The Gazette 1992

GAZETTE

JANUARY/FEBRUARY 1992

electronic form will facilitate hear- ing at trial, for such documents may be displayed on a large screen directly from the computer for all to see without any further processing. Evidence f r om compu t e rs The third and final problem to be addressed is not so much the difficulty of dealing with docu- mentary evidence, but with dealing with computer evidence. That is a most difficult subject, for the problems are real and intransigent, but cannot be ignored or avoided. The courts do not have the option, of saying that they will reject evidence based on computer records, for much of industry and commerce is irretrievably com- mitted to it. It follows that the courts are compelled to accept the evidence of computers, imposing such limits as are tolerable and do not have the effect of making such evidence impossible to be led. Those limits, unfortunately, provide little protection from the erron- eously programmed computer, be the error accidental or deliberate. "It follows that the courts are compelled to accept the evidence of computers, imposing such limits as are tolerable . . . Those limits, unfortunately, provide little protection from the erroneously programmed computer, be the error accidental or deliberate." On the other hand, the reliance on computer data bases by the public is extensive. As described at the beginning of this paper, there is and will be considerable reliance in Victoria on computer data bases relating to title to land; to the existence or otherwise of charges on land; to company details; to taxation records; in stock exchange transactions, and in all manner of other things. It would not be acceptable for the law to eschew such reliance and require other proof, when perhaps it is no longer available, or even if it was, no sensible member of the public

the prosecution (on its data base) or the defence (on its data base) cared to allocate to documents. Such systems are attractive, and in New South Wales the Supreme Court is considering whether it should adopt a particular data base program as the standard program so that such listings may be provided to the court in a manner that would allow immediate access and use. The second problem is that of pro- viding copies of the document. The photocopier has met this problem in the past, but is unlikely to main- tain its dominance. At present computers have difficulties be- cause of the need to capture the precise image of the document (so that one may see not only the printed word but also signatures and handwritten notations). Such facsimilies take a great deal of storage space in a computer, and prove beyond the capacity of the computers likely to be employed in litigation. The solution is at hand and lies in the use of optical compact disks. These are capable of holding massive quantities of documents in this form. It may be expected that within the next five years, it will become a practice to convey copies of large quan t i t i es of documen ts by handing to one's opponent an optical disk. Indeed, the documents themselves, in their original form, will probably have been recorded by the client on optical disk and the hard copy destroyed. At present banks in Australia retain banking vouchers on micro-film, but it would be far more efficient to do it on optical disks and no doubt they, together with many others, will do so. The lodgement with a court of documents recorded in facsimile form on optical disks may cause disquiet to those experienced in identifying from the face of the written document erasures and alterations, and thus exposing the dishonest claim. On the other hand, the provision of such documents in

would seek it. In such circum- stances, whatever risks may be inherent in the matter, the courts will be compelled to accept the evidence. Analysis and submi ss i on It is appropriate to conclude with a brief statement of the effect of computers on the analysis of evi- dence and the preparation of sub- missions. There are available systems which facilitate this task and more readily permit the preparation of far more impressive submissions on evidence and law than was previously the case. One such system is basically a data base program on wh i ch the evidence, be it oral or written, may be summarised. The summaries may be linked electronically to the precise passage in the transcript or in the document upon which they are based. This allows the lawyer to check instantly on the accuracy of the summary. The summaries are indexed by both the subject and date, allowing the production of sorted lists by either or both criteria. From this, in turn, there is linkage to a word processing package in which the submission is developed. The existence of information retrieval systems to retrieve case law and statutes theoretically allows the same to be done to the law. In the author's experience, however, the theoretical link does not work well in practice. It is usually more efficient to resort to the printed reports. Perhaps the next generation of lawyers will be better trained in the use of those systems. However, notwithstand- ing the limitations found by the author in case law retrieval, no such limitation has been experienced in retrieving evidence given at a trial. In the latter case, the computer based analysis has worked well, and far more efficiently than any manual system. Conc l us i on The rapid acceptance of computer technology by the whole com- munity means that the jury has

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