion in question and who did not generate, record or store it under the control of the party seeking to introduce the electronic record.Illustration A seeks to adduce evidence against B in the form of an electronic record. The fact that the electronic record was generated, recorded or stored in the usual and ordinary course of business by C, a neutral third party, is a relevant fact for the court to presume that the electronic record is authentic.
court
“court” includes all Judges and Magistrates and, except arbitrators, all persons legally authorised to take evidence;
Unless evidence to the contrary is adduced, where an electronic record was generated, recorded or stored by a party who is adverse in interest to the party seeking to adduce the evidence, the court is to presume that the electronic record is authentic in relation to the authentication issues arising from the generation, recording or storage of that electronic record.Illustration A seeks to adduce evidence against B in the form of an electronic record. The fact that the electronic record was generated, recorded or stored by B, who opposes the relevance of the evidence, is a relevant fact for the court to presume that the electronic record is authentic.
electronic record
“electronic record” means a record generated, communicated, received or stored by electronic, magnetic, optical or other means in an information system or transmitted from one information system to another;
For the purposes of subsection (2), in criminal proceedings a party to the proceedings includes —
the police officer or other officer of a law enforcement agency who was involved in the investigation of offences allegedly committed by the accused person; or
an accomplice of the accused person even though he or she is not charged with an offence in the same proceedings.
The Minister may make regulations providing for a process by which a document may be recorded or stored through the use of an imaging system, including providing for the appointment of one or more persons or organisations to certify these systems and their use, and for any matters incidental thereto, and an “approved process” in subsection (6) means a process that has been approved in accordance with the provisions of such regulations.
document
“document” includes, in addition to a document in writing —(a)any map, plan, graph or drawing;(b)any photograph;(c)any label, marking or other writing which identifies or describes anything of which it forms a part, or to which it is attached by any means whatsoever;(d)any disc, tape, soundtrack or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom;(e)any film (including microfilm), negative, tape, disc or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and(f)any paper or other material on which there are marks, impressions, figures, letters, symbols or perforations having a meaning for persons qualified to interpret them;
Where an electronic record was recorded or stored from a document produced pursuant to an approved process, the court is to presume, unless evidence to the contrary is adduced, that the electronic record accurately reproduces that document.
The matters referred to in this section may be established by an affidavit given to the best of the deponent’s knowledge and belief.