Butera v Director of Public Prosecutions (Vic)

[1987] HCA 58

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson and Gaudron JJ.

BUTERA v. DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA

(1987) 164 CLR 180

8 December 1987

Criminal Law

Criminal Law—Evidence—Tape recording of conversations in foreign language—Translation into English—Transcript—Admissibility.

Decisions

MASON C.J., BRENNAN AND DEANE JJ. The applicant was presented jointly with four other persons before the Supreme Court of Victoria on a count of conspiring to traffic in heroin. All were convicted. The Full Court, sitting as the Court of Criminal Appeal, dismissed the applicant's application for leave to appeal against conviction. The applicant seeks special leave of this Court to appeal against that judgment.

2. At the trial, a tape recording of a conversation among some of the alleged co-conspirators, which was mostly in Punjabi but partly in English and partly in Thai or Malay, was admitted in evidence. The tape recording had been made by installing a listening device in an hotel room and, presumably, recording what the listening device picked up of the conversation. Some parts of the conversation were muffled or indistinctly recorded and it was necessary for a person familiar with the languages used to listen to the tape repeatedly in order to determine what had been said. Two interpreters did that and produced written English translations of the conversation they heard on the tape. The tape was played over to the jury, the interpreters gave oral evidence of their respective translations and verified their respective written translations. Each of the written translations was admitted in evidence and, as a documentary exhibit, went into the jury room when the jury retired to consider their verdict. The sole ground on which special leave to appeal is sought is that the learned trial judge "erred in law and/or as a matter of discretion in receiving into evidence transcripts of tape recordings" made by the interpreters. This ground does not challenge the admissibility of the conversation recorded on the tape, of the tape recording, or of the oral evidence of the respective translations. The challenge is made solely to the admissibility of the written translations which the ground of appeal calls "transcripts".

3. The fact which the prosecution sought to prove was the conversation in the hotel room as a link in the chain of proof of the conspiracy charged. The content of the conversation could be conveyed to the court only by a translation of the conversation into English. Two facts were to be proved: first, that the conversation had taken place in the circumstances and among the participants alleged by the prosecution, and second, the content of the conversation translated into English.

4. The means by which the first of those facts was proved was by tendering the tape recording and, one assumes, proving the circumstances in which the recording had been made and the custody in which the recording had been kept until it was played to the court at the trial. Of course, a conversation can be proved by the oral testimony of anyone who heard it but that is not the only means by which a conversation might be proved. The courts have now accepted tape recordings as evidence of the conversations or other sounds recorded on the tape: see, among other cases, Reg. v. Maqsud Ali (1966) 1 QB 688; Papalia v. The Queen; The Queen v. Cotroni (1979) 2 SCR 256; 93 DLR (3d) 161; Williams v. The Queen (1982) Tas R 266; Walsh v. Wilcox (1976) WAR 62; United States v. Biggins (1977) 551 F 2d 64; Hurt v. State (1956) 303 P 2d 476, which canvass the conditions on which a tape recording may be admitted in evidence. It is unnecessary now to consider those conditions but it is obvious that the provenance of the tape recording must be satisfactorily established before it is played over to the jury.

5. The reason why a tape recording of a conversation is admitted in evidence to prove what is recorded is simply that use of the technology of sound recording and reproduction adds "to our knowledge other data not discernible by the unaided senses, or can make more accurate and more usable the data already discernible": Wigmore, The Science of Judicial Proof, 3rd ed. (1937), par.220, p 448, cited by Neasey J. in Williams v. The Queen, at p 270. Those additions to our knowledge, as Wigmore points out (ibid., p 450) are due to the use of instruments constructed on knowledge of scientific laws. A tape recording may be used to produce a form of evidence which is different from both oral testimony and documentary evidence. The rules which govern the admission in evidence of tape recordings and the procedure to be followed by a court in ascertaining what is alleged to have been recorded on them must be moulded so as to deal with the technical and logical conditions which must be satisfied before a tape recording can furnish proof of what is recorded.

6. The learned trial judge (Brooking J.) regarded the written translations as transcripts of the tape recording. Then, following an earlier decision (Reg. v. Gaudion (1979) VR 57) in which his Honour had held that a transcript of a tape recording is admissible whenever the tape recording is admissible, he admitted the written translations in evidence. Contrary to Reg. v. Gaudion, the Court of Criminal Appeal of New South Wales in Conwell v. Tapfield (1981) 1 NSWLR 595 held that transcripts of tape recordings were not admissible in evidence. A resolution of the conflict between these two views does not necessarily determine the admissibility of the written translations in this case. For reasons presently to be stated, the written translations cannot properly be regarded as transcripts of what is recorded on the tape, but the admissibility of the written translations can better be determined in the light of the principles governing the admissibility of transcripts.

7. What is a transcript of a tape recording? It is a document setting out words which can be heard on playing over the tape. It is not a copy of the tape, but a written record of what has been heard. Prima facie, the issue whether the recorded conversation took place should be proved by playing the tape in court if it be available, not by tendering evidence, whether written or oral, of what a witness heard when the tape was played over out of court. That is the consideration which weighed with Street C.J. in Conwell v. Tapfield when he said (at p 598):

" What is the best evidence of the sounds entrapped
in the record? It seems to me that there can be
only one answer to this question, namely, the best evidence is the reproduction of those sounds as sounds when the record is played by appropriate sound reproducing equipment. Much of the confusion that has crept into the cases stems from the fact that normally it is the human voice that is recorded and, when reproduced, this is commonly done in writing. But if, say, the relevant evidence was a screech of tyres before a collision and that had been recorded, there would be no denying that the best method of placing this evidence before the court would be by playing the record. There is not the slightest difference in basic principle where the recorded sound is the human voice."

8. That view is clearly right, and its cogency is strengthened rather than weakened by the invocation of the traditional term "best evidence". That is not to say that the tape is itself the admissible evidence of what is recorded on it. A tape is not by itself an admissible object for by itself it is incapable of proving what is recorded on it: it is admissible only because it is capable of being used to prove what is recorded on it by being played over. By using sound reproduction equipment to play over the tape, the court obtains evidence of the conversation or other sound which is to be proved; it is that evidence, aurally received, which is admissible to prove the relevant fact.

9. If the tape is not available and its absence has been accounted for satisfactorily, the evidence of its contents given by a witness who heard it played over may be received as secondary evidence. That evidence is not open to the same objection as the evidence of a witness who repeats what he was told out of court by another person who is not called as a witness. In the latter case the credibility of the other person cannot be tested; in the former case, assuming the provenance of the tape is satisfactorily proved, no question of its credibility can arise. Nevertheless, when the tape is available or its absence is not accounted for satisfactorily, there can be no reason to admit the evidence of an out-of-court listener to the tape recording to prove what the tape recorded: it should be proved by the playing over of the tape. Prudence and convenience combine to support the application of the best evidence rule in such a case.

10. If the oral testimony of an out-of-court listener is not to be admitted, it can make no difference that the listener has reduced what he heard to writing so that a transcript can be tendered. In Reg. v. Gaudion, Brooking J. regarded a proved transcript to be evidence of the contents of an object - the tape - which is itself admissible in evidence. But it is not the tape, it is the sounds produced by playing it over, which is the evidence admitted to prove what is recorded. The tape is a part of the machinery by which that evidence is produced. In so far as Brooking J. in Reg. v. Gaudion attributes the admissibility of a transcript to its ability to inform the court of the contents of the tape, his Honour assumes that the tape would be admissible evidence of its contents without being played over. The assumption is erroneous and, for the reasons stated by Street C.J. in Conwell v. Tapfield, this basis for admitting transcripts must be rejected.

