Digital/ Computer evidence in light of the case of
Dato’ Kanagalingam Velupillai v Majlis Peguam Malaysia
The Evidence Act 1950 has kept abreast with advancements in technology such as the default
position and general rule is that where documents produced, and that would include recording or
production of recording via memory car or CD, by a computer is concerned such evidence is
admissible under s90A and the weight attached to it may vary based on the circumstances set out
in S90B of the Evidence Act 1950.
The intention of Parliament was to allow the benefit of new technology to be harnessed
forensically and to overcome technical objections of a copy not being admissible because the
original is not produced or that it is lost , misplaced or irretrievable or what is produced is not a
copy from the original but a copy from a copy ad infinitium.
The default position is that all documents produced by a computer or a statement contained
therein are admissible as evidence of any fact stated therein if relevant. That is irrespective of
whether the person tendering the document is the maker of such documents or statement. This is
endorsed under S90A(1) Evidence Act 1950.
In the event that the person tendering the document is not the maker and there is an issue
whether the document was produced in the course of its ordinary use , the a certificate signed by
the person responsible for the management of the operation of that computer shall be admissible
evidence as prima facie proof of all matters without proof of signature of the person gave the
certificate. (S90A (2) & (3) Evidence Act 1950 )
The added evidential benefit is that such a certificate creates a presumption in favour of the
person tendering the certificate that the computer was in good working order (S90(4) Evidence
Act 1950)
Subsequently, regardless of any intervention the docoument is presumped to have been produced
by a computer (s90A(5) Evidence Act 1950. If there is a suggestion the computer is not in good
working order and not operating properly, then an independent witness who can attest to that
may be called to give evidence as to the document/recording produced was accurate and
authentic.
It should be note that nowhere in S90A it is stated or suggested that if the maker is not called or
that certificate is not produced then the document (for eg CD) cannot be admissible as evidence.
To make it clear, Parliament has expressly stated in S90A(6) computer produced evidence is
relevant and admissible at any stage of the proceedings and the computer that produced the
document shall be deemed to be produced by the computer in the course of its ordinary use.
Hence, taking into account the element of one may tamper with the recordings the Evidence Act
have included S90B to address the issue of weight to be attached to the document admitted
under s90A. It should also be noted that the way the S90A and S90C are worded is such that it is
inclusionary rule admitting evidence rather than exclusionary rule with the default position being
that evidence produced by a computer is generally admissible subject only to the weight to be
attached to it by the Court
Therefore, even if the original document or recording for some reason is not produced because it is
lost, misplaced, irretrievable or the maker cannot be found , that does not prevent the computer
produced evidence in the CD for eg being admitted in evidence. It also does not matter whether
the document produced produced by the computer is an unknown number of reproduction from
the original computer-produced document. The distinction between an “original” and a “copy” of
it or even “copies from a copy” of it or for that matter “copies of copies of copies”, all fade and pale
into insignificance. The ultimate question is whether what is recorded in the document is accurate
or authentic (para109 of the judgment).
In fact the distinction between an original and copies produced by a computer or subsequent
copies of copies is now a distinction without a difference.
Hence, not having the digital camera or the memory card or basically the original is not a barrier to
admissibility by virtue of s90A Evidence Act 1950 which is specifically crafted to cater for computer
evidence.
N/B- failure to call the person who downloaded the video clips from the Malaysiakini website is
not fatal and the important thing is whether what is recorded is accurate and authentic.
The paradigm shift that could be discerned is that the courts are no longer confined to the best
evidence rule but that all relevant evidence is admissible subject only to the weight to be attached
to it where computer -produced evidence is concerned (Kajala v Noble)
