Electronic & Computer Evidence In Criminal And Civil Proceedings

Saleem Marsoof

Introduction

We live in the information era in which electronic equipment and computers have virtually taken over our lives. Information which has been stored or processed on these devices have become an important source of evidence in criminal and civil litigation. The automation of businesses, financial institutions and governmental records is so widespread that many everyday transactions, such as the purchase of goods, the withdrawal of cash from bank accounts and even the making of ‘telephone calls, generate data which is recorded and stored automatically without, or with very little, ‘ human effort or intervention. Such data may be recorded with specific evidential uses in mind, or it may fortuitously acquire an evidential significance, which was not envisaged when the recording was made.

Valuable as it may be, information stored on such devices can pose a number of evidential problems for the courts. This is largely because rules of evidence contained in the Evidence Ordinance1 were evolved long before the advent of modern electronic equipment and computers, and those rules have not always proved adaptable to evidence emanating from such modern devices. This has necessitated the introduction of legislation with a view of facilitating the proper use of such evidence. The Evidence (Special Provisions) Act of 19952 has been enacted in Sri Lanka to provide “for the admissibility of audio-visual recordings, and of information contained in statements produced by computers in civil and criminal proceedings.”3 Part I of this Act deals with the admissibility of contemporaneous recordings made by the use of electronic or mechanical means, and Part II deals with computer evidence. Parts III and IV of the Act contain respectively, general provisions and provisions facilitating interpretation.

The provisions of the Evidence (Special Provisions) Act apply uniformly to criminal and civil proceedings. A party to criminal or civil proceedings in which electronic or computer evidence may be relevant, is likely to have at least four specific concerns regarding that evidence, namely,

1. Will it be permissible to adduce that evidence at the trial, or in other words, is such evidence legally admissible?

2. What procedural steps should be followed for adducing such evidence?

1 Evidence Ordinance No. 14 of 1895 (Cap. 14) amended by Act No. 3 of 1951, Act No. 10 of 1988, No. 14 of 1995, No. 33 of 1998 and No. 32 of 1999. 2 Evidence (Special Provisions) Ace No. 14 of 1995. 3 Ibid,, preamble.

3. To what extent and by what methods may such evidence be open to challenge?

4. How cogent will that evidence be?

Contemporaneous Recordings

Part 1 of the Evidence (Special Provisions) Act of 1995 deals with contemporaneous recordings made by the use of electronic or mechanical means on the basis that it constitutes a species of real, as opposed to oral or documentary evidence. Section 3 of the Evidence Ordinance confined its definition of “evidence” to oral and documentary evidence, but certain provisions of the Evidence Ordinance did empower the court to order the production of a “material thing” as evidence in certain circumstances4. However, despite the non-inclusion of real evidence within the definition of “evidence” in Section 3, our courts have admitted in evidence contemporaneous recordings of public speeches5 and telephone conversations6 preserved through wire or tape recorders. Photographs too have been admitted to show, for instance, that a disputed land was planted with fruit trees7 or that a gate was obstructed by a cement brick wall.8 Assessing the value of photographic evidence, Canekeratne J once said,

“It may be that, cameras do lie (e.g., one not held at eye-level, one with a long focus lens, etc.), but one does not dispense with all witnesses because there are perjurers, If real evidence, (e.g. a knife) can be brought, why not a photograph? If a jury may view a scene, why not a photograph of the scene?”9

Section 4 (1) of the Evidence (Special Provisions) Act of 1995 now enables a party to 1 produce “in any proceeding where direct oral evidence of a fact would be admissible, any contemporaneous recording or reproduction thereof, tending to establish that fact” provided it is shown that,

. the recording or reproduction was made by the use of electronic or mechanical means

2. the recording is capable of being played, replayed, displayed or reproduced in such a manner so as to make it capable of being perceived by (be senses

3. at all times material to the making of the recording or reproduction the machine or device used in making the recording or reproduction, as the case may be, was operating properly

See, the second proviso of Section 60 and Section 165 of the Evidence Ordinance Supra., note 1. s Abu Bakr v The Queen, 54 NLR 566, Kuhrutne and Another i-Ra/apakse, [1985] 1 Sri L.R. 24. 6Sa, In n S.A.Wicknmasinghe 55 NLR 511, KHM.hlKanoiaratne r The Queen, 69 NLR 10

4. the recording or reproduction was not altered or tampered with in any manner whatsoever during or after the making of such recording or reproduction.

