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Admissibility of Electronic Evidence in Ghanaian Practice

Posted in Evidence, Law and Technology1 month ago • Written by Elorm Kwame Kota Zormelo5 Comments

cb4abc_bfac82f2841f49e6828637adb69a44ef-mv2_d_2800_1400_s_2While some look to the internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumour, innuendo and misinformation.”[1]

This statement, made by a Texas court in 1999 is unlikely to be taken seriously by any lawyer or court in the year 2018. It was, however, very much the position of not only American courts but, as one can imagine Ghanaian courts, for many years. The courts can hardly be faulted for having taken this stance because their constitutional duty is to administer justice, not to create it. This justice takes expression in laws passed on the people’s behalf in parliament and it is through these laws that the courts, for the most part, administer justice. Fortunately, the people of Ghana determined through the Electronic Transactions Act 2008 (Act 772) that electronic evidence or ‘electronic record’ is an admissible form of evidence.

Ten years after the passing of Act 772, the application of its provisions on admissibility are more germane than ever. This article discusses the application of this rule of the admission of digital evidence in Ghanaian legal practice.

The advent of the use of electronic evidence in trials is a phenomenon which some saw coming from a mile away. Grimm J predicted in  Lorraine v Markel American Insurance Company that “because it can be expected that electronic evidence will constitute much if not most  of the evidence used in future practice or at a trial, counsel should know how to get it right on the first try.”[2]

It appears that the future about which Grimm J spoke is upon us (or at least very nearly upon us) in Ghanaian practice. Digital technology permeates every facet of our daily lives. From the means by which most people communicate, to how we regularly access news and general information, broadcast our thoughts and opinions, advertise our businesses and navigate unknown locations, digital technology plays a role. This means that evidence can be extracted from this technology to attempt to prove different types of facts in issue. These could include; negotiations regarding a contractual transaction made through SMS, instant messaging applications or email,[3] social media entries and postings in a defamation suit,[4] alleged fraudulent activity on merchant websites such as Amazon or Tonaton,[5] and even metadata of computer programs to show trademark and copyright infringement in intellectual property disputes involving technology product.[6]

The Electronic Transactions Act 2008 refers to electronic evidence as “electronic record” which includes data generated, sent, received or stored by electronic means, voice where voice is used in an automated transaction and a stored record.[7]

The Act provides specific rules by which courts should admit electronic evidence.[8] It is important to note, however, that the general rules regarding admissibility of evidence cannot and are not replaced by the rules on admitting electronic evidence. The fundamental rules of “relevancy” contained in the Evidence Act 1973[9] are applicable in assessing the admissibility of any form of evidence including that which is electronic in nature. In this regard, the Electronic Transactions Act states that it “shall not be interpreted so as to exclude statute law or the principles of the common law being applied to, recognising or ac­commodating electronic transactions, electronic records or any other matter provided for in the act.[10] What the Electronic Transactions Act adds to the law on the admissibility of evidence is a set of important metrics specifically useful in aiding a court to assess the ability of electronic data to render a fact in issue more or less probable.

A Closer Look at the Admissibility Metrics

Act 772 provides four metrics by which the court should determine the degree of weight to be attached to electronic evidence. [11]

(a) The reliability of the manner in which the electronic record was generated, displayed, stored or communicated.

The class of terms “generated, displayed, stored, or communicated” presented in this provision, suggests that this first metric deals with the original medium from which the evidence to be adduced exist or existed. If it is a medium which generates data, then it must be a reliable one. The same standard applies to mediums which display, store or communicate electronic evidence.

The reliability of a medium of electronic evidence depends on the type of medium it is. The courts may determine this reliability by their own analysis or with the assistance of a forensic expert. Judicial notice[12] may be taken of certain mediums which are commonly known to generate, display, store or communicate information, particularly where the medium’s reliability has not been raised as an issue of dispute between litigant parties. An email inbox, for example, is commonly known to store emails sent to a particular email address from the same or other email addresses. The Supreme Court in International Rom v Vodafone Ghana did not question the reliability of an email sent from a public official in determining the degree of weight to be attached to it.[13] Metadata (data that provides information about other data) on the other hand may require the assistance of a digital forensic expert to ascertain whether or not it is an authentic means of presenting the data which it purports to present.

