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Castle v.

Cross, [1984] 1 WLR 1372


Mr. Wadsworth, on behalf of the prosecutor, reminds us of the passage in Cross on
Evidence, 5th ed. (1979), p. 47 headed Mechanical Instruments which states:
A presumption which serves the same purpose of saving the time and expense of calling
evidence as that served by the maxim omniapraesumuntur rite esseacta is the presumption
that mechanical instruments were in order when they were used. In the absence of
evidence to the contrary, the courts will presume that stopwatches and speedometers and
traffic lights were in order at the material time; but the instrument must be one of a kind as
to which it is common knowledge that they are more often than not in working order.
The last sentence is not adopted by Phipson on Evidence, 13th ed. (1982), but the
principle, which is in Cross on Evidence accurately set out in the view of this court, is
that: In the absence of evidence to the contrary, the courts will presume that [mechanical
instruments] were in order at the material time.
R v. Shepherd, [1993] 2 WLR 102
Proof that the computer is reliable can be provided in two ways. Either by calling oral
evidence or by tendering a written certificate in accordance with the terms of
paragraph 8 of Schedule 3, subject to the power of the judge to require oral evidence.
It is understandable that if a certificate is to be relied upon it should show on its face
that it is signed by a person who from their job description can confidently be
expected to be in a position to give reliable evidence about the operation of the
computer. This enables the accused to decide whether to accept the certificate at its
face value or to ask the judge to require oral evidence which can be challenged in
cross-examination. An accused seeing a certificate signed by a store detective would
not necessarily assume that such a person was familiar with the operation of the
computer or had any responsibility for it and might well challenge the certificate. It
does not however follow that the store detective cannot in fact give evidence that
shows she is fully familiar with the operation of the store's computer and can speak to
its reliability.
The defendant's argument requires one to read into section 69(1) after the words
unless it is shown the following words lifted from paragraph 8 of Schedule 3 by
[the oral evidence of] a person occupying a responsible position in relation to the
operation of the computer.
These words do not appear in the section. They are, for the reasons I have given,
contained in Schedule 3 as a necessary qualification to sign a certificate but I can see
no reason to read them into section 69(1) when oral evidence will be open to challenge
by cross-examination.

Documents produced by computers are an increasingly common feature of all business


and more and more people are becoming familiar with their uses and operation.
Computers vary immensely in their complexity and in the operations they perform.
The nature of the evidence to discharge the burden of showing that there has been no
improper use of the computer and that it was operating properly will inevitably vary
from case to case. The evidence must be tailored to suit the needs of the case. I suspect
that it will very rarely be necessary to call an expert and that in the vast majority of
cases it will be possible to discharge the burden by calling a witness who is familiar
with the operation of the computer in the sense of knowing what the computer is
required to do and who can say that it is doing it properly.

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