11. It is desirable to add, however, that the best evidence rule is not applicable to exclude evidence derived from tapes which are mechanically or electronically copied from an original tape. Provided the provenance of the original tape, the accuracy of the copying process and the provenance of the copy tape are satisfactorily proved, there is no reason why the copy tape should not be played over in court to produce admissible evidence of the conversation or sounds originally recorded. There is no reason to apply the best evidence rule to copy tapes: Reg. v Matthews and Ford (1972) VR 3; Kajala v. Noble (1982) 75 Cr App R 149; Papalia and Cotroni, SCR, at pp 263-265; DLR, at pp 167-169.

12. Although evidence derived from a tape recording is not subject to some of the frailties of human testimony, it may exhibit deficiencies from which human testimony is usually free. A tape recording which is indistinct may not yield its full content to the listener on its first playing over. It may need to be played over repeatedly before the listener's ear becomes attuned to the words or other sounds recorded. This situation has led courts to receive transcripts not as evidence of the conversation or other sounds recorded but as a means of assisting in the perception and understanding of the evidence tendered by the playing over of the tape. In Williams v. The Queen, Neasey J. (at p 274) cited with approval a Canadian case Reg. v. MacLean and MacLean (No.1) (1979) 49 CCC (2d) 399 in which a trial judge held -

" that he would not permit the transcripts to be used
as evidence of the contents of the recording, but
did admit them for the use of 'the trier of the facts, after being properly instructed in that regard, for the sole purpose of following the playing of the tape in court and to assist the trier of the facts in determining what is in fact recorded thereon'."
Where the quality of the recording is such that the provision of a transcript for the use of the jury would permit them clearly to follow an indistinct recording, a transcript may be seen as an aid to listening though it is not independent evidence of the recorded conversation. As Everett J. said (at p.280):

" To deny the jury the benefit of reading with their
eyes the same words as they heard with their ears seems to me to put the law into an ill-fitting straitjacket."
The basis on which a transcript may be provided to the jury was stated by Cooke J., speaking for the majority in Reg. v. Menzies (1982) 1 NZLR 40, at p 49. Noting that Phipson said that the relaxing of the rules of evidence tended "to effect economy, convenience and dispatch", his Honour said:

" The problem is how best to enable a jury to assess
the contents of a tape, in the light of those aims.
It is a problem sui generis and not automatically answered by settled principles.

If the tape is reasonably short and clearly audible there can normally be no justification for allowing a transcript as well as playing the tape. But there will be cases in which the aid of an expert is reasonably necessary. For example, there may be the use of a foreign language. Or deficiencies in the recording may make it necessary to play tapes more than once to enable a better understanding, yet the sheer length of the tapes may mean that inordinate time would be taken by replaying them to the jury. In such cases, while there should normally be at least one playing to the jury, the evidence of an expert should be admissible as an aid to the jury. He may be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc. And we see no compelling reason why his evidence should not take the form of production of a transcript which can be admitted as an exhibit. Whether the Judge allows the jury to have copies of the transcript, as distinct from merely hearing it read, must be a matter for his discretion in the particular case, bearing in mind the requirements of justice and any risk of unfairness to the accused."

The jury should be instructed that the purpose of admitting a transcript is not to provide independent evidence of the conversation but so as to aid them in understanding what conversation is recorded on the tape, and that they cannot use the transcript as a substitute for the tape if they are not satisfied that the transcript correctly sets out what they heard on the tape. In Hopes v. H.M. Advocate (1960) J.C.104; (1960) SLT 264, the evidence (set out in a transcript) of a person who listened to an indistinct tape played over out of court was held to be "very doubtfully competent" on the ground that it was primary evidence by an ad hoc expert of the tape's content. With respect, it seems better to acknowledge that such a transcript is merely an aid to the jury's understanding of the evidence derived from playing over the tape in court.

13. However, to say that a transcript may be admitted in evidence for this limited purpose does not answer the question which arises in this case. The written translations which were tendered in this case could not assist the jury to understand what was said in Punjabi, Thai or Malay as recorded on the tape. The translations are the respective renditions in English of what the interpreters heard in repeated playings of the tape. The respective translations are the product of the expertise which the interpreters brought to the task: they became ad hoc experts as to what was recorded by repeatedly listening to the tape being played over and they were experts in the languages to be translated.

14. The tendering and playing over of the tape was the foundation for the expert evidence of the interpreters. Although the contents of a document written in a foreign language or an oral statement in a foreign language cannot be proved without a translation into English of what is written or spoken, the translation must itself be given as evidence sworn to by the person who makes the translation: Fakisandhla Nkambule v. The King (1940) AC 760, at p 771. The interpreters' evidence was contained in their respective translations of the Punjabi, Thai or Malay words recorded on the tape. The written translations were not copies of the tape in any relevant sense and they could not have been made admissible as an aid to the jury's understanding of the sounds recorded on the tape. Prima facie, the interpreters' evidence should have been given orally, as other testimonial evidence is given in a criminal trial.

15. The adducing of oral evidence from witnesses in criminal trials underlies the rules of procedure which the law ordains for their conduct. A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jury's estimate of the witnesses. By generally restricting the jury to consideration of testimonial evidence in its oral form, it is thought that the jury's discussion of the case in the jury room will be more open, the exchange of views among jurors will be easier, and the legitimate merging of opinions will more easily occur than if the evidence were given in writing or the jurors were each armed with a written transcript of the evidence. And there are, of course, logistical and financial obstacles to the provision of general transcripts for each juror. If the general body of evidence is given orally, a written transcript of a part of the evidence available in the jury room tends to give an emphasis and perhaps an undue air of credibility to that part. In Driscoll v. The Queen (1977) 137 CLR 517 this problem arose with respect to unsigned records of interview which, according to police evidence, an accused had adopted orally. Gibbs J., with the concurrence of Mason and Jacobs JJ. said (at p.542):

" The danger is that a jury may erroneously regard
the written record as in some way strengthening or
corroborating the oral testimony. Moreover the record, if admitted, will be taken into the jury room when the jury retire to consider their verdict, and by its very availability may have an influence upon their deliberations which is out of all proportion to its real weight. For these reasons, it would appear to me that in all cases in which an unsigned record of interview is tendered the judge should give the most careful consideration to the question whether it is desirable in the interests of justice that it should be excluded."

16. The general rule that witnesses must give their evidence orally is not without exception. In Smith v. The Queen (1970) 121 CLR 572, a chart had been prepared by a witness to explain complicated business transactions. The chart was admitted in evidence, though what it showed could have been described - albeit laboriously - in oral evidence. This Court (at p.577) agreed with the view expressed by the Court of Criminal Appeal (sub.nom. Reg. v. Mitchell (1971) VR 46, at pp 59-60) that the chart was rightly admitted:

" The chart was nothing but a convenient record
of a series of highly complicated cheque
transactions which had been proved by other evidence, and was likely to be of considerable assistance to the jury. Had they all been accountants, doubtless after considerable time they could have prepared such a chart for themselves. The use of such charts and other time-saving devices in complicated trials of this kind is a usual and desirable procedure and is encouraged by the courts."

17. The practice of requiring witnesses to give their evidence orally should not be waived lightly, especially if there be a risk that writing will give undue weight to that evidence to the disadvantage of an accused person. But the practice is not immutable. If a witness writes out a proof of his evidence and swears to its truth or if a written transcript of part of the witness' oral evidence is produced, and if the task of the jury can be facilitated by admitting the document in evidence, there is no absolute bar against doing so. For example, a written document may prove more convenient than oral evidence as a foundation for cross examination upon its contents or it may be a valuable aide- memoire for the jury in a case where precise recollection of words is important. In every case, even when an accused consents to the admission of the document, the trial judge should bear in mind the overriding consideration of fairness to the accused and the risk involved in allowing the document to be taken into the jury room. A further relevant consideration is the risk that documentary evidence may impair public understanding of the proceedings.

