An appeal is decided on the record of what happened in the National Court, and the transcript is the largest part of that record. Getting it early, and getting it right, is the first practical task after the notice of appeal is filed.
The rules
36. The appeal book shall contain … (a) the reasons for judgment of the primary Judge or Court; and (b) a copy of the notes of evidence taken by the primary Judge certified by his Associate or other authorized person. 37. If a copy of the transcript of proceedings is available, it shall be obtained from the Registrar and corrected in accordance with Rules 38 and 39. 38. The appellant shall on obtaining a copy of the transcript (a) correct any errors that appear in it; and (b) submit a list of corrections to the respondent; and (c) afford the respondent a reasonable opportunity of examining the transcript and corrections. 39. If the parties disagree upon the accuracy of any part of the transcript or are unable to agree upon a correction, the question shall be submitted to the Registrar or primary Judge for direction on the matter.
Step by step
| Step | What to do |
|---|---|
| 1. Request | Write to the Registrar as soon as the notice of appeal is filed, identifying the National Court file number, the Judge, the hearing dates and whether the whole hearing or only specified days or witnesses are needed. Form 8 asks whether a transcript is required and has been requested. |
| 2. Pay | The Registrar determines the cost of production; pay it and keep the receipt as a disbursement for taxation. |
| 3. Wait | Transcription is done by the Court Reporting Service from the audio record. Long trials take weeks. Delay in the transcript is a recognised reason for extending the time for the appeal book, but only if the request was made promptly and the Registrar’s letters are exhibited. |
| 4. Correct | Read the transcript against counsel’s notes and the exhibits, list the corrections by page and line, and send the list to the respondent with the transcript. |
| 5. Agree or refer | Agree the corrections in writing; refer any dispute to the Registrar or the primary Judge under Rule 39 before the appointment to settle the appeal book. |
| 6. Include | Put the corrected transcript in the appeal book with the corrections list; under O 7 r 44 the pages carry the witness name at the top where evidence is reproduced. |
Where there is no transcript
Not every hearing is recorded, and audio is sometimes lost. Rule 36(b) then requires the Judge’s notes of evidence, certified by the Associate, and the parties may supplement them with an agreed statement of what was said, or with affidavits from counsel where they cannot agree. Where the notes are inadequate to decide a ground, the Court may remit the case for rehearing under section 16(d) of the Act rather than decide on an incomplete record. A missing transcript is not itself a ground of appeal.
Election petition reviews
Order 5 Rule 21 requires the application for leave to indicate whether a transcript is required and, if so, to request its production; Rule 24 provides that where a request is made the applicant shall meet the cost as determined by the Registrar; and the directions hearing under Rule 28 deals with the availability of the transcript. Because the whole review runs to a 14-day rhythm, the request goes in the Form 5A application itself. See filing an election petition review.
Using the transcript
Order 11 Rule 18 requires references to portions of the transcript in the extract of argument to be given by page and line, with the extracts set out. A ground that the verdict was against the weight of the evidence cannot be argued without the passages. Conversely, the Court will not read a transcript looking for error: the appellant must point to it. Where only a few witnesses matter, the parties can agree, and the Registrar under Order 11 Rule 10 can waive the requirement, to include only those parts, which keeps the book and the cost down. See what goes into an appeal book, the settlement of the appeal book and what an appeal costs.
Criminal appeals
In a criminal appeal the Registrar obtains the transcript and the trial Judge’s reasons and the Public Prosecutor and the Public Solicitor settle the book; section 31(2) of the Act makes the expenses of the appeal payable from public funds, so the prisoner does not pay for the transcript. See the Registrar’s role in a criminal appeal.
Sources
- Supreme Court Rules 2012 — O 5 rr 21–24, 28; O 7 rr 36–39, 44; O 11 rr 10, 18; Forms 5A, 8
- Supreme Court Act (Chapter 37) — ss 16, 31
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.