Butera v Director of Public Prosecutions

Butera v Director of Public Prosecutions - [1987] HCA 58 - HCA 1987 case summary — Zoe

[45]

12. If then a tape recording is of a documentary character such that it is discoverable, does that mean that its contents must be proved by the production of the original tape and cannot be proved by means of a copy, either in the form of another tape or in the form of a transcript? Such a rule applies to written documents, namely, that the effect of a document must be proved by the production of the original document itself and not by secondary evidence of its contents unless the absence of the original is accounted for and excused. That rule appears to have preceded the so-called best evidence rule which is said to require the best evidence to be given which the nature of the case permits: Omychund v. Barker [1744] EngR 927; (1744) 1 Atk 21, at p 49 (26 E.R. 15, at p 33). The failure to observe the best evidence rule in practice has led textbook writers to conclude that it no longer exists, save as a convenient and concise description of the rule relating to the proof of the contents of written documents, and that it is only in that form that it has survived. See Thayer, A Preliminary Treatise on Evidence at the Common Law, (1898), p.484 et seq.; McCormick's Handbook of the Law of Evidence, 2nd ed. (1972) pp 559-560; Garton v. Hunter (1969) 2 QB 37, at p 44; Kajala v. Noble (1982) 75 Cr App R 149; Hindson v. Monahan [1970] VicRp 12; (1970) VR 84, at pp 89-90. Indeed, Dixon C.J. in Commissioner for Railways (N.S.W.) v. Young [1962] HCA 2; (1962) 106 CLR 535, at p 544 appears to have thought that the rule excluding secondary evidence never went beyond writing. See also per Windeyer J. at pp.556-558. In Wigmore on Evidence, vol.IV (Chadbourn rev. 1972), par.1183, the author speaks of "the genesis of a still further development which would enlarge the scope of the term 'writing' to include photographs, sound recordings, and the like", but the development of which he speaks is by statute and is confined to the United States. It is clear that in the absence of such development, documents, other than written documents, ought not now to be, if they ever were, included in the rule requiring proof by primary evidence. See also Reg. v. Robson (1972) 1 WLR 651, at p 653; (1972) 2 All E.R. 699, at pp 700-701.

[119]

39. But questions of convenience are not at large: "Convenience and justice are often not on speaking terms" - per Lord Atkin in General Medical Council v. Spackman (1943) AC 627, at p 638. The discretion of a trial judge to make available to the jury a transcript of evidence given by a witness is a discretion which is circumscribed by conventional considerations of fairness. Thus, without being exhaustive, there is no discretion to make available a transcript if it would tend to unduly emphasize the evidence, or to accord to it a probative value which it does not possess. If a transcript of the evidence of one witness is made available the evidence of other witnesses on the same subject-matter should be treated in precisely the same manner. There are particular difficulties as to the making available of a transcript of part only of the evidence of a witness, as might be expected in the case of a transcript of the words entrapped on an inaudible tape recording or of evidence as to the English meaning of foreign words used in a recorded conversation. It is generally accepted that if the jury requests that the evidence of a witness be read back, it is the duty of the trial judge to ensure that so much of the evidence is read as is necessary to give a fair account thereof. Thus, notwithstanding that the jury requests part only of the evidence to be read there should also be read those parts which weaken or qualify that evidence (see, for example, the decision of the Supreme Court of Canada in Olbey v. The Queen (1980) 1 SCR 1008, at pp 1026-1028; (1979) 105 DLR(3d) 385, at pp 399-401). Accordingly, if a transcript is made available which represents part only of the evidence given by a witness, it will be necessary for the trial judge to adequately instruct the jury as to any matters, particularly matters elicited in cross-examination, which detract from the probative force of the evidence made available in the form of a transcript. In all cases the jury should be instructed in unambiguous terms that the transcript is not evidence, and is made available to them only for their convenience. This instruction should be given before a transcript is made available.

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Judgment (126 paragraphs)

Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180 (8 December 1987)

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Cases Cited (14)