Transcript Tampering (AG grounds 6, 8 and 9)
- In his submissions, the applicant describes the "thrust" of his argument as being based on "fresh cogent metadata evidence" that is said to demonstrate that the trial and appeal transcripts were tampered with. [21] The applicant claims that the trial judge and his associate conspired to tamper with the transcript in order to conceal evidence that the police had doctored the videotape evidence used to convict him. [22] He claims that, contrary to what the transcript records, he made no concessions during the trial as to what could be seen and heard during the videos. [23]
- The applicant points to the fact that a section of the transcript, namely p 397, which related to 10 August 2006, was amended. [24] The applicant wrote to the Attorney General in relation to this and a review was undertaken. A letter from the Deputy Secretary, Communities and Justice to the applicant on 3 November 2020 [25] advised that "[t]he results of that that review showed that a section was omitted from the daily transcript prepared on 10 August 2006. The transcript was amended and emailed to all of the parties, including the defendant's legal representative on 11 August 2006." The letter added that "[t]here is no evidence that these changes, along with the preparation of all other transcripts from your 2006 proceedings, were made outside the errata process". The applicant submits that it is "not believable" for the omission to have occurred in that manner. [26] He contends that that the Deputy Secretary made a "false allegation" that the transcript had not been doctored as evidence of a large-scale attempt to cover-up the destruction of evidence by police and the prosecution. [27]
- The applicant relies on a report by Dr Allan Watt, an independent digital forensics expert. The applicant states that this report "irrefutably" demonstrated that the transcripts were "illegally modified during and after the trial had finished." [28] The applicant also states that the report was obtained to refute any allegation that the applicant was responsible for "doctoring of the relevant transcripts". [29] Dr Watt's report records that he was asked to examine the metadata of an MS Word Document with the file name "10 August 2006 Thursday Pg393 - 461". [30] The report relevantly states:
"1.6 I have reviewed and extracted the metadata for the document and there is nothing to suggest on the face of it that it is not genuine nor is there anything in the metadata that reflects that it is not genuine. A copy of the metadata report in included as Annexure C.
1.7 This document is lengthy and would have taken a while to type, however the creation date/time and last modified date/time are the same with zero edited minutes.
1.8 This therefore indicates a new document was created and the body of the original document transcript was copied into it, on 10 August 2006.
1.9 It is assumed this would have been, as this is an extract only of an entire transcript.
1.10 Whether this is an exact replica of the original entire text of the transcript cannot be determined, as the original transcript has not been viewed."
- Contrary to the applicant's submissions, nothing in that report provides evidence that the transcript was altered. His submissions' reference to the difference in the metadata record for 10 August 2006 compared to 11 August 2006 is that the latter records an editing time of 28 minutes. [31] This simply reflects the matter noted in [36].
- The applicant also alleges that page 525 of the trial transcript was altered to change the number in a question that he was asked, and again at page 539 and 548, where he alleges that evidence was "unlawful[ly] cut and paste[d]" from the transcript. [32] The applicant raises a complaint that this transcript was utilised by the CCA in reviewing his conviction and therefore a miscarriage of justice occurred. There is no evidentiary basis for the allegation. The AG noted that the applicant and his counsel had opportunities to review the transcript and challenge any alleged errors during the 2006 trial. [33] In reply, the applicant contends that this review of the transcript occurring during the trial, before the alleged doctoring of the transcript occurred. [34] However, as was made clear by the letter from the Deputy Secretary, the applicant's lawyers were also given the opportunity to review the errata process that occurred in relation to the 10 August transcript.
- The applicant also contends that there was a "gross miscarriage of justice in the trial by virtue of the inadmissible evidence of Detective Abbott". [35] This is a reference to a point in the trial where the detective said in front of the jury that his answer to a question "may prejudice the accused" and a voir dire was subsequently held. [36] An application was then made for the discharge of the jury, which was rejected. [37] The applicant claims that, as a result of this, the transcript of the proceedings was edited to insert "material into the body of the transcript at T397 that was not the evidence that [was adduced] during the course of the trial." [38] The applicant claims that these doctored transcripts then influenced the outcome of the appeal with regards to the ground of appeal in relation to the discharge of the jury. [39] Two matters should be noted. First, there is nothing in the application that suggests the transcripts were edited beyond the official errata process. Second, the application to discharge the jury was considered by the CCA at [89] to [95]. There is nothing raised by this aspect of the application that causes a doubt or question as to the CCA's decision in relation to this topic or concerning the applicant's guilt generally.
- The applicant also contends that the transcript of the CCA proceedings was doctoredtampered with. He alleges that the appeal transcript was altered to delete references he made during the appeal to the transcript tampering he contends occurred during the trial. [40] The applicant contends that the Registrar doctored altered the transcript in February 2010, two years after the appeal. [41]
- The applicant calls for a "demonstration of the metadata of the CCA. [42] In particular, the applicant called for the Court to "perform a demonstration of the 'metadata' evidence with response to all of the doctored transcripts… pursuant to s 53(1) and (3)…of the Evidence Act 1995 NSW". He contends that this will prove the evidence of doctoring of the transcripts. [43] These provisions are not enlivened on this application as this is not a trial. Even if they were enlivened by this application, there is nothing in this application that would warrant such a demonstration. The submissions in reply also contain an extensive review of the correspondence sent by the applicant about the errata process and complaints that his correspondence has not been replied to. [44] None of that advances his contention that there was a conspiracy. The position on the errata changes was made quite clear, even if the applicant did not accept it. He also makes submissions based on his own analysis of the metadata which advances the matter no further than [36]. [45] As there is no evidence that the transcript was altered beyond the errata process, the balance of his complaint falls away. Ultimately there is no evidence to suggest that either the transcript of the 2006 trial or the appeal to the CCA was improperly altered in the manner alleged. Nothing raised by the applicant on this suggests that there is a doubt or question as to the applicant's guilt.