Older Uniform Acts

1997 Electronic Evidence Act Consultation Paper

Weight

[59] Once the record is admitted, it may of course be challenged on a number of grounds, including its lack of integrity, lack of truthfulness and lack of relevance to the issue. Has it been tampered with? How is the security to be demonstrated? Have the data degraded over time?

[60] Proving such deficiencies is up to the opponent of the evidence, who has at least a tactical burden of doing so. Tactically the proponent may lead evidence in response, to support the weight of the record.

[61] If the proponent were not required to support the integrity of the record to have it admitted, the opponent could be in a difficult position in challenging the weight of the electronic record. The best person to give evidence on the reliability of the proponent's system is probably the systems manager of the proponent, who if called by the opponent to testify, cannot be cross-examined.

[62] The weight of evidence is traditionally not the subject of statute. It depends very much on the facts of the case at bar.

[63] Nonetheless, the UNCITRAL Model Law provides as follows in Article 9(2):

Information in the form of a data message shall be given due evidential weight. In assessing the evidential weight of a data message, regard shall be had to the reliability of the manner in which the data message was generated, stored or communicated, to the reliability of the manner in which the integrity of the information was maintained, to the manner in which its originator was identified, and to any other relevant factor.

[64]Alternatively, instead of this mandatory approach, it would be possible to set out factors in the statute that the court may, but need not, consider. A disadvantage of this approach, however, is that, in practice, setting out such discretionary factors sometimes become minimum requirements.

[65]On balance, we believe that the statute should not give guidance on the factors that go to weight. The factors can be suggested to courts and counsel and records managers by the literature in the field, which includes the Model Law and the papers of the ULCC, as well as academic and practical literature.

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