On 8 December 2009 the Supreme Court decided DPP v Chao  VSC 562.
Mr Chao was accused of possessing child pornography found on a computer hard-disk-drive (HDD) he left with a computer repairer. (Possession wasn’t argued in this appeal, but it’s settled law that the offence requires knowing possession: Police v Kennedy (1998) 71 SASR 175; R v Land  QB 65 at 69 – 71.)
The police relied on evidence from a police officer (who since left the police force) who had examined the HDD and its contents.
Mr Chao’s barrister objected to evidence of the contents of the HDD.
 At this stage of the proceedings senior counsel for the respondent indicated that he objected to any further evidence being given in that context “…because any information that Mr Knott has derived has been derived from the computer and, unless certain prerequisites are satisfied, what he reads from the computer and information he derives from the computer is inadmissible.” He then referred the Magistrate to s 55B of the Evidence Act (1958) identifying the requirements and submitting that what is read from a computer is not admissible unless the pre-conditions are satisfied or by the prosecution being able to “satisfy various common law requirements”.
Section 55B of the Evidence Act 1958 relevantly provides:
55B. Admissibility of statements produced by computers
(1) In any legal proceeding where direct oral evidence of a fact would be admissible, any statement contained in a document produced by a computer and tending to establish that fact shall be admissible as evidence of that fact, if it is shown that the conditions mentioned in subsection (2) are satisfied in relation to the statement and computer in question.
(2) The said conditions are—
(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by any person;
(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) that throughout the material part of that period the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
(d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
Ultimately, Lasry J accepted that s 55B applied to the evidence the prosecution wanted to adduce, and decided the magistrate was correct to exclude it.
Section 55B is in Part III, Division 3 of the Evidence Act 1958. Part III, Div 3 will be repealed with effect from 1 January 2010 by s 15 of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009.
Because those provisions are different in their purpose, I suspect the effect of DPP v Chao will be fairly short-lived.
In any event, on my reading of the case, I think the argument in Chao incorrectly categorised the evidence and the Court made the wrong decision.
Section 55B applies to documents — which can encompass HDD-contents, by virtue of the definition in s 3 — when they are to be tendered in evidence in place of oral evidence. Note the opening words of sub-section (1): “In any legal proceeding where direct oral evidence of a fact would be admissible…”
The effect of s 55B is to exclude documents from evidence, in place of oral evidence on the point to be proved, unless the prescribed criteria are met.
It says nothing about evidence of the content of a document, or about the direct oral evidence of the facts that might also be produced by computer and contained in that document. To argue that the oral evidence was inadmissible because the the document was, was to put the cart before the horse.
But, because these provisions are about to be repealed, it won’t matter much in about 21 days.
addendum A few weeks ago lawyer Peter Black wrote an interesting article on his blog, E-courts only work with e-judges and e-lawyers. I think some of his points there might have applied in this case.