DOCUMENTARY EVIDENCE: TIME FOR STATUTORY UPDATE?

by

G.F. NELSON

SUBJECT: Litigation, Civil ProcedureUnited Kingdom[1992]1 CLJ xii

Documentary evidence may be defined as all documents produced for the inspection of the Court. Historically speaking, it has played a dominant role in the past in many known laws, be they Roman, Greek, Hindu, Islamic etc, and lastly common law.

In Hindu Law

In the Hindu law of Dharma Shastras, documents (lekhya) played an important part. Documentary evidence was classified under three heads, namely:

(1) documents which were executed in the King's Court by King's clerk and attested by the hand of the presiding officer;

(2) purely private ones written by anyone but attested in their own hand by witnesses; and

(3) documents which were admissible being written entirely in the hands of the party itself.

In the Hindu Law of Evidence, in the beginning, documentary evidence was preferred to oral evidence as in the present day, but the Hindu lawgivers were alive to the weaknesses of the documentary evidence and were fully aware that already forgerers were at work. The portions dealing with documentary evidence in Dharma Shastras in later times came to contain elaborate rules, classifying them into public and private, ancient and modern indicating the relative strength of various kinds of documents and the methods of proving them.

The attestation of a document was considered vitiated if the attestation was by a witness who was guilty of having done evil things, or it was written by a scribe of bad character. So too were documents made by women, children, dependants, lunatics, inebriates, or persons under fear, as well as documents

which were against the usage of the country. A document was said to be admissible if it was clear and in accordance with law and contained no erasures of letters. The provisions made in the Dharma Shastras about examination and proof of questioned or suspected document is strikingly modern. There were rules for testing the genuineness of a document by comparison of handwriting, in question, particularly in cases of writers who were dead. The law-givers emphasised the necessity of attestation by witnesses. There seems to have existed some kind of notarial system apparently to safeguard the genuineness of documents. Benami deeds were not unknown.1

In Islamic Law

The juristic bases for documentary evidence may be found in three sources: Koran, Sunnah, and Fiqh.

Koran: Al-Baqarah 2:282 says to the effect:

O ye who believe!

When ye deal with each other,

In transactions involving

Future obligations

In a fixed period of time,

Reduce them to writing.

...

And get two witnesses

Out of your own men.

There seems to be difference of opinion among the leading schools of thought as to whether the requirement above is mandatory or merely recommendatory. Generally the jurists held that it was not necessary that a document should be written in loan cases, as it has been mentioned in the Koran. It was not wajib (commanded) for it was a mere direction. Thus if any person did it, he acted with precaution and thus has not committed any wrong. The jurists supported their view by the Koranic commandment that an Amin should return the property entrusted to him. This view of the jurists was opposed by the followers of the Zahiri school. According to them, the completion of a document in loan cases was commanded and if any person failed to perform it, he was sinful or he committed a sin by not writing the document.2

Sunnah:

Imam Bukhari says that the Prophet had written to the Governments of Khaibar and Rome duly sealed.3

Fiqh:

It is the fundamental principle of the Hanafi school that no reliance should be placed upon writing, because handwriting resembles one another and because writing falls outside the recognised mode of proof, that is testimony, admission or the refusal to take oath. Moreover, the handwriting itself reproduced the original oral evidence which was primary evidence of the writing itself. However, there was nothing which barred the evidence of documents as the people later began to be dependent on them in their transactions. In this manner, the jurists accepted documentary evidence by way of favourable constructions or "istihsan".

The same was recognised by the Code of Mejelle and thus it provided for proof by, say, promissory notes, registers of merchants, business files, etc. provided they were free from taints of forgery and fabrication.4

The Mejelle, a Civil Code, depicting Hanafi law contains several sections touching on documentary evidence. To cite only a few:

69: Correspondence by writing is like talking to one another.

1606: An admission in writing is like an admission by word of mouth.

1607: A person giving another an order to write a confession for him is in effect an admission.

Passages do appear in other leading works on Islamic law touching on documentary evidence, for example Minhaj-et-Talibin under the chapter of "Administration of Justice", in Hedaya under the chapter on Evidence.

What is a "Document"

The word "document" has been defined not only in several statutes, but also decisionally. At common law, the main characteristic of a document is that it should contain and convey information. Although the word primarily applies to information conveyed in writing or by other inscription, in modern times the storing of information in diagrammatic form or computer coding, or the audio or video recording of information is probably equally acceptable.5

Statutory Definitions

Evidence Act, s. 3:

Document means any matter expressed or described upon any substance by

means of letters, figures or marks or by more than one of those means intended to be used or which may be used for the purpose of recording that matter.

Penal Code, s. 29:

The word document denotes any matter expressed or described upon any substances by means of letters, figures, or marks, or by more than one of those means, intended to be used, as evidence of that matter.

