The Gazette 1995

GAZETTE

documentary evidence will be admissible under the Act. Information contained in a document shall be admissible in criminal proceedings as evidence of any fact therein of which direct oral evidence would be admissible if the information: (a) was compiled in the ordinary course of a business (b) was supplied by a person . . . Who had personal knowledge of the matters dealt with and (c) if information in a non-legible form that has been reproduced in Sub-section 6 of section 5 then goes on to provide that where information is admissible in evidence by virtue of this section but is expressed in terms that are not intelligible to the average person without explanation, an explanation of the information shall be admissible if given orally by a person competent to do so, or in a document signed by such a person. Section 6 of the Act sets out the criteria required to be provided in such a certificate when a party to criminal proceedings wishes to give evidence by virtue of section 5. The certificate has to state inter alia that the information was compiled in the ordinary course of a specified business. In the case of information in non legible form, the certificate must state that it has been reproduced in permanent legible form, stating that the reproduction was effected in the course of the normal operation of a specified system. The certificate must be signed by a person who occupies a position in relation to the management of the business in the course of which the information was compiled of who is otherwise in a position to give the certificate, and is then evidence of any matter stated or specified therein. Section 7 provides that notice shall be given of intention to give information under section 5, and objection can be taken by the other party by again serving notice prior to trial. Section 8 deals with admissibility and weight. It is interesting to note that information that is admissible by virtue permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned.

of section 5 shall not be admitted, if the court is of opinion that in the interests of justice the information or that part ought not to be admitted. In j considering the latter the court shall have regard to all the circumstances, including: whether the information is reliable, whether the document is authentic, and any risk, having regard in particular to whether it is likely to be possible to controvert the information j where the person who supplied it does ; not attend to give oral evidence in the proceedings, that its admission or | exclusion will result in unfairness to the accused or, if there is more than one, to any of them. j Finally in estimating the weight to be attached to the information, regard shall be had to all the circumstances from which any inference can j reasonably be drawn as to its accuracy j or otherwise. Section 9 goes on to provide that any evidence that would normally be admissible as to the I credibility of the supplier of the | information as a witness shall be admissible here. j A number of points arise in relation to j these provisions, many of which have been echoed in the previous English decisions, relating to such matters as the qualifications and suitability of the j ; provider of the cert, and the significance of its supplementation with the oral testimony of the individual concerned. The whole question of the ability of the counts to adjudge accuracy and reliability is also ] a matter of potential dispute, as is the question of the relationship of : traditional rule of evidence and i advocacy (cross-examination, j | confrontation etc.) to fairness to the ! ; accused and the consequent ability to j i ensure same in the context of such j modification of the process as is j envisaged by the Act. j S In the context of fairness to the accused and quite apart from the constitutional J dimensions in Ireland, particularly in the context of criminal proceedings, it i is interesting to note relevant decisions in the English context. In R v Caldwell & Dixon u the issue arose in the context I of a video recording of a robbery used j

(II) reproduction in permanent legible form by a computer or other means (including enlarging) of information in normal legible form'. Information is defined to include any representation of fact, whether in words or otherwise. Information in non-legible form is stated to include information on microfilm, microfiche, magnetic tape or disk. Hence it is clear that computer- generated evidence is covered by the Act, and it is noteworthy that section 30 makes provision for copies to be tendered, thus abrogating the Best Evidence in this context. Section 30 provides that where information contained in a document is admissible in criminal proceedings, the information may be given in evidence, whether or not the document is still in existence, by producing a copy of the document, or of the material part of it, authenticated in such manner as the court may approve. It is immaterial for these purposes how many removes there are between the copy and the original, or by what means (which may include facsimile transmission) the copy produced or any intermediate copy was made. Document here includes a film, sound recording or video-recording. Although it does have the merit of resolving issues as to admissibility of faxes, (so much a feature of everyday life), this provision does demonstrate a touching faith on the part of the Legislature in the veracity of technology, and the ability of the court to judge authenticity, something which, particularly in the case of video evidence, is notoriously difficult as tampering is difficult to detect. Computer generated evidence can be more readily verified, particularly with the introduction of audit trails and discs with a 'worm' (write once read many) facility, yet the question is begged as to whether all computers have such a facility, and whether the courts will be aware of same and judges and juries remain underwhelmed by technology?

Section 5 of the Criminal Evidence Act governs the conditions under which

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