18. In the present case, as we were informed, over 500 pages of trial transcript were taken up in cross examination of the interpreters on the text of the written translations to which they had respectively sworn. It would have been all but impossible for the jury to appreciate the cross examination - not to speak of the difficulty of conducting the cross examination - if the translations had not been reduced to writing. It was a case in which a departure from the ordinary practice was justified and in which it was appropriate to admit the translations in evidence and permit the jury to have them in the jury room. In the circumstances of the case it may well have been preferable for the written transcript of the cross examination of the interpreters also to have been made available to the jury, in the course of their deliberations, to supplement and modify the written translations which, in effect, represented their evidence in chief. No request was made of the learned trial judge to follow that course however and, having regard to the absence of any such request and to the other circumstances of the case, it cannot be said that the trial judge's exercise of his "inclusory" discretion (cf. per Cosgrove J. in Reg. v. Migliorini (1981) Tas R 80, at p 90; 38 ALR 356, at p 362) miscarried for that reason. Nor did his Honour's exercise of that discretion occasion any miscarriage of justice.

19. The question raised by the application for special leave is important in criminal practice. Special leave should therefore be granted, but the appeal should be dismissed.

DAWSON J. The applicant was convicted of having conspired with four others to traffic in heroin. He unsuccessfully sought leave to appeal against the conviction to the Full Court of the Supreme Court of Victoria. He now seeks special leave to appeal to this Court.

2. An important part of the prosecution case against the applicant consisted of tape recordings of conversations which took place in a room at the Hilton Hotel in Melbourne. The recordings were made by means of a listening device which had been planted in the room by the police. The participants in these conversations involved those alleged to be the applicant's co-conspirators but did not include the applicant himself. However, the applicant was, according to the prosecution, referred to a number of times in the course of the recorded conversations. Despite his absence, evidence of these conversations was admissible against the applicant upon the basis that they took place in furtherance of the conspiracy between the applicant and his co-accused: Tripodi v. The Queen (1961) 104 CLR 1.

3. The conversations were conducted for the most part in Punjabi, although some English and another language - either Thai or Malay - were also used. Apart from the fact that the conversations were largely in a foreign language, the recordings were not easy to follow. At times they were inaudible and at other times it was difficult to say who was speaking. The learned trial judge admitted in evidence not only the tapes themselves but also transcripts which consisted of translations of the tapes made by two interpreters. The Full Court appears in places to have thought the contrary but clearly the transcripts were admitted in evidence. There were variations in the two translations which were said to be of significance to the applicant.

4. No point has been raised about the receipt in evidence of the tapes themselves. It is now accepted that a tape recording is, so to speak, the auditory equivalent of a photograph. The ground upon which the applicant seeks special leave to appeal is that the trial judge was in error in admitting the transcripts in evidence, a ground which was rejected by the Full Court below in dismissing an application by the applicant for leave to appeal.

5. In admitting the transcripts, the learned trial judge (Brooking J.) followed a previous decision of his own in Reg. v. Gaudion (1979) VR 57 in which he held that a tape recording is not a document, but a physical object containing pattern impressions which might be revealed in the form of conversation, not only by playing the tape, but also by the production of a transcript. Upon this view a transcript is merely another means of proving the configuration of the tape. Of course, in this case the transcripts did not reveal what was on the tapes, but were translations because the conversations recorded were for the most part not in English. That is something with which it will be necessary to deal in due course.

6. The trial judge also relied upon an alternative ground for admitting the transcripts in evidence in this case, namely, that they were documents prepared for the convenience of the court in understanding evidence otherwise before it in the form of the tape recordings themselves.

7. Reg. v. Gaudion was followed in Queensland in Reg. v. Beames (1979) 1 A Crim R 239 where the Court of Criminal Appeal of that State held that a transcript of a tape recording might be admitted as original evidence of sounds which have been uttered. The Court in that case adopted the view that a tape recording itself is a physical object and not a document and that the sounds which are "locked up" in the physical object may be proved by playing the recording or by production of a transcript of it.

8. On the other hand, the New South Wales Court of Appeal in Conwell v. Tapfield (1981) 1 NSWLR 595 declined to follow Reg. v. Gaudion and Reg. v. Beames. Street C.J., with whom Glass J.A. agreed, held that the best evidence rule required that the contents of the tape recording be proved by playing the tape itself and precluded proof by the production of a transcript. Cf. Reg. v. Migliorini (1981) Tas.R. 80; (1981) 38 ALR 356.

9. In Beneficial Finance Corporation Co. Ltd. v. Conway (1970) VR 321 McInerney J. examined the nature of a tape recording and concluded that, for the purposes of the rules relating to discovery, a tape recording is not a document. A contrary conclusion, also in the context of discovery, was subsequently reached by Walton J. in Grant v. Southwestern and County Properties Ltd. (1975) Ch 185 where he held that a document, the word being derived from the Latin "documentum", is something which instructs or provides information. That being so, the word extends beyond written, printed, or inscribed materials. Thus a photograph is a document. Walton J. found himself unable to draw any distinction between a tape recording and other objects classified as documents in that a tape recording appeals to the ear and the others appeal to the eye. Both may contain words in one form or another which require perception. Whether that perception is by reading or hearing did not, in his view, matter. He found the term "documentary film" an excellent example of a relevant use of the word "document", involving, as it does, reference to something which appeals to both the eye and the ear and is not written. Walton J. therefore determined that a tape recording, provided that what it records is information, is a document. A similar conclusion had been reached previously by Hoare J. in Cassidy v. Engwirda Constructions Company (1967) QWN 16.

10. Mason J. had occasion to refer to Beneficial Finance Corporation Co. Ltd. v. Conway in Australian National Airlines Commission v. The Commonwealth (1975) 132 CLR 582, at p 594 and said that, had it been necessary to decide the question, he would have been disposed to hold that a tape recording was a document for the purposes of discovery and inspection. He expressed his preference for the decisions of Walton J. in Grant v. Southwestern and County Properties Ltd. and Hoare J. in Cassidy v. Engwirda Constructions Company. I have the same preference. The decision of McInerney J. in Beneficial Finance Corporation Co. Ltd. v. Conway was carefully examined by Walton J. in Grant v. Southwestern and County Properties Ltd. and he demonstrates quite clearly to my mind that the former took an unduly restrictive view of what constitutes documentary evidence. See also Senior v. Holdsworth; Ex parte Independent Television News Ltd. (1976) QB 23.

11. A document may also be tendered in evidence merely as a physical object, as, for instance, in a case of theft when the information which the document contains is of no significance other than, perhaps, to identify the document stolen. When, however, tendered as a document, it has a quite different significance. It contains that which, when perceived, conveys information. Similarly, a tape recording is also a physical object, but it does not follow that because of its physical nature the revelation of the information which it contains is no different from a description of its physical characteristics as Brooking J. appears to have thought in Reg. v. Gaudion.

12. If then a tape recording is of a documentary character such that it is discoverable, does that mean that its contents must be proved by the production of the original tape and cannot be proved by means of a copy, either in the form of another tape or in the form of a transcript? Such a rule applies to written documents, namely, that the effect of a document must be proved by the production of the original document itself and not by secondary evidence of its contents unless the absence of the original is accounted for and excused. That rule appears to have preceded the so-called best evidence rule which is said to require the best evidence to be given which the nature of the case permits: Omychund v. Barker (1744) 1 Atk 21, at p 49 (26 E.R. 15, at p 33). The failure to observe the best evidence rule in practice has led textbook writers to conclude that it no longer exists, save as a convenient and concise description of the rule relating to the proof of the contents of written documents, and that it is only in that form that it has survived. See Thayer, A Preliminary Treatise on Evidence at the Common Law, (1898), p.484 et seq.; McCormick's Handbook of the Law of Evidence, 2nd ed. (1972) pp 559-560; Garton v. Hunter (1969) 2 QB 37, at p 44; Kajala v. Noble (1982) 75 Cr App R 149; Hindson v. Monahan (1970) VR 84, at pp 89-90. Indeed, Dixon C.J. in Commissioner for Railways (N.S.W.) v. Young (1962) 106 CLR 535, at p 544 appears to have thought that the rule excluding secondary evidence never went beyond writing. See also per Windeyer J. at pp.556-558. In Wigmore on Evidence, vol.IV (Chadbourn rev. 1972), par.1183, the author speaks of "the genesis of a still further development which would enlarge the scope of the term 'writing' to include photographs, sound recordings, and the like", but the development of which he speaks is by statute and is confined to the United States. It is clear that in the absence of such development, documents, other than written documents, ought not now to be, if they ever were, included in the rule requiring proof by primary evidence. See also Reg. v. Robson (1972) 1 WLR 651, at p 653; (1972) 2 All E.R. 699, at pp 700-701.

