Admissibility of Electronic Evidence
A Note on the Admissibility of Electronic Evidence in light of Shamar Foster v Commissioner of Police and another
The preliminary ruling in the case of Shamar Foster v Commissioner of Police and another 1 provides useful guidance on the admissibility of video recordings under the Electronic Evidence Act (2021 EEA). This commentary examines the court’s interpretation and application of the relevant statutory provisions, highlighting their implications for the admissibility of electronic evidence.
Case Overview: In the case, the Claimant sought to adduce two video recordings; one recorded by the Claimant, and one recorded by a third-party unknown to the proceedings. The Defendants objected to the admissibility of the recordings, claiming a failure to satisfy the requirements of section 83 of the Evidence Act, Cap. 95, which mandates specific proof of the integrity of the recordings. According to the the Defendants, a party seeking to admit electronic evidence had to satisfy both the Evidence Act and the more recent Electronic Evidence Act, enacted in 2021.
Ruling: The court disagreed. It found that the intention of Parliament in enacting the 2021 EEA, was to relax - not burden - the admissibility of electronic evidence. In arriving at her ruling, the Judge noted that the 2021 EEA repealed the qualified presumption of integrity provided under the previous version of the act, to replace it with an unqualified presumption. The requirements which largely mirrored section 83 of the Evidence Act were completely removed in the 2021 EEA. In this sense, the court concluded that the 2021 EEA by implication modified the rules of admissibility and authenticity for electronic evidence. Relying on the maxim lex specialis derogate legi generali, the court found that the 2021 EEA is the governing legislation on the admissibility of electronic evidence.
The current position: Under the 2021 EEA, the integrity of electronic recordings is presumed unless there is evidence sufficient to raise doubts about the accuracy of the recordings. 2 Once the party seeking to adduce electronic recordings provides evidence affirming that the record is what the person claims it to be, 3 the onus is on the objecting party to adduce evidence to raise doubts.
Application in the case: In the case at bar, the authenticity of the videos was proved by persons present at the scene vouching to the accuracy of what was depicted in the videos, and establishing the foundation of how they came upon the videos. It was not necessary for the video to be adduced by its maker or for a certificate of authenticity to be presented. In the absence of evidence to the contrary, it was enough for first-hand witnesses to verify the accuracy of what was depicted in the video.
Conclusion: This decision serves as a pivotal reference for the admissibility of electronic evidence, reinforcing the 2021 EEA’s role as the primary legislation governing such matters.
1 Claim No. CV177 of 2023, preliminary ruling.
2 Section 4 of the 2021 EEA
3 Section 6 of the 2021 EEA
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