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18 Jan

EVIDENCE 2.3 COMPUTER AND ELECTRONIC EVIDENCE

COMPUTER AND ELECTRONIC EVIDENCE[1].

 

Prior to the Evidence Act 2011, the question of admissibility of Electronic and Computer Generated Evidence stood on an ambivalent parlance owing to the lacunae in the Old Evidence Act. Spurious Objections were raised and unnecessary delays occasioned[2]. Practitioners were divided.

Professor Osinbajo was of the opinion that “computer-generated evidence are certainly not envisaged by the Act… cannot qualify as primary evidence” and contravenes the common law “best evidence rule[3]”. His reasons being that computer printouts are “not sufficiently trustworthy” and complications would arise in determining which document is the primary document[4]. He further noted that computer evidence may offend exclusionary rules (like those requiring stamping and certification of documents). He also noted that it would be difficult to decipher the maker of the computer document which may translate to hearsay[5]. For these reasons[6], computer generated evidence were not admissible under the Act. He however suggested that the Act be amended to accommodate computer-generated evidence as has been done by Section 59(1) of the South Australian Evidence Act.

Prof Osipitan (SAN) on the other hand argued in favour of admitting computer evidence. He remarked that although the introduction of the computer has complicated the conventional modes of storing and transmission of information[7], we should not shut our eyes to the mysteries of the computer[8]. He noted that the use of the word; “includes” in the definition of “document” means that the categories are not closed. That a document as defined in Hill V R is anything that conveys information. He noted that documents are not confined to books[9]. He suggested that we adopt the liberal attitude in construing documents (as was done in Esso Petroleum Ltd V Oyagbola) and look at the substance[10] rather than the form of a document (as was done in Yassin V Barclays Bank D.C.O and State V Olomo).

Section 84 of the EA 2011[11] has put the matter to rest.

From the interpretation of Section 258(1) EA 2011, a “Computer” means any device for storing processing and retrieving information.

From the interpretation of Section 84 and the corresponding sections of the English and Indian Evidence Acts, the following can be deduced:

  • The Computer from which the document/information is gotten should have been operating properly: as in DPP V Jones, the court noted that “all that Section 69 requires… that the evidence in the computer was properly processed, stored and reproduced”. There is a general presumption that a computer device is working properly-Castle V Cross, United States V Bonallo, R V Opinion of experts or any other person conversant with the working of the system may be adduced to prove that is working properly-DPP V Mckeown (where the information from breath analyser was accepted on this premise), R V Shepherd, R V Dean, U-Haul International Inc V L.M.C Co. He need not be an engineer-R V Spiby (John Eric), R V Neville (employee of telephone company was competent). United States V Linn (hotel employee competent). DPP V Jones.
  • Whether the person adducing the evidence should be the person that supplied the information to the computer/device. Otherwise, would it amount to hearsay? Although in R V Wood the court held that the person that supplied data to the computer should testify. Section 84(5) “with or without human intervention” now make hearsay have little or nothing to do with computer generated evidence.
  • On the question of how to determine signature on electronic document: PINs, Password, Initials, Watermarks, Clicking “I accept[12]”, Scanned Signature (which may be a thumbprint, face scan or eye scan), and so on have been accepted as electronic signatures[13].
  • Electronic and computer generated evidence have been admitted in numerous instances. Evidence from tape recording[14], telephone recording[15], bugging devices[16], video-records[17], broadcasts[18]ATM records[19], Fax[20]and so on have been admitted in evidence. Information from Smart/Electronic Devices (such as text messages (R V Twist[21], R V Neville), Whatsapp messages, Call Logs (R V Singh) Emails (Continental Sales Ltd V R Shipping Inc., R V Nwaji) Web Databases (Perfect 10 Inc. V Cyber Net Ventures Inc, Author’s Guild V Google Inc, and so on have also been accepted)

By Section 160, alteration vitiates documentary evidence  and confers no right exce[t the alteration was made before the completion of the document and with the consent of the other party. The alteration should be material as to vary the rights or obligation of the parties/party-Orji V Dorji Textile Mills.

We move on to:

 

[1] This would likely not come out but a 2 page summary would do no harm. This is a summary of the 3 materials given in class alongside Sebastine Tar Hon Law of Evidence in Nigeria.

[2] Sebastine Tar Hons Law of Evidence in Nigeria. At page 469.

[3] This Rule generally  requires that the best evidence (i.e. Original/Primary Copies)must be given. This rule was formulated to guard against fraud and forgery.

[4] E.g. if you type a letter in a computer, you can print 3 copies. Which of the copies are original? (remember that this position was before the EA 2011).

[5] To this, Professor Osipitan replies that the person who keys in the data can be regarded as the maker in fulfilment of Section 90 of the OEA.

[6] Relying on Kate Enterprises V Daewoo (Nig) Ltd

[7] See however Lunch and Benson noted that the impact of computer makes processing more efficient, economical and more perfectly.

[8] This was noted by the Supreme court in Festus Sunmola Yesufu V A.C.B

[9] This he did Citing Senior V Holdsworth, R V Robinosn, and Grant and Anor V Southern Country Properties Ltd, People V Mormon and Anyaebosi V R.T Briscoe Nig Ltd where the courts had admitted computer printouts.

[10] i.e. the information contained in the document.

[11] Which was lifted from Section 65B Indian Evidence Act 1872 as Amended and Section 69 of the English Police and Criminal Evidence Act 1984.

[12] Mcquren V Simpson.

[13] See Sea-Land Service Inc. V Lozen International LLC. Moore V Microsoft Corp.

[14]             Kajala V Noble R V Masqud Ali, Pratap Singh V State of Punjab R vMasqud Ali, Pratap Singh V State of Punjab. U.S V Littwin, Gorin V U.S, Wilkins V Bancroft. The conversation/information must have been disclosed voluntarily and the voice(s) in the recording should be linked to the accused(s)-C.D Field Law of Evidence. Vukhari V Mehra. R V Controni. John V US.

[15]             In R V Spilby, print out of hotel’s computer which metered telephone calls were held to be admissible to show that the defendant made some calls to the appellants house. Rathbun V United States, Lopez V United States (the accused person’s argument that his right to privacy was invaded was refused.)

[16]             R V Khan (notwithstanding that the evidence was obtained by fraud or trickery). People V Ketchel, Todisco V United States, People V Dupree, Ray V State. R V Rowbotham

[17]             Kajala V Noble, Taylor V Chief Constable of Cheshire (where it was held that a witness can be called to recount the information contained in the video record if the file has been mistakenly deleted).

[18] See INEC V Action Congress, Ekeh V Amaechi, Chime V Onyia.

[19] Both printouts and video monitoring embedded in the ATM machines have been used to trace identity and monitor transfers. See R V Governor of Brixton Prison ex P Levin.

[20] See also Section 153 EA. Idakwo V Nigerian Army.

[21] Text message sent to the 1st appellant to supply illicit drugs was admitted in a charge for conspiracy.

Isochukwu

Quite eccentric really

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