Documents

Authentication

Despite the absence of any express requirement in the Evidence Acts of the need to prove that a document is what it purports to be, the prudent course is to make available external evidence to that effect. There a re a number of reeasons for this.

First, the Court in NAB v Rusu held that authenticity is something upon which relevance depends, that is, it is a precondition of admissibility. It was also held that despite s183, authenticity cannot be determined by drawing inferences from the face of the document. See also ASIC v Rich.

Second, in O’Meara, it was held that the failure to establish the authenticity of a document might give rise to consideration of the discretionary exclusions in ss135 and 137, to the extent that unfair prejudice flows from the inability of the other party to lead evidence, and make inquiries, as to the evidence contained therein.

Where the document in question is produced by a computer, the presumptions in xx may be of utility.

Computer records

Where a document is produced by a computer, from information stored in the computer, an issue arises as to whether the document is what it purports to be.

To that end, the presumptions in ss146 and 147 are of value in establishing authenticity.

Section 146

Note that in determining whether the presumptions ought apply, inferences can be drawn from the face of the (allegedly) produced document: s183.

Summaries

Two provisions of the Acts allow for the proof of the contents of documents by way of summary. Section 50 allows proof by summary where two conditions a met,namely:

  • that it would not otherwise be possible to conveniently examine the documents due to their complexity or volume; and
  • wherethe summary is served, and a reasonable opportunity provided for the opposite party to examine the documents.

For business records, s48 also allows proof by summary. For the provision to apply, it must be proved (on the balance of probabilities: s142) that the document in question is a business record (see the section on business records below).

Business records

Where a document can be classified as a business record, it will afford a greater degree of flexibility in relation to bothits admission as an exclusion to the hearsay rule, an also to the form in which it can be admitted (see the section on summaries above).

“Business” is defined in cl 1 Pt 2 of the Dictionary, and should be construed widely. “Records” is not defined, but has been interpreted as meaning “a history of events that is not evanescent”: XXx. Records of the business can be contrasted with “products” of the business, such as, for a publishing company, books and magazines (see Hansen Beverage).

s182 (in combination with s5) of the Cth Act extends the operation of the business records provisions to Commonwealth records.