Electronic Communications as Evidence

That said, some principles can be postulated:

• digital documents and electronic communications (for the purposes of this paper I define this term to include e-mails, text messages and other forms of instantaneous written communications) are documents³ liable to be disclosed⁴.

• they are also liable to be made evidence in the same way as any other document⁵ and even in ways arguably less onerous⁶.
• when it comes to documents generated by computer, there is little left of the “best evidence rule”⁷.
• the admission or rejection of an electronic document as evidence generally turns on the same issues as any document⁸.

Nothing is remarkable about any of this. Digerati of the “Generation Y” variety may be caused to wonder why there is any controversy at all.

Yet few of us are above the occasional bout of schadenfreude when someone else errs. Thus in GT Corporation v Amare Safety Pty Ltd⁹ the accidental discovery of thousands of privileged documents during the process of electronic interlocutory document disclosure led to a lengthy battle about implied waiver. And who can forget cross-examination of the relatively junior practitioner who neglected to discover the e-mails in the AWB Enquiry on the basis that she didn’t realise they had to be disclosed.

Perhaps our secret joy at the embarrassment of others is motivated by our own unspoken fear that we don’t really understand the evidentiary value of electronic communications. Are we stumbling about in the digital paradigm not knowing what evidence and what is not? Are we at sea on an ocean of bytes?

The thesis of this paper is that, when it comes to matters of evidence, one has to distinguish between the uses of computers as a tool for calculation from human inputs on the one hand, and on the other, their use to record and retrieve data not supplied by any human source. This latter use is, it is suggested, redolent with imprecision. The current orthodoxy is that everything a computer tells us is holy writ and therefore highly probative evidence. But is this correct? We might know the contents of a communication but what can we say, in particular, about the time and place of that communication?

It is fair to say that electronic communications have been a fertile source of evidence. One reason is that there are just so many of them. Short, direct written communications of the type thought extinct with the telegraph are now ubiquitous in human intercourse whether commercial, social or even conjugal.

The fecundity of this evidentiary compost heap has hitherto been amplified by an apparently common misconception that the informality of electronic communications meant they would not be the subject later scrutiny. Tales abound of e-mails a witness thought hidden being produced in cross-examination for the “gotcha” moment. These are the stuff of the advocate’s fondest daydream.

In a previous era, the analogy would be laying one hands on the original document to discover endorsements on the reverse which contradict the evidence of the witness but which were omitted during the course of photocopying the disclosed documents. Eventually litigants learned not to write on the back of documents. One suspects witnesses will soon learn not to send stupid emails. In the meantime one can still hope.

In what other circumstances can electronic communications give rise to that moment of evidentiary epiphany so many fervently hope to be a part of? Perhaps the hopeful advocate might turn to the machine generated information which travels with the communication. Electronic documents record not only the bytes that we can see as text. They are record all kinds of data which may prove to be evidence of all sorts of things.

These communications are transmitted in digital format. The fact of that transmission is also recorded. Moreover both the contents of the communication and the fact of the transmission are automatically stored with both the sender and receiver in a neat and conveniently accessible database. But is this machine generated information reliable?

Recently an affidavit came across my desk which read as follows:¹⁰

I refer to paragraph 75 of Smith’s June Affidavit. I did forward a final set of documents on the 1st of February 2006. My email system records the email being sent at 9:49am and confirmed at 1:08pm. I attach the 9:49am email referred to in the 1:08pm email as exhibit HJR -7.

I do recall a telephone conversation which occurred at 2:47 to 2:59pm of that date during which Smith talked to me about the wording and meaning of the contract and I explained to him how I thought the relationship of the definition with the specific clause worked. He appeared to understand the explanation I made. The telephone records are attached at exhibit HJR -4 .

What was sought to be asserted was that a conversation about which the witness was to give evidence occurred in the light of knowledge, common to both sides, as to the contents of the documents attached to a certain email. It is fair to say in this instance the deponent was not relying solely on the fact of the sending of the e-mail but also on the contents of the conversation to depose to the state of knowledge.

But could a litigant rely solely upon the fact of the sending of an email to support a conclusion that the common knowledge of negotiating parties has certain characteristics or even that a contract had been formed?

This must depend upon finding that an email was sent and received at the time specified on the email and was received and read by the recipient of the email at that time. This is plainly stretching the bounds of the evidential uses that one might make of email evidence.