Interpretation Act 1967, s. 3:

Document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used or which may be used for the purpose of recording that matter.

Judicial definition:

In Malaysia the word 'document' received judicial attention in the case of Nadimuthu v. PP [1974] 1 MLJ 20 where Ong Hock Sim FJ says thus: "That a medical certificate is a document cannot be disputed"

In the English case of R v. Daye6, Darling J said thus:

On behalf of the bank it has been contended that the sealed envelope and what is inside it does not come within the term 'document'. I think that it is perfectly plain that the sealed envelope itself might be a document. Nothing but the sealed envelope might be required. But I should myself say that any written thing capable of being evidence is properly described as a document and that it is immaterial on what the writing may be inscribed. It might be inscribed on paper, as is the common case now; but the common case once was that it was not on paper, but on parchment; and long before that it was on stone, marble, or clay, and even be and often was, on metal. So I should desire to guard myself against being supposed to assent to the argument that a thing is not a document unless it be a paper writing. I should say it is a document no matter upon what material it be, provided it is writing or printing and capable of being evidence.

In the case of Hill v. R7, Humphreys J said:

Whether I regard the derivation of the word 'document' from Latin, or the decisions of Courts on the meaning of the word, I find that a document must be something which teaches you and from which you can learn something, that is, it must be something which affords information. In the dictionaries the word is repeatedly defined as something which is 'evidence', not in the sense that it is something admissible in a Court of law, but as being something which makes evidence that which otherwise would not be evident. To constitute a document, the form which it takes seems to me to be

immaterial; it may be anything on which the information is written or inscribed - paper, parchment, stone or metal.

After citing R v. Daye (supra) with approval, His Lordship went on to say:

The same point might be taken about an apparently blank piece of paper, that it is not a document, but once secret writing has been developed on it then it might properly be described as a document.

Within the net of 'document' therefore is drawn not only the present-day realities as computer print outs and tape-recordings, but even the ancient clay-tablets of Hammurabi!

For a lawyer, the definitional importance of 'document' becomes very real in another practical respect. Since the literacy rate is improving all around us, most of the transactions between parties are normally reduced to writing or otherwise preserved as a means of perpetuating erasable human memory. In the pre-trial stage known as discovery, each party has access to an exhaustive list of non-privileged documents in the custody, control and power of the opponent. Indeed each party takes an affidavit to the effect that he has no other non-privileged documents other than those declared therein. Since a party will not be permitted, at least in civil cases, to spring any surprise at the trial, he is virtually tethered to his list. This gives a good opportunity for each Counsel to assess, mid-way to trial, the respective strength and weakness of his client's case and able to advise his client whether to trundle on or to call truce, compromise and thus cutting losses while saving Court time.

The word 'document' therefore becomes relevant in the context of pre-trial discovery as well as others, say, subpoena duces tecum. The point may be illustrated by citing two cases. In the English case of Grant v. Southwestern & Councy Properties8, the plaintiff referred in his statement of claim to a conversation being tape-recorded. The defendant served a notice (under our O. 24 r. 10(1) RHC and O. 20 r. 8(1) SCR) requiring the plaintiff to produce the tape-recording for inspection. The plaintiff objected and the defendant applied for an order for delivery up of the tape-recording for inspection. The plaintiff contended, inter alia, that the tape-recording was not a 'document' within the said rule. Held: the tape recording was a document.

There is another English case Senior v. Holdsworth9. In the plaintiff's action for damages for alleged assault by a police officer during the clearing of Windsor Pop Festival site, the plaintiff obtained a witness summons requiring Independent Television News to produce and exhibit all transmitted and untransmitted film taken by their employees during the three-day festival. What the plaintiff was interested in was the untransmitted film snippet showing one punch on the plaintiff's nose at the end of the festival. It was held that such film was "document".

In England through the Civil Evidence Act 1968, the Police & Criminal Evidence Act 1984, and in Australia through the Commonwealth Evidence

Act 1905 s. 7A, document includes such items as disc, tape, sound-track, and any other record of information.

Are our statutory provisions relating to documentary evidence sufficient to cope with the present-day technological strides?

Our Evidence Act 1950 is modelled on the Indian Evidence Act 1872. The Indian Act is a century-old. Sections 61-99 relate to documentary evidence. Documents in addition are subject to the rule against hearsay. In Lim Ah Oh v. R10 Murray Aynsley CJ felt that the rule against hearsay is contained in s. 60 of the Evidence Ordinance. Since under s. 5 of the Act, only facts relevant "and no other" may be adduced, the documents will have to be relevant as declared from s. 17 onwards in the Act.

