1. In this appendix we comment on some legislation in other Australian States which affects the admissibility of statements in business records as evidence. We comment first on the provisions introduced into the Victorian Evidence Act 1958 by the Evidence (Documents) Act 1971. These provisions fall into three parts.

2. First, section 55 provides for the admissibility of documentary evidence. In civil proceedings a statement in a document is admissible if made by a person having personal knowledge of the matters in the statement. In civil and criminal proceedings a statement in a document is admissible if the document is, or forms part of, a business record made in the course of the business from information supplied by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information. In each case admissibility is conditional upon the person who made, the statement or who supplied the information being called as a witness or it being shown that his evidence is not available for one of the reasons specified in the section. The court may, in its discretion, admit such a statement notwithstanding that such a person is available but is not called as a witness. It thus follows the course which we criticise in relation to civil proceedings in paragraphs 54 and 55 of the Report. Section 55 is a modernized form of Parts IIA and IIB of the Evidence Act, 1898, and serves the same purpose.

3. Secondly, section 55B¹ provides for the admissibility in civil and criminal proceedings of statements in documents produced by computers. The main conditions required for admissibility are that the document was produced during the period during which the computer was regularly used to store. and process information for the purpose of any activities regularly carried on over that period whether for profit or not; 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; and that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities. Fulfilment of any of the conditions of admissibility may be proved by a certificate purporting to be, signed by a person holding a responsible, position in relation to the computer or to the management of the relevant activities whichever is appropriate. The court may in its discretion reject any statement “if for any reason it appears to it to be inexpedient in the. interests of justice that the statement should be admitted”.

4. A number of criticisms may be made of this provision. The first criticism is that, although there is a discretion to reject, there is no condition of admissibility which requires the information supplied to the computer to have any particular standard of reliability as is the case with statements in business records not produced by a computer which are admissible under section 55. There is no practical reason for not specifying a standard of reliability for the source material whether or not the record in question was produced by a computer. We think that, in failing to specify such a standard of reliability, section 55B goes further than is either necessary or desirable to, meet the practical necessity for the admission of statements in documents produced by computers.

5. The second criticism of section 55B is -that the provision for proof by certificate that the conditions of admissibility have been fulfilled goes too far. A party against whom such a certificate was tendered might often find it difficult to claim effectively that oral evidence of the matters in the certificate should have been called because he would ordinarily have no, knowledge or means of knowledge of the record-keeping process in question. We think that an opportunity for cross-examination should be given by requiring oral or affidavit evidence of such matters. ²

6. The third criticism of section 55B involves a comparison with section 55. It depends upon the fact that any system of records may be kept or produced either by the use of computers or by other means. The different standards of reliability imposed by sections 55 and 55B produce anomalous results. Take for example hospital records. These are now kept by use of computers in some hospitals in circumstances which would satisfy all the requirements of admissibility imposed by section 55B. A statement in a print-out of such a record would be admissible as evidence of the facts asserted. If the records were. kept in the usual written form, and the same statement appeared in them, the statement would not be admissible under section 55 unless there was evidence that the person who made the entry or supplied the information from which it was made had personal knowledge and was not available as a witness, or pursuant to an exercise of the court’s discretion. Another example is provided by credit bureau operations. A print-out from the records of a credit bureau if kept by use of a computer would be admissible under section 55B as evidence of the facts asserted. But if the records were kept in a written form, a statement in the records would not be admissible under section 55 without proof of knowledge and unavailability of the person who, supplied the information, or in the discretion of the court as mentioned above. A print-out of the closing price of shares on the New York Stock Exchange made by the Sydney Stock Exchange computer would be admissible evidence under section 55B of that fact, a similar statement in the New York Times would not. The law of evidence requires reform, but not by providing that a statement in a document produced by a computer should be admissible when the same statement in a document produced by equally reliable means is not.

7. The third provision made by the Victorian Evidence (Documents) Act 1971, was to substitute in place of the provisions of the Evidence Act 1958 relating to the admissibility of entries in bankers’ books, a general provision that an entry in a book of account used in the ordinary business of a bank or in the ordinary course of any other business “shall be prima facie evidence of the matters transactions and accounts therein recorded”. The term business is widely defined. See sections 3, 58A-58J.

8. The only distinction in substance between these provisions and the business records exceptions we proposed is that our proposal extends to the whole class of business records, not only to books of account and, therefore, contains additional specific safeguards of reliability. It might be said that books of account, as defined, are inherently more trustworthy -than other business records. But is say a stock card of so much greater inherent reliability than say a hospital record, a firestation log, a police accident report or an employment record recording information supplied in the course of business by a person engaged in the business having personal knowledge of the matters in question, that the former should be admissible and the latter not? Both books of account and other business records may vary greatly in reliability. The better course is that all should be made admissible, reliability becoming a question of weight only.

9. The Tasmanian Evidence Act, 1906-1967, contains provisions in similar terms to Part IIA of the Evidence Act, 1898. In 1966 a new section 40A was inserted which created an exception to the hearsay rule for business records applicable to both civiland criminal proceedings, in very much the same terms as that in the United States Uniform Rules of Evidence. We think that an amendment in such terms must invite the raising in a local context of all the legal questions on the American statutory exceptions which have been raised in the American courts and some of which remain undecided. To adopt the language of any of the American exceptions seems to us to invite continuous reference to American case law. This has indeed been the tendency in Tasmania. This is highly inconvenient because of -the bulk and limited accessibility of this material. ³

10. The South Australian Evidence Act, 1929-1972, contains provisions in the same terms as Part IIA of the Evidence Act, 1898. In 1972, a new section 45a⁴ was inserted providing a business records exception applicable to both civil and criminal proceedings. Subsections (1), (2) and (3) of that section are as follows:

(1) An apparently genuine document purporting to be a business record-

(a) shall be admissible in evidence without further proof; and
(b) shall be evidence of any fact stated in the record, or any fact which may be inferred from the record (whether the inference arises wholly from the matters contained in the record, or from that matter in conjunction with other evidence).

(2) A document shall not be admitted in evidence under this section if the court is of the opinion-

(a) that the person by, or at whose direction the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document;
(b) that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c) that it would be otherwise contrary to the interests of justice to admit the document in evidence.

(3) For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.

2 Admissibility under s. 5 of the English Civil Evidence Act 1968 is subject to rules of court which, in the case of the High Court, require the appropriate persons to be available for cross-examination if desired. See Order 39i rules 20-26.

3 In the only reported decision on the section, O’Donnell v. Dakin [1966] Tas. L.R. 87, Burbury, C.J., after an examination of American decisions and texts, and observing that some cases were not available in Hobart, held that an entry in a hospital record as to sobriety fell within the section. In an unreported decision, Mather and Deegan v. Morgan, 12th July, 1971, the Full Court in deciding whether entries in documents were made in the regular course of business referred to Wigmore, McCormick: Evidence (a leading American textbook), and to an article “Revised Business Entry Statutes, Theory and Practice”, 48 Columbia Law Review, 920.

4 By Act No. 53 of 1972.