CKX16 v Minister for Immigration
[2018] FCCA 1854
•10 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKX16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1854 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether an enhanced tape recording and transcript of the Tribunal hearing should be admitted into evidence. |
| Legislation: Evidence Act 1995 (Cth), ss.48, 59(1), 135, 136 Federal Circuit Court Rules 2001, r.15.06 |
| Cases cited: Butera v Director of Public Prosecutions (DPP) (Vic) (1987) 164 CLR 180; (1987) 76 ALR 45; (1987) 62 ALJR 7; (1987) 30 A Crim R 417; [1987] HCA 58 |
| Other materials: J D Heydon Cross on Evidence, LexisNexis (looseleaf) |
| Applicant: | CKX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1874 of 2016 |
| Judgment of: | Judge Riley |
| Hearing dates: | 30 April 2018, 23 May 2018 and 18 June 2018 |
| Date of last submission: | 18 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 10 July 2018 |
REPRESENTATION
| Counsel for the applicant: | Matthew Albert and Nick Wallwork on 30 April 2018 Matthew Albert on 23 May 2018 and 18 June 2018 |
| Solicitors for the applicant: | None |
| Counsel for the first respondent: | Andrew Yuile |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
Exhibit JC-1 to the affidavit of Joseph Carra affirmed on 4 June 2018, being a USB containing an enhanced recording of the applicant’s hearing before the Administrative Appeals Tribunal, be admitted into evidence.
Exhibit AG-5 to the affidavit of Antonietta Guerra affirmed on 18 May 2018, being the transcript of the enhanced tape recording, be admitted into evidence.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1874 of 2016
| CKX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This judgment concerns the applicant’s objections to the admissibility of certain affidavits upon which the Minister for Immigration and Border Protection seeks to rely. The substantive application seeks review of a decision of the Administrative Appeals Tribunal which affirmed a decision of a delegate of the Minister refusing to grant the applicant a protection visa.
The applicant claimed that he witnessed a murder in Fiji. He now claims that he told the Tribunal orally that the murderer was associated with the army. The Tribunal did not consider that claim. There is little doubt that, if the applicant made that claim, the Tribunal’s failure to consider it would have constituted a jurisdictional error.
The Minister disputes the applicant’s claim that he told the Tribunal that the murderer was associated with the army. To support his case, the Minister wishes to rely on an enhanced electronic recording of the applicant’s hearing before the Tribunal and the transcript of that recording. The applicant has indicated that he will give oral evidence to this court about what he told the Tribunal and the Minister has indicated that he will cross-examine him.
It is common ground that the electronic recording of the Tribunal hearing is of poor quality, partly because, in some places, it picks up the sound of the Tribunal member typing instead of the words uttered. The Minister arranged for a sound mastering engineer, Joseph Carra, to enhance the electronic recording of the Tribunal hearing. Unfortunately, the enhanced electronic recording (“the tape”) still contains a few parts which the transcriber of the tape has said are indistinct. There is a dispute about how extensive the indistinct parts are, which is best resolved by me listening to the tape.
It is also common ground that the transcript of the tape does not indicate that the applicant told the Tribunal that the murderer was associated with the army. However, the applicant maintains that he told the Tribunal that the murderer was associated with the army during the indistinct parts of the tape.
The Minister relied on:
a)the affidavit affirmed by Georgina Hillier on 16 May 2018;
b)the affidavits affirmed by Mr Carra on 17 May 2018 and 4 June 2018;
c)the affidavits affirmed by Antonietta Guerra on 18 May 2018 and 30 May 2018; and
d)the affidavit affirmed by Chris Mai on 1 June 2018.
Ms Hillier is the Hearing Coordination Unit Team Leader at the Tribunal. She said in her affidavit that:
a)she was not personally involved in the applicant’s Tribunal hearing; and
b)she obtained the electronic recording of the applicant’s Tribunal hearing from the Tribunal’s records.
The electronic recording was then sent via the Minister’s solicitors to Mr Carra. No issue was taken with the manner in which the electronic recording was conveyed from Ms Hillier to Mr Carra.
Mr Carra said in his affidavits that he enhanced the recording. The tape is on a USB marked as exhibit JC-1 to Mr Carra’s affidavit affirmed on 4 June 2018. No issue is taken with Mr Carra’s competence to enhance sound recordings.
