There is an unspoken assumption at the heart of the criminal justice system: that the written record is an accurate and sufficient representation of what occurred in court, writes STEVEN FENNELL. It is not. Transcripts are treated as authoritative. They are relied upon by appellate courts, journalists, legal academics, and, ultimately, by the public in forming judgments about the fairness of proceedings. They are, in effect, the official memory of the justice system.
But they are also profoundly incomplete. What they capture is what was said. What they omit is often what mattered most.
The illusion of completeness
A transcript is a flattening device. It converts a dynamic, human process into a static sequence of words. In doing so, it strips away tone, timing, hesitation, emphasis, and the reaction these are the very elements that give meaning to spoken exchanges.
A confident assertion and a faltering one appear identical on the page. A judge’s raised eyebrow, signalling scepticism, does not exist in the record. A barrister stumbling through an answer, losing the thread of an argument, or being cut off mid-sentence appears as a clean, coherent line of text. The transcript gives the impression of order and control, even where none existed.
This matters because appellate courts do not hear cases as juries do. They do not see the witnesses, the exchanges, or the atmosphere of the courtroom. They read; and what they read is the transcript. If the transcript is incomplete, then the appellate process is built on an incomplete foundation.
Where meaning is lost
Anyone who has sat through a trial or an appeal, particularly one of significance, will recognise that the most important moments are often not the most verbose.
They are the pauses. They are the moments where a question lands and there is no immediate answer. They are the instances where a line of argument collapses under minimal scrutiny, not through a dramatic concession, but through visible uncertainty.
None of this survives transcription. Consider the difference between:
“Yes, that is correct.” and “Yes… that is correct.”
On the page, they are identical. In the courtroom, they are not. One is an assertion. The other may be a concession. Similarly, when a judge intervenes, cutting off a line of argument, redirecting counsel, or expressing doubt, the manner of that intervention often carries more meaning than the words themselves.
A sharp interruption is not the same as a polite interjection. A visibly incredulous reaction is not the same as a neutral inquiry. Yet the transcript records both in the same sterile format.
The appellate disadvantage
This limitation becomes critical at the appellate level. Appeal courts frequently emphasise that they are confined to the “record.” They do not retry the case. They do not reassess credibility in the same way as a jury. They rely on what is before them in written form.*
However, if the written form omits key indicators of credibility, coherence, and reliability, then the appellate court is not simply reviewing a case—it is reviewing a reconstruction.
In addition, like any reconstruction, it is subject to distortion.
This is particularly acute in cases where:
- credibility is central
- complex oral argument is decisive
- or where the strength of the prosecution case depends on the presentation rather than the substance of evidence
In such cases, the transcript may inadvertently sanitise weaknesses. An argument that struggled in real time may read smoothly. A witness who appeared uncertain may read as definitive. A prosecution case that relied on momentum may appear methodical and complete.
The danger of retrospective coherence
There is a further problem: transcripts create an illusion of coherence that may not have existed at the time. When read sequentially, arguments appear structured, logical, and deliberate. But this is often a product of editing conventions, not reality.
False starts are removed or tidied. Interruptions are minimised. Overlapping exchanges are clarified. The result is a narrative that appears more stable than the actual proceeding.
This has a subtle but powerful effect. It allows weak cases to appear stronger in retrospect. It enables appellate reasoning to proceed on the assumption that what is being reviewed is a faithful representation of the trial. It is not.
Judicial reaction: the missing layer
Perhaps the most significant omission is judicial reaction. Judges are not passive observers. Their responses—verbal and non-verbal—shape proceedings. They influence how arguments are received, how evidence is framed, and ultimately how decisions are made.
A judge who is visibly sceptical of a line of argument sends a signal, whether consciously or not. A judge who appears persuaded does the same. These signals are part of the reality of the courtroom. They are part of how advocacy works. They are part of how cases are decided. Yet they are entirely absent from the record. The transcript records the words of the judge, but not the weight behind them.
Why this matters in wrongful convictions
In the context of wrongful convictions, this gap becomes more than an academic concern.
Many wrongful conviction cases hinge on:
- marginal evidence
- contested credibility
- interpretive frameworks applied to ambiguous facts
In such cases, the way evidence is presented and received can be as important as the evidence itself. If that “way” is not captured in the record, then the system’s ability to detect and correct error is compromised. An appellate court may conclude that a case was properly argued and considered, when in reality the proceedings revealed significant weaknesses that are no longer visible. This is not to suggest bad faith. It is a structural limitation. But structural limitations can produce systemic consequences.
