R v Bushell; R v Tozer (No. 6)

[2021] NSWSC 750

Supreme Court

New South Wales

Medium Neutral Citation:

R v Bushell; R v Tozer (No. 6) [2021] NSWSC 750

Hearing dates:

21 June 2021, 22 June 2021, 23 June 2021

Date of orders:

23 June 2021

Decision date:

23 June 2021

Jurisdiction:

Common Law - Criminal

Before:

Johnson J

Decision:

1. The Court declines to allow the Crown to adduce evidence, by way of recording or transcript, of what was allegedly said by each Accused on 26 July 2018 and 27 July 2018 as objected to in paragraphs (1)(i) and (1)(ii) of the Notice of Motion of 16 June 2021.

2. The Court allows the Crown to adduce evidence of the audio recording of what was allegedly said on 22 April 2017 in the CCTV recording at Ropes Crossing.

3. The Court declines, at this time, to allow the Crown to place before the jury the transcript of the 22 April 2017 conversation as prepared by Detective Senior Constable Oldfield.

Catchwords:

CRIME – two accused charged with murder – pretrial objection to admission of audio recordings and transcripts – CCTV recording of conversations on 22 April 2017 – recordings of conversations under surveillance device warrants on 26 and 27 July 2018 – Crown relies upon audio recordings as admissions – objection to parts of conversations upon the basis that recording inaudible – whether transcripts of alleged words prepared by police officer admissible – inaudible recordings of conversations on 26 and 27 July 2018 not to be admitted – transcripts of those recordings not to be admitted – partly audible recording of conversation on 22 April 2017 to be admitted – transcript of alleged words in that recording not admitted

Legislation Cited:

Evidence Act 1995

Cases Cited:

BJS v The Queen (2013) 231 A Crim R 537; [2013] NSWCCA 123

Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; [1987] HCA 58

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

Morgan v R [2016] NSWCCA 25

Nasrallah v R; R v Nasrallah [2015] NSWCCA 188

Nguyen v R (2017) 264 A Crim R 405; [2017] NSWCCA 4

Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37

R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335

R v Bushell; R v Tozer (No. 3) [2021] NSWSC 402

R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494

R v Giovannone (2002) 140 A Crim R 1; [2002] NSWCCA 323

R v Hall & Ors [2001] NSWSC 827

R v Hawat (No. 5) [2019] NSWSC 1727

R v Leung (1999) 47 NSWLR 405; [1999] NSWCCA 287

R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167

Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50

Texts Cited:

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Category:

Procedural rulings

Parties:

Regina (Crown)
Daniel Michael Bushell (Accused)
John Jamie Tozer (Accused)

Representation:

Counsel:
Mr CM Everson; Mr J Sfinas (Crown)
Ms NS Carroll (Accused Bushell)
Mr A Djemal (Accused Tozer)

Solicitors:
Director of Public Prosecutions (Crown)
Jamieson Criminal Law (Accused Bushell)
Zahr Partners (Accused Tozer)

File Number(s):

2018/229735 (Bushell)
2018/230025 (Tozer)

Publication restriction:

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Judgment

1. JOHNSON J: The Accused, Daniel Michael Bushell and John Jamie Tozer, are to stand trial upon an indictment which charges each of them with the murder of Ricky Ciano at Oberon between 10 February 2017 and 14 February 2017.

2. By Notice of Motion dated 16 June 2021, the Accused Tozer seeks the exclusion of three items of audio evidence and purported transcripts of those items upon which the Crown seeks to rely. The Accused Bushell seeks the exclusion of the second and third of these items as part of the present application.

The Crown Case

3. The Crown case against each Accused was summarised in R v Bushell; R v Tozer (No. 3) [2021] NSWSC 402 at [9]-[12].

4. Put shortly, it is the Crown case that the Accused injected Ricky Ciano with a lethal mixture of drugs that caused the death of Mr Ciano between 10 and 14 February 2017. The body of Mr Ciano was located on 14 February 2017 in an abandoned vehicle parked on the side of the road about 15 kilometres east of Oberon. It is common ground that Mr Ciano had died from what has been described as drug toxicity. An autopsy revealed a single injection point in the pit of his left elbow. Located in the body of Mr Ciano were quantities of heroin and cocaine together with alprazolam and oxycodone.

