Contents:
Section 34 1 a i creates an exception for situations where the author of the data message had personal knowledge of the statements made therein but is not available to testify. Section 34 1 a ii , the wording of which is certainly not a model of clarity, creates a further exception where a document was created by someone who was recording another which recording is continuous and in the ordinary course of duty , and the person who was being recorded had personal knowledge of the statement.
An Introduction to the Legal System of the United States, Fourth Edition [E. Allan Farnsworth, Steve Sheppard] on giuliettasprint.konfer.eu *FREE* shipping on qualifying. Editorial Reviews. About the Author. Author E. Allan Farnsworth, () was the An Introduction to the Legal System of the United States, Fourth Edition 4th Edition, Kindle Edition. by.
The details pertaining to these exceptions, largely nullified 27 by the Law of Evidence Amendment Act and are therefore less applicable than they once were , are discussed in ordinary textbooks dealing with the law of evidence. If the conditions of section 1 are satisfied, 31 any statement contained in a document that establishes a fact will be admissible on the mere production thereof. In terms of the conditions for admissibility the compilation of the document must have taken place in the ordinary course of business, and someone who can be reasonably presumed to have knowledge of the matters dealt with therein must supply it.
Finally, the person who supplied the information must be dead, outside the Republic, or unable to testify due to mental or physical ailments. In the present context, this means that the exception created by section 34 of the CPEA for the admissibility of a data message where the author is not available is also applicable to criminal proceedings.
Finally, sections and A of the CPA create an exception for banking records both local and international banks where an employee of the bank certifies the accuracy of the record and confirms that the capture thereof took place in the ordinary course of business. Section 15 4 35 of the ECT Act creates a business records exception to the hearsay rule for any data message created in the ordinary course of business.
The section, which is controversial, 36 has been criticised because of the difficulties 37 it creates. It reads as follows:. Hofman 38 lists six difficulties with the section, and this commentary appears to have received the approval of other academic commentators. Section 15 4 has a twofold effect. It creates a statutory exception to the hearsay rule and it gives rise to a rebuttable presumption in favour of the correctness of electronic data falling within the definition of the term 'data message'.
Also, in the Supreme Court of Appeal, in Firstrand Bank Limited v Venter, 44 in the context of section 15 4 , the court noted that it:. In terms of section 15 4 of that Act a printout of a data message can constitute prima facie proof if the data message was made by a person in the ordinary course of business and if the printout is certified to be correct by 'an officer in the service of such person'.
Further, in Ndlovu the court described section 15 4 as follows:. Section 15 4 provides for two situations in which a data message may on its mere production be admissible in evidence. The first is 'a data message made by a person in the ordinary course of business', which, juxtaposed with the words that follow, clearly refers to an original data message, and is required to have been made 'in the ordinary course of business'.
The second is a copy or printout of or an extract from such data message which is certified to be correct by an officer in the service of such person being a person who made the data message in the ordinary course of business. Once either of these two situations is present, the data message is on its mere production admissible in evidence and rebuttable proof of the facts contained therein. In Trend Finance Pty Ltd v Commissioner for SARS 49 the court pointed out that a party seeking to rely on section 15 4 must show that the document "sought to be admitted is a printout of information existing in electronic form.
Moreover, in Director of Public Prosecution v Modise 50 the court catergorised section 15 4 51 as follows:. In an application to review the court above, in Modise, Lamont J seemed to indicate that notwithstanding some of the academic concerns pointed out above which concerns were not dealt with - nor was any prior case law reviewed in reaching a decision , section 15 4 is an intentional step by South Africa's legislature to subjugate the hearsay rule: The facts and matters in a document are the evidence.
The evidence is admissible if the provisions of this section are complied with. Nothing more is required. The section enables [persons] to easily produce evidence which will generally be of a formal and uncontested nature and to place same in documentary form before a court without the need to call the witness In addition the expert becomes free to perform other work. These sections allow limited resources to be properly and adequately used. This wide exception appears to go further than previous statutory exceptions, 55 and appears to favour evidence in the form of a data message if in a business context.
This is probably contrary to the principle of functional equivalence. Moreover, as suggested by others, 56 if a person in a business context is able to comply with the statutory provisions of section 15 4 , which simply require certification from an employee that the printout of a data message is correct, then those facts are rebuttably presumed true.
Arguably, this creates a reverse onus that may be constitutionally suspect 57 in criminal cases, even though it is a presumption which can be challenged. Further, in a civil context, the fact that someone operates a business does not necessarily mean the data message is accurate, reliable or honest, even if certified. However, as pointed out above in Modise, there is merit in the argument that the section is an intentional departure from the Model Law, Further, the cases analysed above indicate clearly that our courts will accept documentary hearsay when the conditions of section 15 4 of the ECT Act are satisfied.
As suggested by the SA Law Reform Commission, the interplay between the statutory hearsay exceptions and section 15 4 of the ECT Act is "complex", creates "unnecessary confusion" and requires "greater alignment. What follows below in 4. The purpose of the examination of England, Canada and the United States is to facilitate suggestions for law reform. This analysis is not intended to serve as a comprehensive comparative study of international law, but as a basis for gleaning information regarding possible interpretations in relation to hearsay electronic evidence.
The English law of evidence on which the South African law of evidence is based has been referred to as being founded on exclusionary rules, which contain two fundamental guiding principles - the best evidence rule and the hearsay rule. In England, 63 the position is the same as in South Africa - that is, if the production of data occurs without human intervention, it is real evidence no hearsay enquiry. The key, as in many jurisdictions around the world, is to determine whether the credibility of the data relies on a person or a computer via an automated process , and this distinction often leads to "confusion" and has acted as a "brake" on the introduction of new technology.