The above quoted provision would entide a party-litigant to tender in evidence any-contemporaneous audio or video recording or reproduction made electronically, such as images recorded by an automatic security camera.10 It is noteworthy that there is no definition of “electronic” in the Evidence (Special Provisions) Act, although the term “computer” has been defined in Part IV of the Act.11 The omission to define “electronic” in the Act may be explained on the basis that there is no magic in this word as it is coupled with “mechanical” (which too is not defined), the focus being on the contemporaneous nature of the recording rather than on the means of recording. It is significant that even records made by purely mechanical means, such as the echoes of two ships involved in a collision at sea recorded by radar equipment12 or a printout produced by a breath analysis machine13, may be tendered in evidence under this provision. A recording or reproduction will be taken to have been made by the use of electronic or mechanical means, whether it was made by a single machine or device or by several machines or devices or by different machines or devices, in any combination, with or without the aid of any appropriate equipment or human intervention.14 Thus, the till roles connected to a computer at a Marks & Spencer store which recorded the unique product code of each and every item that went through each cashier, could qualify for admission under Part I of the Act as “contemporaneous recordings” rather than as “computer evidence” under Part II of the Act.15

In terms of Section 4(1) only an electronic or mechanical recording or reproduction tending to establish a fact in issue is admissible in evidence. It would therefore be essential, for instance, to establish the identity of the voice on a tape recording. In other words, the recording must be supplemented by oral evidence so that the voices may be identified in order to make it relevant. Such evidence may, for example, be that of a person who actually heard the conversation or speech. In Abu Bakr v The Queen16a speech made at a public meeting was recorded by a police sergeant using a Webster wire recorder on a particular spool of wire. Not only the police sergeant who recorded the speech, but also the police officer who replayed the sound and made the transcript and another police officer who was present on both occasions, testified in the case with a view of establishing the identity of the person who made the speech in question. In KH.M.H.Karunaratne v The Queen,17 which involved a tape recording of a telephone conversation, the Supreme Court observed that,

10 Ste, R v Dodson Williams [1984] 1 WLR 971 (CA). 11 See, Section 12 of the Evidence (Special Provisions) Act, Supra note 2. 12 Set, the Statue of Liberty [1968] 2 All E.R. 195. 13 See, Castkr Cross [1984] 1 WLR 1372. 14 Section 4 (1) of the Evidence (Special Provisions) Act, Ibid, note 2. 15 Q., R v Shepherd [1993] AC 380 in which the record was treated as “a document produced by a computer” under Section 69(1) of the Police and Criminal Evidence Act 1984. 16 54 NLR 566. 1769 NLR 10.

“It was next urged on behalf of the appellant that, before the tape recorded evidence was acted upon, the trial judge should have considered the evidence of the expert called by the defence at the trial to prove inter alia that: (1) There are dangers in attempting to identify speakers by their voices as relayed through tape-recorders and (2) The dangers attendant upon such identification are greater in a case where what is relayed is a telephone conversation, and that too a tapped telephone conversation. I think the criticism made in this regard is just.”18

An important pre-condition for the admission of a contemporaneous recording in evidence is that the recording should be capable of being played, replayed, displayed or reproduced in such a manner so as to make it capable of being perceived by the senses. It must, however, be noted that this requirement is not an absolute one, and that a transcript, translation, conversion or transformation which is intelligible and is capable of being perceived by the senses may be admitted in evidence where the recording or reproduction itself cannot be played, replayed, displayed or reproduced in a manner to be perceived by the senses, or is otherwise unintelligible to a person not conversant in a specific science, or is not convenient to perceive and receive in its original form.19 Sri Lankan courts have in practice relied on transcripts whenever this type of evidence has been led.20

It is also important to establish that at all material times the electronic or mechanical device used to make the recording or reproduction, as the case may be, was operating properly. Thus in Abu Bakr v The Queen21 evidence was led about the working of the Webster wire recorder sufficient to show that the instrument could accurately record a speech and reproduce it. It is expressly provided that if the machine or device used to make the recording was not operating properly, the recording will still be admissible if “any respect in which it was not operating properly or out of operation, was not of such a nature as to affect the accuracy of the recording or reproduction.”

