- Unreported Judgment
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 58 of 1999
[R v M]
Judgment delivered 20 July 1999.
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
APPEAL ALLOWED, CONVICTION SET ASIDE AND A RE-TRIAL ORDERED.
CATCHWORDS: CRIMINAL LAW - EVIDENCE - GENERALLY.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES.
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION.
Recording of Evidence - limited powers of trial judge when dispute arises over what has been said in evidence - nature of transcript - determination of such questions by the jury or tribunal of fact - need for shorthand writers to make verbatim transcript when accuracy challenged - whether trial judge erred in reading to jury a passage from the evidence - true status of transcript of evidence taken by shorthand writers in criminal trials, and the respective functions of judge and jury in determining what has been said, discussed.
Criminal Code 1899 (Qld), s671K
Criminal Practice Rules, Order 9 Rule 6
Recording of Evidence Act 1962 (Qld), s10(1)
Builders Licensing Board v Mahoney (1986) 5 NSWLR 96 considered
Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 considered
Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684 considered
Morris (1996) 88 A Crim R 297 approved
Vakauta v Kelly (1988) 13 NSWLR 502 considered
Wentworth v Wentworth (Estate of the late Wentworth) (Unreported, Supreme Court of New South Wales (Equity Division) Santow J, 6 February 1998, considered)
Williams (1995) 84 A Crim R 370 considered
Counsel: Mr AJ Glynn SC for the appellant.
Mr T Winn for the respondent.
Solicitors: Robertson O'Gorman for the appellant.
Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date: 21 June 1999
REASONS FOR JUDGMENT - PINCUS JA
Judgment delivered 20 July 1999
I have read the reasons of Thomas JA. I am in agreement with his Honour's view, substantially for the reasons given by him, that the direction the learned primary judge gave in response to the request numbered 2 which came from the jury, was inadequate. I am further of the view that as Thomas JA concludes the appeal must be allowed, the conviction set aside and a new trial ordered.
With respect to the extensive discussion by Thomas JA about the status of a transcript of evidence, beginning at para 18 of his Honour's reasons, I prefer not to make any comment except on one point. The extent to which judges take notes of proceedings before them varies considerably. I have seen eminent judges, in this country and abroad, apparently paying the closest attention to what is passing before them, but taking no or very few notes of it. And it seems to be possible, for judges as for students, to engage in much busy note taking while the writer's mind is quite inactive.
REASONS FOR JUDGMENT - DAVIES JA
Judgment delivered 20 July 1999
I agree with Thomas JA that the direction of the learned trial judge as to what the appellant said in evidence, which her Honour gave by reading out to the jury the passage set out in par 12 of the reasons of Thomas JA, was a misdirection which constituted a miscarriage of justice requiring this Court to quash the appellant's conviction and order a new trial.
The reason why it was a misdirection was that there were at least two and possibly three views of what was said by the appellant at the relevant time; the version which the learned trial judge read to the jury was, of those two or three, the only one which was damaging to the appellant because it contained an admission of guilt; and the version which the learned trial judge and the prosecutor thought they heard, and which was consistent with the appellant's other evidence, was inconsistent with any such admission.
As the jury were not given the opportunity to hear the other possible versions of the evidence it is not known whether their recollection of what was said would have accorded with her Honour's or whether indeed they had any common recollection. For that reason and because in a new trial the evidence may be different, it is unnecessary in this appeal to decide how, in the absence of a sound recording of evidence, a difference in recollection between judge and jury as to what was said should be resolved. I would therefore prefer to leave consideration of that question to an occasion when it arises.
REASONS FOR JUDGMENT - THOMAS JA
Judgment delivered 20 July 1999
The appellant was convicted of the rape of his daughter.
Only one count of rape was alleged in the indictment, consisting of a specific incident in August 1997 near Gympie when the complainant was 13 years old. However she was permitted to give evidence that she had been sexually abused by the appellant since she was four or five years old. The complainant's evidence described acts of oral sex when she was still at kindergarten, progressing to actual sexual intercourse with her by the time she was in grade 1 (aged 6 or 7). This was followed by recurrent acts of rape in Tasmania, then in Queensland and again in Tasmania, as the family moved and were visited by the appellant. The evidence was that he started to use a condom when the complainant attained puberty. When she was 13 she moved again to Queensland with her mother and brothers, attending school at grade 8 level. One day when her mother and brother were not present the appellant visited her in her bedroom and had intercourse with her despite her protests and lack of consent. This was the only count charged in the indictment. About six months later a complaint was made to the police. In due course his trial proceeded in the District Court at Gympie.
