Extraordinary case: where a judge or court officials were accused of altering the transcript

Sometimes I come across a case that makes me shake my head.I read this case the other day that was in another realm; the barrister for the mother accused a Family Court judge or court officials of altering the transcript. Even worse – it appears that after the mother acknowledged that the transcript was accurate, her counsel continued to argue the point, with the result that the mother copped an indemnity costs order against her, and her counsel has been referred by the court to regulatory authorities.

Rather than read my version of what happened, here is the extract from the judgment in Carpenter and Carpenter, with “drivel” and “butt plug”included, starting with Ground 9 of the appeal by the mother: 

“Ground 9
The interests of justice in this case cannot be seen to be supported where the recordings of proceedings were edited and or amended before final transcription by the official transcribers.

101. We are seriously troubled by the assertions made not only in this so-called ground of appeal, but also in the written and oral submissions of Ms Merkin.
102. The first point to make is that it is not a proper ground of appeal. No appealable error is alleged, and it should be struck out as sought by both the father and the ICL. We observe though that Ms Merkin continued to pursue this complaint before us.
103. The second and most concerning aspect is that the statements and submissions made by Ms Merkin in relation to this issue appear to have been made in breach of Rules 63 and/or 64 of the Barristers’ Conduct Rules of the
     Bar Association of Queensland.
104. Those Rules are as follows:

63. A barrister must not allege any matter of fact in:
(a) any court document settled by the barrister;
(b) any submission during any hearing;
(c) the course of an opening address; or
(d) the course of a closing address or submission on the evidence;
unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so.

64. A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:

(a) available material by which the allegation could be supported provides a proper basis for it; and
(b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.

105. The written submissions of Ms Merkin in support of this complaint are as follows:

The Transcript is incomplete and absent of sections of the proceedings before the court where the internal record of the transcript demonstrates events not transcribed but nevertheless having been raised during the trial. It is not open to counsel to edit or amend the transcript. Neither is it open for anyone to do so either: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, at 72, per Heydon, Crennan, Bell JJ; and indeed, had the transcript been different than the transcript provided by the official transcriber, it would constitute a serious offence as an officer of the court. If the recordings have been edited or amended in any way, is not open to the judiciary or anyone on behalf of any judiciary to amend or edit the audio recordings of the proceedings before they are sent to the official transcribers.
(Footnotes omitted)

106. It is plain that in that submission the allegation is being made that, inter alia, the trial judge may have amended or edited “the audio recordings of the proceedings before they are sent to the official transcribers.” It is also a fair reading of the submission that it is being alleged that the trial judge may have in addition edited or amended the transcript.
107. In the affidavit material comprising the further evidence sought to be adduced by the mother, there is evidence that relates to this issue. Both the father’s counsel and the counsel for the ICL took no objection to this court receiving that evidence, and we are content to do so. Specifically, that evidence is comprised in paragraphs 73 to 84 of the mother’s affidavit filed on 6 September 2013, and in paragraphs 5 and 6 of her affidavit tendered to this court on
     20 September 2013.
108. In summary, following the obtaining of the transcript of the hearing for the purposes of the appeal, the mother claimed that there were three instances where what was said in court did not appear in that transcript. In paragraph 75 of her affidavit filed on 6 September 2013 the mother identifies those three “data gaps” as follows:
     75. …

Transcript – Data gaps
There are three areas of transcript which I say are missing. These areas are:
i. Appeal Book 6 – Day 1 of trial – pages 963 to 973
First sentence by his Honour before appearances announced, he said “Your client’s affidavit is full of drivel” to my barrister. This material is missing from the first page of the transcript.

2. Appeal Book 7 – Day 3 of the transcript – pages 1117-1121 line 5 1117 to line 15.

Submissions of Ms Merkin to His Honour stated during this period “I’m the expert”.

3. Appeal Book – Day 3 – pages 1131 to 1138 during
   Ms Merkin’s cross examination of [Detective T].

Ms Merkin held up a butt plug. His Honour asked what it was. Ms Merkin said “it is commonly referred to as a butt plug”. His Honour told Ms Merkin she was not allowed to bring such items into the court. It happened around P-171 but this record is missing from the transcript. The reason it was so obvious to me the material was missing is that at the time Ms Merkin held up the butt plug I clearly recall His Honour raised his voice and started to shout angrily. He shouted at Ms Merkin “You can’t bring that into my Court”. The event described above was referred to in Day 4, at P-350 from line 25 to line 15, P-351.