5. The Crown alleges that each Accused was involved in the intentional injection of Mr Ciano of drugs with intent to kill. In the alternative, the Crown has indicated that it will open to the jury upon the basis of manslaughter by unlawful and dangerous act and manslaughter by criminal negligence as alternatives.

6. It is not necessary for the purpose of this judgment to say anything further about the nature of the case against either Accused upon which the Crown seeks to rely.

Evidence to Which Objection is Taken

7. The items of evidence to which objection is taken in the present Notice of Motion are the following:

1. A recording (and purported transcript of the recording) of what are said to be parts of a conversation recorded on a CCTV system on 22 April 2017 located in premises in Bluebell Crescent, Ropes Crossing, being a conversation between the Accused Tozer and his partner, Tara Micallef. That recording runs for one minute and 39 seconds.

2. A recording (and purported transcript of the recording) of a fragment of a conversation on 26 July 2018 between the Accused Tozer and the Accused Bushell recorded pursuant to a surveillance device warrant in an area of the Metropolitan Reception and Remand Centre (“MRRC”). That recording runs for five seconds.

3. A recording (and purported transcript of the recording) of another fragment of a conversation between the Accused Tozer and the Accused Bushell on 27 July 2018, also recorded under surveillance device warrant in an area of the MRRC. That recording runs for 73 seconds.

8. I observe that the second and third categories of evidence to which objection is taken comprise parts or fragments only of recorded conversations between the Accused Tozer and the Accused Bushell in the MRRC over a period of time. No objection is taken with respect to other parts of those recordings, which will be placed before the jury in due course, and as to which there may be some contest as to what was said between the two men. Those matters are not the subject of any objection.

9. Accordingly, the second and third items are limited parts of a larger body of recorded material upon which the Crown will seek to rely.

Hearing of the Notice of Motion

10. A voir dire was held with respect to the areas of objection in the Notice of Motion.

11. The Crown tendered material including documents and recordings of the matters to which objection is taken (Exhibit PTC). A folder of material was tendered on behalf of the Accused Tozer (Exhibit PT3) which included other material relating to the objection. Included in Exhibit PT3 were three reports of Dr Richard Rhodes, an acoustic expert based in the United Kingdom, who gave evidence by audio-visual link on the voir dire.

12. In addition, the Crown called Detective Senior Constable Jon Oldfield to give evidence on the voir dire. Detective Senior Constable Oldfield had listened to the recordings on a large number of occasions and had prepared the transcripts to which objection is taken.

13. The Court received detailed written submissions, together with oral submissions made yesterday and today. It is not necessary to recount in any detail the submissions made in support of or opposition to the objection, beyond what will be said in this judgment.

14. The objection raised for consideration various provisions of the Evidence Act 1995, including s.48(1)(c), s.55, s.79 and s.137, all of which were referred to on the objection.

Some Statutory Provisions and Principles

15. It is appropriate to set out a number of statutory provisions and principles which have application, in one way or another, to the present objections. Sections 55 and 56 Evidence Act 1995 relate to relevance and provide as follows:

“55    Relevant evidence

(1)    The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2)    In particular, evidence is not taken to be irrelevant only because it relates only to:

(a)    the credibility of a witness, or

(b)    the admissibility of other evidence, or

(c)    a failure to adduce evidence.

56    Relevant evidence to be admissible

(1)    Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2)    Evidence that is not relevant in the proceeding is not admissible.”

16. Section 137 Evidence Act 1995 provides as follows:

“137   Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

17. Section 137 refers to the term “probative value” and that term is defined in the Dictionary to the Evidence Act 1995 as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.

18. The test of relevance is a relatively undemanding one. The inquiry for the purpose of s.55 concerns how the evidence might affect findings of fact. The possible use to which the evidence might be put is to be taken at its highest: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [43]-[44]. No assessment of the credibility or reliability of the evidence is required: IMM v The Queen at [39].

19. Evidence which is relevant according to s.55 and admissible under s.56 is, by definition, probative. But neither s.55 nor s.56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some (even slight) probative value will be prima facie admissible: IMM v The Queen at [40].

20. Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM v The Queen at [15]. Section 137 requires the probative value of the evidence to be weighed against the danger of unfair prejudice to the Accused. This requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue: see IMM v The Queen at [47].