13. Of course, some modes of proof are better than others, but that, save in the case of written documents, goes to weight rather than admissibility. Relevance is the ordinary test of admissibility, although in criminal cases the trial judge has a discretion to exclude relevant evidence if it operates unfairly against the accused as it does when its prejudicial effect outweighs its probative value or on grounds of public policy when it has been unlawfully or unfairly obtained. The production and playing of an original tape recording remains the best means of proof of its contents, at least where it is audible, intelligible and the words used are in the English language. Where it is inaudible or unintelligible, expert evidence of its contents may be required and it has been held that an ad hoc expertise may be acquired by a witness by playing and replaying a tape so as to become more familiar with its contents than could be done by playing it only once or twice: Hopes v. Her Majesty's Advocate (1960) JC 104; (1960) SLT 264. See also Reg. v. Menzies (1982) 1 NZLR 40. If a tape records a conversation which is not in English, then expert evidence in the form of a translation will be required. Even in these instances, although what was said cannot be proved merely by playing the tape in court, the original tape should be produced or its absence satisfactorily explained. Failure to do so may impugn the evidence given of the tape's contents and provoke, at the least, adverse comment.

14. Even when an original tape is produced and its contents are audible, intelligible and in English, it may be desirable to adduce secondary evidence of its contents as a matter of convenience. Instances of when this will occur are when the playing of the tape takes a long time or the conversation recorded can be understood only with difficulty. The production of a transcript in these circumstances provides a ready form of reference to the contents of the tape and avoids unnecessary playing and replaying of the tape. To admit secondary evidence in the form of a transcript in these circumstances is no more than an application of the well-established principle that when evidence is voluminous or complex, then abstracts, schedules or charts, proved by a suitably qualified person, may be admitted in evidence as an aid to comprehension. See R. v. Tucker &Anor. (1907) SALR 30; Wigmore, vol.III (Chadbourn rev. 1970), pars 790-794 and vol.IV (Chadbourn rev. 1972), par.1230; Reg. v. Menzies, at p 49; Reg. v. Ireland (1970) 126 CLR 321, at p 336; Reg. v. Simmonds (1969) 1 QB 685, at p 690. In Smith v. The Queen (1970) 121 CLR 572, at p 577 Menzies J., with whom the other members of the Court agreed, gave unqualified approval to this principle:

"There was an objection to the use of a chart prepared by one Tuckwell. As to this I do no more than record my full agreement with the statement of the Court of Criminal Appeal as follows (1971) V.R., at pp.59-60: 'The chart was nothing but a convenient
record of a series of highly complicated
cheque transactions which had been proved by other evidence, and was likely to be of considerable assistance to the jury. Had they all been accountants, doubtless after considerable time they could have prepared such a chart for themselves. The use of such charts and other time-saving devices in complicated trials of this kind is a usual and desirable procedure and is encouraged by the courts.'"

See also Williams v. The Queen (1982) Tas R 266; Walsh v. Wilcox (1976) WAR 62.

15. In this case the transcripts which were admitted in evidence were translations and it does not appear that any transcript in Punjabi, the language largely used on the tapes, was ever prepared. That, however, is no ground for objection to the admission of the translations. Had transcripts in Punjabi been prepared they would have afforded no assistance to the court until translated into English and the most appropriate form of translation would have been a document or documents which, if duly proved, could have been admitted in evidence. There is, however, no basis for requiring the translation to have taken place by the preparation of two documents rather than one. The translations which were admitted in evidence at the trial purported to be no more than secondary evidence of the contents of the tapes, duly translated, and the process involved in making the documents which constituted the secondary evidence did not necessarily involve the making of two transcripts, one in Punjabi and one in English.

16. The view that a transcript of a tape recording constitutes secondary evidence of its contents is not, I think, inconsistent with the decision of the English Court of Criminal Appeal in Reg. v. Maqsud Ali (1966) 1 QB 688. In that case transcripts in the form of translations from the original Punjabi on the tape were admitted in evidence and put before the jury. The Court said at p 702:

"In the matter of the transcripts the court desires only to say this. Having a transcript of a tape recording is, on any view, a most obvious convenience and a great aid to the jury, otherwise a recording would have to be played over and over again. Provided that a jury is guided by what they hear themselves and upon that they base their ultimate decision, we see no objection to a copy of a transcript, properly proved, being put before them."

I must confess that I find difficulty in understanding how the jury in that case could have been guided by what they heard themselves, since the conversations on the tape in question were, as in this case, in Punjabi. If, however, what was said was intended to have a more general application then it is understandable. Where a tape recording of a conversation in English is played to a jury and they are given a transcript of the contents of the tape, they ought, of course, to prefer what they have heard, that being the best evidence, if there is a conflict between the transcript and the tape. But the transcript is nevertheless, in my view, evidence, albeit secondary evidence, of the contents of the tape and not merely an aide-memoire. Where the tape records a conversation which is inaudible or unintelligible to the ordinary listener or where the conversation is not in English, a transcript compiled by an expert, if necessary a translation, may, although secondary evidence, be the best available evidence of its contents.

17. A separate submission was made on behalf of the applicant that, even if the transcripts in this case were otherwise admissible in evidence, they ought to have been excluded by the trial judge in the exercise of his discretion because it was unfair to the accused that evidence of the contents of the tapes should go to the jury in a written form. Underlying this broad submission was the proposition that the transcripts were in some way a substitute for oral testimony, that is to say, they were evidence in a documentary form which should have been given orally. However, as I have explained, the tapes were of a documentary character and thus, even if played, did not constitute oral testimony. No doubt in appropriate circumstances oral testimony might be given of what is recorded by a tape recording but such evidence would merely be secondary evidence of the contents of the tape just as a transcript of the tape would be. The tape itself when played does not constitute oral testimony nor is secondary evidence by means of a transcript a substitute for oral testimony of its contents any more than a photocopy of a written document is a substitute for oral testimony of its contents. It is said that there are no degrees of secondary evidence and whilst this may be too much of a generalization (see Wigmore, vol.IV (Chadbourn rev. 1972), par.1230) it is true to say that where secondary evidence is admissible the admissibility is not confined to a particular species of evidence: Doe d. Gilbert and Others v. Ross (1840) 7 M &W 102 (151 ER 696). Of course, the form of the secondary evidence may go to its weight: Hansell v. Spink (1943) Ch 396, at p 398.

18. To be admissible a transcript must be properly proved and this will require evidence to be given that it faithfully transcribes what is on the tape and, if it is a translation, that it properly translates the language used. The person giving that evidence will be subject to cross-examination and, if the transcription or the translation, or a combination of both, is contested, then the matter may be fully aired as it was in this case. The weight given by the jury to the evidence constituted by the transcript may be much affected by such a cross-examination.

19. A more confined basis for the submission that the transcripts ought to have been excluded from evidence was that the jury may have given them undue weight in comparison with the oral testimony relating to the tapes, particularly that given under cross-examination, and the other oral evidence in the case. Reliance was placed upon Driscoll v. The Queen (1977) 137 CLR 517. In that case the prosecution had tendered in evidence a record of a police interview which, according to the police, the accused had adopted but refused to sign. Gibbs J., with whom Mason and Jacobs JJ. agreed, expressed the view that when such a record is tendered the trial judge should give careful consideration to the question whether it is desirable in the interests of justice that it should be excluded. He said at p 542:

"The mere existence of a record is no safeguard against perjury. If the police officers are prepared to give false testimony as to what the accused said, it may be expected that they will not shrink from compiling a false document as well. The danger is that a jury may erroneously regard the written record as in some way strengthening or corroborating the oral testimony. Moreover the record, if admitted, will be taken into the jury room when the jury retire to consider their verdict, and by its very availability may have an influence upon their deliberations which is out of all proportion to its real weight."