109. The mother then deposes in paragraphs 76 and 77 to a “fourth piece of missing data”. She said this:
     76. It very recently came to my attention after conversations with my father, [Mr X], that there is a fourth piece of data is missing. On or about 30 August my father asked me words to the effect of “is the judge’s comment in the transcript?” I asked him which comment and he said words to the effect the comment where the Judge stated “I will be the judge of whether the children have been sexually abused and if you don’t like that then you can appeal”.
     77. I checked the transcript for each of the 3 dates my father attended the trial but could not find the comment he remembers the Judge made. …
110. Subsequently the mother consulted an “audio recording specialist” about digital court recording systems, and then she attended at court and listened to the audio of the hearing before his Honour. The mother recorded her “findings” in paragraph 80 of her affidavit as follows:

I listened to sections of the audio in which I had identified sections of data that were missing in the transcript and followed the audio with the relevant Appeal Book containing the written transcript in front of me. I was using a pair of i-phone earphones to listen to the recording rather than the old style earphones the subpoena room provided. In relation to item 1 and item 2 of my concerns I could not ascertain any discrepancies between the audio and the written transcript. What I did find was that, with the headphone I used which are the latest i-phone technology, I could audibly hear separate “channels” of audio in separate ears. For example I could hear the Judge’s channel in my left ear only and Ms Merkin’s channel in my right ear phone only.
(Our emphasis)

111. In relation to the third piece of data allegedly missing, the only discrepancy the mother could find was a rustling sound was not recorded in the transcript. In paragraphs 81 to 83 of her affidavit, the mother deposed to hearing on the audio “a rustling sound of … thin plastic” whereas the bag in which she brought the “butt plug” to court for the purposes of Ms Merkin’s cross-examination of the police officer was a “thick, black plastic bag” which when rustled sounded quite different to the sound in the relevant section of the audio. She also claims that when compared with the written transcript, “[t]he rustling of plastic is out of place”.
112. Thus, in summary, bearing in mind the mother could not find on the audio recording the fourth piece of data allegedly missing, the only difference between the audio recording and the transcript is the absence of a rustling sound. However, we do not consider that to be of any significance or indeed supportive of the allegations the mother makes.
113. As a result, the mother then consulted another “Audio engineering technician” about “how audio is constructed and how possible it is to make alterations to it.” The mother says that she was told that “it is possible”, but she subsequently ran out of time to again listen to the audio to test what the engineer told her.
114. We note the following in relation to this evidence:
     1. The “quality team” of the contractor, Auscript, checked the audio in response to a complaint by the mother, and verified that the transcript in relation to the third alleged missing piece of data is “true to what was said in court”.
     2. In relation to the first alleged “data gap”, we note that according to the transcript, on 22 August 2012 his Honour commented that much of the further affidavit of the mother of 24 July 2012 “contains inadmissible nonsense”, and subsequently on that same day, his Honour said in relation to certain affidavit material relied on by the mother, that “[i]t seems to mostly contain inadmissible drivel to me in the nature of a character reference …”.
     100. In relation to the third alleged “data gap”, we note that the relevant part of the cross-examination of the police officer by Ms Merkin commenced on 27 August 2012 (at page 171). Then there is the cross-examination of the mother by counsel for the ICL on the next day (28 August 2012), where this topic is pursued (at page 350). However, there is no discrepancy between the audio recording and the transcript, (save and except of course the rustling sound which we have found to be of no significance).
115. It has not been established to us that anybody has amended or edited either the transcript of this hearing or the audio of this hearing before it has been transcribed.
116. The particular concern that we have about the conduct of Ms Merkin is that despite the mother in effect no longer pursuing the claim that the transcript had been edited or amended, and limiting the claim in her evidence to an allegation in relation to the audio recording, her counsel has, as referred to above, pursued both claims, and most troubling, has suggested that the trial judge may have been involved in this.
117. In these circumstances we propose to have the Appeals Registrar forward these reasons for judgment and the relevant part of the transcript of the proceedings before us to the Bar Association of Queensland for them to take whatever action they consider appropriate.”