Computer Evidence in Malaysia: Where are We?

Abstract

This paper examines the current practice of the admissibility of computer evidence, in Malaysia, the United States, England and Wales, and Singapore.Amendments to the Malaysian Evidence Act 1950 (EA) in 1993 provided for the admissibility of ‘computer generated documents’ in both civil and criminal proceedings, by way of sections 90A, 90B and 90C. s. 90A(2) provides that the proof that a document was produced by a computer in the course of its ordinary use can be in the form of a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used. This provision has generated a lot of argument on whether a certificate is required in every case where ‘computer generated evidence’ is sought to be adduced. The certificate attests to the authenticity, accuracy and completeness of the evidence rendering attempts to challenge the authenticity and integrity of the evidence largely unsuccessful. Recent amendments in the Evidence (Amendment)( No. 1 and No. 2) Act 2012 have raised further concerns on authenticity and integrity. Other jurisdictions have introduced safeguards in their Rules of Civil Procedure and Practice directions.In the United States of America (US) The Federal Rules of Civil Procedure (FRCP) 34(a) was amended in 1970, to include electronic data. In 2000, amendments to Rule 26(a)(1)(B) made it mandatory to disclose 'data compilations' which include 'computerized data and other electronically recorded information' as materials subject to initial disclosure requirements. Further amendments in 2006 dealt with the issue of electronically stored information. The amendments covered five related areas: definition of discoverable material; early attention to issues relating to electronic discovery, including the format of production; discovery of electronically stored information from sources that are not reasonably accessible; the procedure for asserting claim of privilege or work product protection after production; and a 'safe harbor' limit on sanctions under Rule 37 for the loss of electronically stored information as a result of the routine operation of computer systems.In England and Wales, the Civil Evidence Act 1968, Civil Procedure Rules, the Police and Criminal Evidence Act 1984, the Criminal Justice Act 2003 paved the way for the introduction of computer evidence subject to the proponent demonstrating its authenticity. The Civil Procedure Rules and Practice Directions contain detailed provisions on electronic disclosure. The Rules rather than being mandatory encourage co-operation between parties in relation to searches and preservation of electronic documents.Meanwhile Singapore has kept pace with development relating to electronic evidence in the US, England and Wales. The Singapore Evidence Act 1893 has seen several amendments to include computer output in evidence. Sections 35, 36, and 36A, deal with adducing computer evidence in Court. Computer output maybe admitted in three different ways as evidence in court: by way of express agreement between the parties to the proceedings in both civil and criminal proceedings; by showing that the computer output was from an 'approved process' (where the network is independently audited); and by showing that, in a particular case, the computer output was from a source that was working properly at all material times. Section 35 also provides guidelines on the weight to be attached to the evidence. The recent Evidence Amendment Bill 2012 has substituted references to ‘computer’ and ‘computer output’ with the term ‘electronic records’ which means 'a record generated, received or stored by electro magnetic or other means in an information system or transmitted from one information system to another.' The Singapore courts have also issued Practice Directions on the handling of e-discovery. There is a specific protocol to handle discovery of electronic documents. These are to be produced in their native format for inspection or if copies are requested, in the specified reasonably usable file formats. Thus issues of discoverability and disclosure of electronic documents and their authenticity can be dealt with at the case management stage saving time and costs at the trial stage.Since Malaysia requires pre-trial case management in both civil and criminal proceedings, issues relating to the discovery, disclosure and admissibility of computer evidence can be dealt with at this stage. However, clear guidelines are required to regulate the process.