The High Court example
Anyone who has watched extended High Court proceedings will recognise the gap between what is seen and what is later read. Arguments that appear fragile under questioning can read as composed. Moments where counsel is pressed, repeatedly on a point they cannot satisfactorily answer may appear as a brief exchange.
Judicial scepticism, evident in tone and persistence, disappears. The transcript records that a question was asked and an answer given. It does not record whether that answer was convincing. This is not a minor omission. It goes to the heart of how legal reasoning is later constructed.
The reliance problem
Despite these limitations, transcripts are treated as definitive. Media reporting relies on them. Appeals rely on them. Historical assessments rely on them. They are rarely questioned as a medium. There is an implicit belief that while they may lack colour, they retain substance. That belief deserves scrutiny. Because in many cases, the “colour” is the substance.
Possible responses
Recognising the limitation does not require abandoning transcripts. It requires supplementing them.
There are several obvious avenues:
- greater use of audio-visual records in appellate review
- improved access to full recordings for parties and courts
- acknowledgment in judicial reasoning of the limits of the written record
- more cautious treatment of transcript-based conclusions about credibility and argument strength
These are not radical proposals. They are incremental adjustments that reflect the reality of modern technology. What is radical is the continued assumption that a transcript alone is sufficient.
Beyond the record
At its core, this issue speaks to a broader theme in the justice system: the gap between formal process and lived reality. The system presents itself as structured, controlled, and objective. And in many respects, it is. But it is also human, dynamic, and imperfect.
Transcripts capture the structure. They do not capture the humanity. In most cases, that distinction may not matter. In some cases, it matters a great deal.
The justice system depends on records. Without them, there can be no review, no accountability, and no continuity. But not all records are equal. A transcript is a necessary tool. It is not a complete one. Treating it as such risks overlooking the very features of a trial that determine its fairness. If wrongful convictions teach anything, it is that the system’s safeguards are only as strong as their assumptions. One of those assumptions, that the written record tells the full story really does needs and deserves closer examination. Because sometimes, what is missing from the record is exactly what should have raised doubt.
*Ed: The failure of Robert Xie’s appeal is a tragic example of Steven’s argument. I watched in horror as the three judges failed to understand a critical nuance regarding the prosecutor’s case, resting on a detail in the covert audio recording (by a snitch) that was used against Xie. Posts about his case can be found in the menu on the right.
I learn so much! What can we good people do about perjury? Reading the lived experience and practical accounts of real wrongful convictions is preparing us for a a rocky reality
A friend has sent me an informative if disturbing note about the ‘sanctity’ of transcripts: “Excellent article, however it doesn’t go far enough. ’There’s a lot more they don’t show’. My personal ‘lived experience’ many years ago encountered the experience of a transcript that had been altered to remove a witness’s assertion from the ‘box’ that the fabled barrister Mr Tom Hughes AO KC, former Federal Attorney General, was telling lies in Court as to whether or not he had been briefed some time earlier by me.
“I’ll find a copy of the transcript passage where Mr Hughes denial of me having briefed him and the reference by the witness challenging that denial, and that “I had delivered to his own barrister a copy of the $8,000 fee invoice that I had paid” not long before, which related to another, but an obliquely related matter. I had briefed Mr Hughes to appear for me in that other matter, which he denied; what? You see, barristers are schooled to lie, it’s their stock in trade.
That whole discourse was removed from the transcript as delivered to the witness. I’m told by a barrister, the son of a former Supreme Court Judge, it does happen from time to time!”
Andrew, if it’s alright with you I will revisit some of my articles and comments after my civil matter is determined there is so much that I would like to include but on legal advice have refrained from mentioning. This topic is one that I can expand on quite a bit.
Very good. Looking forward to it.
Of course, the comments about what transcripts don’t show … are pertinent. The pauses, hesitations, emphases, tone. Then there is body language (hand over/on face, blinking, eyes closing while answering – suggestive of lying … that sort of thing. And the ‘theatre’ … counsel sneering/smirking etc: in the court, a prosecutor holding up a knife that – while it is an exhibit – is not claimed to be have been used as a weapon of murder, in the trial, but looks like that when picked up and examined casually by a prosecutor. No words are needed, are they? An accusation that will never be made but some sort of suggestion is implicit.
There are however, some further points that might be made about the role of trial transcripts in a criminal court appeal:
-yes, of course they are examined and pored over and form an essential part of an appeal. Yet recourse to the trial transcript is not the be-all-and-end-all of an appeal: there are the submissions (written before the appeal and/or stated and/or restated verbally in the appeal court).