It does not seem to me that the considerations which prompted the comment of Gibbs J. in Driscoll have any application in this case. Neither the same opportunity nor the same motive for fabrication was present. The tapes from which the transcripts were taken were in evidence and available for comparison with the transcripts and there is no suggestion that the applicant was denied the opportunity to make such a comparison. The cross-examination of the witnesses who compiled the transcripts was based largely upon the discrepancies between their respective versions, for the appreciation of which the transcripts were an invaluable aid and, even though taken into the jury room, those transcripts were unlikely to have been given undue weight in comparison with the oral evidence of those witnesses or the other witnesses in the case.

20. It does not appear that the trial judge erred in allowing the transcripts to be tendered in evidence nor does it appear that any unfairness to the applicant resulted from his doing so.

21. The application for special leave should be granted, but the appeal should be dismissed.

GAUDRON J. Franco Butera ("the applicant") and four other persons were convicted of having conspired to traffic in heroin. Applications by all five to the Court of Criminal Appeal of the Supreme Court of Victoria for leave to appeal against conviction were refused. From that decision, so far as it concerns him, the applicant seeks special leave to appeal to this Court.

2. The application raises important questions of law and practice relating to the use properly to be made in a criminal trial of documents being in part a transcription and in part a translation of electronically recorded conversations.

3. The conversations to which this application relates took place in Room 806 of the Melbourne Hilton Hotel. The room was occupied by Kuldip Kumar. Kumar was convicted as a co-conspirator in the offence charged. An electronic listening device had been lawfully placed in the room. The listening device picked up the words spoken which were transmitted to a remote recorder and there entrapped on tapes. The conversations thus recorded included a lengthy conversation between Kumar and two other persons. It seems that those two other persons were Gurdas Singh Narula and Manjit Singh Namtanee who were also convicted as co-conspirators. There was also a number of telephone conversations which were recorded only as to the words spoken by Kumar.

4. The substantial issue in this application relates to the lengthy conversation between Kumar and the two other persons. That conversation was conducted mainly in the Punjabi language. At various times the participants used words and phrases in the English language. At one stage the participants used another language which may have been Malay or Thai. The applicant was not a participant in this conversation. However, the prosecution case was that he was referred to in the conversation. It was not disputed that evidence of the conversation was properly admissible as against the applicant, presumably on the basis that there was prima facie evidence of his involvement in the conspiracy and the conversation was an act in furtherance of that conspiracy (see Tripodi v. The Queen (1961) 104 CLR 1, at pp 5-8). What is in issue is the use made of documents, being a written translation of the words spoken in Punjabi and a transcription of the English words spoken in the conversations recorded.

5. After the conversations were recorded, but before any arrests were made, officers of the Federal Police sought the assistance of Mr Sekhon in the translation of the recorded conversations. His work of translation was interrupted when the arrests were made so that he might act as interpreter whilst an interview was conducted with Namtanee. Initially Mr Sekhon commenced to translate the recorded conversations into idiomatic English. Later he was requested by police officers to make a literal translation. Mr Sekhon made that literal translation by recording, in his own handwriting, his translation and, in so far as English was used, his transcription of the conversations. His handwritten notes were later reproduced in typescript as the result of arrangements made by officers of the Federal Police. He deposed that the typescript was an accurate rendition of his handwritten notes. He also deposed that the typewritten document accurately represented in the English language the conversations which he heard on the tapes.

6. Some time after police arrested Kumar, Narula, Namtanee, and a man called Pinrenu, who was also convicted as a co-conspirator in the offence charged, officers of the Federal Police made the tapes available to Mrs de Kretser. At the request of Federal Police she also proceeded to translate the conversations into English. She referred to her work as a "transliteration" rather than a "translation", by which I assume that she too was engaged in an exercise intended to effect a literal rather than an idiomatic translation of the language used, although, as her cross-examination revealed, her translation made considerable use of idiomatic English. Mrs de Kretser also effected her translation and, to the extent that the English language was used, her transcription by making handwritten notes. Those notes were also reproduced in typescript as a result of arrangements made by officers of the Federal Police. Mrs de Kretser checked that typescript and made handwritten amendments thereto. She deposed that the typescript as amended by her was an accurate representation, in English, of the conversations which she heard on the tapes.

7. The documents, being the typescript of Mr Sekhon's handwritten notes and the amended typescript compiled from Mrs de Kretser's handwritten notes, were tendered and admitted as exhibits in the trial. They were thus available to the jury during its deliberations. Additionally, as part of their evidence in chief, both Mr Sekhon and Mrs de Kretser read aloud the documents which they had deposed to be accurate translations into English of the conversations they had heard on the tapes. During Mr Sekhon's evidence each member of the jury had a copy of the document compiled from his handwritten notes. The trial judge (Brooking J.) declined to have copies of the document compiled from Mrs de Kretser's handwritten notes made available to members of the jury during the course of her evidence.

8. Objection was taken to the tender of the document compiled from Mr Sekhon's handwritten notes, although on a different ground from those advanced in this application. It seems that no objection was made to the tender of the document compiled from Mrs de Kretser's handwritten notes. In the particular circumstances of the trial, including the circumstance that the document compiled from Mr Sekhon's handwritten notes was tendered at the invitation of the trial judge, neither the failure to object to the document compiled from Mrs de Kretser's notes nor the failure to raise precisely the points now argued, should be a bar to the matter now being considered by this Court.

9. Although it seems that it was always the intention of the prosecutor to tender the documents, the document compiled from Mr Sekhon's handwritten notes was, as I have noted, tendered at the specific invitation of the trial judge. At that stage excerpts from two of seven tapes (which had earlier been admitted into evidence) had been played to Mr Sekhon in the presence of the jury. His Honour expressed his view that tender of the document was the most convenient method of dealing with the evidence saying that "it would be helpful for the jury, it seems to me, to have a copy of the document before them when it is read". Shortly thereafter his Honour stated that if the "transcript is received, then we don't have to have it read twice. It can be read once by Mr Sekhon, the jury can follow it on copies, which will be so much easier than trying to take it in now". Thereafter objection was taken to the tender, but the document was admitted and became exhibit 27.

10. The convenience of the course invited by his Honour may be doubted in light of subsequent developments in the trial. Although excerpts from two tapes had been played to Mr Sekhon before the tender of the document, and excerpts from other tapes were played to him in the course of his later evidence, it became clear in cross-examination that Mr Sekhon could not say that the tapes which had earlier been tendered were the tapes from which he had made his handwritten notes. It thus became necessary for his cross-examination to be interrupted and for the exhibited tapes to be made available to him, over two nights, in the presence of an instructing officer of the prosecutor, so that he could listen to the tapes. Thereafter he gave evidence that the conversations entrapped on them were the conversations which he heard and translated. Although no complaint was made by the applicant in relation to these matters, I have set them out in some detail because they illustrate that considerations of convenience do not always provide a satisfactory basis for the determination of questions of law which arise or may arise in the course of a trial.

11. In this Court it was argued that the documents should not have been received as exhibits in the trial on two separate grounds. First, it was submitted that where a tape recording is tendered in evidence, a transcript is inadmissible as offending the "best evidence" rule, and therefore, by analogy, a document being a translation of what is recorded on the tape is also inadmissible. Secondly, it was argued that there is a principle of "orality" underlying the rules of evidence applicable in a criminal trial, which renders inadmissible a document which constitutes a note or an aide-memoire of the evidence to be given, unless cross-examination makes it admissible.

