The Gazette 1992

GAZETTE

JANUARY/FEBRUARY 1992

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

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

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

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