In the Malaysian case of PP v. Sanassi11 Sharma J felt that our Evidence Act is a complete Code but is exhaustive only on matters which are specifically dealt with in it. It does not contain the whole of evidence. The English case of Bank of England v. Vagliano Bros.12 held that the object of codification is that, on any point specifically dealt with by an Act, the law should be ascertained by interpreting its language, instead of, as before, roaming over a vast number of authorities to discover what the law is, and extracting it by a critical examination of the prior decisions.

However, in India itself, through several cases it has been held that the Indian Evidence Act is not, as held by Sharma J., exhaustive of the rules of evidence. In the Indian Supreme Court case of State of Punjab v. S.S. Singh13 it was held that for the interpretation of the sections of the Act the Court can look to the relevant English common law.

Tape-recording, Videotape, Fax, Computer print-outs, etc.

Malaysia, now in the thick of industrialisation, is one of the leading manufacturers of computer- components. With deep commitment in technology, it may be that our present statutory provisions are inadequate, and lag behind the technological strides characterised by the present-day use of the above mechanical adjuncts. The world of technology is moving at a fast pace. For example, concepts like video-conferencing may soon become common practice, where the directors in multinational corporations may hold conferences involving directors of corporations in different countries without those directors leaving their office; the proceedings may end up in final documentation transmitted across continents. Are our statutory provisions adequate to accommodate these developments?

Definitionally speaking, perhaps even the present provisions may be able to cover all the above technical aids given a more liberal interpretation by the Judges to the word "document".

The law relating to documentary evidence may be updated in one of two ways. Firstly, by judicial activism in the sense that a Judge as, borrowing the

phrase of Bell14, "interstitial legislators" filling the gaps in the Act left by the legislators; the other way is for the Act to be amended.

As for tape-recording, perhaps the leading English case is R. v. Maqsud Ali [1965] 2 AER 464; [1965] 3 WLR 229 CCA. D was convicted of murder, and part of the Crown evidence was a tape recording between D and a co-defendant made while they were waiting in a bugged office in a local Town Hall. After police had left the room, D and his co-defendant discussed the murder in an obscure Punjabi dialect. Not only was the tape in an unknown language but it suffered from considerable interference in recording as the room was directly above a noisy bus stop. In their conversation both defendants made statements that amounted to confessions to the killing. Translations of the taped conversation were prepared. Because of the difficulties of the dialect used, the conversation was first translated from dialect into Urdu, the official language of Pakistan, thence into English. Their Lordships stated:

For many years now, photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that prints are taken from negatives that are untouched. The prints as seen represent situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted, and now there are devices for picking up, transmitting and recording conversations. We see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence.

In the Australian case of Butera v. R [1988] 76 ALR 45, a tape-recording of a conversation among some alleged co-conspirators was admitted into evidence. Part of the conversation was indistinct and most of the conversation was conducted in a foreign language. Interpreters testified as to the contents of the conversation and translated transcripts of the conversation were admitted. Held: when a tape-recording was available or its absence was not accounted for satisfactorily there could be no reason to admit the evidence of an out-of-Court listener to the tape recording to prove what the tape recorded; it should be proved by the playing over of the tape. Generally, the evidence of interpreters should be given orally.

As for videotapes, the route of a videotaped car-chase was received without objection in the English case of R v. Thomas [1968] Crim. LR. 682 to show the scene precisely without the need for recourse to maps and still photographs. Please see also the case of Barber v. Lloyds Underwriters, Times 15 July 1986. In the Australian case of Hyslop v. Australian Paper

Manufacturers [1987] VR 309, the plaintiff claimed damages for personal injuries allegedly caused by exposure to asbestos during the course of employment. The plaintiff was terminally ill and unable to attend Court, and gave evidence on a de bene esse examination which was videotaped. It was held that the video-tape was admissible, especially when the evidence given by the plaintiff was of great probative value.

The problem with judicial activism is that one has to wait for the accident of litigation for the Judge to act on. Even then, if a given case does not go to Supreme Court, one Judge may not agree with the views expressed by another of co-ordinate jurisdiction (which he normally does on grounds of judicial comity) unless, perhaps, the latter is a judicial heavyweight enjoying seniority.

Secondly, the Parliament can immediately make the necessary amendments. Indeed many common law countries such as England, Australia and Singapore have already addressed to the problem of computer print-outs through statutory provisions, for example, s. 35 of the Singapore Evidence Act.

Statutory Provisions For Computer-produced Evidence In Some Common Law Countries

Since there is easy access to the various sections referred to hereunder, the writer does not wish to reproduce those sections verbatim.

