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Bulejcik v The Queen

Bulejcik v The Queen

Case [1995] HCA 54 6 October 1995

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HIGH COURT OF AUSTRALIA

BRENNAN CJ,
TOOHEY, GAUDRON, McHUGH, AND GUMMOW JJ

ANTON BULEJCIK APPELLANT

AND

THE QUEEN RESPONDENT

ORDER

Appeal allowed.

Set aside the order of the New South Wales Court of Criminal Appeal and in lieu thereof order that the appeal to that Court be allowed, the appellant's conviction be quashed and a new trial be held.

17 April 1996

Solicitors for the Appellant: Brock Partners

Solicitor for the Respondent:  S E O'Connor, Solicitor
  for Public Prosecutions
  (New South Wales)

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Anton Bulejcik v The Queen

Criminal law and procedure - Tape recording of accused's unsworn statement played to jury - Whether voice comparison or voice identification - Use of material not admitted into evidence - Trial judge's directions to jury on permitted use - Whether quality and quantity of material adequate to make comparison - Whether sufficient warnings given - Risk of use of tape as "real evidence" - Whether proper to play tape in the circumstances.

Criminal law and procedure - Procedural matter - Tape played after summing up completed - Whether constitutes procedural irregularity.

Crimes Act 1900 (NSW), s 402.

BRENNAN CJ. This is an appeal from a judgment of the Court of Criminal Appeal of New South Wales dismissing an appeal by the appellant against his conviction in the District Court on a charge of supplying a prohibited drug, namely, heroin. The evidence given at the trial before Nield DCJ and the course of the trial so far as relevant to the present appeal are set out in the reasons for judgment of Toohey and Gaudron JJ. An important issue at the trial was whether the appellant's voice was the voice on a tape recording of conversations that allegedly occurred at the door of the appellant's house, in a car and at a car park where the heroin was to be delivered. A police officer, Detective Sergeant Wilding, who had been fitted with a transmitting device in order to record what might happen and who had taken part in an alleged conversation in the car park, gave evidence that the appellant had taken part in that conversation and that the appellant's voice was one of the voices in a tape recording of the conversation. That tape recording was tendered as Exhibit H. An edited copy available to the jury was Exhibit D.

The appellant made an unsworn statement at the trial. At the end of that statement, the appellant said that he did not recognise his voice on Exhibit D and added: "You can - this technology can do anything I suppose." No suggestion of fabrication had been put expressly to Detective Sergeant Wilding in cross‑examination, though the content of the alleged conversation was challenged.

In the course of his summing up, the learned trial judge said:
" As to the question of identification of the voices on the tape, Sergeant Wilding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bulejcik v The Queen

Details

AGLC: Bulejcik v The Queen [1995] HCA 54
Case: [1995] HCA 54
Decision Date: 6 October 1995

CaseChat Overview and Summary

The applicant, Bulejcik, appealed to the High Court of Australia against his conviction for armed robbery. The central dispute concerned the admissibility and use of a tape recording of an unsworn statement made by the applicant, which was played to the jury after the trial judge's summing up had concluded.

The High Court was required to determine whether the tape recording constituted voice comparison or voice identification evidence, and whether it had been improperly used as material not admitted into evidence. Further issues included whether the quality and quantity of the recorded material were adequate for comparison, whether the trial judge provided sufficient warnings to the jury regarding its permitted use, and the risk of the tape being treated as "real evidence" rather than for the limited purpose of voice comparison. The court also considered whether playing the tape after the summing up amounted to a procedural irregularity.

The High Court held that the tape recording was not admitted into evidence and was played solely for the purpose of voice comparison. The judges reasoned that the trial judge's directions to the jury were crucial in mitigating the risk of the tape being misused. They found that while the quality of the recording was not ideal, it was sufficient for the limited purpose of comparison. The court emphasised that the jury was repeatedly warned not to treat the tape as evidence of guilt but only as material for comparing the applicant's voice with other evidence. The late playing of the tape was not considered a procedural irregularity that prejudiced the applicant.

The appeal was dismissed.

Orders