The appeal is based on three grounds:
- That the trial miscarried because the Crown Prosecutor submitted to the jury that in reaching their verdict they should have regard to the issue of why the complainant would make and maintain a false allegation;
- That the learned trial judge erred in her directions to the jury about the use of uncharged allegations of misconduct by the appellant in that she failed to direct the jury that they must be satisfied of the truth of the allegations before they could use them against the appellant; and
- That in responding to a question from the jury, the learned trial judge erred in reading to the jury a passage from the evidence in a way which suggested that the appellant had admitted an occasion of sexual misconduct with the complainant, when that was not the case.
It will be convenient to consider the last mentioned ground first.
There were only three witnesses for the Crown - the complainant, the complainant's mother and Dr Springhall. The doctor's evidence was that the complainant's sexual organs were consistent with the complainant having engaged recurrently in sexual intercourse over a period of time.
The appellant gave evidence in his defence denying any sexual impropriety. In the course of his cross-examination the Crown prosecutor repeatedly alleged misconduct and alleged that he had "got away with it". Such allegations were denied by the appellant.
Upon the appeal some dispute remained as to the words actually used by the appellant at a certain point in his evidence, and further as to the words actually used by the learned trial judge when she purported to read the relevant passage to the jury when a redirection was sought. Evidence was therefore received by this court on those issues.
The acoustics of the Gympie courthouse were described by one of the court reporters in this matter as "notoriously bad". The reporter conceded unusual difficulty in recording the evidence of the appellant, given the combination of the acoustics, her position behind him and the speed of his speech. No tape-recording facilities existed in that courthouse.
The initial transcript of evidence at the material point in cross-examination of the appellant, was in the following terms:
"I am suggesting to you that the last occasion these things occurred was in Queen Street?-- At no stage did it happen. They are allegations - I have never done anything to my children.
I suggest when you came up to Queen Street on the last visit you felt safe in doing what you did because you had got away with it up until now? – I never felt safe because I never had done nothing.
Because R hadn't told anybody?-- If I had done it - I never done it even once, I never done it the one time or any time. I never abused or interfered with my children, never ever. I never even seen my children with no clothes on.
Did you say something amused you? Is that what you said?-- I never abused any of my children."
The passage of particular importance is the emphasised question and answer above. Its potential importance emerged upon receipt of a note from the jury approximately two hours after retirement. The note was in these terms:
"Redirection is required. Evidence by accused. (1) the context of reference to 5 klm walk and other activities with the boys. CP (2) 'if I had done it it was only the once'. CP evidence by R. What dates did R have a boyfriend, from when to when?"
The relevant point for present purposes is number 2. The letters "CP" were not explained but the learned trial judge took them as a reference to "chairperson". It may be inferred that at least one if not all of the jury thought that there had been a statement by the appellant while giving evidence that "If I had done it it was only the once". Before calling the jury in, a discussion ensued between her Honour and counsel. The passage most closely resembling that in the jury's note was found in the transcript, whereupon her Honour expressed dissatisfaction with the transcription. She recollected a statement by the appellant in evidence which included the phrase "I'm amused", and recalled that her reaction had been "how could anybody possibly be amused?" Her Honour considered that the following question by the Crown prosecutor suggested that he also had heard the appellant use that phrase. The Crown prosecutor confirmed that that was his impression. Her Honour then stated that she had a 100 per cent recollection on that and that it had been missed in the transcript. Her recollection was that the appellant had said: "I'm amused that if I'd done it I did it only the once". The transcript she observed was "frighteningly different". Defence counsel was asked for his recollection, and thought that the appellant had said "abused". There is no doubt that the word "abused" was used in a later part of the appellant's answer, but the question was whether he had used the words "I'm amused..." in the introductory part of his response.
