3 April 2013
The New South Wales Law Reform Commission has just released its Report 136 on Jury Directions. Although not explicitly mentioned in its terms of reference, the report takes the opportunity in Section 6.5 (pages 123ff) to reinforce the current practices regarding presentation of hard-to-hear covert recordings. That is rather disappointing in view of the significant problems with this area of the law that have been pointed out by phonetic science.
Here’s the relevant paragraphs
6.53 The provision of a transcript can be of particular value where the recording is indistinct and does not yield its contents on a first playing. In such a situation transcripts can be received that have been prepared by a person who has listened to repeated playings of the recording, or who may have a particular familiarity with the speech of the person recorded, subject to proof of that having occurred and of the transcript being accurate.
6.54 Where a transcript is received into evidence and made available to the jury it has been held that a direction should be given that its purpose is to act as an aid to listening to the recording and not as independent evidence of the recorded conversation.50 An instruction will normally be given to the jury that they cannot use the transcript as a substitute for the recording if they are not satisfied that it correctly sets out what they hear for themselves when it is played to them.
6.56 Obviously, the availability of a transcript, in each of the circumstances outlined, can save considerable time in the conduct of the trial quite apart from overcoming any problem of unintelligibility. It can also provide an effective shortcut to facilitate access to the passages on which the parties place reliance.