As to the place of contract, the learned authors of the Laws of Australia posit four possible scenarios for the place of contract where formed by an electronic message that is sent from a computer and also stored on that computer:

(a) The original is deemed to be the version remaining on the originator’s computer with a copy version which is sent to the recipient;

(b) The reverse assumption, leaving the originator with the copy and the recipient of the original;

(c) It could be deemed that once the “send” button is activated, any original that might have existed (for example, if saved as a draft in the process of writing) is destroyed leaving both the recipient and originator with a copy;

(d) Finally, it could be assumed that the creation of an electronic communication in fact produces two distinct originals.

It is suggested by such learned authors that the last of these is the least problematic¹¹. That is probably correct. The case law still does not appear to resolve the issue¹.

Admissibility of e-mails to prove time and date of receipt is equally uncertain. A court should be reluctant to receive such evidence in the absence of a certificate as provided for at s 95(4) of the Evidence Act. Section 95 of the Evidence Act, relevantly, provides:

95 Admissibility of statements produced by computers

(1) In any proceeding where direct oral evidence of a fact would be admissible, any statement contained in a document produced by a computer and tending to establish that fact shall, subject to this part, be admissible as evidence of that fact, if it is shown that the conditions mentioned in subsection

(2) are satisfied in relation to the statement and computer in question.

(3) The said conditions are—

(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by any person; and

(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of
the kind from which the information so contained is derived; and

(c) that throughout the material part of that period the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and

(d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
…

(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing all or any of the following things, that is to say—

(a) identifying the document containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced
by a computer;

(c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate;

and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of the matters stated in the certificate and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it
…

That certification will need to be very precise. So precise, it is suggested as to give grounds of acceptance of the evidence under common law principles in any event¹³.

The conclusion must be that where the question is the value of evidence suggestive of the time and place of receipt of electronic communications, the answer is not limited to the idea of traditional touchstone of relevance. The probative value of such evidence is plainly determined by the reliability of that evidence.

In these cases the certification referred to at s 95(4) may just be the start of the process. The calling of expert evidence, with the forensic examination of the records of both communication devices involved, will be almost unavoidable. How that is to be achieved, and what interlocutory directions a court may or ought make to facilitate the endeavour, will depend on the circumstances of each case.

Andrew Musgrave

Footnotes:

1. To see a court agonize over the building blocks of the internet: American Civil Liberties Union v Reno 929 F Sup 824, 830-845 (ED Pa 1996).
2. For instance, amendments to the Copyright Act 1968 (Cth) only recently enabled one to use one’s video recorder. Meanwhile file sharing sites operate indifferent to the rights of copyright owners.
3. Evidence Act 1977-2001 (Qld) section 3 and Section 36 Acts Interpretation Act 1954 (Qld) and Evidence Act. Not only are they documents but they are documents carried by post or telegraphic services such as to bring them, and their contents, into play when considering the application of the Trade Practices Act 1974 (Cth). Quality Corporation (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd [2003] QSC 095; Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169.
4. Poteri v Clarke (unreported, District Court of Queensland, Brisbane Registry, No 2669 of 1998, Boulton DCJ, 9.11.98).
5. The common law still applies. Evidence Law in Queensland, JRS Forbes (6^th ed) paragraph [95.7].
6. Evidence Act 1977-2001 (Qld) sections 84, 92, 93 and 95 arguably all facilitate admissibility.
7. The Laws of Australia, paragraph [16.5.23].
8. Al Mousawy v J A Byatt Pty Ltd [2008] NSWSC 264; Rio Tinto Ltd v Federal Commissioner of Taxation [2006] FCA 1200.
9. (2007) VSC 123
10. names altered for confidentiality
11. The Laws of Australia, paragraph [8.9.39].
12. Compare Leach Nominees Pty Ltd v Walter Wright Pty Ltd [1986] WAR 244 with Express Airways v Port Augusta Air Services [1980] Qd R 543 which both deal with Telexes but come to different conclusions.;
13. See for instance Uddin v Minister for Immigration & Multicultural Affairs [2000] FCA 1313 (electronic visa application accepted into evidence in absence of paper original and in conjunction with other written evidence); Rook v Maynard (1993) 2 Tas R 97; 116 FLR 234 (print outs of electronic records admitted once persuaded of accuracy); Proctor Gamble Australia Pty Ltd v Medical Research [2001] NSWSC 183 (discovery of email); BT (Australasia) Pty Ltd v New South Wales (No 10) [1998] 479 FCA (7 May 1998) (electronic records required for proper satisfaction of discovery).