FACULTY OF LAW.

NAME: RUGAMBWA ARINDA ISAAC.

STREAM: LLB 3 STREAM A. GROUP A.

COURSEUNIT: EVIDENCE 1.

REG. NO.: AS19B11/380.

LECTURER: MR. EXPEDIT KKAYA.

TUTOR: MR. PIUS KITAMIRIKE.

The decision of Justice Nsekela in Trust Bank Tanzania ltd vs Le-Marsh Enterprises ltd in 2000,
led to the modification in the legislature in Tanzania, albeit on a piecemeal basis, on a course of
amending the Tanzania Evidence Act, first was in 2006, vide Written Laws Act1 by allowing in
evidence in civil proceedings “a printout of any entry in the books of a bank”, and through the
Written Laws Act2 by allowing in evidence “an information retrieved from computer systems,
networks or servers” among others, in criminal proceedings.” This was a response by the
Tanzanian legislature to address the limitations in the Tanzania Evidence Act after the decision in
Le-Marsh, in which an electronic printout of a bank statement was disputed. Justice Nsekela held
that, courts should not be ignorant of the business world and shut its eyes to the mysteries of the
computer. The brief background of the above development in the laws governing the admissibility
of electronic evidence in Tanzania has its roots in the unanimous decision of Justice Nsekela who
upheld the admission of electronic evidence while sitting in the mater of Trust Bank Tanzania
Ltd vs. Le-Marsh Enterprises Ltd3 wherein the appellants disputed the admissibility of a copy of
a bankers’ book as evidence contending that this would inadvertently defeat the best rule of
evidence.

The best evidence rule is a common law rule of evidence which can be traced back at least as far
as the 18th century. In Omychund v Barker,4 Lord Harwicke stated that no evidence was
admissible unless it was the best that the nature of the case would allow. The general rule is that
secondary evidence, such as a copy or facsimile, will be not admissible if an original document
exists, and is not unavailable due to destruction or other circumstances indicating unavailability.
It has been recognized however, that the best evidence rule is no longer as relevant as it once was.
In Kajala v Noble,5 Ackner LJ held that the rule is now confined to written documents in the
strictest sense of the term. Echoing the robust comments of Lord Denning MR in Garton v
Hunter,6He held that the old rule is limited and confined to written documents in the strict sense

1
(Miscellaneous Amendments) Act [Act No.2 of 2006].
2
(Miscellaneous Amendments) Act [Act No.15 of 2007].
3
Trust Bank Tanzania Ltd vs. Le-Marsh Enterprises Ltd (2002) TLR 144.
4
(1745) 26 ER 15.
5
(1982) 75 Cr App R 149.
6
[1969] 1 All ER 451.
of the term, and has no relevance to tapes or films. Lloyd LJ in R v Governor Ex p Osman (No 1)7
observed that the best evidence rule had become a rule of practice or procedure with less or no
effect at all in regards to electronic evidence.

I opine, that indeed, the courts of law ought not be ignorant of the modern business methods and
shut its eyes to the mysteries of the computer, they must have a procedure to follow for the proper
admissibility of evidence in order to establish justice. This coursework research module among
others seeks to discuss, the background and foundation of electronic evidence in electronic form,
the sources of electronic evidence, framework and purpose of electronic evidence, characteristics
of electronic evidence, competence of witnesses, admissibility of encrypted data, collection and
examination of electronic evidence, defeating the hearsay rule, the presumption that computers are
reliable and the software code as the witness in admitting electronic evidence.