Ms Guerra said in her affidavit affirmed on 18 May 2018 that:
a)she is a legal assistant at the Australian Government Solicitor’s office;
b)she sent the tape to an external transcription service to transcribe;
c)the transcript the external service provided is exhibited to her affidavit as exhibit AG-5 (“the transcript”);
d)she has listened to the tape and read the transcript; and
e)she believes that the transcript is an accurate transcript of the tape.
The applicant objected to the tape and the transcript being admitted into evidence. The applicant argued that the tape and the transcript should both be excluded:
a)under s.59 of the Evidence Act 1995 (Cth) (“the Act”) on the basis that they are hearsay;
b)under s.135 and s.136 of the Act on the basis that they might be unfairly prejudicial or misleading or confusing;
c)because parts of the tape are indistinct and the tape is therefore irrelevant; and
d)on the basis that Ms Hillier was not present during the Tribunal hearing and, accordingly, the provenance of the tape falls at the first hurdle.
For the hearsay argument in relation to the tape, the applicant relied on the decision of the Court of Appeal of the Supreme Court of Victoria in Hoser v R [2003] VSCA 194, particularly at [48], which is as follows:
These findings depend upon there being some credible evidence to support them. The only evidence to which his Honour referred in this connection was the transcript of the Bingley “confession”. Indeed, no other evidence was available. But the transcript was hearsay. The tape recording on which it was based was also hearsay. The first appellant’s account of what Bingley said to him was hearsay too. No such evidence was or is admissible as the truth of its contents: that is, as truth of the proposition that the magistrate had accepted a bribe. Indeed, of its nature it stands as an excellent illustration of the reasons for the rule against hearsay – or, rather, of the reasons why second-hand evidence of this kind should be treated with caution. Its inherent unreliability is manifest. In our opinion, it was not open to his Honour to rely upon it even to the very limited extent that he did.
The applicant relied on that passage to say, in effect, that a tape recording is always hearsay. However, Hoser does not stand for that proposition. The recording in Hoser is described in paragraph (e) of the quotation in [38] of the judgment in Hoser. The quotation was from the notice of cross appeal. Paragraph (e) was to the effect that the trial judge had erred in law:
in acting on the basis that there was admissible evidence before him as to the contents of a tape recording of a conversation which allegedly took place between the first appellant [Mr Hoser] and a police officer named Bingley in relation to Magistrate Hugh Francis Adams having received a bribe ('the said tape recording');
The conversation between Mr Hoser and a police officer about a magistrate receiving a bribe was obviously hearsay when used for the purpose of proving whether the magistrate received a bribe. Equally obviously, a tape recording of that conversation and a transcript of the recording were hearsay when used for the purpose of proving whether the magistrate received a bribe.
However, Hoser has no application to the present case. The Minister is seeking to rely on the tape to prove what was said or not said at the Tribunal hearing. The Minister is not seeking to prove the truth of any statement made on the tape. It follows that Hoser is not applicable.
The applicant also relied on s.59(1) of the Act which provides that:
Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
In the present case, the tape no doubt contains representations made by the applicant during his hearing before the Tribunal. However, the Minister does not wish to rely on the tape to prove the existence of facts that it can reasonably be supposed the applicant intended to assert by his representations. The Minister only seeks to rely on the tape to establish what was said or not said at the Tribunal hearing. Consequently, the tape is not excluded by s.59 of the Act.