21. The danger of “unfair prejudice” in s.137 directs attention to the risk that evidence may be misused in some unfair way by the tribunal of fact, so that (in this case) the jury may not comply with judicial directions as to its use: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]; R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494 at [163]-[165]. There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves: BJS v The Queen (2013) 231 A Crim R 537; [2013] NSWCCA 123 at [51].

22. The existence of competing inferences (or alternative interpretations), available to be drawn from the proposed prosecution evidence, plays no part in the assessment of probative value for the purpose of s.137: R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 at [196].

23. Sections 76 and 79 Evidence Act 1995 relate to expert opinion evidence. Section 76 is as follows:

“76    The opinion rule

(1)    Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

(2)    Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.”

24. Section 79(1) states:

“79    Exception: opinions based on specialised knowledge

(1)    If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

…”

25. An opinion is an inference drawn from observed and communicable data: Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 at [21]. In Honeysett v The Queen, the Full High Court explained the two conditions of admissibility for the purpose of s.79 at [23]-[25]:

“23.   Section 79(1) states two conditions of admissibility: first, the witness must have ‘specialised knowledge based on the person's training, study or experience’ and, secondly, the opinion must be ‘wholly or substantially based on that knowledge’. The first condition directs attention to the existence of an area of ‘specialised knowledge’. ‘Specialised knowledge’ is to be distinguished from matters of ‘common knowledge’. Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person's training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines ‘knowledge’ as ‘acquaintance with facts, truths, or principles, as from study or investigation’ (emphasis added) and it is in this sense that it is used in s 79(1). The concept is captured in Blackmun J's formulation in Daubert v Merrell Dow Pharmaceuticals Inc: ‘the word 'knowledge' connotes more than subjective belief or unsupported speculation. ... [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds’.

24.   The second condition of admissibility under s 79(1) allows that it will sometimes be difficult to separate from the body of specialised knowledge on which the expert's opinion depends ‘observations and knowledge of everyday affairs and events’. It is sufficient that the opinion is substantially based on specialised knowledge based on training, study or experience. It must be presented in a way that makes it possible for a court to determine that it is so based.

25.   As explained in the joint reasons in Dasreef Pty Ltd v Hawchar, the starting point in determining the admissibility of evidence of opinion is relevance: what is the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.”

26. The opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. It directs attention to the finding which the tendering party will ask the tribunal of fact to make: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [31].

27. In R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167, Spigelman CJ explained (at [137]) the concept of specialised knowledge with respect to expert opinion evidence. The Chief Justice said:

“137   The focus of attention must be on the words ‘specialised knowledge’, not on the introduction of an extraneous idea such as ‘reliability’. (Cf Velevski v The Queen (2002) 76 ALJR 402 at [82], [154]-[160]; Perpetual Trustee Co Ltd v George NSWSC 19 November 1997 per Einstein J (unreported); Idoport Pty Ltd v National Australia Bank Limited [1999] NSWSC 828 at [242]; Odgers Uniform Evidence Law (6th Ed) at par 1.3.4260; Freckleton and Selby Expert Evidence: Law, Practice, Procedure and Advocacy (3rd Ed) at 97-98; Anderson, Hunter and Williams The New Evidence Law (2002) at 246.).”

28. Later in R v Tang, Spigelman CJ referred (at [147]-[150]) to other decisions which have set out principles relevant to expert opinion evidence. Spigelman CJ said in those paragraphs:

“147    As Gleeson CJ said in HG v The Queen at [39]:

‘The provisions of s79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.’

148    His Honour also said at [40]:

‘… the witness had to identify the expertise he could bring to bear and … his opinions had to be related to his expertise.’

(See also at [44].)

149    To similar effect is the analysis of Heydon JA in Makita (Australia) Pty Ltd v Sprowles at [85] where, after setting out the observations of Gleeson CJ in HG v The Queen, his Honour said:

‘In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness's expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.’

150    Similarly in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146 at [18], [23], the Full Court required ‘exposure of the reasoning process’ so as to demonstrate ‘that the opinion is based on … specialised knowledge’.”