12. It is convenient to consider first the argument based on the "best evidence" rule. The "best evidence" rule is encapsulated in the maxim that "the best evidence must be given of which the nature of the case permits". Originally the rule operated to exclude evidence which "ex natura rei supposes still a greater evidence behind in the party's own possession or power": per Chief Baron Gilbert in Evidence 1st ed. (1756) p.4 quoted in Phipson on Evidence 13th ed. (1982) par.5.02. It also operated to render admissible secondary evidence if the absence of the primary evidence was explained.

13. In recent times the "best evidence" rule has been seen as having a very limited operation. In Commissioner for Railways (N.S.W.) v. Young (1962) 106 CLR 535, at p 544, Dixon C.J. expressed the view that the rule "excluding secondary evidence did not go beyond writing and include physical objects". In Garton v. Hunter (1969) 2 QB 37, at p 44, Lord Denning M.R. said:

"It is plain that Scott L.J. had in mind the old rule that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded. That old rule has gone by the board long ago. The only remaining instance of it that I know is that if an original document is available in your hands, you must produce it. You cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility."

See also Kajala v. Noble (1982) 75 Cr App R 149 which concerned the admissibility of a copy of a video recording. In that case Ackner LJ. speaking for the Divisional Court endorsed the remarks of Lord Denning M.R. in Garton and stated (at p 152) that the "best evidence" rule "is limited and confined to written documents in the strict sense of the term, and has no relevance to tapes or films".

14. In Halsbury's Laws of England (4th ed., vol.17 par.8) it is said of the rule:

"That evidence should be the best that the nature of the case will allow is, besides being a matter of obvious prudence, a principle with a considerable pedigree. However, any strict interpretation of this principle has long been obsolete, and the rule is now only of importance in regard to the primary evidence of private documents. The logic of requiring the production of an original document where it is available rather than relying on possibly unsatisfactory copies, or the recollections of witnesses, is clear, although modern techniques make objections to the first alternative less strong."

See also: Thayer, A Preliminary Treatise on Evidence at the Common Law, (1898), p 484 et seq; Wigmore on Evidence, vol.IV (Chadbourn rev. 1972) par 1175; Cross on Evidence, 3rd ed. (Australian) (1986) pars 1.88-1.92.

15. The use of electronic eavesdropping equipment for the investigation and prosecution of offences appears to have injected new life into the old rule. On the one hand it has been held that the exclusionary aspect of the "best evidence" rule prevents the receipt into evidence of a transcript of a conversation recorded on a tape where the tape is in evidence and is played on appropriate equipment to reproduce the sounds, at least where the sounds are "reasonably audible and intelligible in themselves": Conwell v. Tapfield (1981) 1 NSWLR 595, at p 599. On the other hand it has been held, as in Reg. v. Gaudion (1979) VR 57, that the rule has no application to a tape recording and thus there is no basis for the exclusion of a transcript of the words entrapped on the tape, notwithstanding that the tape is also admitted into evidence.

16. In Gaudion, Brooking J. explained the position thus (at p 59):

"Once it is appreciated that the playing of the original recording to the tribunal is merely one means of proving what it contains, it will become apparent that a transcript is admissible whether or not the original tape or a re-recording is put in evidence."

A little later his Honour excluded the operation of the "best evidence" rule saying:

"The original tape recording is a physical object. While the ultimate question is what sounds were in fact uttered, once a tape recording has been proved to be admissible, it is necessary to prove what is on the recording. The features or conditions of the recording being a relevant matter, that may be proved either by producing the original and, so to speak, exhibiting its features to the tribunal by playing it in court, or by calling a witness to give evidence of these features".

17. The view in Gaudion had earlier been adopted in Walsh v. Wilcox (1976) WAR 62. In that case Wright J. (at pp 63-64) stated that:

"a typewritten transcription of a recording is merely a means of conveying the conversation recorded to some person who wants to know what words were spoken, and it is an extension of the function performed by the machine on which the recording is played".

The same view was later adopted by the Court of Criminal Appeal of the Supreme Court of Queensland in Reg. v. Beames (1979) 1 A Crim R 239.

18. In Reg. v. Migliorini (1981) Tas R 80; (1981) 38 ALR 356, Cosgrove J. of the Supreme Court of Tasmania, after considering Walsh, Beames and Gaudion, said of a transcript of a recording (at p 90; pp 361-362 of ALR):

"I find difficulty in understanding how such a reproduction can be prima facie admissible. It is secondary evidence, it is based on an interpretation ...".

However, his Honour went on to add:

"but ... the courts have, for reasons of convenience and fairness, held that they may be admitted in the exercise of a general judicial discretion. The discretion is inclusory not exclusory".

In Williams v. The Queen (1982) Tas R 266, at pp 275, 279, 280-281, the Court of Criminal Appeal of the Supreme Court of Tasmania expressly declined to follow the reasoning in both Conwell and Gaudion, and adopted a similar view to that taken in Migliorini as to the admissibility of supplementary evidence of the contents of a tape recording based on discretionary considerations.

19. In overseas jurisdictions consideration of the admissibility of a transcript in addition to the tape recording has also resulted in at least three distinct approaches. In no jurisdiction (save perhaps Hong Kong: see Lui Kwok-wah v. The Queen (1966) HKLR 595, at p 600) has "an inclusory discretion" been identified as in Tasmania. In some jurisdictions it has been held that, although not admissible as an exhibit, a transcript may be used for certain forensic purposes.

20. In the United Kingdom it would seem that a transcript is regarded as admissible even when the tape recording is also received into evidence. In Reg. v. Maqsud Ali (1966) 1 QB 688 Marshall J., speaking for the Court of Criminal Appeal, referred (at p 700) to the receipt into evidence of both a transcript and tape recording in Reg. v. Howells (unreported, January 1965), likened a tape recording to a photograph and stated (at p 702):

"Having a transcript of a tape recording is, on any view, a most obvious convenience and a great aid to the jury, otherwise a recording would have to be played over and over again. Provided that a jury is guided by what they hear themselves and upon that they base their ultimate decision, we see no objection to a copy of a transcript, properly proved, being put before them."

That case, like the present, was concerned with documents which were translations, rather than transcripts, of conversations held in the Punjabi language.

21. In Canada the question of admissibility of a transcript along with the tape recording has received differing answers. In Reg. v. Wilson (1973) 3 WWR 1 and in Reg. v. Miller and Thomas (No.3) (1975) 28 CCC(2d) 118 transcripts were held to be admissible. In Reg. v. MacLean and MacLean (No.1) (1979) 49 CCC(2d) 399 and in Papalia v. The Queen; Reg. v. Cotroni (1979) 2 SCR. 256; (1979) 93 DLR(3d) 161 transcripts were held inadmissible as infringing the "best evidence" rule. In Reg. v. Bradley (1980) 19 CR (3d) 336, it was held that it was a matter of discretion for a trial judge to "allow the jury to have copies of the transcript while the evidence is being adduced, with an appropriate caution, before it is given to them, that such transcript is not evidence but is only a working tool or aid" (p 359). It was also accepted in that case that there was discretion to allow the jury to "have the use of their copies of that edited transcript when they ... retire to deliberate" (p 359).

22. The position in the United States appears to be equally diverse. In California it has been held that transcripts of recordings are not subject to the "best evidence" rule: People v. Finch (1963) 30 Cal Rptr 901. It has also been held that they may be received as exhibits along with the tape recording: People v. Fujita (1975) 117 Cal Rptr 757. On the other hand in Bonicelli v. State (1959) 339 P 2d 1063, and in Duggan v. State (1966) 189 So 2d 890, transcripts were held inadmissible when tape recordings were in evidence as offending the "best evidence" rule. In a number of cases it has been held that a transcript, although not receivable as an exhibit, may be read to the jury, or otherwise utilized by the jury: see United States v. Slade (1980) 627 F 2d 293; United States v. Dorn (1977) 561 F 2d 1252; Springer v. United States (1978) 388 A 2d 846.

