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Evidence (Amendment) Act 2016

PAPUA NEW GUINEA

Evidence (Amendment) Act 2016.


No.37 of 2016


Certified: 13 DEC 2016


ARRANGEMENT OF SECTIONS.

  1. Interpretation (Amendment of Section 1).
  2. Repeal and replacement of Section 8.
  3. Business Records (Amendment of Section 61).
  4. Repeal and replacement of Division IV.5.

No. 37 of 2016.


An Act


entitled

Evidence (Amendment) Act 2016,

Being an Act to amend the Evidence Act (Chapter 48) to provide for admissibility of electronic evidence, and for related purposes,

MADE by the National Parliament to come into operation in accordance with a notice in the National Gazette by the Head of State, acting on advice.

  1. INTERPRETATION (AMENDMENT OF SECTION 1).

Section 1 of the Principal Act is amended by deleting the words "and includes a part of a document" from the definition of "document" and replacing them with the following words:

"a part of a document, or an electronic form of such documents including documents produced using an electronic system or device".
  1. REPEAL AND REPLACEMENT OF SECTION 8.

Section 8 of the Principal Act is repealed and replaced with the following new section:

"8. IMAGES OF SEALS, SIGNATURES, ETC.
(1) Where-
the Court shall take judicial notice of the image of the seal or signature on the reproduction to the same extent as it would be required to take judicial notice of the seal or signature on the document.
(2) For the purposes of this section, seals and signatures include electronic seals, electronic signatures, and electronic certificates, or any other electronic form of verification.".
  1. BUSINESS RECORDS (AMENDMENT OF SECTION 61).

Section 61 of the Principal Act is amended -

(a) by repealing Subsection (1) and replacing it with the following new subsection:
(b) in Subsection (4) -
(c) by adding, after Subsection (5), the following new subsection:
  1. REPEAL AND REPLACEMENT OF DIVISION IV.5.

Part IV of the Principal Act is amended by repealing Division 5 and replacing it with the following:

"Division 5. - Electronic Evidence.
64. INTEPRETATION OF DIVISION 5.
(1) In this Division, unless the contrary intention appears –
(2) Where during a period the function of storing or processing data for the purposes of activities regularly carried on over the period, whether for profit or not, was regularly performed using an electronic system or device, all the electronic systems or devices used for that purpose during the period shall be treated, for the purposes of this Division, as constituting a single electronic system or device, and references in this Division to an electronic system or device shall be construed accordingly.
(3) For the purposes of this Division -
(4) The provisions of this Division shall be interpreted and enforced in light of the internationally accepted principles of technological neutrality and of functional equivalence.
65. ADMISSIBILITY OF ELECTRONIC EVIDENCE.
(a) In applying any existing rules or statutory provisions relating to the admissibility of records, the Court may have regard to the principles guiding the admissibility of electronic records as prescribed under this Division.
(2) Nothing in this Act or any rules governing evidence shall apply to deny the admissibility of electronic evidence solely on the ground that it is in electronic form.
66. EXISTING RULES OF EVIDENCE.
The provisions of this Division are in addition to and not in derogation of any powers, rights or rules of evidence given or prescribed by this Act or any other law.
67. INTEGRITY OF ELECTRONIC SYSTEMS.
(1) Subject to Subsection (2), in any legal proceedings, where the original of an electronic record is required to be given in evidence, the requirement is satisfied on proof of the integrity of the electronic system or device by which the data was recorded or stored.

