20/04/2024
Evidence Law - 1
Relevant Laws on Admissibility of Contemporaneous Recordings
The evidence and the law of evidence have different meanings. The term “Evidence” is a creation of the Latin term “Evidentia” which means to show, ascertain and prove something. Evidence law is an important part of the law as an adjective law which bridges substantial and procedural laws respectively providing rights, duties and liabilities of anyone against another. This means the statute that establishes the legal framework for put substantial law into effect and upholding it. The procedural law provides the procedure to carry out such substantial laws. Considering the aims of Evidence Law, the predominant objective is to regulate the process of proof of facts for legal proceedings (Dennis, 2020).
The Sri Lankan Evidence Law is primarily based on The Evidence Ordinance of 1895 in which section 5 of the said Ordinance states that evidence can be given only regarding facts in issue and relevant facts. Section 3 defines Evidence as all statements which the court permits or requires to be made before it by witnesses about matters of facts under inquiry which is called oral evidence and the other mode of evidence is documentary evidence defined as all documents that are for the inspection of courts. The interpretation of the term “document” is also stated in the principal enactment as any matter expressed or described upon any substances employing letters, figures or marks or by more than one of these, intended to be used, to record the matter. It is evident that even from the very olden days, Courts in Sri Lanka were very much inclined to admit and rely upon the evidence which has been generated with the assistance of technology, even though such evidence did not appear on a surface similar to a sheet of paper (Marine Star(Pvt)Ltd. vs. Amanda Foods Lanka (Pet) Ltd, [2008]).
Until the impact of the case of Benwell v. Republic of Sri Lanka, the legislature did not tend to amend the principal enactment to make computer-stored data or information considered evidence. After the case, the Evidence (Special Provisions) Act of 1995 was established as a separate legislation from the Evidence Ordinance to make computer evidence and contemporaneous recordings admissible before courts. However, despite the evidence ordinance has made proving the facts in issue, based its entirety on oral and documentary evidence, there were some cases where the courts admitted contemporaneous recordings of public speeches and audio telephone call recordings. At present, after the enforcement of the Evidence (Special Provisions) Act contemporaneous recordings are admitted by courts as evidence according to section 4(1) of ESPA. Section 4(1) states that where direct oral evidence is admissible, any contemporaneous recordings or reproduction thereof can be brought to establish that oral evidence. Such recordings or reproductions must be made by using an electronic or mechanical device, the recording must be capable of being played, replayed, displayed or reproduced in a manner that can be perceived by the senses, the machine which made the recording must be operated properly at the time of recording reproducing of displaying, and the recording must not be tampered or altered.
Part one (1) of the Evidence (Special Provisions) Act of 1995 deals with the admissibility of contemporaneous recordings created using mechanical or electronic devices. This type of evidence has been categorized under real evidence which is opposed to oral or documentary evidence. Even though the Evidence Ordinance defines evidence as oral and documentary, the proviso to section 60 of the Evidence Ordinance empowers the admissibility of any other material thing as evidence other than a document where the court thinks it is fit.
Part three of the Evidence (Special Provisions) Act of 1995 (ESPA) sets out the procedure of tendering evidence under Sections 4 and 5 which are respectively on contemporaneous recordings and computer evidence. Accordingly, the Act provides provisions in section 6(1) to submit an affidavit on tendering such contemporaneous recordings or computer evidence in the first instance rather than summoning oral testimony of the maker of the affidavit. According to Section 6(2), any information in these affidavits would be sufficient if it is "stated to the best of the person stating its knowledge and belief." The proviso in this subsection states that the "Court may on application by the opposing party or of its motion, examine the maker of the affidavit, and or any other person said to be acquainted with any of the matters set out in the affidavit in open court touching any of the matters set out in the affidavit or any other relevant matter". Unlike the Criminal Procedure Code and the Civil Procedure Code, The ESPA by section 7 stipulates that contemporaneous recording or computer evidence shall be submitted before forty-five (45) days from the date of the trial. Similarly, the opposing party can inspect the computer evidence or contemporaneous recording and the machine that the evidence was made, within fifteen (15) days of receipt of such notice of the evidence as stated by section 7(1) (b) of ESPA. It is noteworthy the presumption stated in section 9 of the ESPA regarding the accuracy of the recording until proven to the contrary. In addition, the Electronic Transaction Act No.19 of 2006 in its section 21(2) stipulates that “Any information contained in a data message, or any electronic document, electronic record or other communication— (a) touching any fact in issue or relevant fact and (b) compiled, received or obtained during any business, trade or profession or other regularly conducted activity, shall be admissible in any proceedings. Also, the same section accepts electronic records are accurate.
By,
Yashinda Bandara Dissanayake
MoLex