29. Reference should be made as well to s.48(1)(c) Evidence Act 1995 upon which the Crown sought to rely in support of the tender of the transcripts of the recordings. That provision provides that a party may adduce evidence of the contents of a document by tendering the document in question or by any one or more of the following methods:

“(c)    if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing) - tendering a document that is or purports to be a transcript of the words.”

30. In Honeysett v The Queen, the High Court observed (at [48]) that it was not necessary to decide the question whether the New South Wales Court of Criminal Appeal was right to consider that the repeated listening to an indistinct tape recording or viewing of video tape or film may qualify as an area for specialised knowledge based on the listener's or viewer's experience. In that respect, the High Court referred in passing to the existence of s.48(1)(c) without further comment.

31. In a decision which considered an objection (with some similarities to the present objection) in R v Hall & Ors [2001] NSWSC 827, Greg James J observed (at [34] and [35]) that s.48(1)(c) Evidence Act 1995 did not appear to provide a separate basis for the admission into evidence of a transcript of a recording, with the recording itself being the evidence. In other words, the provision relates to the form of proof rather than any question of admissibility. That approach, it seems to me is, with respect, correct.

30. In another decision which has similarities to the present case, N Adams J, in R v Hawat (No. 5) [2019] NSWSC 1727, considered an objection to poor or inaudible recordings, together with the associated question of the admissibility of transcripts prepared by a police officer who had listened frequently to the recordings. It does not appear that her Honour was asked to consider s.48(1)(c) Evidence Act 1995 in that case.

31. With respect to the admissibility of the transcripts prepared by Detective Senior Constable Oldfield following his listening to the recordings on multiple occasions, the Court was referred by the Crown to what had been said in a number of decisions with respect to the concept of an ad hoc expert. These decisions included R v Leung (1999) 47 NSWLR 405; [1999] NSWCCA 287 (in particular at [37]-[38]); R v Giovannone (2002) 140 A Crim R 1; [2002] NSWCCA 323 (at [51]) and Morgan v R [2016] NSWCCA 25 (in particular at [27] and following). In addition, submissions were made by reference to other well-known decisions, including Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; [1987] HCA 58 and Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50.

32. For the purpose of determining these objections, I have been assisted considerably by the judgment of N Adams J in R v Hawat (No. 5), noting as well the approach taken in R v Hall to s.48(1)(c) Evidence Act 1995.

Relevance of the Alleged Admissions

35. For the purpose of determining issues of relevance and subsequent issues, it is appropriate to note the trial issue to which this evidence is said to relate.

36. As I have mentioned, it is the Crown case that Mr Ciano died from drug toxicity. The central issue for present purposes concerns how the drugs came to be in Mr Ciano's system and whether either or both Accused played a part in that respect and, if so, what was the state of mind of each Accused at the time of the commission of any acts which the Crown alleges led to the fatal combination of drugs entering Mr Ciano's system.

37. The Crown seeks to rely on some of the things allegedly said in the recordings as being admissions made by one or other of the Accused. In this respect, I note the definition of “admission” in the Dictionary to the Evidence Act 1995:

“admission means a previous representation that is -

(a)    made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

(b)    adverse to the person’s interest in the outcome of the proceeding.”

Playing of the Recordings

38. Apart from the oral evidence of Dr Rhodes and Detective Senior Constable Oldfield, the disks containing the three recordings were played in Court in both untreated and treated or enhanced form. Headphones of different types were used in the playing of these recordings in Court.

39. In addition, the Court listened to the recordings in accordance with the specifications contained in MFI PT14, using two sets of Sennheiser headphones which are MFI PT6 and MFI PT7. The legal representatives for the parties had the same opportunity and they listened to the recordings before submissions were made.

Transcripts of the Recordings

40. The recording of 22 April 2017 (“the Ropes Crossing recording”), according to the transcript prepared by Detective Senior Constable Oldfield, contains two particular areas upon which the Crown seeks to rely.

41. It is alleged that at 23:04:26 on 22 April 2017, the Accused Tozer said to Ms Micallef, “Hit him with speed. A little bit of rack. Finish him off with Xanax. Put Ricky to napland. With a pack on his (ind)”.

