Tuesday, 8 May 2012

DPP v FG [2012] VSCA 84: all or nothing?

The Court of Appeal last week decided DPP v FG [2012] VSCA 85, which considered an unusual situation with a highly edited transcript and frequently un-transcribable recording, compounded by the loss of the recording when the appeal was heard.

The original trial dealt with charges alleging sexual offences by the appellant against his natural son. Part of the evidence relied on by the prosecution was an edited recording of a conversation between the family and the appellant. The unedited recording was 56 minutes; edited, it ran for about 7 minutes.

The real practical problems with using the recording and transcript were set out by the Court of Appeal.

[18] The unedited CD-ROM of the family meeting, provided to this court by the Crown at the appellant’s request, records a noisy, emotional, often hostile conversation involving a number of people. The recording is by no means a clear record of what was said. Although the voices identified on the transcript as being those of the appellant and his then wife are usually able to be distinguished from those identified as the complainant’s and his sisters’, this is not always the case. The voices of the appellant and his wife are heavily accented and, on some occasions, are difficult to understand because of their use of idiomatic expressions often used by migrants whose first language is not English. There is much unintelligible but obviously emotional shouting and, almost continuously, more than one person can be heard speaking at the same time. At one point on the recording, there is an unexplained gap of about two minutes. The transcript of the unedited recording runs for 119 pages. On only one of those pages (p 43) does it purport to be a transcript of everything that was said. On every other page of the transcript, there are passages, sometimes lengthy, which, it can be safely inferred, the transcriber was unable to decipher. There are many places in which words attributed to the appellant are not transcribed, often because more strident voices speaking over him make his statements unintelligible.

[19] The transcript of the version of the recording which went to the jury (Ex C for identification) runs for only 18 pages, numbered consecutively. Like the purported transcript of the original, it is hardly a transcript at all, with much text missing altogether...

The prosecutor referred the jury to portions of the transcript, presumably relying on them as implied admissions by a failure to deny allegations put by people of equal standing. (That wasn't expressly mentioned, probably because it wasn't the point of the appeal, so I'm only guessing that it was using the principle from cases like R v Salahattin [1983] VR 521 and Parkes v The Queen [1976] 1 WLR 1251.) Problem was, the Court said, the appellant might well have been denying the allegations: it just wasn't possibly to tell, with all the shouting.

The prosecutor also referred to what he said were apologies by the appellant (again effectively adopting the allegations). But the problem there was that 18 pages of transcript were edited out, and there was no visual indication on the transcript that such a large volume had been left out. It was quite possible that his apologies were for other allegations contained in those missing parts, but not charged as criminal offences.

Although no objection was made at the trial, the Court of Appeal considered that the overall effect of the edited recording and transcript was that the appeal had to be allowed, and a new trial ordered.

[32] The edited tape of the family meeting and its transcript ought not to have been admitted into evidence. Taken overall, its probative value was slight when compared to the prejudice to which the appellant was exposed by its admission. If there were any relevant admissions on that recording, which must be regarded as doubtful, the appellant was entitled to have before the jury not only those admissions but also anything else he had said which might have been exculpatory. On many occasions whilst creating that transcript, the transcriber was unable to record in writing the appellant’s responses, which could be heard but not understood. The prejudice to which the appellant was exposed was materially increased by the way in which the original recording was edited. It was further compounded by the use which the prosecutor made of the recording and its transcript in his final address. His reliance on the alleged apologies of the appellant in the circumstances in which he did was unwarranted on the evidence.

[33] The Crown, in defence of its position, relied upon the failure of defence counsel at trial to seek to exclude the recording and its transcript. Although this point might, normally, be a good one, in this instance, the events which occurred represented such an egregious departure from due process in the conduct of a fair trail that the appellant was exposed to a substantial miscarriage of justice. That no objection to that process was raised before the trial judge cannot preclude this court from acting to obviate the effect of that miscarriage.5 This appeal should be allowed.

The case highlights that a fair presentation of a prosecution case requires tendering all admissible inculpatory and exculpatory evidence amongst out-of-court statements made by an accused, citing Mahmood v WA (2008) 232 CLR 397. (And see also R v Soma (2003) 212 CLR 99 at [31], which raised a similar point.) It seems also to emphasise the care that is required even with edited transcripts settled by agreement between the parties, so that as much as is possible they convey to the finder of fact an accurate sense of the whole conversation, and what the context was of the recording represented by the edited transcript.

The conviction was set aside, and a fresh trial ordered.


Nicholas said...

"Whilst editing of documents is sometimes necessary to avoid injustice, it is difficult to imagine a situation in which it would be necessary or justifiable to disguise the extent of the editing or where it has occurred as seems to have happened in this case"

What a baffling comment. Transcript and audio are routinely edited in trials, typically at the request of defence to eliminate material thought to be prejudicial. It is "disguised" as best as possible to deter the jury from speculating as to what was deleted, and why.

To suggest that such a process is somehow remarkable or surprising is bizarre.

Elucubrator said...

Not sure Nicholas. When prosecuting I always used to push for transcripts in soft copy, so they could be easily edited in MS WORD. I've always just assumed the correct way to edit transcript is to remove the portions that need to be taken out, and replace them with ellipses (the three dots ... editors use to show various things, including removal).

Or, if I'm working with PDF, use the redact feature on Acrobat to cover them up.

Or, if just hardcopy, use a black texta.

No matter which way it's done though, it's obvious, and the jury is just told not to speculate. Pretty hard to speculate about what is gone, though I guess human nature being what it is, people might wonder why.

There are several authorities for editing transcripts — Kilby v The Queen (1973) 129 CLR 460 at 472; Driscoll v The Queen (1977) 137 CLR 517 at 533; Plevac (1995) 84 A Crim R 570 at 578 – 9 — but I don't think they really delve into the detail of how it should be done.

Jeremy Gans said...

I think it is dangerous (I don't know about remarkable or surprising) to try to disguise editing from a jury.

If the edits are disguised, then the jury can be left with the wrong impression that two remarks, actually separated in time and by other events, are adjacent to each other. And they also can't judge how long the conversation took or whether what is being said partly refers to things that have been cut. How dangerous these things are depends on what is cut, etc, but the danger may be hard for lawyers and the judge to predict.

On the other hand, if the edits aren't disguised, then the judge can direct the jury about them, if necessary explaining that cuts for 'relevance' (or some such) are routine. I've seen transcripts where a judge says something like 'I've never seen a transcript that wasn't partly cut for one reason or another', etc. Yes, there's a danger of speculation, but that needs to be weighed against the dangers of deceiving the jury.

So, I don't think it's bizarre at all to express concern (indeed, a lot of concern) about hidden edits. Quite the contrary.