Section 42 of the Cybercrime Code Act 2016 opens Division 4 — Evidence and Admissibility.
Section 42
(1) The Court shall take judicial notice of electronic seals, electronic signatures or electronic certificates, or any other forms of electronic verification.
(2) Where relevant, Part II of the Evidence Act (Chapter 48) relating to Judicial Notice applies to this Act.
The Evidence Act (Chapter 48) is not currently available on PacLII, so no link is given here.
What judicial notice means
Ordinarily every fact relied on in a trial must be proved by admissible evidence. Judicial notice is the exception: where a court takes judicial notice of something, no evidence about it is required.
It is used for matters so well established that proof would be a formality — the days of the week, the boundaries of the country, the existence of a public office.
Section 42 adds a category. A court is not to require evidence that electronic seals, signatures, certificates and other forms of electronic verification exist and are what they are.
Why the provision was needed
Before provisions of this kind, a party relying on a digitally signed document could be met with an argument that the signature meant nothing to the court — that expert evidence was needed to explain what a digital signature is, how a certificate authority works, and why a cryptographic seal indicates anything.
That made proving ordinary electronic transactions expensive and slow. Section 42 removes the obstacle for proceedings under this Act.
The words “or any other forms of electronic verification” are deliberately open. They avoid tying the section to particular technologies, which change faster than statutes.
What section 42 does not do
| Accepted without proof | Still to be established |
|---|---|
| That electronic seals, signatures, certificates and verification methods exist and have the character they claim | That this particular signature was applied by this particular person |
| That such methods are a recognised means of verification | That the signing key was not compromised or used by someone else |
| The general workings of electronic verification | That the document has not been altered since signing |
| — | That the record is authentic and admissible — see section 43 |
Judicial notice under section 42 goes to the category, not to the instance. A court accepts that electronic signatures are a means of verification; it does not thereby accept that the accused applied the signature in question.
That remains a question of fact, proved in the ordinary way — typically through account records, device evidence, and the material obtained under the Part IV powers.
The point is important in identity theft and electronic forgery cases, where the whole issue is whether a signature or credential was used by the person it belongs to.
Section 42 and the forgery offences
Section 13 makes electronic forgery a crime carrying 25 years — creating or altering data so that it will be acted on as authentic. Section 15 deals with the use of another person’s identifying information.
In a prosecution under either section, the electronic verification evidence is often central: a certificate that does not validate, a seal that does not match, a signature applied from an unexpected device.
Section 42 means the court does not need expert evidence to accept that such verification mechanisms exist and mean something. What the mechanism shows in the particular case is then a matter for the evidence.
Section 42(2) — the Evidence Act applies
Subsection (2) applies Part II of the Evidence Act (Chapter 48), relating to judicial notice, “where relevant”. So the general framework governing judicial notice — how it is taken, and of what — continues to operate alongside section 42(1).
That mirrors the structure of section 43: subsection (1) removes a specific obstacle, subsection (2) confirms that the general law otherwise applies.
In practice
- For prosecutors. No expert is needed to explain what an electronic signature is. Evidence is still needed to connect it to a person.
- For businesses. Electronic signatures and certificates used in ordinary commerce will be recognised by a court in proceedings under this Act without foundational evidence.
- For an accused. Judicial notice of the category is not proof of the instance. Compromise of a credential, shared access to an account, and alteration after signing all remain open.
- Note the scope. Section 42 is a provision of this Act. Section 42(2) applies the Evidence Act framework to proceedings under it.
Sources
- Cybercrime Code Act 2016 — ss 13, 15, 32–41, 42, 43
- Evidence Act (Chapter 48) — Part II
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.