That is consistent with the decision of the High Court in Butera v Director of Public Prosecutions (DPP) (Vic) (1987) 164 CLR 180; (1987) 76 ALR 45; (1987) 62 ALJR 7; (1987) 30 A Crim R 417; [1987] HCA 58 where Mason CJ, Brennan and Deane JJ said at page 184:
… 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 (14); Reg. v. Papalia; Reg v. Cotroni (15); Williams v. The Queen (16); Walsh v. Wilcox (17); United States v. Biggins (18); Hurt v. State (19), 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… (footnotes omitted)
Butera remains good law notwithstanding that it preceded the enactment of the Act. See J D Heydon Cross on Evidence, LexisNexis (looseleaf) at [1305], which begins:
The general principles are stated by the High Court as follows.462 A tape is not by itself admissible evidence of what is recorded on it, for by itself it is incapable of proving what is recorded on it. It is only admissible because it is capable of being used to prove what is recorded on it by being played on sound reproduction equipment: that produces evidence of the conversation or other sound recorded, and it is that evidence, aurally received, which is admissible to prove the relevant fact, namely the sounds recorded. (footnote omitted)
462 Butera v DPP (Vic) (1987) 164 CLR 180 at 185-9 …
The applicant did not take any issue with the fact that the tape was enhanced. In any event, there is ample authority that enhanced tapes may be admitted into evidence as evidence of what was said on a particular occasion. See, for example, Director of Public Prosecutions v Selway (Ruling No.9) [2007] VSC 247 at [17].
Section 135 of the Act provides that:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)be unfairly prejudicial to a party; or
(b)be misleading or confusing; or
(c)cause or result in undue waste of time.
Section 136 of the Act provides that:
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
The applicant argued that the court hearing the tape would be unfairly prejudicial to the applicant or misleading or confusing. I do not accept those arguments. The tape will only show what was said or not said at the Tribunal hearing, or, when the tape is unintelligible, what was recorded at the hearing. I fail to see how that could be unfairly prejudicial to the applicant or misleading or confusing.
The applicant argued that the tape was irrelevant because parts of it are indistinct. The applicant relied on R v Mondon [2001] QCA 402 at [21] where Chesterman J said:
… A tape recording that is unintelligible is, obviously, inadmissible not because it is not relevant but because it is not evidence at all. Sounds that have no discernible meaning should not be put before a court.
However, the applicant failed to draw the court’s attention to the subsequent paragraphs, where Chesterman J said:
[22]The appellant’s real point was that the recording was incomplete and indistinct. The first complaint is that it does not include the whole of the conversation at the Bowls Club between the appellant and Mr Douglas. This is true but the witness explained that he activated the recorder when Ms Kelly and her father left him and the appellant alone and that he turned it off when Ms Kelly rejoined them. If something germane to the admission was said by the appellant when the tape recorder was off it could have been the subject of cross-examination or, indeed, evidence by the appellant himself. There was no suggestion in the evidence that something additional had been said that would qualify or contradict the conversation that was recorded.
[23] The second complaint is that what was indistinct may in someway have affected the admission. This is really the same point. Having heard the conversation three times I am satisfied it has no substance. What is indistinct is quite brief and does not occur during the relevant admission which can be heard distinctly.
The same may be said in the present case. Indeed, the applicant has foreshadowed that he intends to give oral evidence in the present proceeding about what was said during the indistinct portions of the tape.
Moreover, depending on the duration of the indistinct parts, the tape may show that the applicant could, or, conversely, could not, realistically have told the Tribunal that the murderer was associated with the army. Similarly, depending on the topic that was being discussed during the indistinct parts of the tape, it may be more or less plausible that the applicant told the Tribunal at those points that the murderer was associated with the army.
Also, while the transcriber has been unable to discern what was said during the indistinct parts of the tape, it may be that the court, with the benefit of knowing what the case is about, and by playing the tape repeatedly, may be able to work out what was said during the indistinct parts, or decide whether it is possible that the indistinct parts could contain words to the effect that the murderer was associated with the army.
For these reasons, I consider that the tape is relevant, notwithstanding that it contains some indistinct parts.
In relation to the provenance of the tape, the applicant only took exception to Ms Hillier’s evidence as to the origin of the tape. The applicant did not challenge the evidence as to the chain of custody, so to speak.
The applicant argued that, as Ms Hillier was not present during the Tribunal hearing, she could not give evidence that the tape was a tape of the applicant’s Tribunal hearing. The applicant argued that only the Tribunal member or the Tribunal officer who was present during the hearing could give the appropriate evidence.
The Minister said that the Tribunal member who made the decision in this case was no longer a member of the Tribunal and the Tribunal officer who was present at the Tribunal hearing is no longer employed by the Tribunal. As the court pointed out during the hearing, these circumstances are irrelevant. There was no suggestion that the Minister had tried and failed to locate the Tribunal member or the Tribunal officer for the purposes of serving subpoenas on them.