However, even if the data is documentary in nature and therefore subject to the exclusionary hearsay rules, there are several statutory exceptions, including those found in the Criminal Justice Act and the Civil Evidence Act In the fourth and most recent edition of Electronic Evidence, 68 the authors of the chapter on hearsay appear critical of the "complex" rules one must consider. With this complexity in mind, it is beyond the scope of this paper to analyse the regulatory framework of hearsay evidence in England other than to note that an approach whereby data messages are classified as real evidence if they rely on the credibility of a computer is possible and appears to be preferred.
For example, in R on the application of O v Coventry Justices, 70 automated transactions involving a credit card and a pornography website were regarded admissible real evidence on the basis that they were purely mechanically produced. Earlier, in R v Spiby, 71 where an automated process a computer monitored telephone calls, this evidence was real evidence because there was no human intervention in the production of the data. Accordingly, it was not hearsay evidence.
Moreover, in McDonald v R, 73 in a criminal appeal largely dealing with character evidence, the court found that a printout from a mobile phone service provider Vodafone was real evidence rather than documentary hearsay. In R v Spiby 74 the court expressed the following opinion when justifying why certain electronic evidence should be regarded as real evidence:. Where the electronically stored data is recorded electronically by an automated mind the record made by the machine is admissible in evidence provided, of course, it is accepted that the machine is reliable.
In my view, the key point to take from the English position is that electronic evidence can be classified as either real evidence not subject to the hearsay rules , or it can be classified as documentary evidence subject to the hearsay rules. The classification of the evidence will depend on its nature. Simply, it appears from the cases reviewed above that if the data is subject to human intervention in its production, then it will be classified as hearsay documentary evidence. Conversely, if the data is not subject to any human intervention, then the evidence will be real evidence.
The Canadian law of evidence is predominantly based on English common law except in Quebec , 75 and as is the case in England and South Africa, electronic evidence is subject to the same evidentiary regime as traditional evidence. The electronic evidence must be material and relevant to the issues and must not be subject to any other exclusionary rule. Canada has departed from the Model Law, and other jurisdictions 78 by using the term electronic record instead of data message or computer evidence.
In R v Mondor 79 the Ontario Court of Justice, referring to academic authors, 80 confirms that electronic evidence can take the form of real evidence or documentary evidence. This is much like the position in South Africa and England. The court found that:. Where the electronically stored data is recorded electronically by an automated process, then the evidence is real evidence. Where, however, the electronically stored information is created by humans, then the evidence is not real evidence, and is not admissible for its truth absent some other rule of admissibility.
As with many other jurisdictions, Canada also has a business records hearsay exception, and the court in Mondor was tasked with determining whether hearsay electronic evidence documentary evidence that is subject to human intervention would be admissible in terms of the Canadian hearsay exception. Using logic similar to that in the South African decisions in Ndlovu and Ndiki discussed above , the Canadian court in Mondor found that:. The applicant must first establish that the hearsay is admissible either under section 30 or some other mechanism.
Ultimately, after analysing previous cases dealing with hearsay electronic evidence 82 the court found the evidence to be "inadmissible for the truth of their contents. Electronic information may be considered either real or documentary evidence.
If it is real evidence, it simply needs to be authenticated and the trier of fact will then draw their own inferences from it. Examples of real evidence include photographs and physical objects. If electronic information is determined to be real evidence, the evidentiary rules relating to documents, such as the best evidence and hearsay rules, will not be applicable.
No Downloads. The term "judiciary" is also used to refer collectively to the personnel, such as judges , magistrates and other adjudicators, who form the core of a judiciary sometimes referred to as a " bench " , as well as the staffs who keep the system running smoothly. Chapter 3. You just clipped your first slide! See Aguilar v. Clipping is a handy way to collect important slides you want to go back to later. International Criminal Law.
The court goes further to note that the real issue lies in deciding "when electronic information should be treated as real evidence, rather than documentary". The position in Canada - that data produced without human intervention is real evidence - has received judicial support, including in the matter of R v McCulloch, 89 where telephone records were admitted as real evidence because of the automated nature of the data. Moreover, in R v Hall 90 the court found that automated billing records were real evidence although in this case they also fell under the hearsay business records exception.
In this matter the Canadian court referred with approval to the English case of R v Spiby 91 discussed above , where the English court found that an automated process monitoring phone calls was real evidence not subject to hearsay rules. It is almost impossible to concisely summarise the legal position on any legal issue in the United States, primarily because it is subject to a federal system. Each state has its own independent judiciary and applies its own procedural and evidentiary rules. When Rome first started to exist, law was given by the gods.
The most important part was Ius Civile latin for "civil law". This consisted of Mos Maiorum latin for "way of the ancestors" and Leges latin for "laws". Mos Maiorum was the rules of conduct based on social norms created over the years by predecessors. In these early years, the legal process consisted of two phases. The first phase, In Iure , was the judicial process. One would go to the head of the judicial system at first the priests as law was part of religion who would look at the applicable rules to the case.
Parties in the case could be assisted by jurists. The case would be put before the judges, which were normal Roman citizens in an uneven number. No experience was required as the applicable rules were already selected. They would merely have to judge the case.
The most important change in this period was the shift from priest to praetor as the head of the judicial system. The praetor would also make an edict in which he would declare new laws or principles for the year he was elected. This edict is also known as praetorian law. The Principate is the first part of the Roman Empire, which started with the reign of Augustus.
This time period is also known as the "classical era of Roman Law" In this era, the praetor's edict was now known as edictum perpetuum , which were all the edicts collected in one edict by Hadrian. Also, a new judicial process came up: cognitio extraordinaria latin for "extraordinary process". This process only had one phase, where the case was presented to a professional judge who was a representative of the emperor.