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Breathless reporting?

By Steven | June 11, 2009

I was prepared to be outraged this morning.

What the hell? I thought. The Supreme Court overruled the High Court and the Court of Appeal and prevented telephone confession evidence from David Bain going to the jury? What were they thinking?

I’ve now read the judgment¬†(note the bizarre¬†url on Stuff’s website’s link to the judgment:!

If you’re inclined to criticise the judgment, I recommend that you read it too. What’s particularly striking is that, on the Supreme Court’s telling of it, the experts basically agreed. Even the Crown’s experts said that the evidence was “dangerous” and “unsafe” and should not be put before the jury. They said it was impossible to say whether he was even saying some words in that portion of the recording, or just breathing and gasping. They said if he was saying words, they couldn’t tell what was being said. Their first shot at a transcript had this bit as:

Y-yes (yeah, I can’t [touch it]. I can’t) – [whispered]

…but the expert transcriber still wasn’t confident about it. Another expert (for Bain, but from the same British university as the two Crown experts) says he first heard “I can’t breathe”.

All agreed that once someone tells you to listen for “I shot the prick” then, with effort, you can hear it. But they pointed out the dangers of suggestibility. We hear what we listen for.

One expert – for the Crown – likened it to seeing images in clouds. Random sounds can line up and seem like words.

Three of the judges found that this evidence simply wasn’t relevant. It needed to be reasonably open to the jury to rely on this evidence, they said, and here it wasn’t. The other two judges felt that the evidence was relevant. But they felt that it was unfairly prejudicial. Here’s Justice McGrath:

The prejudice, however, lies in the risk that in this unusual case, even with appropriate direction, the jury will not assess the evidence of whether there is an admission recorded on the 111 call with due caution, and will give what they hear on the tape more weight than it deserves. That risk is associated with the particular difficulty of suggestibility… The sounds on the recording may not be treated as simply one aspect of the Crown case to be weighed with other Crown evidence, including contextual evidence. The impact of a superficially reached perception that there is an admission is likely to be seen as more persuasive than the taped evidence actually is in the context of a Crown case which is otherwise almost entirely a circumstantial one.

The risk in the end is that the consequence of the indistinct and inaudible nature of the sounds will cause the jury to leap to a conclusion that the sounds which, with effort, they can hear are inculpatory words without that being a conclusion that is logically based on all the evidence relevant to the preliminary question, but the result of superficial reasoning to which they have been diverted. The likely prejudicial effect is substantial and, to my mind, outweighs the probative effect of the disputed part of the recording as evidence.

In light of all that, I’m really not outraged by this decision. Even if the full tape were put before the jury, there would have been a lot of argument about what exactly he was saying. We can’t be sure it would have made any difference to the jury. And if it did make a difference, the Supreme Court may be right to fear that it may have made too much of a difference.

One curious fact though: all the judges who listened to the tape (the High Court judge and the Court of Appeal judges) ruled it admissible. The Supreme Court didn’t listen to it, but relied solely on expert opinion and legal argument. Should they have assessed the recorded evidence for themselves to reach a rounded judgment? Or does this make their judgment more dispassionate, more closely based on the law and expert evidence, and less tainted by the very dangers of seeing faces in the clouds that they are trying to protect jurors from?

The media have applied for access to the tape itself. I hope it’s granted. Then we can decide for ourselves what we think he was saying, if anything, and feed that into our assessment of how well the judges have conducted themselves. But again, bear in mind that expert evidence…

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