Admissibility of Electronic Evidence Under Section 84

Section 84 of the Evidence Act 2011 governs the admissibility of statements contained in documents produced by computers. Because almost every commercial dispute now turns on emails, bank records, messaging logs or system-generated statements, the section is among the most frequently litigated provisions in the Act.

The four conditions

Section 84(2) requires that the document was produced by a computer used regularly to store or process information for activities regularly carried on; that information of that kind was regularly supplied to the computer in the ordinary course of those activities; that the computer was operating properly throughout the material period, or that any malfunction did not affect the accuracy of the document; and that the information reproduces or is derived from information supplied in the ordinary course of those activities.

The certificate

Section 84(4) permits proof of those conditions by a certificate identifying the document, describing how it was produced, giving particulars of the device, and signed by a person occupying a responsible position in relation to the operation of the device or the management of the relevant activities.

The Supreme Court in Kubor v. Dickson made the consequence of non-compliance plain: a computer-generated document tendered without satisfying section 84 is inadmissible, and its admission by consent does not cure the defect. An appellate court will expunge it.

Certificate or oral evidence?

The certificate is not the only route. Section 84(2) may be satisfied by oral evidence from a witness with the requisite knowledge. In practice the certificate is safer, because it is prepared in advance and cannot be undermined by a witness who turns out to lack familiarity with the system. Where possible, do both: file the certificate and call a witness who can speak to it.

Common failures

Three defects recur. The first is a certificate signed by a lawyer rather than by someone responsible for the device or the relevant activities. The second is a certificate that describes the document but says nothing about the proper functioning of the computer. The third is tendering a printout of a screenshot without any evidence connecting it to a system operated in the ordinary course of business.

Public documents in electronic form

A separate trap arises where the electronic document is also a public document. A computer printout of a public record must satisfy both section 84 and the certification requirements for public documents under sections 102 to 105. Satisfying one does not dispense with the other.

Practical checklist

Before trial, identify every electronic document in the bundle. For each, decide who will certify it and confirm that the person genuinely occupies a responsible position. Draft the certificate to track the statutory language rather than paraphrasing it. Serve it with the pleadings where the rules allow, so that any objection surfaces early.

Conclusion

Section 84 is not a formality. It is a substantive condition of admissibility, and the courts have shown no appetite for relaxing it. The work of compliance is modest; the cost of omission is the loss of the evidence on which the case depends.