George and Stephen Mason8 define Electronic evidence as all information with probative value
that is included in an electronic media or is transmitted by media. Justice Mutonyi while sitting in
the matter of Amongin Jane Fances Akili v Lucy Akello & Anor 9 elucidated on the definition of
electronic evidence to mean any probative information stored or transmitted in digital form like
compact disc in this case that a party at a trial or proceeding may use and further laid down e
detailed procedure for the admissibility of electronic evidence. It is important to note that there are
various sources of electronic evidence which include but are not limited to, all computer devices
and all electronic messages. In regards to electronic devices, when a device that is claimed to be
non-functional is forensically restored or unlocked, it may be possible to discover or infer evidence
of wrongdoing on the device. This is illustrated by the case of Sectrack NV v Satamatics Ltd
10
concerning the misuse of confidential information. In this case, one of the defendants was in
possession of a Blackberry device, which he claimed was frozen or locked. When the device was
‘unlocked’, it automatically downloaded various emails that the defendant received, which
implicated him in the misuse of confidential information. It is important to understand the legal
consequences of the temporary files and cache files. This is exemplified in the case of Atkins v

7
[1990] 1 WLR 277.
8
Stephen M. and George, Electronic Evidence, 4th edition.
9
[2015] UGHC 1.
10
2007] EWHC 3003 (Comm), [7].
Director of Public Prosecutions,11In this case, Dr Atkins, a university lecturer at the University
of Bristol, was charged with the offence of knowingly storing data on the J directory that was
harmful to the students under his instruction.

The judgement of Lord Justice General in the case of M’Garry v Byrne12 remains relevant, and
helps us to put the dilemma of the investigating authorities into perspective when dealing with
encrypted data, “Every man is entitled to the enjoyment of personal liberty, but he forfeits that
right by committing crime and where the criminal law warrants his arrest on a criminal charge, his
personal liberty is unavoidably invaded, not merely by subjecting him to detention, but also to the
extent necessary to enable the police to observe and collect the real evidence afforded by his
person, his apparel, or the contents of his pockets of his connection with the crime and his identity
with the criminal.

In R v ADJ13 the defendant claimed that he could not recall the password, and suggested possible
alternatives, none of which were correct, so the police used password cracking software that took
over four months to identify the password: the encrypted partition revealed a large quantity of
abusive images of children. In Rollo (William) v HM Advocate14 the police succeeded in gaining
access to an encrypted part of a Memomaster notebook by trying a number of combinations, one
of which the appellant’s date of birth was successful

It is prudent to note that by the mere fact that evidence available is in electronic form has not been
an impediment to its admissibility before the courts of law. Judges have admitted digital records
of the product of mechanical devices and automatic recordings, photographs, as seen in R v The
United Kingdom Electronic Telegraph Company Ltd15 where a photograph was admitted to show
the nature of the surface of a highway in respect of an allegation of an obstruction, although
photographs have to be verified on oath to be considered as more than mere pictures, tape
recordings were admitted as evidence in Harry Parker v Mason,16 automated film recordings of
the movements of a ship as traced by radar were also admitted by Sir Jocelyn Simon P while sitting

11
[2000] 1 WLR 1427.
12
1933 JC 72.
13
[2005] VSCA 102.
14
1997 JC 23, 1997 SLT 958 HCJ.
15
(1862) 3 F & F 73; 176 ER 33.
16
[1940] 2 KB 590.
in the matter between The Statute of Liberty Owners of Motorship Sapporo Maru v Owners of
Steam Tanker Statute of Liberty,17 He held that the film recording of a radar set of echoes of ships
within its range was real evidence, even though it was recorded from a mechanical instrument. A
microfilm was admitted as evidence in Barker v Wilson,18 print-outs of test results undertaken on
a breath test machine were also admitted as evidence before court in Castle v Cross,19 video
recordings have also been admitted before court as seen in Kajala v Noble20 and computer print-
outs in R v Wood,21 were admitted before court. The computer was considered as a tool, and the
print-out was an item of real evidence. The basis of admitting a print-out of an output as an item
of real evidence was explained by Professor Tapper22 that evidence derived from a computer
constitutes real evidence when it is used circumstantially rather than testimonially, that is to say
that the fact that it takes one form rather than another is what makes it relevant, rather than the
truth of some assertion which it contains. Sec. 5(1) 23 points out the reliability nature of our courts
in regards to electronic evidence. This therefore means that the courts of law have pronounced
themselves on the types and categories of electronic evidence admissible before it as discussed.