It is also vital to establish that the recording or reproduction was not altered or tampend with in any manner whatsoever during or after the making of such recording or reproduction, or that it was kept in safe custody at all material times, during or after the making of such recording or reproduction and that sufficient precautions were taken to prevent the possibility of such recording or reproduction being altered or tampered with, during the period in which it was in such custody.

The process of making contemporaneous recordings is fraught with possibilities of such tampering as to render a statement or conversation something quite contrary to what the speaker may have stated in the first instance. As the words or sentences on a recording can be tampered with, the recordings cannot be relied upon without 1 examination of the persons whose statements or conversations have been recorded. The possibility of easy editing or alteration has given rise to practical and theoretical

18 Ibid., page 16. 19 Section 4(2). 20 Abu Bakr v The Queen, 54 NLR 500

difficulties. In case of dispute as to the accuracy of the recording, evidence must be led to discount any tampering with the tape.

The Hearsay Rule

In this context it is necessary to consider whether the provisions of the Evidence (Special Provisions) Act come into conflict with the rule against hearsay. The rule, which has been described as “an instance of application of the ‘best evidence’ rule”,22 is not expressly referred to in the Evidence Ordinance, but the whole structure of the Ordinance leaves no room for doubt that hearsay is meant to be excluded as a rule in criminal as well as civil proceedings. In England, although it has been enacted that “in civil proceedings, evidence shall not be excluded on the ground that it is hearsay”,23 the application of the hearsay rule in criminal proceedings has often prevented the reception of electronic and computer evidence.

For instance, in K. v. Pettigreiv,24 the English Court of Appeal held that a trial Judge had been wrong to admit in evidence a contemporaneous recording produced automatically by a computer belonging to the Bank of England, which tended to prove that the bank notes found in the possession of the accused came from a batch which had been stolen in the burglary with which he was charged. The Court of Appeal ruled that, since they were being asked to rely on the accuracy of a computer printout, and since no witness could claim firsthand knowledge of the information it contained, the contents of the printout must be hearsay. Professor J.C. Smith, who joined the loud chorus of protest against the ruling said in the course of an influential article,

“The information produced by the Bank of England’s computer seems to be exactly the same in principle as that produced by a camera, a tape recorder, a radar speedometer or the radar set in The Statue of Liberty25 When it discards a note, it records that fact. If a movie camera could photograph the rejected notes as they were ejected from the machine, the film would be admissible to prove the number of the rejected notes. The computer has a different and more complex method of recording the same information

The logic of Professor Smith’s argument was subsequently accepted by the Court of Appeal, and in R v Wood,21 in which the computer was used by chemists to perform calculations on data obtained from tests on certain metals and the computer printouts containing the results of these calculations showed that the said metals had an identical

22 G.LPeiris, The Law of Evidence in Sri Lanka, page 42. See also, D.Somasirir The Queen 75 NLR 172 in which the Court held that the testimony of two witnesses that the deceased had a few days before the murder warned the accused not to come to his house because his sisters were there amounted to hearsay, as this fact can only be proved by evidence of a witness who heard the warning being given to the accused, or by the evidence of some conduct or admission of the accused. 23 Section 1 of the Civil Evidence Act of 1995. 24(1980)71CrAppR39. 25 [1968] 2 All ER 195. 26J.C.Smith.”The Admissibility of Statements by Computer”, (1981), Criminal Iaw Review387. 27(1982)76CrAppR23.

chemical composition to some other stock of metal from which the said metals were alleged to have been stolen, Lord Lane CJ observed,

“The computer in the present case was being used as a calculator. It was argued, because the computer was interposed in the course of the production of the final figures, those figures are hearsay… This computer ……did not contribute its own knowledge. It merely did a sophisticated calculation…. The answers produced by the , computer were admissible at common law….”

As far as the provisions of the Evidence (Special Provisions) Act are concerned, it has already been seen that contemporaneous recordings of the type encountered in The Statue of Liberty28and R v. Pettigrew29 are admissible in evidence so long as the conditions enumerated in Section 4 of the Act are satisfied, and the procedure for tendering such evidence laid down in the Act have been complied with. In regard to computer evidence, the crucial thing to look for is the reproduction of factual information keyed in by human agency. This will be hearsay if tendered as evidence of those facts (that is, if the court is asked to rely upon the information as being correct), and the same will be true of material, which is derived, albeit in a processed form, from such information. Section 5(1) of the Act requires that a party relying on any statement produced by a computer should show not only that the computer was working properly but the information supplied to the computer was accurate. Unless the operator can testify, at first hand, as to the accuracy of the input (as was done in R v Wood),30 the output of a computer will then be hearsay. Computerised bank records concerning customers’ accounts represent typical examples of such hearsay evidence. Assuming that the computer printout is being tendered as a true record of relevant transactions, it will be hearsay, except insofar as it shows automatic transactions (direct i debits, etc) performed by the computer itself without direct human intervention, or automatically monitored customer transactions, such as withdrawals from automated teller machines (or ATMs).