In the United States case of US v Jackson, a forensic expert was appointed by the court to testify as to whether or not notes taken by an agent of the Postal Investigation Service, could be considered reliable. The agent, acting undercover, posed as a fourteen-year-old girl and entered into ‘online chat’ conversations with the defendant. No original transcripts of the conversations, original print-outs, or copies on floppy discs, hard drives or disc drives that recorded the conversations were tendered into evidence. Rather, the agent had copied, pasted and saved the conversations had with the defendant chronologically in Microsoft word. Crucially, in this case, a digital evidence expert gave evidence that it was more appropriate to take a forensic copy of the hard drive to confirm the communications that were recorded, and if that was not possible, then there were other ways to accurately save computer chats. In his opinion, the method employed by the Agent was the least effective way to record the chat log. This expert opinion contributed to convincing the court that the document could not accurately represent the charges against the defendant and the evidence was held to be inadmissible.

Discussions of digital forensic experts may appear theoretical and alien in relation to legal practice in Ghana but this is actually not so. In the recent case of Republic v Alexander Tweneboah, testimony was taken from a Ghanaian digital forensic expert of E-Crime Bureau, a Ghanaian based digital forensics agency.

 (b) The reliability of the manner in which the integrity of the information was maintained

The next metric provided to assess the admissibility of electronic evidence is whether the integrity of the evidence being sought to be introduced has been properly maintained. Integrity in the context of electronic evidence refers to evidence being complete and unaltered.[14] While the previous metric deals with the authenticity of the medium, this deals with the accuracy and completeness of what it purports to portray.

The Canadian case of R v Oler[15] which dealt in part with the issue of the integrity of electronic evidence is useful in putting this requirement into more practical terms. In this case, the integrity of digital electronic evidence regarding the defendant company’s maintenance logs, maintenance records, certificates of annual inspection, maintenance manuals, technician worksheets and site installations worksheets compiled on Compact Disc was in question. The various records went through a process where handwritten notes were taken and then rekeyed into a Microsoft Word format, while others were captured in the form of scanned PDF documents. The Court having considered evidence from witnesses who were responsible for the entering of information into the organization’s Record Management System and organization’s data found it ‘critical to the integrity of the … system that the original document… be an exact reproduction of the original’. Evidence, however, showed that some of the information that was copied into a Word document from a handwritten note was not identical in content to the handwritten note. The integrity of the evidence, therefore, had been compromised as the original information had not been captured in a complete and unaltered manner.

In Republic v Alexander Tweneboah, the Financial and Economic Division of the Accra High Court admitted electronic evidence of the accused’s email activity, Skype conversations, a contract entered into by him and his internet browser activities to prove a charge of illegally providing mobile communication services through a medium commonly known as “sim-boxing.”   This information was extracted from his laptop hard disk and reproduced on Compact Disc (CD). The court, however, rejected a report accompanying the CD because it did not fully capture the electronic evidence contained on the accompanying CD.[16] Clearly, the report could not be said to be a complete and unaltered representation of the conduct for which the accused had been charged. It, therefore, lacked integrity as required by the Electronic Transactions Act.

 (c) The manner in which its originator was identified

This provision may be applied where the technical means of ascertaining the originator, .i.e. the person who or on whose behalf the electronic evidence is purported to have been generated or sent, is in question. The nature of electronic mediums means that although a person may own a laptop, phone or even email address, he may not necessarily be responsible for authoring the data that is attributed to these mediums. Here, the court may hear technical evidence to determine whether the manner of identification of the alleged originator is reliable enough to assign the evidence to him.