(2) In the absence of evidence to the contrary, the integrity of the electronic system or device in which the electronic record is recorded or stored is presumed in any legal proceeding where -
67A. PROOF OF ELECTRONIC RECORDS.
(1) In any legal proceedings, a statement contained in an electronic record produced by an electronic system or device shall not be admissible as evidence of any fact stated in the electronic record of which direct oral evidence would be admissible, unless the integrity of the electronic system or device is presumed under Subsection (2).
(2) In the absence of evidence to the contrary, the integrity of the computer in which an electronic record is recorded or stored is presumed in any legal proceedings if the transaction record -
(3) For the purpose of deciding whether or not a statement in an electronic record is admissible in evidence under this section, the Court may draw any reasonable inference from the circumstances in which the statement was made or otherwise came into being or from any other circumstances (including, in the case of a statement contained in an electronic record, the form and contents of that electronic record).
(4) Where, in any legal proceedings, it is desired to give a statement in evidence under this Division, a certificate -
is evidence of any matter stated in the certificate.
67B. PRINTOUTS.
Where, in any legal proceedings, a statement contained in an electronic record is proposed to be given in evidence under this Division, it may be proved by the production of the electronic record or (whether or not the electronic record is still in existence) by the production of a printout of the electronic record or of the material part of the electronic record, if the electronic record in the form of a printout has been -
as the record of the data recorded or stored on the printout.
67C. BURDEN TO PROVE AUTHENTICITY.
In any legal proceedings, the burden of proving the authenticity of electronic records lies with the party proposing to give it in evidence.
67D. STANDARDS.
(1) For the purposes of this section, 'Authority' means the body responsible for regulating the Information and Communication Technology industry including the development or approval of relevant technical standards or cybersecurity procedures.
(2) For the purpose of determining, under this Act or any other law, whether an electronic record is admissible -
67E. AFFIDAVITS.
Where a party to or a person interested in any legal proceeding desires to give an electronic record in evidence, he may do so in the form of an affidavit.
67F. CONSENTING TO ADMISSIBILITY OF EVIDENCE.
(1) Subject to Subsection (2), and unless otherwise provided in this Act or any other law, an electronic record is admissible, subject to the discretion of the Court, if the parties to the proceedings have expressly consented at any time that its admissibility may not be disputed.
(2) A consent entered into under Subsection (1) does not render the record admissible in a criminal proceeding if, at the time the consent was reached, the accused person or any of the persons accused in the proceeding was not legally assisted or represented.
67G. ELECTRONIC SIGNATURE.
(1) An electronic signature is not without legal force and effect merely on the ground that it is in electronic form.
(2) An electronic signature may be proved in any manner, including by showing that a procedure existed by which it is necessary for a person in order to proceed further with a transaction, to have executed a symbol or security procedure for the purpose of verifying that an electronic record is that of the person.
(3) Where the law requires the signature of a person, the requirement is met by an electronic signature if the electronic signature that is used is as reliable and as appropriate for the purpose for which it was generated or communicated, in all the circumstances including any relevant agreements.
(4) Subsection (3) applies whether the requirement for signature is in the form of an obligation or the law provides consequences for the absence of a signature.
(5) Parties may agree to use a particular method of electronic signature, unless otherwise provided by law.
(6) Where an electronic signature is required by the parties to an electronic transaction and the parties have not agreed on the type of electronic signature to be used, the requirement is met in relation to the data message if -
(7) Subsection (6) does not limit the ability of a person to -
(8) A person relying on an electronic signature shall bear the legal consequences of his failure to take reasonable steps to verify the reliability of an electronic signature.
67H. ALTERNATIVE TECHNIQUES AND PROCEDURES FOR PRODUCTION OF ELECTRONIC EVIDENCE.
In addition to the means of proof referred to in the preceding sections in this Division, electronic evidence may be produced with regard to certain electronic records by means of alternative techniques and procedures, such as attestation by notaries public or justices of the peace or by other such authorities, recording on non-rewritable medium, and electronic forensics in the course of judicial discovery.
67I. ADMISSIBILITY OF ELECTRONIC RECORDS FROM OTHER COUNTRIES.
(1) Where electronic evidence originates from another jurisdiction, its admissibility is not impaired if the integrity of the electronic system or device associated with the relevant electronic evidence is proven or presumed in accordance with Section 67(2)(a) and Section 67A(2) of this Act.
(2) In determining whether or not, or to what extent, record in electronic form is legally effective, it is immaterial where the record was created or used or the place of business of its creation, provided the electronic record is located in domestic jurisdiction.
(3) Where the electronic record is located in a foreign jurisdiction, it will not be admissible unless -
67J. WEIGHT TO BE ATTACHED TO ELECTRONIC RECORDS.
In estimating the weight (if any) to be attached to a statement in an electronic record admissible in evidence under this Division, regard shall be had
had any incentive to conceal or misrepresent the facts.".

I hereby certify that the above is a fair print of the Evidence (Amendment) Act 2016 which has been made by the National Parliament.

Acting Clerk the National Parliament. 13 DEC 2016

I hereby certify that the Evidence (Amendment) Act 2016 was made by the National Parliament on 11August 2016.

Acting Speaker of the National Parliament. 13 DEC 2016

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