The purpose of electronic evidence was intimated by Tsekooko Aj while sitting in the matter
between Uganda vs David Kamugisha & Anor24 that the question of admissibility of evidence
whether oral or documentary depends on whether it was relevant to the issue before court. The
court in Kakonge Umar vs. Uganda25 held that in order to successfully admit any piece of
evidence, electronic or otherwise, a party must overcome three obstacles (1) authentication, (2)
hearsay, and (3) the best evidence rule. When a document is tendered as evidence of its contents,
it is often accompanied by proof that the document has some specific connection to a person or
organization, whether through authorship or some other relation.26 Sec. 7(2) (a)27 provides for the
assessment of authenticity of a data message or electronic records.

17
[1968] 2 All ER 195.
18
[1980] 2 All ER 81.
19
[1985] 1 All ER 87.
20
(1982) 75 Cr App R 149.
21
(1983) 76 Cr App R 23
22
Tapper, “Reform of the law of evidence in relation to the output from computers” 373.
23
Electronic Transactions Act, 2011.
24
[1988-90] HCB 77.
25
[2020] UGCA 2042.
26
Kenneth S Broun (ed.), McCormick on Evidence, II (7th edn, West Publishing 2013), 83–85 [221].
27
Electronic Transactions Act, 2011.
As noted by Aust J in Australian Securities and Investment Commission v Rich, Authentication
entails showing that the document is what it is claimed to be, not about assessing, at the point of
the adducing of the evidence, whether the document proves what the tendering party claims it
proves.28 Similarly, where any object is tendered in evidence, an adequate foundation for
admission will require testimony first that the object offered is the object which was involved in
the incident, and further that the condition of the object is substantially unchanged.29 The
authentication evidence for electronic evidence is even more critical, and can occasionally be
challenging. The challenge of proving that evidence in digital form is authentic was the subject of
R v Cochrane.30 Authentication evidence may also demonstrate that the errors in question will not
have an adverse effect on the evidence itself. For instance, in DPP v McKeown,31 the clocks on
the Intoximeter 3000 used to measure the breath alcohol values of the defendants were not
accurate. For this reason, the defendants challenged the admissibility of the print-outs from the
device. In addressing whether the accuracy of the clocks was relevant to the accuracy of the print-
out readings, Lord Hoffmann examined the functioning of these devices and concluded that, a
malfunction was irrelevant unless it affected the way in which the computer processes, stores or
retrieves the information used to generate the statement.32 On the facts, the clock was not part of
the processing mechanism of the Intoximeter, and the convictions of the defendants based on the
print-out readings were upheld. In Uganda vs. Serunkuma & Anor,33 cited with approval in the
case of Coil ltd vs. AG,34 court held that, the authenticity and integrity of electronic evidence is
not in question until the party suggesting otherwise can produce evidence to say so. In Amongin
Jane Akili vs. Lucy Akello & The Electoral Commission(supra), Justice Mutonyi further
illustrated in regards to authenticity of electronic evidence that digital evidence is often attacked
for its authenticity due to the ease with which it can be modified although it would be necessary
to sustain an agreement with proof of tampering. It’s worth noting that courts have pronounced
themselves on the unreliability on the authenticity of electronic evidence to mean that the fact that
it is possible to alter data contained in a computer is plainly insufficient to establish

28
Australian Securities and Investment Commission v Rich (2005) 216 ALR 320, [118], [2005] NSWSC 417.
29
Broun, McCormick on Evidence 13–16 [213]
30
[1993] Crim LR 48 (CA).
31
[1997] 1 All ER 737, [1997] 2 Cr App R 155 (HL).
32
[1997] 1 All ER 737, 744.
33
HC CR SC 15/2013.
34
[2020] UGCommC 3.
untrustworthiness as broadly discussed in United States vs. Bonallo 35 as cited with approval in
Commodity Export International Ltd & Anor vs. MKM Trading Company Ltd & Anor.36 While
in Aguitang vs. California State Lottery,37 the court gave the near per se treatment to the
admissibility of electronic evidence by stating that the computer printout does not violate the best
evidence rule because a computer printout is considered an original.