42. Further parts are said to be discernible by Detective Senior Constable Oldfield and are contained in the transcript, which forms part of Exhibit PTC. A second and particular part relied upon by the Crown as an admission is what was allegedly said at about 23:05:47, where the Accused Tozer is alleged to have said, “We wracked him up Saturday afternoon. (ind) live long. The idiot couldn't even see straight. The good side of that for me. You know obviously there's a bad side”.

43. The transcript of 26 July 2018, to which objection is taken, contains a short alleged exchange in the MRRC where the Accused Bushell (DB) and the Accused Tozer (JT) are said to have been saying to each other, in low whispering voices:

DB: “He drank it, though.”

JT: “Explains what's in him.”

44. The transcript of 27 July 2018, to which objection is taken, asserts that the two men, speaking in low voices, said the following:

JT: “Arrive at 1235 up there.”

DB: “Don't know (ind).”

JT: “Probably not going. In order. A bit of this. We're all fucking sitting there and Ricky gets excited. (ind) He wanted it. He didn't even fight it.”

DB: “I know. That shit worked. We wanted him to go on his back.”

JT: “Whatever. Like, they can't find out.”

Brief Overview of Submissions Concerning Objections

45. The submission for each Accused is that the words said in the recordings are not sufficiently discernible or audible to allow a transcript to be prepared in the form as asserted by Detective Senior Constable Oldfield. In this respect, particular reliance was placed upon the evidence of Dr Rhodes (PT127, lines 15 to 21), where he said in answer to a question about the audibility, intelligibility, reliability and validity of what was on the recordings and what appeared in the police transcripts:

“So the essential standard is that I try to transcribe this recording. I ask my colleagues to do the same. And I found that it wasn't possible to transcribe the speech sounds in those sections. The audio that was there was of too poor a quality. And while I've done that, I've also been looking at the speech signal itself, what's actually present in the recordings and assessing those police transcripts against what's present and finding that some of what's in the transcript really have no basis in the audio signal.”

46. It was submitted for each Accused that the recordings were in accordance with the evidence of Dr Rhodes, as explained more fully in his reports and in his oral evidence. There were no audible words which permitted the recordings to be admitted into evidence. Even if a bare word or words could be heard, it was submitted that that word or those words in isolation could not advance the matter, bearing in mind the Crown was seeking to rely upon this as evidence of admissions by one or other of the Accused with respect to the offence charged against them, being the murder of Mr Ciano.

47. It was submitted that none of the recordings should be admitted.

48. It was submitted further that the transcripts prepared by Detective Senior Constable Oldfield were not admissible as they constituted impermissible opinion evidence and were not admissible under s.48(1)(c) Evidence Act 1995. It was submitted that this opinion evidence was not admissible under s.79 Evidence Act 1995, as no area of specialised knowledge had been demonstrated to warrant the admission of the opinion.

49. In support of the s.137 objection, it was submitted that it was significant that Detective Senior Constable Oldfield had prepared these transcripts in circumstances where he was a significant member of the police investigation team, with significant knowledge of the facts and circumstances of the investigation itself. He was not a police officer who, as a stranger to the investigation, was asked to undertake the task of listening to the recordings against a background of no prior knowledge of the matter.

50. Reliance was placed upon the concept of “priming”, explained in the evidence of Dr Rhodes, whereby a transcript prepared by someone which comes before the jury may in fact lead the jury into a particular understanding of what is allegedly audible, even though it is not, in truth, audible. It was submitted as well that “priming” can operate in that Detective Senior Constable Oldfield, as an active investigator in the case, can himself have some understanding of the issues in the trial, relating to drug toxicity, the combination of drugs, and the allegation against the Accused of homicide by administration of drugs to Mr Ciano. Therefore his knowledge of those matters may serve to mould, direct or fashion what he understands that he is hearing in what are, on any view of it, low quality recordings.

51. It was submitted, by one route or another, the recordings should not be admitted, nor should the transcripts prepared by Detective Senior Constable Oldfield.

52. The Crown submitted that Detective Senior Constable Oldfield was an ad hoc expert in accordance with the understanding of that term in the authorities, that he had, through repeated listening, qualified himself in that respect, so that the transcripts were admissible. Although it was accepted that the recordings were of poor quality, it was submitted that the recordings themselves were admissible in circumstances where there was some audible content. The evidence of Detective Senior Constable Oldfield fortified the admission of the recordings together with the transcripts, whether the transcripts were to be used as direct evidence under s.48(1)(c) Evidence Act 1995 or as an aide memoire in the more traditional sense.

