Assessment 2: Research Paper --- Due date 5.00 pm Monday 15 September 2013

words limit : 2500 words,

The research question

You are on the staff of the Attorney General who has returned from an emergency meeting with the European Union on the interception by securities agencies of electronic communications. She had a side meeting with the Attorney General of Ireland who was anxious to talk to her about the Australian experience with the uniform Evidence Act. Ireland is in the process of reforming the law on documentary, hearsay and expert evidence. The Irish Attorney gave her a copy of the consultation paper from the Law Reform Commission of Ireland An Coimisiún um Athchóiriú an Dlí on documentary and electronic evidence. She tells you that she understands that the final report is expected in 2013.

The Attorney is particularly concerned about statements made in para [5.18] of the consultation paper:

[5.18] … Electronically produced evidence is viewed as suspect owing to the perceived ease with which is can be altered and so precautionary measures must be taken to ensure that electronic and automated documentary evidence has not been tampered with, erased, or added to. These precautions include examining the foundation as well as authentication requirements to establish the integrity or otherwise of the impugned document. Law Reform Commission of Ireland An Coimisiún um Athchóiriú an Dlí, Consultation Paper Documentary and Electronic Evidence (LRC CP 57-2009) (Dublin: December 2009) p 144.


The Attorney tells you:

I was a bit surprised that the Irish Attorney was so critical of the uniform Evidence Act. I had suggested it as an ideal model for the Irish reform. But she said of its lack of safeguards around the use of electronic or digital documents that it was ‘a charter for digitalized judicial fraud.’. This project will be a bit of a challenge for you, I’m afraid, as I know that you already have a lot on your plate. You might be able to find some other people willing to help you. I’m looking for something like a mini-law reform discussion paper with some clear recommendations at the end. It will need to be very concise and focus clearly on the key issues. The common law on these issues is fairly extensive and complex and there have been so many reviews by the Australian, New South Wales and Victorian Reform Commissions of evidence law leading up to, and amending, the uniform Act. It is made more difficult by the different justifications for the hearsay rule and the burdens and standards of proof in civil and criminal trials. I am not an expert on these. I have never really understood the hearsay rule but I recall that documentary evidence derived from computers may be both testimonial, which could be an exception to the hearsay rule, and real, which is not subject to it at all. It is going to be a bit complex. You’ll need to start now if I am to have time to consider it by the next SCAGS meeting in mid-October.