In any event, there is no suggestion that the tape is not the tape of the applicant’s Tribunal hearing. After some issues, the applicant had the opportunity to listen to the tape. He did not claim that it is someone else’s hearing. He did not claim that the tape has been tampered with.
In these circumstances, I see no reason to doubt that the tape is an enhanced version of the electronic recording of the applicant’s Tribunal hearing. That is, I accept the provenance of the tape.
Consequently, for the reasons expressed above, I consider that the tape should be admitted into evidence in this proceeding.
In relation to the transcript, the applicant relied on Nuclear Utility Technology & Environmental Corporation Inc (Nu-Tec) v Australian Broadcasting Corporation (ABC) [2010] NSWSC 711, particularly at [12] – [14], where McCallum J sitting in the New South Wales Supreme Court said:
12. … Assuming for present purposes that the transcript is admissible, I would exercise my discretion under s 135 to exclude it, for the reasons explained by Clarke JA in Parker, by Dunford J in Goldsworthy and by Levine J in Griffith. In my view, there is a significant danger that the availability of a written version of a transient publication would compromise the already difficult task for the jury of assessing the likely impression of the publication on the viewer who saw it once, in its original form, as an ordinary, reasonable member of the community would see it.
13. Further, as noted by Levine J in Griffith at [11] (and accepted by Sperling J in Vacik), the probative value of a transcript is negligible where a tape or disc that can be understood is available to the jury. In my view, the probative value is plainly outweighed by the danger to which I have referred.
14. For those reasons, I rejected the tender of the two transcripts.
However, the Minister noted that Nu-Tec was a defamation case, and the question was whether a person had been defamed by a broadcast. An issue in Nu-Tec was the impression that would be created by a necessarily transient broadcast as opposed to the impression created by a permanent hard copy transcript. McCallum J said at [3] – [11]:
3. The first issue was the admissibility of a transcript of each of the two broadcasts. There was already in evidence a recording of each broadcast on DVD. Ms Reid, who appeared with Ms Brown for the plaintiffs, noted that the jury would have those discs with them as exhibits in the jury room. She submitted, in effect, that it would make no difference for the jury also to have the transcripts and that they may be assisted by having them.
4. Different views have been expressed as to both the permissibility and the desirability of that course. In Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448, three judges of the Court of Appeal were in agreement that a transcript of a radio broadcast sued on in a defamation case should not be admitted into evidence where there is no difficulty in understanding the tape played before the jury: at 472G - 473E per Clarke JA, Cripps JA agreeing; per Handley JA at 474B. Clarke JA emphasised the general principle that the meaning drawn from a broadcast by the ordinary, reasonable listener or viewer (who sees it only once) is in many cases a matter of impression. In that context, his Honour saw force in the contention that a transcript could only have distracted the jury from their task of assessing the matter from that perspective.
5. Parker was decided before the commencement of the Evidence Act 1995. In Goldsworthy v Radio 2UE Sydney Pty Limited (unreported 22 March 1999), Dunford J held that under s 48(1)(c) of the Evidence Act, both a tape of a radio broadcast and a transcript of it are admissible. However, his Honour saw “some difficulty in a transcript in that the provision of a written transcript of what was said may tend to mislead the jury into considering the material as if it were print media, eg a book or newspaper, rather than an oral broadcast”. On that basis, his Honour admitted the tape but exercised his discretion under s 135 of the Evidence Act to exclude the transcript.
6. In Vacik Distributors Pty Limited v Australian Broadcasting Corporation (unreported 4 November 1999), Sperling J took a different view. His Honour reached the same conclusion as had Dunford J that the transcript was admissible under s 48(1)(c) of the Evidence Act, subject only to the exercise of the Court’s discretion pursuant to s 135. The discretion to refuse to admit evidence under that section arises if the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, misleading or confusing or cause or result in undue waste of time.
7. Sperling J acknowledged that, where a tape of the broadcast is available and the only use for a transcript is as an aide-mémoire or for ease of reference, the transcript should not be regarded as having any significant probative value at all. On that basis, his Honour accepted that, if there was any significant unfair prejudice to a defendant of admitting a transcript, that prejudice “would necessarily substantially outweigh the probative value of the evidence for the purposes of s 135”.