In summary her Honour, after debate with counsel, expressed a "quite specific recollection" of the appellant saying "I'm amused that if I had done this it was only the once", whereas the transcript at that stage stated "If I had done it - I never done it even once". At this point the court reporter was requested to read back her notes, which she did in the following words:
"If I had done it it was only the once. I never done it the one time or any time. I never interfered with my children, never ever. I never had even seen my children with no clothes on".
It will be seen that the first sentence is in different and potentially more damaging terms than what had formerly been in the transcript. Her Honour decided to read out to the jury this amended version (ie that in para 12 above) although she remained convinced that the appellant's statement had been prefaced with the words, "I'm amused that...". In relation to those words her Honour observed "as that's not on the paper I won't add that in".
Unfortunately, although her Honour was attempting to be scrupulously fair, the words that were then read to the jury presented a damaging effect quite different both from the words of the original transcript and the words actually recollected by her Honour.
A verdict of guilty was returned 25 minutes after the redirection.
Read in the context of the cross-examination, the appellant can be seen to have been becoming progressively argumentative, and it seems quite likely that her Honour's actual recollection was correct. But that was not what was given to the jury. As counsel for the appellant submitted, the first sentence was converted from an argumentative denial into a potential admission or concession. The way in which the jury had framed the request suggests that there was at least a serious risk that someone in the jury was of the view that the appellant may have lowered his guard or made an admission that could be used against him. If this is so, the evidence that was read out to the jury as an apparently authoritative statement of what had been said could only have fuelled that view.
It is of concern that in the end none of this doubt or difficulty was shared with the jury. When dealing with that particular question her Honour simply indicated that she was reading from the transcript, and then stated the words set out in paragraph 12 above. The jury was not even told that there was some doubt about the accuracy of the passage in question. In my view it was wrong to give to the jury an answer attributed to the appellant as if it was authoritative and uncontentious when it was known not to be so.
The true status of the transcript of evidence taken by shorthand writers in criminal trials and the respective functions of the judge and the jury in determining what has been said may be subject to some misconception. In Queensland there is a statutory requirement in s 671K of the Criminal Code that criminal proceedings upon indictment (if practicable) be recorded either in shorthand or by a mechanical device under the Recording of Evidence Act 1962. Similar but by no means identical provisions exist in other states. Supplementary provisions in Order 9 Rule 6 of the Criminal Practice Rules require shorthand writers to be sworn and to take down faithfully and truly the shorthand notes of the proceedings at the trial to the best of their skill and ability. The Recording of Evidence Act 1962 also establishes a system enabling the use in courts of mechanical recording devices. Section 10(1) of that Act provides that a record under the Act is to be received by courts "as evidence of anything recorded in the record", and there are similar provisions for certified transcripts. It is noteworthy that there is no suggestion that either the record or the transcript is to be regarded as conclusive.
Currently in many criminal trials the court and the parties have the dual benefit of both a shorthand note-taker and a recording device, and in the event of a dispute it is usually possible to resolve it to the satisfaction of all parties. Even in that situation however there remains some room for uncertainty particularly when over-talking occurs or when extraneous noises intervene.
A transcript of evidence is kept for a number of reasons, one of which is to have a record upon which a proper review may be made by an appeal court. In some of the cases that will now be reviewed there are statements to be found that the judge's version is the binding one. However I have never heard it suggested that a judge has the power to insist to a jury that a particular version has been given in court when the jury might have heard something quite different.
The notion that the judge "settles" the form of the record of evidence may stem from earlier practices in days when courts of appeal relied upon judge's notes of evidence as the basis upon which argument should proceed. The judge's record of the evidence in court, and judge's report of anything that had happened in court was for a time regarded as conclusive. Even in more recent times there was a view that a Court of Appeal ought not to receive material from the parties as to what had been said when the transcript was silent. That view however seems to have been based largely upon concern that counsel might lie by, and fail to correct or supplement the record when there was an opportunity to do so. Some early decisions in New South Wales ruled that the report of the judge was conclusive even if contrary to an affidavit by counsel, or a transcript made by a shorthand reporter. It came to be recognised however that total acceptance of the judge's report might have to give way in the interests of justice in cases where there was contention concerning what has occurred below. In Williams this court, whilst reserving the position where a judge's report asserts a positive personal recollection, held that it is necessary to weigh up the competing pieces of evidence in the same way as conflicting evidence is weighed up in any other situation.