In order to have email evidence admitted at trial, it must be authenticated. Section 8 (2)38 , provides
that, a person seeking to introduce a data message or an electronic record in legal proceeding has
the burden of proving its authenticity by evidence capable of supporting a finding that
the electronic record is what the person claims it to be. This is because emails give rise to the
difficulty of authenticating their actual author; even if they have been sent from one’s email
address. This is because it is possible that anyone can send an email from someone else’s email
address. Additional proof is therefore needed to establish authorship. The Missouri Court of
Appeals, in T.R.P v. B. B, in 2018 confirmed the foundational requirements on the authorship of
the message, and highlighted that evidence of authorship can be circumstantial and need not be
onerous.

Section 5,39 provides for the admissibility of data messages. Section 8 (6)40 of the Act provides
that, for the purposes of determining whether an electronic record is admissible under this section,
evidence may be presented in respect of set standards, procedure, usage or practice on how
electronic records are to be recorded or stored, with regard to the type of business or endeavors
that used, recorded or stored the electronic record and the nature and purpose of the electronic
record. The requirements of admissibility of emails as electronic evidence were laid out by
Magistrate Judge, Judge Paul W. Grimm in Lorraine Vs Markel America Insurance. Co.41 The
Judge refused to allow either party to offer emails in evidence. He found that they failed to meet
any of the standards for admission under the Federal rules of evidence.

35
858 F.2d 1427, 1432-33 (9th Cir. 1988).
36
[2015] UGCA 81.
37
(1991) 234 Cal.
38
Electronic Transactions Act, 2011.
39
Ibid.
40
Ibid.
41
241 F.R.D. 534.
It is worth noting that the position of the law in Uganda in regards to admissibility of emails as
electronic evidence changed with the enactment of the 2011 Electronic Signatures Act to counter
measure the lacunas lamented in the Lorraine decision(supra). Through the use of electronic
signatures, it is possible to reliably identify the signatory. Anyone intending to use this type of e-
signature must however subscribe to platforms of Certification Service Providers in order to be
issued with certificates showing authenticity of the subscriber’s e-signature. Both the signatory
and the person relying on the signature must be in possession of a certificate. In addition to email
certification, one can also embed registered mail within their existing mailing systems. This is
essentially the electronic (email) providing senders with a register enabling the location, delivery
status and reading disposition of their emails to be tracked. This eliminates any claims of non-
received emails.

Cogently, almost everybody now uses digital data, whether their interaction is by way of ether a
terminal linked by software to a server located in an unknown location or from a physical device.
Software code has become part of the everyday fabric of the majority of people. This means we
are all, wittingly or unwittingly, assessing digital evidence every day, from whether to trust that
incoming email from an unknown source, to dealing with the veracity of content from networking
sites. The digital world is now awash with evidence, direct statements over the Internet,
communications between telephones and other devices, messages made by a known author,
anonymously or by somebody that cannot be traced. Every day we are dealing with the multiplicity
of direct and indirect assertions whether factually accurate or not, in the form of statements by one
person or relayed, correctly or incorrectly, by others, the interplay between them and the reality of
the physical world. For the first time, we are all assessing evidence every day. I aver therefore that
it cannot be beyond the ability of lawyers to distinguish between the various components of
language and communications during a trial to test electronic evidence effectively without
complex rules on the admissibility of electronic evidence as discussed above.
 BIBILIOGRAPY.

Statutes.

1. Evidence Act cap,

2. Electronic Transaction Act cap.
3. Electronic Signatures Act. Cap

Case Law.

Books & Articles.