Computer Evidence

The pervasiveness and the uniqueness of the computer and the absence of special statutory provisions to deal with computer evidence have created problems in connection with the reception of computer evidence in Sri Lanka and abroad. In R v Coventry Justices, ex p Bu//ara31 where reliance was placed in the Magistrates’ Court on – computerised records to establish the liability of poll tax defaulters, the Divisional Court quashed the liability orders imposed by the Magistrate. Mann LJ observed –

“We know nothing of the operation of the computer which produced the printout. However, it must be the case…. that the outputs are of or are derived from information implanted by a human. They are thus hearsay and inadmissible as evidence

28[1968] 2 All ER 195. 29(1980)71CrAppR39. 30(1982)76Cr App R 23. 3l(1992) 95 Cr App R 175.

of either the amounts which the applicants are liable to pay or of the amounts which are unpaid….”

Similarly, in Benwell v Republic of Sri Lanka32 which was a habeas corpus proceeding arising in the context of an application for extradition made by the Australian Government, three computer sheets purporting to be entries of books of accounts maintained in an Australian Bank tendered in terms of Section 34 of the Evidence Ordinance, were held to be inadmissible in evidence. Colin Thome J. in the course of his judgment made the following observation,

“Computer evidence is in a category of its own. It is neither original evidence nor derivative evidence and in admitting such a document a Court must be satisfied that the document has not been tampered with. Under the law of Sri Lanka computer evidence is not admissible under any section of the Evidence Ordinance and certainly not under Section 34.” •

‘ Section 5(1) of the Evidence (Special Provisions) Act of 1995 now enables a party to produce “in any proceeding where direct oral evidence of a fact would be admissible, any statement produced by a computer and tending to establish that fact” provided it is shown that,

1. the statement in the form that it was produced, or the form in which it is reproduced, is capable of being perceived by the senser,

2. at all material times the computer producing the statement was operating properly

3. the information supplied to the computer was accurate and the information contained in the statement reproduces or is derived from, the information so supplied to the computer.

In this context it is relevant to note that Part II of the Act applies to any statement produced by a computer. The Act has defined a “computer” as “any device the functions of which includes the storing and processing of information.” The Act also defines a “statement” to include “any representation of fact whether made in words or otherwise.” The Act treats any statement as having been produced by a computer, if such statement was produced by a single computer or several computers or any combination of computers or different computers operating in succession in any order. The Act specifically provides that “all the computers used to produce the statement shall be treated, for the purpose of this Act, as constituting a single computer and any reference to a computer in this Act, shall be construed accordingly”. A statement will be taken to have been produced by a computer whether it was produced by it directly, with or without human intervention, or by means of any appropriate equipment. Information will be taken to be supplied to a computer, if it is supplied thereto in any appropriate form whether it is so supplied directly, with or without human

32 [1978-1979] 2 Sri L.R. 194.

intervention, or by means of any appropriate equipment. Information will be taken to be derived or reproduced from information supplied to a computer, if such information is derived or reproduced by calculation, comparison or by any other process of which the computer is capable of.

The proviso to Section 5(1) provides that where information contained in the statement is shown to have been produced by the computer over a period during which the computer was used regularly to store or process information for the purpose of any activity carried on regularly over that period, it shall be sufficient to show that,

a) during the said period that it was regularly supplied to the computer, in the ordinary course of such activity, information of the kind contained in the statement or of the kind from which the information so contained is I derived

b) the information contained in the statement reproduces, or is derived from, information regularly supplied to the computer in the ordinary course of such activity.

