Member

207: After Clause 132, insert the following new Clause— “Reliability of computer-based evidence(1) Electronic evidence produced by or derived from a computer, device or computer system (separately or together “system”) is admissible as evidence in any proceedings— (a) where that electronic evidence and the reliability of the system that produced it or from which it is derived are not challenged;(b) where the court is satisfied that the reliability of the system cannot reasonably be challenged;(c) where the court is satisfied that the electronic evidence is derived from a reliable system.(2) Rules of Court must provide that electronic evidence sought to be relied upon by a party in any proceedings may be challenged by another party as to its admissibility.(3) For the purposes of subsection (1)(b), Rules of Court must provide for the circumstances in which the Court may be satisfied that the admissibility of electronic evidence cannot reasonably be challenged.(4) When determining whether a system is reliable for the purposes of subsection (1)(c) the matters that may be taken into account include—(a) any instructions or rules of the system that apply to its operation;(b) any measures taken to secure the integrity of data held on the system;(c) any measures taken to prevent unauthorised access to and use of the system;(d) the security of the hardware and software used by the system;(e) any measures taken to monitor and assess the reliability of the system by the system controller or operator including steps taken to fix errors or address unexpected outcomes including the regularity of and extent of any audit of the system by an independent body;(f) any assessment of the reliability of the system made by a body with supervisory or regulatory functions;(g) the provisions of any scheme or industry standard that apply in relation to the system.(5) For the purposes of this section—“computer” means any device capable of performing mathematical or logical instructions;“device” means any apparatus or tool operating alone or connected to other apparatus or tools, that processes information or data in electronic form;“electronic evidence” means evidence derived from data contained in or produced by any device the functioning of which depends on a software program or from data stored on a computer, device or computer system or communicated over a networked computer system.”Member’s explanatory statement This amendment overturns the current legal assumption that evidence from computers is always reliable which has contributed to miscarriages of justice including the Horizon Scandal. It enables courts to ask questions of those submitting computer evidence about its reliability.