8.Sperling J was of the view, however, that the admission of a transcript did not entail prejudice of the kind perceived by Clarke JA in Parker. His Honour noted (as Clarke JA had) that much of what occurs at a trial in which a jury determines the question of defamatory meaning has a tendency to distract the jury from the task of assessing the effect of the broadcast at the time it was published, given that the ordinary reasonable viewer would have seen it only once. Sperling J concluded that an accurate transcript is an aid to that task, rather than a distraction from its proper performance.
9.Counsel informed me that the most recent substantive consideration of the issue is contained in the decision of Levine J in Griffith v Australian Broadcasting Corporation [2003] NSWSC 483. In that case, Levine J came to a different conclusion (from that reached by Sperling J) as to the threshold question of admissibility. His Honour considered that, since the “best” evidence of the broadcast (a tape or a disc) is before the jury, there is no fact in issue to which a transcript of the broadcast can be relevant. On that basis, his Honour held (at [13]) that a transcript is not relevant evidence within the meaning of s 55 of the Evidence Act and, accordingly, that it is not admissible under s 56 of the Act. On that analysis, s 48(1)(c) of the Act did not assist.
10.Levine J stated further (at [14]), in case his primary analysis was wrong, that he would certainly exercise his discretion under s 135 so as to exclude the transcript. His Honour emphasised the importance of the concept of “impression” in relation to transient publications and did not agree with the analysis of Sperling J in Vacik that an accurate transcript is a proper aid to the jury’s assessment of that impression.
11. The conclusion reached by Levine J that a transcript of a broadcast is not “relevant” within the meaning of s 55 of the Act where a tape or disc recording of the broadcast is available to be put before the jury may be open to debate. Assuming the tape itself is admissible, it is probably a “document in question” as defined in s 47. On that basis, there may be force in the view expressed by Dunford J in Goldsworthy that a transcript of the tape is admissible by reason of the operation of s 48(1)(c).
The present case has a very different factual matrix. There is no issue concerning the transience of what was said at the Tribunal hearing. I do not consider that Nu-Tec assists the applicant in his argument that the transcript of the tape should be excluded under s.135 or s.136 of the Act.
I also note, in passing, that there was no question of the admissibility of the tape recording of the broadcast in Nu-Tec. That reinforces my earlier conclusion about the admissibility of the tape of the Tribunal hearing.
Returning to the transcript, Mason CJ, Brennan and Deane JJ said in Butera at page 187 – 8:
… 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. cited with approval a Canadian case Reg. v. MacLean and MacLean [No. 1] 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:
“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. 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.
(footnotes omitted)
Butera remains good law in relation to transcripts. Its basic principles were applied in Registrar of Aboriginal and Torres Strait Islander Corporations v Ponto [2012] FCA 1500; (2012) 208 FCR 346, where Reeves J said as follows:
35. As is already noted above (at [24]), during the course of the investigations that preceded these proceedings, four of the respondents — Mr Ponto, Mr Blitner, Mr Rogers and Mr Dass — were examined by an official appointed by the Registrar. The examinations were conducted under s 453-5(1)(c) of the Aboriginal Corporations Act. Under that provision, the respondents were compelled to attend the examinations and to answer any questions “concerning the corporation or its examinable affairs”.
36. The Registrar sought to tender the transcripts of the examinations under ss 81 and 48 of the Evidence Act 1995 (Cth). In total, he sought to tender five transcripts — Mr Dass was examined twice.
37. Dealing first with s 48 of the Evidence Act, it is important to note that the Registrar did not seek to tender the recordings of the examinations themselves, but instead sought to tender documents that purported to be transcripts of those recordings. However, s 48(1)(c) of the Evidence Act provides:
(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:
…
(c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing) — tendering a document that is or purports to be a transcript of the words;
38. In R v Cassar; R v Sleiman [1999] NSWSC 436 (Cassar), Sperling J summarised the principles relating to the operation of s 48. The following parts of his Honour’s summary are germane for present purposes (at [7]):
(a) A document that purports to be a transcript of words recorded on a tape is admissible to prove the conversation: s48(1)(c);
(b) No oral or other evidence is necessary to validate such a transcript, it being sufficient that it purports to be a transcript of the words: s48(1)(c).