In an English defamation case, Bussey Law Firm PC v Page,[17] the defendant argued that he was not responsible for defamatory statements made from his Google account and that his email address might have been hacked by a third party to post the offending statement. The second claimant in order to counter this argument subpoenaed the records of Google which indicated that the statement had been made from the email account of the Defendant. The Defendant proffered no evidence to show that any hacking had occurred. The court in this instance found that the overwhelming likelihood was that the defendant had authored the offending statement. The lack of evidence showing any hacking as well as the lack of any conceivable reason why a third party would use the Defendant’s email account contributed to the court finding in the Claimant’s favour. In this case, the court applied a balance of probabilities test based on the available evidence to determine whether the manner in which the originator was identified was acceptable.

It is possible also, that this metric may stretch to cover due process and whether or not privacy rights were violated in identifying the originator.  In Ackah v ADB,[18] the Supreme Court dealt with the issue of whether evidence obtained by the breach of a party’s fundamental rights ought to have been excluded in the disciplinary proceedings against her. The court stated that the appropriate approach is to apply the “balancing doctrine” which entails weighing the rights of the opposing parties to determine which one ought to prevail under the circumstances of the case.[19] It remains to be seen whether or not the Ghanaian courts will consider issues of privacy and due process under this third ground.

 (d) Any other facts that the Court may consider relevant.

The Supreme Court in International Rom v Vodafone Ghana,[20] provided direction on what this element entails stating,“[t]his requires that any other pieces of evidence on the same issue be considered in order to arrive at a conclusion on the weight to attach to the issue.”[21] Here, the court was to determine whether International Rom Limited with whom the Defendant had entered a contract had ceased to exist. “International Rom” was the Mauritius based parent company of an external company incorporated in Ghana. The Defendant sought to rely on an email from the Chief Compliance Officer of the Company’s Registry in Mauritius as well as the testimony of an official of Ghana’s Registrar General’s Department (“RGD”) to prove this fact.

The court was of the opinion that the email, which stated that the company had been struck-off, was proved to be admissible electronic evidence by virtue of the fact that it was an official document which bore a digital signature as required by law. The testimony of the official of the RGD under cross-examination, however, indicated that the company in question was still in operation. The court stated per Akamba JSC, that “whatever probative value that could be attached to the email was eroded or cancelled by the contradictory evidence by DW4 under cross-examination.” In this instance, the court refused to admit the electronic evidence not based on its lack of authenticity or completeness but on the fact that the party who sought to adduce it had also sought to adduce evidence which contradicted what it purported to prove.

What this case illustrates, in essence, is that the fourth metric is provided for the courts to be able to apply a holistic approach to assessing the admissibility of electronic evidence by testing its usefulness with reference to any other pieces of evidence or facts available at trial.

Conclusion

The admissibility of electronic evidence is a relatively new innovation in Ghanaian legal practice. Several other legal issues regarding electronic evidence exist and shall no doubt be raised over the course of the next few years. What is most important is that our legal system is equipped to deal with whatever issues that may arise. It is encouraging that the judiciary is taking steps to equip itself accordingly.[22] More encouraging still is the fact that the courts have shown a willingness to admit electronic evidence as seen in cases like International Rom[23] & the Sim-Box Fraud case.[24] The existence of digital forensic experts is undoubtedly important to aid in the thorough treatment of cases in a manner that fully appreciates the technical ICT related issues. It is hoped that their number increases to accommodate the oncoming influx of technology-related cases.  Finally, lawyers must be aware of the challenges and opportunities that electronic evidence as a whole may bring to executing their instructions effectively in this new digital age. This will be the first step to, in Grimm J’s words, “getting it right the first time,” every time.

[1] Clair v Johnny’s Oyster & Shrimp Inc., 76 F. Supp. 2d 773 (S.D. Tex. 1999.

[2] Lorraine v Markel American Insurance Company 241 F.R.D. 534 (D.Md. May 4, 2007).

[3] Republic v Alexander Tweneboa, Unreported Ruling of the High Court of Ghana, (9 June 2016) Suit No. TB 15/13/15.

[4] See The Bussey Law Firm PC v Page 241 F.R.D. 534 (D. Md. 2007), 545 and 546.