-there is the legal argument … questions of law, admissibility etc
-appeals can (now) also include new evidence that is claimed to be ‘fresh and compelling’. We saw this in the 2nd appeal of Sue Neill-Fraser. I was present during all the hearings that led to that unsuccessful appeal and was present during the whole of the appeal itself. I also have the court transcripts of all those hearings and of the three days of the appeal and of course I have the written decision of the court. Further to that I can add that I was part of an informal team that took its own notes, that wrote its own notes while in the court, listening to the proceedings, the argument, the witnesses and so forth. We compared our individual daily write-ups with those of each other. (There were of course also the news media reports published daily, since this was a high-profile case). I must say, that , – yes – here and there one notices gaps e.g. in the (trial transcript) such as a conversation between counsel and the judge after a lunch break(?) of which only the latter part is recorded in the transcript – one such concerned the recall of the ‘Farmers Union’ man. Then, in the hearings we saw the drama of Meaghan Vass in desperation and a welter of expletives, sweeping away from her the document that had been placed in front of her on the witness lectern … and how it fell onto the courtroom floor in front of her … and how she instinctively she left the witness box to go round and pick it up … and how despite all that, all that the transcript shows is that at some stage in Vass’s evidence, the judge asked her to remain in the witness box. Neither does the hearing transcript show the famous ‘I can’t do this anymore, Damien’ comment she made during a break in the proceedings (though it was subsequently referred to and queried by Counsel). However, in spite of that, what I am wanting to get to is to say that in my opinion, I found those hearing transcripts to be not all that deficient as records of what took place.
[A curious second-hand memory comes to mind (it occurred at a bail? hearing of one of the players caught up in the legal juggernaut-behemoth that surrounded SNF): it is of an incident which saw Justice Pierre Slicer, recalled from retirement to help the too-few Justices out, physically tear up the notes taken from the members of our unofficial team who were recording what was being said from its position at the back of the court, on the public benches. I’m quite sure that that tearing-up does not appear in any transcript, though the angry lecture the team received may well do … I’ve never sought to get/read that transcript!]
There are other matters that should be considered in seeking to resolve perceived shortcomings in reliance on just the typed-up transcripts: Would a court camera video record be a solution? I must say … possibly not … will people still disagree -even with video and audio- as to what a person has said, or how they said it (tone etc.)? Would the court camera just have its usual from a distance, hard-to-hear type focus?
It also seems to me that it is possible that recourse to the court videos is already being made by those performing transcription services … off the top of my head I can’t give a proper example of this, though I can cite as examples those of Vass – in the 2nd Appeal itself – giving evidence from a room adjacent to the courtroom, and indeed, the evidence of Colin Mclaren which was given from a remote location (court building in Victoria?).
In summary, let me say that often to me it has seemed possible to ‘hear’ the innuendo in the bare text of a transcript, to ‘hear’ the bullying tone in a Counsel’s XXN (e.g. in that of Gunson at trial). I agree that the pauses, the nervousness of voice etc can be and/or are missed in a transcript … but I’m not sure that these are fatal weaknesses. I make that statement from my comparison of the transcripts of such hearings (at which I was present) with my own memories and notes/reflections made at that time. Actually, I think that the transcribers do a great job … I don’t know what apps (digital applications) are used these days to produce transcripts … e.g. to convert voice to text?)
In my ‘mind’s eye’, I see a court stenographer sitting below a judge, perhaps a little to the side, quietly transcribing, while Perry Mason delivers another of his telling observations. Della (Street) is closeby, ready to slip him a note -an important last-minute breakthrough- an anonymous informant has just revealed how a police witness has attempted to bargain his own criminal charges in exchange for his evidence against Mason’s client – the accused.
Such things happen in real life … (e.g. in SNF’s case) but do not necessarily result in an acquittal. It should be remembered that at trial Sue did not have the benefit of having Perry Mason as her defence lawyer.
And worse than that: In the 4th the last trial, when Robert Xie was finally convicted, Witness A (aka the snitch) had a totally different persona from the earlier trial in which he gave his “evidence”. In the earlier trial he was brash and cocky, whilst in the later trial he’d had a personality transplant and was timid and fearful. Amazing! You would think he had been coached!
Yes Angela, my own experience shows that the QPS and the ODPP both accepted time travel – with one witness who’s statement required time travel; and golly gee he was not called at trial can’t think of why not.
One of my witnesses had major issue with dates, but lucky for us the police helped him out. So when it was pointed out that his original statement and claim contradicted later statements. We are lucky to have such a caring police force.
No wonder eyewitness errors 6%, false witness testimony 17% and police inputs 55% together are present observed in 78% of Causal and Contributing Factors of wrongful convictions in Australia. (Dioso et al, Griffith Uni study)