23. In New Zealand the "best evidence" rule has not been seen as supplying an answer to the question of admissibility of transcripts where the tape recording is also in evidence. In Reg. v. Menzies (1982) 1 NZLR 40, the Court of Appeal (at p 49) described the problem as "sui generis and not automatically answered by settled principles". It was there held that "(i)f the tape is reasonably short and clearly audible there can normally be no justification for allowing a transcript as well as playing the tape". In respect of tapes not clearly audible or not intelligible the Court adopted a solution based on considerations analogous to those applicable to expert evidence, allowing that a person might become a temporary expert in the sense that "by repeated listening he has qualified himself ad hoc", and that evidence might "take the form of production of a transcript which can be admitted as an exhibit". A similar idea seems to underlie the Scottish decision in Hopes v. H.M. Advocate (1960) JC 104; (1960) SLT 264 in which the Lord Justice-General(Clyde), with whom Lord Carmont agreed, rejected an argument that the transcript there in issue was primary evidence and doubted the competence of the shorthand writer as an expert. Lord Sorn was prepared to accept that a person did not need technical qualification to give evidence as an expert as to the content of a tape recording.

24. The cases show that there are two aspects to the question of admissibility of evidence to supplement evidence constituted by the playing of a tape recording. The first question is whether evidence may be admitted to supplement a tape recording which is intelligible when played on sound reproduction equipment. The second question is whether evidence is admissible, and if so, on what basis, when the tape recording is not intelligible, as for example because it is inaudible, or the conversation is in a foreign language.

25. Ordinarily all evidence which is relevant is admissible notwithstanding that it duplicates evidence which is sufficient to prove the matter in issue. To this rule there are certain exceptions. One exception is the "best evidence" rule. Another exception is the so-called parol evidence rule which excludes extrinsic evidence as to the contents of a document which must be proved by the document or secondary evidence thereof. The rules which exclude otherwise relevant evidence are described in Chadbourn's revision of Wigmore on Evidence vol.IV as artificial in that "they do not, as do the rules of relevancy, simply analyze the natural process of inference and belief; but they contrive a specific safeguard to be applied where experience has shown it desirable" (par.1171). Within these exclusionary rules, the learned author identifies rules excluding the testimony of an excessive number of witnesses, or of opinion when superfluous and likely to be abused.

26. It may not be entirely appropriate to treat a tape recording as analogous with a written document for the purpose of applying the "best evidence" rule. However, just as it is frequently said in application of the related parol evidence rule that a document speaks for itself, so too, and more obviously, a tape recording will speak for itself if audible and intelligible. If an audible and intelligible tape recording is in evidence, extrinsic evidence of its contents is superfluous, lacks probative value and can contribute nothing (save, possible confusion) to the determination of the matters in issue. Accordingly it should be held that extraneous evidence of the content of a tape recording is inadmissible if the tape recording is in evidence and is audible and intelligible when played on sound reproduction equipment.

27. Where a tape recording is either inaudible or unintelligible a question will arise as to whether it should be excluded in the exercise of discretion on the ground that its prejudicial value outweighs its probative value: see Harris v. Director of Public Prosecutions (1952) AC 694, at p 707; Kuruma v. The Queen (1955) AC 197, at p 204; Driscoll v. The Queen (1977) 137 CLR 517, at p 541; Cleland v. The Queen (1982) 151 CLR 1. However, if it is to be admitted, evidence may be led as to the sounds entrapped thereon in the same manner that evidence may be led as to what was recorded on a document part of which has been obliterated. So too, just as evidence may be led as to the meaning in the English language of foreign language words in a document, evidence may be led as to the meaning in the English language of foreign words entrapped on a tape recording.

28. To say that evidence may be given as to the contents of a tape recording which is not audible or not intelligible does not determine the question of the receipt of that evidence in documentary form. The documents which were received as exhibits were the typewritten compilation of the working notes prepared by Mr Sekhon and Mrs de Kretser. The witnesses might, with leave, have resorted to the documents for the purpose of refreshing their memories. Cross-examination on the documents might have rendered the documents admissible. But, absent cross-examination making documents admissible, the general rule is that written statements of witnesses are not admissible as evidence of the facts and opinions therein stated unless admissible by some specific rule or made so by statute, as for example by s.55(2) of the Evidence Act 1958 (Vict.) which in certain circumstances renders business records admissible in criminal proceedings (see Conwell v. Tapfield, per Moffitt P., at p 602).

29. In the present case it was suggested that the documents were properly admitted as an aid to comprehension in the same manner as charts and diagrams which are proved by a suitably qualified person. The laws of evidence allow that evidence may sometimes be given other than in oral form. Thus photographs, charts, maps, diagrams and the like are admissible as a documentary representation of the relevant knowledge of a witness as to physical characteristics of an object or person. However, the documents here in question were not of that nature. Documents of similar description (but not including photographs) have been also held admissible in explanation of or as an aid to the comprehension of that which has been properly proved: Smith v. The Queen (1970) 121 CLR 572, at p 577.

30. The extent to which documents may be received as exhibits as aids to comprehension is by no means certain. It is clear that the chart considered in Smith was a record of transactions which had already been the subject of evidence, and the chart was no more than a summation of the evidence given. In Reg. v. Ireland (1970) 126 CLR 321 it appears to have been assumed that a chart was admissible if the expressions of opinion therein contained were the opinions of a suitably qualified witness. That chart appears to have been a composite of factual matters established by evidence and expression of opinion: see Reg. v. Ireland (No.2) (1971) SASR 6, at pp 10-13, where the question of admissibility of the same chart in the second trial was considered by the Supreme Court of South Australia. It would be reading too much into Ireland to take from it that opinion evidence may be given in documentary form if it will assist the comprehension of the jury. Even if it were so, the documents here in question did not consist solely of opinion evidence. Although a translation is not merely the giving of the dictionary equivalent of each foreign word used, nonetheless evidence as to meaning is not properly characterized solely as opinion evidence. It is more appropriately characterized as expert evidence. An expert may give opinion evidence but not all evidence given by experts is opinion evidence: see Phipson par.28.07; Clark v. Ryan (1960) 103 CLR 486, at pp 490-491; Weal v. Bottom (1966) 40 ALJR 436, at p 438. When translation evidence is given it is given as to the English words which have, as between speakers of the English language, the same effect as the foreign words in fact have as between speakers of the foreign language: cf. Chatenay v. Brazilian Submarine Telegraph Company (1891) 1 QB 79, at p 82. The position may be different in certain fields of language theory, as, for example, those deriving from the theory of structuralism.

31. In R. v. Tucker &Another (1907) SALR 30, Way C.J. held admissible tables and summaries being the result of examination of voluminous documents received in evidence. His Honour cited a number of earlier authorities in which a witness had been allowed to give evidence of the result of examination of documents put into evidence and said (at p.32):

"These cases, though not elaborately reviewed, came up for consideration by Knight Bruce V.C. in

Johnson v. Kershaw (1847) 1 De G &Sm 260 (63 ER

1059). That was a partnership dispute, and it was sought to give the result of books of account without producing them. The Vice-Chancellor said, 'If the account books had been in evidence the accountant's statement of the result of his examination of those books might be receivable.' That appears in one respect to be the crux of the whole matter. At the trial we had primary evidence of all the books and documents, and the tabulations ... related merely to the effect of these books and documents."

32. The cruciality of foundational evidence before charts, diagrams and summaries may be admitted into evidence as aids to comprehension was also remarked in Menzies where Cooke J. speaking for the New Zealand Court of Appeal stated (at p 49):

"The use of time-saving schedules and charts to assist the jury in complicated cases can be very desirable and is not improper, provided that the contents are proved and that the Judge is satisfied that there is no unfairness: see Smith v. The Queen (1970) 44 ALJR 467, at p 469; Reg. v. Simmonds (1969) 1 QB 685, at p 690" (emphasis added).