There is of course a duty on all judicial tribunals to make a written note of the proceedings conducted before them but this says nothing as to the conclusiveness of such records of evidence as are made by the judge or by the reporting bureau. The question as to the extent to which a transcript of evidence may be contradicted by other evidence has arisen in a number of cases in New South Wales over the past two decades.
Some care needs to be taken in the use of statements concerning cases where the judge is judge of both fact and law. It was recognised in Mahoney's case that considerable caution is necessary in allowing material to be given in an appeal supplementary to that which appears in the transcript, but that notwithstanding this, where there are disputed facts concerning the conduct of the trial accompanied by allegations of an imperfect transcript, the question must be resolved formally by evidence from persons present at the hearing. However in Vakauta v Kelly McHugh JA (with whom Clarke JA probably agreed on this issue) was of the view that some statements in Mahoney's case allowed undue challenge to the position of the trial judge. His Honour said:
"If a dispute exists between the parties or the judge as to what was said, the version of the judge must be conclusive. It is difficult to see how the contrary view can prevail without requiring or permitting the judge to give evidence and be cross-examined in the appellate court. Such a course is not merely unthinkable, it is contrary to the function and status of a judge in a court of record. It is to the judge, and not counsel or litigants, that the community has delegated the power of deciding disputed questions of fact. That must include any dispute as to what was said by a witness or even by the judge himself".
Those remarks were made in the context of a case alleging bias or apparent bias against a judge in a civil trial without a jury. The duty upon counsel to raise relevant contentions and to endeavour to ensure that an accurate record is made during the trial was emphasised.
More recently in Goktas v Government Insurance Office of New South Wales McHugh JA's observations above were referred to as a commendable rule of practice, but as falling short of a rigid rule of law. The decision in Mahoney's case was regarded as an appropriate statement of the law in that respect. Cripps JA, with whom Meagher JA agreed, was able to reconcile McHugh JA's statements with those in Mahoney, emphasising the caution that needs to be exercised in allowing material to be given to supplement a transcript. A similar approach was taken by Santow J in Wentworth v Wentworth (Estate of the late Wentworth) and by this court in Williams.
)The general practice in civil trials in which counsel, at convenient moments ask the judge to "correct" any errors or omissions in the transcript, and accept the decision of the judge according to his or her recollection of what has been said, may erroneously suggest some supreme power in the presiding judge over the eventual form of the record of evidence. Statements such as "[i]f counsel differ in their recollection, it is the judge who determines whether the transcript should stand or be amended" are in my view simply the product of the judge's function and pre-eminence as the tribunal of fact in such cases. The judge is the fact-finder and if he or she heard the evidence in a particular way it must inevitably be acted on in that way unless of course there is virtually conclusive evidence of error.
In Morris, Hunt CJ at CL, in an application for a direction requiring the production of the sound recording of the trial judge's summing-up in a criminal trial, said:
"It will be seen, therefore, that there is no inflexible rule (or, perhaps, that there is no longer any inflexible rule) that the parties may not in any circumstances challenge the accuracy of the transcript of a summing up made from a shorthand note and approved by the trial judge, but there remains throughout the cases the expressed need for caution before permitting such a challenge to what the trial judge says is a correct record."
That in my view is a correct statement of the present position.
The nature of transcripts of conversations made out of court and the manner in which they may be presented to a jury was considered by the High Court in Butera v Director of Public Prosecutions (Vic). That decision emphasises the pre-eminence of the sound recording as the evidence. The transcript, which is someone else's interpretation of the recording may be received merely as an aid for the jury in hearing or understanding that evidence. In short courts receive such 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 the end it is difficult to think that a court transcript, even with the approval of the trial judge, could possess a higher status than the sounds and words uttered by the witness in the presence of the jury. The hearing and determination of the evidence in a criminal trial is the function of the jury. In this area it is paramount subject only to directions from the trial judge on matters of law. The record prepared by the shorthand bureau or law reporting agencies, although nearly always regarded as the authoritative source, in the event of contest can only be regarded as an aid for the use of the fact-finding tribunal. I have concluded that in a criminal trial, when a genuine issue arises as to what has been said in evidence on a material matter, the problem should be exposed and presented to the jury, and resolved by them with the utmost assistance that the court and counsel can give. It is not desirable that trials within trials of this kind be encouraged, but where, as here, a genuine difficulty arises, it is a problem for the jury to resolve with assistance from the court rather than by an exercise by the trial judge of settling the transcript.
