I agree with Clarke JA that where as in this case no issue of identification arises and the plaintiff only relies upon the natural and ordinary meaning of the words, a written transcript of the broadcast is not admissible on these threshold issues.
The " threshold issues " to which his Honour was referring were whether the imputations pleaded were conveyed by the broadcast and were defamatory of the plaintiff.
38 The passage in the judgement of Clarke JA with which Handley JA, as well as Cripps JA, agreed is in the following terms (at 472G-473C):
Because there will be a new trial of the action it is appropriate that I make some observations in relation to a ground of appeal in which the appellants asserted that his Honour erred in admitting into evidence a transcript of the broadcast. It was submitted that the transcript could only have distracted the jury from their task of determining whether defamatory imputations were conveyed by a transient broadcast and whether what was conveyed was comment or fact. There is some force in this submission for there is a degree of inappropriateness in putting before the jury the transcript of the broadcast and having the members of the jury pore over that transcript in deciding what was conveyed during the broadcast. What is, or may be, drawn from a broadcast by the reasonable listener is in my many cases a matter of impression. In this respect the transient nature of the broadcast and its short duration is of no little relevance. Indeed I have earlier expressed the opinion that the evidentiary material may well have coloured the jury's understanding of what was said in the broadcast. The problem of which I am speaking is not, of course, limited to broadcasts for courts in the past have commented upon the fact that while the reasonable reader would be unlikely to analyse the published material in depth a great deal of time is taken up during the court hearing in just such analysis.
For this reason it seems to me that there is much to be said for the view that where a plaintiff relies on the natural and ordinary meaning of the published words the questions whether the words convey the imputations pleaded and, if so, whether they are defamatory should be submitted to and decided by the jury prior to the leading of any further evidence.
39 The foregoing passage was subsequently referred to by Kirby P in TCN Channel Nine Pty Limited & Ors -v- Mahony (1993) 32 NSWLR 397 at 400-401 where his Honour observed:
The point that concerned Clarke JA and which I believe is of legitimate concern) was that a broadcast (whether by radio or television) is typically heard once only. Unlike the print media, the texts of broadcasts are not usually available to be pored over. They are momentary, transitory things. Whether words and images contained in such broadcasts actually convey the imputations pleaded, and whether such imputations are defamatory of the particular plaintiff, depend upon the impression received by the viewer or the listener. It is to distort that initial impact, to comb through transcripts (which the ordinary viewer or listener would never have) and to spend day upon day of lengthy defamation trial returning over and over again to the words, repeating the reviewing or listening to and examining the written text. The danger in this procedure, inherent in the orthodox approach to defamation trails, is that it may become impossible for the jury to recapture the initial impression, which is the equivalent of the impression which the ordinary viewer and listener received and for which, if at all, the person defamed is entitled to damages.
40 Of course, the decisions referred to above concerned broadcasts in the English language. Further, they were decided before the enactment of the Evidence Act 1995 and, in particular, s48(1)(c) which is in the following terms:
1. A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:
(c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing) - tendering a document that is or purports to be a transcript of the words.
41 In his reasons for ruling the transcript of the translation of each broadcast admissible, his Honour relied upon this provision. There would appear little doubt that s 48(1)(c) affects a change in the common law position under which a transcript of an audio tape in the English language would not, unlike the tape itself, be the best evidence of its contents. The subsection now permits the transcript to have equal status with the tape in proving its contents.
42 However, it has been suggested that where there is a tape recorded conversation in a foreign language an issue arises as to whether the translation of the tape (or the transcript thereof) would be within the expression used in the subsection: "…. is or purports to be a transcript of the words": see the comment in Anderson, Hunter and Williams, "The New Evidence Law" at p.112 and the reference therein to the decision of the High Court of Australia in Buteria -v- DPP (Vic) (1987) 174 CLR 180. Although the learned authors comment that a translation adds another step in the "processing" of the document (being the audio tape) and that this step increases the possible fallibilities in the evidence, I would not have thought that that was a valid criticism to the admission of a transcript of a translation where that transcript is agreed as in the present case.
43 The point made by the learned authors is that, read literally, s48(1)(c) refers only to the tendering of a document that is or purports to be a "transcript of the words" of the recording which, in the present case, would be no more than a transcript of the words of the broadcasts in Greek. However, that would achieve nothing in terms of the jury's ability to comprehend the opponent's case. It is no doubt for that reason that the claimants concede that the jury was entitled to be informed as to the English translation of the words used in the offending broadcasts, the only issue being the form or manner in which that translation should be conveyed.
44 Accepting as I do that a radio broadcast is typically heard once only and that, therefore, the text of such broadcasts is not usually available to be pored over by the listeners, nonetheless it is common ground that an audio tape of the broadcast would be available to a jury to take into the jury room where they would be free to play and replay it as often as they deemed fit. No doubt the jury should be instructed by the trial judge before they retire as to the use to which they could put the tape and, in particular, as to the transitory nature of the broadcast and the fact that whether the broadcast conveyed the alleged imputations to the ordinary, reasonable listener depended upon the impression received by the listener at the time of the broadcast.
45 The claimants submitted that in the present case the form taken by the translation of the subject broadcasts should have been either by way of the reading of the translation to the jury before they retired (no doubt in counsel's closing address) or by playing to them an agreed recording of the translation. Given the entitlement of the jury to take the audio tape of the broadcast into the jury room and there to play it themselves, a single reading of the translation to them or the single playing to them of a recording of the translation before they retired would have placed the jury at an obvious disadvantage as there would then have been no point in them playing the audio tape to themselves in the jury room after they retired. They would not have understood its contents.
46 In my opinion, it is plain that if the jury was to gain any benefit from the playing of the audiotape in the jury room after they retired, it was necessary to have provided them with a translation of the contents of the tape so that they could follow the broadcast and thereby gain some appreciation, in an intelligible way, of "the emphasis, tension and intonation of the original broadcast" which the claimants assert, in my opinion correctly, was necessary for the jury to consider in their deliberations. Further, the alternative suggestion of the claimants that there be a tape recording of the translation of the broadcast would, as the opponent submits, have had its own undesirable features as it would have none of the idiosyncrasies of the original broadcast which the claimants contend was an important part of the jury's consideration.
47 In these circumstances, I agree with Handley JA that his Honour was correct in admitting into evidence a transcript of the English translation of the subject broadcasts and that the jury was entitled to have access to those transcripts together with the audio tape of the original broadcasts.
48 The foregoing conclusion is, however, subject to the following rider. The admission of such evidence is, of course, subject to the discretions referred to in ss 135 and 136 of the Evidence Act particularly, in the context of the present case, the latter. I would have thought that it would have been appropriate, had his Honour been so requested by counsel for the claimants, to have limited the use to be made of the transcript pursuant to s136 so as to ensure that it was utilised by the jury more as an aide memoir to facilitate their comprehension of the original broadcasts and so as to emphasise that it was the initial impact of the broadcast which was critical and that that impact was not to be distorted by the jury combing through the transcripts as the primary evidence of the broadcasts. However, as Handley JA notes in [8] of his judgment, no such request was made.
49 Finally, I note that the Court was not provided with a transcript of his Honour's instructions to the jury and I have therefore assumed that either his Honour instructed the jury as to the proper use they could make of the transcripts or, if he did not, no objection was taken to the absence of any such instruction so that once the transcripts were admitted counsel for the claimants was content for the jury to utilise them in the jury room as they saw fit whether in conjunction with the playing of the audio tape or otherwise.
******