Email as legal evidence

[Greg Taylor]

Gerry Mackenzie wrote:
>I have been asked to acquire information on whether email can be used as 
>legal evidence. The circumstances may differ in each country depending on 
>legislative and/or policy initiatives.
>
>I would appreciate responses sent to me directly.


I am replying to the list because this is such an important issue, and so 
that you might avoid getting the same information from 400 people ;-)

The Commonwealth Evidence Act 1995 appears to allow E-Mail in evidence.  
See:
   http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/

Section 59 refers to hearsay evidence being inadmissable but provides for
exceptions to this rule.  One such exception is telecommunications,
defined in Section 71 to include E-mail.  Both sections are attached.  

I have no knowledge of the situation with State Acts, except that the NSW
Act appears identical.  See:
   http://www.austlii.edu.au/au/legis/nsw/consol_act/ea199580/

Given the ease with which E-Mail can be forged, it is worrying that it is
so explicitly defined as admissable evidence.  

But then, I am not a lawyer.  

Greg
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EVIDENCE ACT 1995 - SECT 59 

PART 3.2-HEARSAY
Division 1-The hearsay rule

The hearsay rule-exclusion of hearsay evidence

59. (1) Evidence of a previous representation made by a person is not
admissible to prove the existence of a fact that the person intended to assert
by the representation.

(2) Such a fact is in this Part referred to as an asserted fact. Note:
Specific exceptions to the hearsay rule are as follows:
- evidence relevant for a non-hearsay purpose (section 60);
- first-hand hearsay:
- civil proceedings, if the maker of the representation is unavailable
section 63) or available (section 64);
- criminal proceedings, if the maker of the representation is unavailable
(section 65) or available (section 66);
- business records (section 69);
- tags and labels (section 70);
- telecommunications (section 71);
- contemporaneous statements about a person's health etc. (section 72);
- marriage, family history or family relationships (section 73);
- public or general rights (section 74);
- use of evidence in interlocutory proceedings (section 75);
- admissions (section 81);
- representations about employment or authority (subsection 87(2));
- exceptions to the rule excluding evidence of judgments and convictions
(subsection 92(3));
- character of and expert opinion about accused persons (sections 110 and 111).



EVIDENCE ACT 1995 - SECT 71 

Exception: telecommunications

71. The hearsay rule does not apply to a representation contained in a
document recording a message that has been transmitted by electronic mail or
by a fax, telegram, lettergram or telex so far as the representation is a
representation as to:

   (a)  the identity of the person from whom or on whose behalf the message
        was sent; or

   (b)  the date on which or the time at which the message was sent; or

   (c)  the message's destination or the identity of the person to whom the
        message was addressed. Note 1: Division 3 of Part 4.3 contains
        presumptions about telexes, lettergrams and telegrams. Note 2:
        Section 182 gives this section a wider application in relation to
        Commonwealth records.



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Greg Taylor                                  Brisbane Australia
gtaylor@gil.com.au             http://www.gil.com.au/~gtaylor/>
EFA Board Member
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