Section 43 of the Cybercrime Code Act 2016 closes Part IV. It is short, and it does one thing.
Section 43
(1) In the trial of an offence under this Act, the fact that evidence has been generated or stored electronically or has resulted from an electronic system or device does not of itself prevent that evidence from being admissible in Court.
(2) Evidence required for the purposes of this Act shall be governed by the provisions of the Evidence Act (Chapter 48).
The Evidence Act (Chapter 48) is not currently available on PacLII, so no link is given here.
What section 43(1) removes
Section 43(1) forecloses the argument that evidence is inadmissible because it is electronic — that a database record, a server log, a message, a screenshot or a forensic image is not the kind of thing a court receives.
The words “does not of itself” are the key. They remove the electronic character of the material as a ground of objection. They do not make electronic evidence admissible in any other sense.
Note the limit: subsection (1) applies “in the trial of an offence under this Act”. It does not in terms apply to the trial of an offence under another law.
What still has to be established
Every ordinary rule of evidence continues to apply, through the Evidence Act (Chapter 48) and the general law:
- Relevance — the material must bear on a fact in issue.
- Authenticity — it must be what it is said to be. This is where most contests occur: who created the record, from which system, and has it been altered?
- The hearsay rule and its exceptions, including the business records provisions.
- The best evidence considerations applicable to copies.
- The discretion to exclude evidence unfairly or improperly obtained.
So section 43 removes a threshold objection and leaves the real work — proving the material is genuine and reliable — exactly where it was.
Chain of custody is where cases are won and lost
| Provision | Contribution to integrity |
|---|---|
| s 32(2) | Seized data or things must be taken before a Magistrate |
| s 32(4) | Seized material may be detained by a Magistrate |
| s 33(f) | Power to do anything reasonably necessary to prevent loss, destruction or damage |
| s 36 | Preservation notices stopping deletion of third-party data |
| s 38 | Restraining orders against removal, destruction or tampering |
| s 41(5) | Mandatory record of technical means, device, modifications and information obtained |
| s 41(6) | Material obtained must be protected against modification, deletion or access |
Where evidence was obtained by installing software on a suspect’s device, the defence will ask what the software did and whether it changed anything. The record required by section 41(5)(b) — details of its modifications — is the direct answer.
An investigation that has not kept that record may find its evidence excluded, not by section 43, but by the ordinary requirement of authenticity.
Section 42 works with section 43
Section 42 requires the Court to take judicial notice of electronic seals, electronic signatures, electronic certificates and other forms of electronic verification — so those need not be separately proved. Together the two sections remove the technical obstacles to the reception of electronic material and leave the substantive questions intact.
Practical points
- For victims and complainants. Preserve the original, not just a screenshot. Message records, headers and account details carry the metadata that establishes authenticity. Ask police early about a preservation notice.
- For businesses. System logs are frequently the decisive evidence. Retention settings, accurate clocks and access controls determine whether they will be believed.
- For an accused. Section 43 is not a bar to challenge. Authenticity, continuity, completeness and the manner in which the material was obtained all remain open — including whether a warrant or order was validly made and observed.
- For providers. Records of what was produced under a production order support the chain of custody and may be needed at trial.
Sources
- Cybercrime Code Act 2016 — ss 32, 33, 35, 36, 38, 41, 42, 43
- Evidence Act (Chapter 48)
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.