An important pre-condition for the admission in evidence of a statement produced by a computer is that the statement is capable of being perceived by the senses. It must, however, be noted that this requirement is not an absolute one, and that a transcript, translation, conversion or transformation which is intelligible and is capable of being perceived by the senses may be admitted in evidence where any statement made by a computer cannot be played, displayed or reproduced in such a manner as to make it capable of being perceived by the senses, or is otherwise unintelligible to a person not conversant in a specific science or is of such a nature that it is not convenient to perceive and receive in evidence, in its original form. Sri Lankan courts have in practice relied on transcripts whenever this type of evidence has been led,31 in the absence of modern equipment such as presentation communicator, illustrator, and visual image printer in addition to flat screens and monitors required for a Digital Evidence Presentation System (DEPS).34 Where evidence is admissible under the Act, a duplicate of such evidence is admissible in the same manner and to the same extent as the source from which the duplicate is made.

It is also essential to establish that at all material times the computer producing the statement was operating properly or, if it was not, any respect in which it was not operating properly or out of operation, was not of such a nature as to affect the production of the statement or the accuracy of the information contained therein. In Bemvell v Republic of Sri Lanka35 the Court of Appeal commented adversely on the failure ] to call the person who operated the computer, which produced the three computer sheets that were sought to be led in evidence, when it decided not to admit such evidence. In some cases, expert evidence might also be necessary in order to explain how a given computer works and why its records are relevant to the facts in issue.

33 AbutiaknTheQueen, 54 NLR 566

If such matters are not adequately proved, whether by expert evidence or otherwise, the computer printouts will remain inadmissible36 In cases involving the alleged misuse of bank cash point or ATM cards, which are likely to occur on a fairly regular basis, the English Court of Appeal has advised that the Crown Prosecution Service should consider devising a standard form of evidence to explain the relationship between the cards, PIN numbers, central bank computers and individual accounts concerned.37 However, under the Evidence (Special Provisions) Act there is provision to file an affidavit from the computer operator and other witnesses, whether experts or not, regarding the functioning of the computer, and oral testimony will be required only if the affidavit is challenged. It has also been held that the computer operator need not necessarily be an expert38.

It is vital to establish in any case in which computer evidence is sought to be led that the information supplied to the computer was accurate and the information contained in the statement reproduces or is derived from, the information so supplied to the computer. The cogency of computer evidence may vary from near-conclusiveness to total ineffectiveness, depending on the evidence itself and on the circumstances of the case, There are, however, certain recognised procedures which it may be advisable to follow in respect of computerised business records, in order to avoid doubts or objections being raised as to the cogency or integrity of the information stored in them. These procedures do not have any force of law, but courts may take account of commercially accepted ‘best practices’ when evaluating the cogency of such evidence.39 It should be noted that issues of admissibility and cogency cannot always be kept distinct. In some cases, failure to adopt procedures for safeguarding the accuracy and integrity of computerised records may result in a court or judge refusing to recognise the authenticity or admissibility of data derived from them.40

Procedure for tendering Electronic and Computer Evidence

Part III of the Evidence (Special Provisions) Act contains certain general provisions, which facilitate the production of electronic, and computer evidence. Section 6(1) of the Act provides for the filing of affidavits in the first instance in regard to the matters enumerated in that Section instead of calling the maker of the affidavit to testify in Court. Section 6(2) expressly provides that in such affidavits it would suffice if any matter is “stated to the best of the knowledge and belief of the person stating it”. The proviso to this section provides that “Court may on application by the opposing party or of its own 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”.

36 R v Cochram [1993] Crim LR 48. 37bid 36 R v shepbard[1993] AC 380. 39 See for example, the BSI-DISC Code of Practice on the Legal Admissibility of Information Stored on Electronic Document Management Systems (PD0008). 40 See in particular Section 69 of the Police and Criminal Evidence Act 1984.

The procedure to be followed by any party seeking to tender in evidence any contemporaneous recording made by electronic or mechanical means or any statement produced by any computer is set out in Section 7 of the Act. The procedure differs from the normal procedure laid down in the Code of Criminal Procedure41 and the Civil Procedure Code42 for the summoning of witnesses and production of documents. While in terms of the Code of Criminal Procedure a list of witnesses and productions is made available with the plaint43 or indictment44, under the Civil Procedure Code a list of witnesses and documents has to be filed at least 15 days before the date fixed for trial of an action.45 However, Section 7 of the Evidence (Special Provisions) Act requires that a list of the proposed electronic or computer evidence be filed at least 45 days before the date fixed for inquiry or trial. Section 7(l)(b) of the Act entitles the party against whom such evidence is proposed to be led to apply for permission to have access to and inspect not only the contemporaneous recordings or statements produced by the computer that is proposed to be led in evidence but also the machine, device or computer which was used to produce the evidence. It is significant that if for some reason the party proposing to tender electronic or computer evidence is unable to comply with the application for access and inspection, the Court may “make such order or give such direction as the interests of justice may require”46. If for example, the machine, device or computer which was used to produce the evidence has broken down and is incapable of being repaired to function normally, the court will call upon a forensic expert to examine the machine, device or computer and provide a report particularly with respect to any data that may be capable of being retrieved from such equipment with a view of authenticating the evidence in question.

