In rejecting the application, the judge comments that the prosecution case was strong and compelling, even without the crucial phrase ‘at the start we made a pact’.
This implies that even if the application had introduced fresh evidence (which he argues it did not), it would not be enough to suggest the jury might have reached a different conclusion if they had been given a more reliable transcript.
In making this argument, however, he cites incriminating material (other than ‘at the start we made a pact’) in the indistinct recording itself – quoting from the police transcript
This seems surprising, for several reasons
For one thing, my report offered strong evidence that the transcript was inaccurate and misleading throughout.
More importantly, such quoting would appear to contradict the very legal principles being asserted by the judge’s ruling.
The legal principle underpinning the judgment is that the audio was the evidence, not the transcript. It was a matter for the jury to decide whether the transcript was a valid representation of the audio, and if not, to decide what was really said.
According to this principle, since no one can know what decision the jury made, no one can ever know the true contents of the covert recording. In particular, no one can ever know for sure whether the detective’s transcript was valid.
It seem odd to use quotes from a transcript as the basis of a judgement in an important legal matter, when, according to the law, no one can know for sure whether the transcript is accurate.
But there is something even odder here.
The same thing happened in the High Court
After the trial (before my involvement) an application was made to bring an appeal to the High Court on grounds the judge had not sufficiently instructed the jury as to how they should understand the concept of ‘joint criminal enterprise’.
In (successfully) opposing the application, the prosecution quoted the phrase ‘at the start we made a pact’ as part of an argument that the defendant clearly understood what a pact was, and thus what ‘joint criminal enterprise’ means.
Even without the existence of expert evidence showing the defendant didn’t say those words, it seems odd that lawyers in the High Court, making decisions about a life-and-death matter, can cite from a transcript when, according to the law, no one can know for sure whether the transcript is reliable.
It is perhaps interesting to note, in passing, that the transcriptionist taking down the discussion in the High Court rendered the word ‘pact’ as ‘packed’.