Confronting the new frontier of evidence: Are the current rules of evidence in Western Australia capable of dealing effectively with digital evidence?

Digital evidence may be retrieved from mobile phone logs, messages posted on social media websites, information stored on computer hard drives and electronic mail messages. We use information and communications technology driven by digital technology every time we make a call with our mobile phones or withdraw money from an automated teller machine. The growing use of information and communications technology has led to the creation of an abundance of digital material that may become relevant as evidence in a legal dispute. There are numerous differences between digital evidence and hardcopy paper evidence. Some of these differences involve availability of metadata, level of persistence, the level of duplicability and volume, the level of vulnerability to corruption and the ease of modification. Notwithstanding these differences, both digital material and paper material are admitted into evidence in Western Australian courts through a general provision which admits most documents, s 79C of the Evidence Act 1906 (WA). Advances in technology have led to issues such as the development of malware and uncertainty in authorship of digital evidence which create difficulties in assessing the reliability of digital evidence. The last comprehensive review of Evidence Act 1906 (WA) which focused mainly on the admission of computer records and documentary statements evidence was undertaken by the Law Reform Commission of Western Australia in 1980. The amendments which addressed the Commissions were implemented in 1987. Those amendments occurred well before the internet gained global popularity or social-networking was even developed. The current provisions in the Evidence Act 1906 (WA) that admit digital evidence evidence may be outdated as they were developed mainly to deal with computer records that were used as a back-up for hardcopy paper documents and not modern technologies such as digital communication. These provisions do not require authorship of electronic statements to be proven and also do not deal with the inherent reliability issues of digital evidence. Consequently, WA courts may fail in their role as gatekeepers in preventing unreliable evidence from being considered by the juries. These outdated provisions may also be unduly burdensome on litigants who may wish to rely on digital evidence to prove their case