It is relevant to note that the Evidence (Special Provisions) Act expressly provides that the court may presume the accuracy of any recording, reproduction or statement produced by, or by the use of, a machine, device or computer, which is in common use.47 It is further provided in the Act that “where the court draws such presumption with respect to any recording, reproduction or statement, in the absence of any evidence to the contrary, it shall not be necessary for any party proposing to tender such recording, reproduction or statement in evidence to show that the conditions set out in the preceding provisions of this Act, relating to the admissibility of such recording, reproduction or statement have been satisfied.”48 Although the presumption can be a boon to a person who relies on a contemporaneous recording or computer statement produced by a device which he does not own or over which he has very little 1 operational control, the absence of any guidance as to the meaning of the phrase”computer which is in common use” could lead to unnecessary litigation. Furthermore, there is no reason for not having a similar presumption regarding the integrity of a recording or statement contained in a computer or device belonging to a party to the proceedings whose interests are adverse to those of the party seeking to introduce the

” The Code of Criminal Procedure, Act No. 15 of 1979 as subsequently amended. 42 Civil Procedure Code No. 2 of 1889 (Cap 101) as subsequently amended. 41 Section 136 of the Code of Criminal Procedure, Supra note 41. 44 Ibid., 162(1). 45 Section 121 of the Civil Procedure Code, Supra note 43. 46 Section 7(l)(d) of the Evidence (Special Provisions) Act, Supru note 2. 47 Ibid., Section 9. 48Ibid.

evidence or with respect to an electronic record maintained in the usual or ordinary course of business by someone who is not a party to the proceedings in which the evidence is sought to be admitted.49

Conclusions

The Evidence (Special Provisions) Act of 1995 has facilitated the reception of electronic and computer evidence by removing obstacles such as the rule against hearsay, which hitherto prevented the admission of such evidence. With respect to contemporaneous recordings made by electronic or mechanical means from a machine or device operating properly, the most crucial issue is whether the recording was altered or tampered with in any manner so as to affect its authenticity and reliability. More often than not the testimony of forensic experts might become important in dealing with this issue. In the case of computer evidence, the issue that is vital is whether the information supplied to the computer was accurate and whether the statement produced by the computer is derived from such information. Here again the testimony of data entry operators who fed information into the computer would be of great importance.

It is important to realise that the Evidence (Special Provisions) Act focuses on admissibility and not on discovery. As far as a criminal investigation is concerned, there does not appear to be any problem regarding the seizure, examination and production in Court, of any device or computer used for the commission of any criminal offence.50 However, as far as civil procedure is concerned, it is unfortunate that the Evidence (Special Provisions) Act does not contain any provisions for the discovery of electronic or computer evidence that may be in the computer or other device belonging to an adverse party. The science of computer forensics has been developed to capture and analyse information contained in computers and other devices, which could prove to be vital evidence in a criminal or civil case. Such data may take the form of deleted email or files as well as fragments of files not overwritten by new data, which are capable of being retrieved with new tools developed by the forensic experts. Such evidence may exist in computers and devices belonging to the adverse party. As the provisions of the Civil Procedure Code relating to discovery may not be capable of being extended to electronic and computer evidence, it has become necessary to amend the Act to provide for e-discovery.

The enactment of legislation such as the Evidence (Special Provisions) Act may not by itself be sufficient to deal with problems arising from developments in technology that have given rise to electronic and computer evidence. It is also necessary to develop the necessary skills among investigators, computer forensic experts, lawyers and judges to deal with issues arising from electronic and computer evidence and to provide the necessary equipment and infrastructure for the Courts to grapple with the challenges provided by this new field of evidence.

49Cf, Section 7 of the Draft Model Law on Electronic Evidence, Commonwealth Secretariat -LMM(02)12 See for example Sections 29, 68, 112(1), 116(3) and 124 of the Code of Criminal Procedure. Section 124 has been amended by Act No. 11 of 1988.