[5] Increasing incidents of fraud on such merchant websites have been reported in recent times, see “Two Men Arrested for Internet Fraud” Citi FM Online, 26 March 2017 accessed at <http://citifmonline.com/2017/03/26/two-men-arrested-for-online-fraud/>  “3 Tonaton Fraudsters Arrested”, Pulse Ghana News, 23 April 2016, accessed at <http://www.pulse.com.gh/news/fraud-3-tonaton-fraudsters-arrested-id4953158.html>.

[6] See Oracle Am., Inc. v. Google, Inc., 750 F.3d 1339 (Fed. Cir. 2014) cert. denied 135 S. Ct. 2887 (2015).

[7]  Electronic Transactions Act 2008 (Act 772 ), Section 144.

[8] Electronic Transactions Act 2008 (Act 772), Section 7(1).

[9] Evidence Act 1975 NRCD 323, Part IV.

[10]Electronic Transactions Act 2008, Section 3.

[11]Electronic Transactions Act 2008, Section 7.

[12] Defined as “The Authority of a judge to accept as fact certain matters which are common knowledge from sources which guarantee accuracy or are a matter of official record, without the need for evidence establishing the fact”, The Legal Dictionary  < https://legal-dictionary.thefreedictionary.com/Judicial+Notice >; Evidence Act 1975 Section 9.

[13] International Rom Ltd v Vodafone Ghana Ltd & Anor, Unreported Judgment of the Supreme Court of Ghana (6th June 2016) Civil Suit: NO. J4/2/2016 at page  13.

[14] Electronic transactions Act 2008 section 6(2); See also Mason & Seng “Electronic Evidence”, (4th edn University of London School of Advanced Study, 2017) at page 244.

[15] R v Oler,2014 ABPC 130 (CanLII), <http://canlii.ca/t/g7n43>.

[16] Republic v Alexander Tweneboa, Unreported Ruling of the High Court of Ghana, (9 June 2016) Suit No. TB 15/13/15.

[17] The Bussey Law Firm PC v Page [2015] EWHC 563 (QB).

[18] Ackah v Agricultural Development Bank, Unreported case of the Supreme Court of Ghana (19 December 2017) Civil Appeal No J4/31/2014.

[19]  Ackah v Agricultural Development Bank, Unreported case of the Supreme Court of Ghana (19 December 2017) Civil Appeal No J4/31/2014. at Page 64.

[20] International Rom Ltd v Vodafone Ghana Ltd & Anor, Unreported Case of the Supreme Court of Ghana (6th June 2016) Civil Suit: NO. J4/2/2016.

[21] International Rom Ltd v Vodafone Ghana Ltd & Anor, Unreported Case of the Supreme Court of Ghana (6th June 2016) Civil Suit: NO. J4/2/2016 at page  13.

[22] Judges receive Training on Cybercrime and Electronic Evidence, (Ghanaweb, 7 Nov 2017) < https://www.modernghana.com/news/814848/judges-receive-training-on-cybercrime-electronic-evidence.html> Accessed 12 February 2018.

[23] International Rom Ltd v Vodafone Ghana Ltd & Anor, Unreported Case of the Supreme Court of Ghana (6th June 2016) Civil Suit: NO. J4/2/2016.

[24] The Republic v Alexander Tweneboa, Unreported Ruling of the High Court of Ghana, (9 June 2016) Suit No. TB 15/13/15.

*** Image sourced from: http://www.lawweb.in/2015/11/how-to-prove-electronic-evidence-in.html

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5 Comments so far. Feel free to join this conversation.

  1. Maureen March 15, 2018 at 11:52 am - Reply

    Great article Elorm, it’s really informative and well-researched. Keep it up!!

  2. Faisal March 15, 2018 at 9:58 pm - Reply

    Great piece Elorm. Well researched.

  3. Mr. H Badu March 16, 2018 at 11:49 pm - Reply

    This article reinforces calls for the passage of the Right to Information Bill as well as legislation on e-signatures, the nexus between law and technology must not be overlooked. Great piece

  4. Sandile Ngwenya March 21, 2018 at 9:31 am - Reply

    Well written article, keep it up Elorm.

  5. Ruthanne Mills April 4, 2018 at 6:24 pm - Reply

    Good Job Elorm! Informative and nicely written.

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