In such a situation it might also be appropriate, if acoustics are as poor as they apparently are in the Gympie courthouse, to remind the jury that although in the end they must rely upon their own recollection (if they have one) of what has been said in the event that the transcript is challenged. They should also be reminded of the possibility of error, and that they should not hold any words against the accused unless they are quite sure that those words were used.
In the context in which this particular query arose, it is not at all surprising that the appellant might have made a sardonic observation about the contrast between the one charge in the indictment and the multiplicity of the acts that were alleged in the Crown case. It was incumbent upon the learned trial judge not only to have exposed the uncertainty surrounding what was said at this point, but also to have drawn attention to the argumentative nature of the questions and answers and the apparent unfairness of taking this answer to be a concession or admission. There is a serious risk that the trial miscarried as the jury may well have proceeded upon a version of the evidence which was unfair to the appellant. The redirection was tantamount to a misdirection of fact on a matter of potential gravity and constitutes a miscarriage of justice.
It is unnecessary to consider the other grounds that were raised. The appeal should be allowed, the conviction set aside and a re-trial ordered.
Some difficulty was occasioned in the conduct of this appeal from the current practice within the State Reporting Bureau of simply noting line and page numbers when passages of evidence are read during summings-up and redirections, rather than taking a verbatim account of what is actually read. Ordinarily such a practice is unexceptionable, but it ought not to be followed in respect of any passage the contents of which are in dispute. In this matter the practice resulted in the appeal record erroneously showing that her Honour read out the passage as it had originally been transcribed instead of the amended passage that the evidence before this court suggests was actually read after the reporter had read her notes to the court. It is sufficient to indicate that the general practice should not be followed when there is contention as to accuracy of the passage that is to be read. In such cases a verbatim account of the restated passages should be taken and transcribed.
Ex parte Fairhall (1906) 23 WN (NSW) 178.
 Per Barwick CJ in The Government Insurance Office of New South Wales v Fredrichberg (1968) 118 CLR 403, 410.
 Ibid 410, 423.
Ex parte Fairhall (1906) 23 WN (NSW) 178; R v Tucker (1915) 32 WN (NSW) 169, (1915) 15 SR (NSW) 504.
 (1995) 84 A Crim R 370.
Morex Meat Australia Pty Ltd (1995) 78 A Crim R 269, 286, (1995) 129 ALR 546, 561-562,  1 Qd R 418, 434-435; Storer  VLR 285.
Sherring v Goldrick  1 NSWLR 285.
Sherring v Goldrick  1 NSWLR 285; Builders Licensing Board v Mahoney (1986) 5 NSWLR 96; Vakauta v Kelly (1988) 13 NSWLR 502; R v Player - NSW CCA No 60161 of 1988, 14 June 1989, BC 8902065 per Gleeson CJ, Lee CJ at CL and Loveday J; Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684; Morris (1996) 88 A Crim R 297; Wentworth v Wentworth (Estate of the late Wentworth) SCNSW (Equity Division) No 3748 of 1989, 6 February 1998, BC 9800282 per Santow J.
 (1986) 5 NSWLR 96.
 (1988) 13 NSWLR 502 - reversed by the High Court on different grounds - (1989) 167 CLR 568.
 (1998) 13 NSWLR 502 at 524-5.
 (1993) 31 NSWLR 684, 688 per Kirby P.
 Ibid at 698-699.
 SCNSW (Equity Division) No 3748 of 1989, 6 February 1998, BC 9800282.
 (1995) 84 A Crim R 370.
Vakauta v Kelly (1988) 13 NSWLR 502 at 525 per McHugh JA.
 (1996) 88 A Crim R 297, 301.
 (1987) 164 CLR 180.
 Ibid per Mason CJ, Brennan and Deane JJ at 187.
Simic v The Queen (1980) 144 CLR 319, 332.
 See para 9 above.
 See para 12 above.
- Published Case Name:
R v M
- Shortened Case Name:
R v M
 QCA 269
Pincus JA, Davies JA, Thomas JA
20 Jul 1999
No Litigation History