33. In my opinion the admission of documents by reason of their assisting comprehension is conditional upon the proof in proper form of foundational evidence, as was held by Knight Bruce V.C. in Johnson v. Kershaw and by the New Zealand Court of Appeal in Menzies. Were it otherwise the rules of evidence applicable in a criminal trial would be subordinate to judicial discretion based on considerations as to what is thought to be conducive of comprehension by jurors. So much was, I think, recognized by the trial judge, who, when ruling upon the admissibility of the documents, said:

"It may be objected that the supposed principle of convenience would enable police officers in the case of an alleged oral confession to prepare their evidence in the form of a written script, to be readily grasped by the jury, with the dialogue all set out and interspersed with stage directions ... And so it may be argued that the verbal confession, if I am correct, will always be placed seductively before the jury in the all too persuasive written form and that police officers will prove oral confessions by verifying the written script of a one-act play.

This development need not be feared. The judge has always a discretion whether to permit evidence that could be given orally to be given by means of a demonstration, or by the use of a chart, or otherwise in written form, and he will not allow this to be done where it is not in the interests of justice ..."

34. As the documents presently in question were tendered by way of proof of the English meaning of the words entrapped on the tape recordings, and not in explanation of evidence already given they were not, in my view, rendered admissible by reason that they were an aid to comprehension.

35. In ruling on the receipt of the documents as exhibits, the learned trial judge expressed the opinion that he had a discretion to allow the jury to have access to a transcript of the evidence given by Mr Sekhon and Mrs de Kretser, and therefore it might not "make a great deal of difference whether the transcripts are made exhibits".

36. Notwithstanding that a jury is generally not provided with a transcript of oral evidence, I see no reason why a trial judge, for considerations of convenience might not, in circumstances such that no prejudice will result therefrom, make a transcript of the oral evidence of a witness or witnesses available to a jury. This practice is accepted in the United States: see, for example, United States v. Carter (1971) 445 F 2d 669, at p 673; Government of the Canal Zone v. Scott (1974) 502 F 2d 566, at p 570 and United States v. Rice (1977) 550 F 2d 1364, at pp 1374-75. In Canada, the Saskatchewan Court of Appeal in Reg. v. McCrea (1969) 70 WWR 663, at p 669, (judgment delivered by Culliton C.J.S.) expressed as obiter "grave reservations as to the propriety of the trial judge, on his own volition, providing the jury with the transcript of part of the evidence of a witness". However, where a request is made by the jury, the practice of providing court transcripts to the jury has not been disapproved by Canadian appellate courts: see Huard v. The King (Que.) (1949) 8 CR 337, at p 343 and Reg. v. Dorset (1980) 54 CCC(2d) 490; (1981) 1 WWR 351. In Australia, although the matter has not been directly addressed, some support for the practice in limited circumstances can be drawn from the observations of Barwick C.J. in Driscoll, at p 523 (cf. Gaudion, at p.64).

37. Considerations of convenience could lead to the making available of a transcript of evidence as to the sounds entrapped on a tape recording which although inaudible when played on ordinary sound production equipment have been rendered comprehensible by the use of other equipment or repeated playing. So too with evidence as to the English meaning of a recorded conversation conducted in a foreign language, whether that evidence is given on the basis of hearing the tape recording inside or outside the court. Considerations of convenience could also lead to the making available of a transcript of lengthy tapes, even though audible and intelligible.

38. Considerations of convenience might also allow resort to a transcript emanating from a party, if it is clear that it is an accurate record of the evidence given. A transcript might be made available during the course of evidence, including cross-examination of the witness whose evidence it is. It might also be made available during the jury's deliberations.

39. But questions of convenience are not at large: "Convenience and justice are often not on speaking terms" - per Lord Atkin in General Medical Council v. Spackman (1943) AC 627, at p 638. The discretion of a trial judge to make available to the jury a transcript of evidence given by a witness is a discretion which is circumscribed by conventional considerations of fairness. Thus, without being exhaustive, there is no discretion to make available a transcript if it would tend to unduly emphasize the evidence, or to accord to it a probative value which it does not possess. If a transcript of the evidence of one witness is made available the evidence of other witnesses on the same subject-matter should be treated in precisely the same manner. There are particular difficulties as to the making available of a transcript of part only of the evidence of a witness, as might be expected in the case of a transcript of the words entrapped on an inaudible tape recording or of evidence as to the English meaning of foreign words used in a recorded conversation. It is generally accepted that if the jury requests that the evidence of a witness be read back, it is the duty of the trial judge to ensure that so much of the evidence is read as is necessary to give a fair account thereof. Thus, notwithstanding that the jury requests part only of the evidence to be read there should also be read those parts which weaken or qualify that evidence (see, for example, the decision of the Supreme Court of Canada in Olbey v. The Queen (1980) 1 SCR 1008, at pp 1026-1028; (1979) 105 DLR(3d) 385, at pp 399-401). Accordingly, if a transcript is made available which represents part only of the evidence given by a witness, it will be necessary for the trial judge to adequately instruct the jury as to any matters, particularly matters elicited in cross-examination, which detract from the probative force of the evidence made available in the form of a transcript. In all cases the jury should be instructed in unambiguous terms that the transcript is not evidence, and is made available to them only for their convenience. This instruction should be given before a transcript is made available.

40. In the present case the trial judge might properly have allowed Mr Sekhon and Mrs de Kretser to read to the jury their translations of the words entrapped on the tapes, providing that they were able to identify the exhibited tapes as the tapes from which they had made their translations. A transcript of their evidence might then have been made available to the jury for their assistance during cross-examination of the witnesses. The transcript might properly have been made available to them during their deliberations. In these circumstances it is necessary to consider whether the receipt of the documents as exhibits made "no difference" in the sense that it can be said that no miscarriage of justice was occasioned.

41. The prosecution case against the applicant depended to a very large extent on the words spoken by Kumar in the recorded conversation. The English meaning of various Punjabi words used in that conversation was put in issue in cross-examination on behalf of the applicant and the other defendants.

42. Cross-examination elicited that in the Punjabi language meaning is sometimes a matter to be derived by inference from context. It was also established that some Punjabi words bore meanings in addition to those adopted in the translation process. For example, it was established in cross-examination that the Punjabi words translated by Mr Sekhon as "merchandise" and "fix" may also mean "things" and "small packet". The objectivity of Mr Sekhon's translation was also put in issue by the suggestion that he employed those English words because of his knowledge that police were involved in the investigation of a drug offence.

43. In Driscoll it was recognized that the receipt into evidence of an unsigned record of interview might be used by the jury erroneously to strengthen or corroborate oral testimony: see per Gibbs J. at p 542. In the present case the risk was not merely that the documents might be used to strengthen or corroborate the oral evidence of the witnesses, but that the documents themselves might be accepted as having probative value in their own right, quite apart from the oral evidence.

44. Although the jury might properly have been allowed access to transcripts of the oral evidence of the witnesses, accompanied by appropriate warning of the use to which they could be put, the receipt of the transcripts as exhibits deprived the accused of a "trial in which the relevant law (was) correctly explained to the jury and the rules of procedure and evidence (were) strictly followed": see Mraz v. The Queen (1955) 93 CLR 493, per Fullagar J. at p 514. In these circumstances it is for the prosecutor to establish that had the rules been properly applied, the jury would inevitably have convicted.

45. Because the documents were received as evidence, it is reasonable to assume that the jury may well have accorded them probative force over and above the oral testimony of the witnesses. Given the materiality of the evidence of the recorded conversation to the prosecution case against the applicant, I am not satisfied that it can be said that the receipt of the documents as exhibits did not deprive the applicant of a chance of acquittal that was otherwise fairly open to him.

46. I would grant special leave to appeal and allow the appeal.

Orders

Application for special leave to appeal granted.

Appeal dismissed.