Section 5(6) of the English Civil Evidence Act 1968 (CEA) defines 'computer' as any device for storing and processing information. Sections 5 and 6 of the Act contain specific provisions relating to computer outputs in civil cases. Towards reliability there is express provision for the issuance of a certificate by a person holding a responsible position in relation to the operation of the relevant device. For criminal cases, provision is made under ss. 68 and 69 of the Police and Criminal Evidence Act 1984 (PACE) read with Schedule 3, Parts I and II thereof. Section 71 of the latter Act provides also for micro-film copies. There is provision in PACE for a certificate similar to that of CEA by a person holding a responsible position. In addition, it is also provided that the Court may require oral evidence to be given of anything of importance covered by the certificate. There are also penal provisions for anyone providing the certificate which he knows to be false, or does not know to be true.

In Singapore, there are similar provisions contained in ss. 35 and 36 of the Evidence Act. Unlike England, where the computer provisions in civil and criminal cases are contained in two different Acts, in Singapore no distinction is made between the two. The sections apply to "any proceedings". There are penal provisions for an irresponsible certifier. There are also additional filtering provisions contained in s. 35(5) whereby the Court can require oral evidence as well as s. 36(3) whereunder the Court could consider the surrounding circumstances relating to accuracy and in

estimating the weight of evidence. The definition of 'computer' as contained in s. 35(5) seems to be modelled on that of ss. 5, 6 of the CEA. However, in the English PACE there is no definition given for the word.

As for statutory provisions for computer-produced evidence in Australian jurisdictions, two fundamentally different approaches seem to have been adopted.15 These two approaches are simply classified as the "computer-specific" approach, and the "business records" approach. The computer specific approach employs legislative provisions that are specifically directed to the admissibility of computer-produced evidence, whilst the business records approach sees computer-produced evidence merely as one aspect of the general question of admissibility of business records.16

The word 'computer' is defined in South Australian and Tasmanian legislations as:

a device that is by electronic, electromechanical, mechanical or other means capable of recording and processing data according to mathematical and logical rules and of reproducing that data or mathematical or logical consequences thereof.

Mehesz v. Redman (No. 2) [1980] 26 SASR 244 (FC) seems to be authority for the proposition that express statutory provisions can co-exist with common law as regards computer-produced evidence. In that case it was held that the statutory provision in the Evidence Act was in addition to the common law and not in derogation from it.

The main hurdles facing common law admissibility of computer-produced evidence are the rules governing the admissibility of hearsay. If statements of facts are entered into a computer by some person, and subsequently reproduced in some form by the computer with the aim of that form being relied on to establish the truth of the contents of the statements, the evidence is hearsay, and the common law insists that the only way to place such evidence before a Court is by calling the originator of the statements as witness. The admitted ease with which a computer can be manipulated to produce inaccurate data must be taken into account when data from that computer are to be relied on as truthful evidence in litigation.17

Conclusion

In the present-day litigation, the significance of documentary evidence cannot be over-emphasised. One cannot do better than quote a passage from Sir Harry Gibbs' Foreword to Prof. R.A. Brown's eminent book:

One hope for reducing the length and cost of trials (both criminal and civil) lies in the judicious use of documentary evidence. The employment (where possible) of documentary rather than oral evidence, the proper marshalling of the documentary evidence and the prompt production and admission of relevant documents can do much to reduce the length of a trial, particularly in

civil commercial cases and criminal cases involving, fraud, but to a greater or lesser extent in all cases.

It is the writer's humble opinion that the present statutory provisions contained in the Malaysian Evidence Act are not sufficient, despite resort to common law, to cope with all the present-day technical aids such as tape-recording, microfilm, word-processor, computer, video-film, fax etc., and steps towards statutory updating is due.

Endnotes:

1. Woodroffe & Amir Ali, Law of Evidence, 15th Edn., Vol. 1, p. 7

2. Islamic Jurisprudence in the Modern World by A.A. Qadri, p. 65

3. Undang-Undang Keterangan Islam by Dr. Mahmud Saedon Othman, p. 164 and sources cited therein.

4. Qadri, ibid. p. 507

5. Evidence: Cases and Argument by Murphy & Beaumont, p. 449.

6. [1908] 2 KB 333 @ 340

7. [1945] 1 KB 329 @ 332 and 334.

8. [1974] 3 WLR 221;[1974] 2 AER 465

9. [1975] 2 AER 1009 CA; [1975] 2 WLR 987

10. [1950] MLJ 269 CCA

11. [1970] 2 MLJ 198 @ 199

12. [1891] AC 107

13. [1961] AIR SC 493

14. Bell, Policy Arguments in Judicial Decisions, OUP [1983]

15. McNiff "Computer Documentation as Evidence: an Overview of Australian Legislation facilitating admissibility, [1981 1 JLIS 45 cited in Prof. R.A. Brown, Documentary Evidence in Australia, ch 12, p. 313.

16. Prof. R.A. Brown, ibid. p. 313.

17. ibid, p. 315.