A3. The trial

At the trial, the prosecution produced evidence suggesting the father had financial and personal motives to kill the grandfather, as well as opportunity to plan the crime and to give his son assistance in committing it, including supply of a weapon.

All of this evidence was circumstantial. In other words, it allowed inferences to be drawn, but did not directly prove the guilt of the father. This was explained by the judge, as circumstantial cases require special instructions to be given to the jury about how to evaluate the evidence and reach their verdict ‘beyond reasonable doubt’.

Only one item was considered to be direct evidence of the father’s involvement in the murder. That was the indistinct recording, part of which you have just heard.

The transcript

This audio is, I think you will agree, so indistinct as to be hard to interpret without a transcript. For that reason, the prosecution wanted to provide the police transcript to assist the jury in hearing what was said.

Along with other content that the prosecution interpreted as evidence of the father’s guilt, the transcript showed the phrase ‘at the start we made a pact’. (Now you know the alleged phrase, see if you can find it in the audio. 

This was a crucial plank in the prosecution case, as is evident from the way it was emphasised heavily throughout the trial, repeated hundreds of times, and emphasised in the summing up.

Objection, Your Honour!

Of course, the defence objected strenuously to use of the police transcript, arguing it would influence the jury’s perception of the indistinct audio in a way that would be prejudicial to the defendant.

It may seem surprising that the defence did not call a phonetics expert to back up their argument

Certainly any phonetics expert would have raised serious doubt about the reliability of the police transcript, and indeed about the audio itself.

Unfortunately, this is completely normal

Deciding what is said in an indistinct recording is considered by the law to be a matter of common knowledge, not requiring input from scientific analysis. Many lawyers are not even aware that there is such a science as phonetics, or of what expertise it offers.

In most cases, if the defence object to a police transcript, they simply appeal to the judge to listen for him- or herself. This has been successful in some cases. While the law allows a judge to let interpretation of indistinct audio be a matter for the jury, it certainly does not compel this.

In this case, however, asking the judge to listen for himself proved not to be a useful strategy. As the judge himself ruefully explained, he was hard of hearing.

  • DEFENCE COUNSEL: I would ask your Honour, at least the first time, listen to this tape without the transcript, because that is my submission.  [Defence counsel was arguing that those who listen without the transcript do not hear the words in the police transcript.]
  • HIS HONOUR: I am probably not the right Judge to do that. I have real difficulty with ordinary conversation. In other words, my hearing is, happily for humanity, not the litmus test for what the jury is likely to hear. So that, ultimately, it really does depend upon what an ordinary person is able to hear. I rather suspect if I listen to it I will hear much less than an ordinary person, so I don’t know there is great utility in doing that.

(more of this transcript in a moment)

Overruled

So the defence objection to use of the police transcript was overruled. The judge providing the following reasons.

1. The transcript was sworn evidence by a detective

2. Prosecution counsel had listened to the audio and asserted its accuracy

You might find it interesting to get a flavour of what that means. Here’s part of the discussion (in the absence of the jury).

  • HIS HONOUR: Well, I will just ask the Crown. As I said my ears aren’t necessarily the best. Mr Crown, I assume you have listened to {this tape} a number of times?
  • CROWN PROSECUTOR: Yes, I have.
  • {…}
  • HIS HONOUR: … {D}o you have normal hearing, can I inquire?
  • CROWN PROSECUTOR: Yes, I do. I did have a hearing problem two years ago but it’s resolved itself, but I do now have good hearing.
  • HIS HONOUR: Have you conducted a check yourself as to whether what appears here, to your ears, also appears on the tape?
  • CROWN PROSECUTOR: Yes, I have. In relation to {this tape}, for example, what I did today, there was part of that passage at the bottom of page five I thought I missed when I first heard it {but when I listened again I heard it quite distinctly}. Apart from that, the rest of it I heard quite distinctly.
  • HIS HONOUR: You heard quite distinctly?
  • CROWN PROSECUTOR: Yes. So it really is a matter of practice, really, I suppose. But the point is that the transcript itself appears to be generally very accurate as to what was said but it takes a bit of time to hear it. That’s the way I put it your Honour.

You’ll notice I use {…} whenever there is any discussion of particular words in the police transcript. The reason for that is I hope one day this man will get a fair trial. For that to happen, it is important to avoid a situation where many people have been ‘primed’ by exposure to the police transcript.

3. He (the judge) would direct the jury to listen carefully to the audio and form their own opinion about its contents

In cases involving indistinct audio presented with a police transcript, it is required for the judge to instruct the jury that the transcript is provided only to assist them. The audio itself is the real evidence, and they should reach their own opinion as to what is said in it. This instruction was given several times during the trial.

Playing the audio

This outcome meant that, when the audio was played in court, the jury had the transcript to help them hear, as well as infra-red headphones (these use technology similar to a television remote control, so they can be used wirelessly).

The audio was played by the detective transcriber. At a certain point, the judge asked him to pause and replay some of the tracks, as he felt the jury may have got lost. From the court transcript, it is evident that even the detective, with his own transcript in his hand, could not tell which track he was up to just by listening.

It was also evident that the judge could not hear the audio clearly. This is not surprising; as we have seen, he was hard of hearing – though of course the jury did not know that.

The effect was to model for the jury that it was ok to accept the transcript even if they could not hear the audio clearly.

The verdict

After weighing all the evidence, and taking into account all the judge’s directions, the jury returned a verdict of guilty. In 2008 the father was sentenced to 30 years in prison. Despite various appeals, finalised in 2011, his conviction was upheld. He still has many years to serve.

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