Report No. 77

2.4. The "upper-court" myth.-

The notion about the provisional nature of the trial court decisions being subject to correction in appeal, or what has been called the "upper-court myth", ignores the realities of the situation. In spite of the right of appeal, there are many cases in which appeals, are not filed. This apart, the appellate courts having only the written record before them, are normally reluctant to interfere with the appraisement of evidence of witnesses by the trial judges who have had the advantage of looking at the demeanour of the witnesses.

The appellate court, it has been said, operates in the partial vacuum of the printed record. A stenographic transcript fails to reproduce tones of voice and hesitations of speech that often make a sentence mean the reverse of what the mere words signify. The best and most accurate record of oral testimony is like a dehydrated peach; it has neither the substance nor the favour of the peach before it was dried.