Today’s correspondent is part of a private emergency response organisation in Western Australia. Drawing on extensive experience as a WA firefighter my correspondent notes:
In the Govt. fire service of WA (DFES) we had a handwritten daily log book, which recorded all vehicle/staff movements, all visitors to the station, and most importantly, all incidents including times. Locations actions results etc. I was always told it was handwritten because if it was required to be tabled in a coroners court, that would be the only legal way of presenting a credible document given that handwriting can be confirmed. An electronic logbook was not legal as it could be “changed”. Is this correct or can I now implement an electronic version alone (possibly in pdf format?) for my Private sector team? They currently use a handwritten version.
That view is not correct in the 21st century. Modern computers and systems can have data control and revision history so every change can be identified. In any event, a coroner is not bound by the rules of evidence so even if it was true it would not be true in the coroners court – see Coroners Act 1996 (WA) s 41 – “A coroner holding an inquest is not bound by the rules of evidence and may be informed and conduct an inquest in any manner the coroner reasonably thinks fit”. The coroner could accept evidence written on the back of an envelope if there was reason to think it was accurate.
If we assume the rules of evidence do apply then the business records rule. That rule says (Evidence Act 1906 (WA) s 79C):
… in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if —
(a) the statement is, or directly or indirectly reproduces, or is derived from, a business record; and
(b) the court is satisfied that the business record is a genuine business record.
What that means, in context, is if a firefighter could give oral evidence of a fact (eg “we left the fire station at 0915”) then a document recording that fact is also admissible in evidence provided it is a business record, that is ‘a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business’. If there is a log book and its purpose is to record the details of incidents then it is a business record (Business ‘means any business, occupation, trade or calling and includes the business of any governmental body’ (s 79B) so the fire brigade is a business and its records are business records). The reason those records are admissible is that no-one knows everything about a business, a business makes records for its own purposes and they serve the business no purpose if they are not accurate, so the inference is (in the absence of evidence to the contrary) that what they record is correct and they are admissible to prove that what they say happened did in fact happen.
That’s all well and good and applies to the handwritten log book but what of the electronic record? Many business records are electronic, consider the counter on a photocopier machine, or time stamps on pager messages etc. They all represent data stored in a myriad of ways and the data from them is admissible to prove eg that the photocopier made that number of copies or that the pager message was sent at that time, even though they are not a handwritten record.
A document for the purposes of the rule (s 79B) means:
… any record of information and includes, in addition to a document in writing —
(a) any book, map, plan, graph or drawing; and
(b) any photograph; and
(c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other device) of being reproduced therefrom; and
(d) any film, negative, disc, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other device) of being reproduced therefrom;
Where a person types onto a computer program (eg a word processor) they create a document that is stored on a device (I don’t suppose anyone uses ‘disc’ or ‘tape’ anymore) and can be reproduced by hitting ‘print’.
The conclusion is that in today’s world you have to be able to have electronic record keeping whether it’s automatic (such as the time stamp on a pager) or where records are completed and stored online and then printed or otherwise made available for a court if required. What is required is robust security to ensure that the system is secure and that if there are changes made to the documents that can be identified. Note today that paramedic case sheets are being recorded electronically, medical and legal records are stored electronically etc. Even a stand-alone PC with a word processor would provide some of ability to verify if and when documents have been edited but a business would not doubt want something more robust than that.
It is not the case, in 2019, that only handwritten records are considered accurate. If that were the rule modern trade and commerce as well as all aspects of government including health and security would grind to a halt. An electronic log book would be admissible provided that it was the way the business normally went about recording the sort of details recorded. Depending on the nature of the business, a business that wants to satisfy a court that any recored ‘is a genuine business record’ would look to business record keeping systems that could identify how and when records are created and/or altered.