39. In R v Giovannone (2002) 140 A Crim R 1 per Mason P (Hidden J and Carruthers AJ agreeing), the New South Wales Court of Criminal Appeal cited Cassar and the proposition in (b) above with apparent approval (see at [61]).
40. The documents that the Registrar sought to tender in this case clearly purport to be transcripts of words recorded on the tapes. It follows from the decision in Cassar (above) (with which I respectfully agree) that no further oral evidence is required to validate them.
41. Turning then to s 81 of the Evidence Act, prima facie the transcripts contain out of court representations tendered for the truth of their contents. As such, they are inadmissible as hearsay: s 59(1) of the Evidence Act. However, the Registrar submitted that the transcripts contained admissions, and they were therefore admissible under s 81 of the Evidence Act.
In relation to [41] of Ponto, I note that in this case the Minister does not intend to tender the transcript for the truth of the representations it contains. Therefore, [41] of Ponto is not applicable to the present case.
I also note that s.48(1) of the Act provides as follows:
(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:
…
(c)if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)—tendering a document that is or purports to be a transcript of the words …
…
In R v Cassar; R v Sleiman [1999] NSWSC 436 at [6] and [7], Sperling J said:
6. … The Crown conceded, in the present case, that, under Butera, the transcripts of the telephone intercept conversations would not have been admissible (because the recording of those conversations is distinct). Section 48(1) embodies no such restricting concept. It makes transcripts admissible according to its terms. A document that purports to be a transcript of words recorded on a tape is admissible to prove the conversations.
7. Butera (supra), Menzies [1982] 1 NZLR 40 (quoted with approval in Butera) and the subsequent decision of the Full Court of the Federal Court in Eastman (1997) 158 ALR 107 are valuable authority for the use to which such a transcript may be put. The combined effect of s48(1) and those cases is, so far as is presently relevant, as follows:
(a) A document that purports to be a transcript of words recorded on a tape is admissible to prove the conversation: s48(1)(c);
(b) No oral or other evidence is necessary to validate such a transcript, it being sufficient that it purports to be a transcript of the words: s48(1)(c);
(c) Where a tape is indistinct, a transcript may be used to assist the jury in the perception and understanding of what is recorded on the tape: Butera at 187;
(d) Where a tape is indistinct, a transcript made by an “ad hoc expert”, being a person qualified only by having listened to the tape many times, may be used for this purpose. That is particularly so where the tape needs to be played over repeatedly before the words uttered could be made out unaided: Menzies at 49 cited in Butera at 188;
(e) If there is doubt or disagreement whether the transcript accurately deciphers the sounds captured on the tape, the transcript should be used only as an aide-memoire. I take that to mean that the jury is to give priority to what they hear (or do not hear) on the tape, if that is not consistent with what appears in the transcript: Butera at 188;
(f) The jury may have the transcript before them when this tape is played over in court: Eastman at 200;
(g) The jury should be informed, when the transcript is tendered, as to the use which they may make of it: Eastman at 220;
(h) A transcript may be rejected or its use limited pursuant to s135 to s137.
The court drew to the attention of counsel for the applicant r.15.06 of the Federal Circuit Court Rules 2001, which provides as follows:
A transcript of proceedings prepared at the direction of the Court may be received in evidence as a true record of the proceedings except to the extent that it is shown not to be a true record.
Counsel for the applicant submitted that it was not a valid rule, because it conflicted with s.59 of the Act. However, as discussed above, s.59 of the Act does not render the transcripts inadmissible for the purpose for which the Minister seeks to rely on them. Therefore, r.15.06 would also support the admission of the transcripts into evidence if the appropriate direction were given. However, in the present case, no such direction is needed.
The applicant also argued that the transcript demonstrably contained inaccuracies, because the transcript does not coincide precisely with a transcript of certain portions of the hearing which was prepared by Judge Riethmuller. (His Honour heard and determined the applicant’s application for review. However, his Honour’s decision was overturned on appeal.) Those inconsistencies in the two versions of the transcript are irrelevant. Obviously, I will have to listen to the tape, and closely examine whether it conforms to the transcript.
All in all, I consider that the transcript should be admitted into evidence in this proceeding.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 10 July 2018
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