Listening to the Ropes Crossing Recording on the Separate Trial Application

53. I should indicate at this point that the Court had, on an earlier occasion, been invited to listen to a recording of the 22 April 2017 of the Ropes Crossing conversation.

54. The Accused Tozer made an application for a separate trial, with that application being declined by the Court in a judgment of 21 April 2021: R v Bushell; R v Tozer (No. 3). In that judgment (at [85]), I noted that the Court had listened to the recording which had been provided by the parties. The issue had arisen at the separate trial application as a type of incidental issue. The Court was not determining any objection to the tender, nor was the recording played in Court, nor any detailed submissions made, let alone the adducing of any evidence bearing upon the content of the recording.

55. The Court was invited to listen to the recording in circumstances where it formed part of the Crown case against the Accused Tozer, which had some bearing upon the separate trial application. I noted (at [85]) that the quality of the recording and the accuracy of the transcript and the weight to be given to the alleged admissions would be a matter for the jury at a future trial. I noted that, for the limited purpose for which I had listened to the recording, I considered that what was said was capable of being treated as alleged admissions as asserted by the Crown. I observed that that statement was sufficient for the purpose of that ruling.

56. As I made clear during the course of the present voir dire (PT58-59), the Court is considering the present objection by reference to the evidence adduced on the current application, which is an objection to the evidence. Material has been tendered, with the recording being played in open court in various forms, with the evidence of Dr Rhodes and Detective Senior Constable Oldfield bearing on this issue, and with submissions being made by the parties.

57. The prior reference to this material in R v Bushell; R v Tozer (No. 3) forms part of the background history, but does not bear in any significant way upon the present application. I should observe, however, that in listening to the recording at that time I did detect certain words, and I will return to that when dealing with the present application.

Determination of Objections

58. I come directly to deal with the objections to the three categories of evidence. My findings can be expressed relatively succinctly. As I have noted, I am assisted by the approach of N Adams J in R v Hawat (No. 5), an example of a practical determination of objections in a criminal trial where poor quality recordings are sought to be tendered by the Crown, accompanied by transcripts prepared by a police officer who has listened repeatedly to the recordings.

The MRRC Recordings on 26 and 27 July 2018

59. With respect to the recordings of 26 July 2018 and 27 July 2018 at the MRRC, the parts to which objection is taken (which are limited in their extent) may be determined primarily by reference to what the Court heard.

60. I listened carefully to what was played in Court with and without the use of earphones, and again finally yesterday by use of the two Sennheiser earphones. Sounds can be detected on the 26 and 27 July 2018 recordings. There is noise. However, I could not detect voices, let alone voices which could give rise to any meaningful transcription.

61. I am conscious that the task that I am fulfilling at present is not that which a jury would be asked to fulfil if this evidence was allowed, with the jury being the judges of the facts in the trial. However, there is, in my view, a threshold question as to whether evidence can be relevant and have probative value if the recording is not capable of being heard as to any words being spoken in the alleged conversation.

62. In this respect, I share the opinion of N Adams J in R v Hawat (No. 5) at [44]. In my view, the description of Dr Rhodes to which reference has been made (see [45] above), applies aptly to the 26 July 2018 and 27 July 2018 recordings. Those recordings, in my view, do not pass the threshold test of relevance contained in the Evidence Act 1995. I have formed that view because I simply cannot comprehend anything that is said in the recordings.

63. With respect to the transcripts of these recordings prepared by Detective Senior Constable Oldfield, it seems to me that the position is similar to that identified by N Adams J in R v Hawat (No. 5) at [12]-[31]. In the end, with respect to these recordings and transcripts, the jury would be left in the position where there is nothing, in my view, audible in the recordings, and so the primary evidence would be what Detective Senior Constable Oldfield said (in his opinion) he could hear in these two fragments of conversation. That, in my view, is not a permissible way of adducing evidence of this type, with the reasoning of N Adams J in R v Hawat (No. 5) supporting this conclusion.

64. I note, in any event, that the Crown acknowledged (PT248) that, if the Court took the view that there was no discernible conversation in the recordings of 26 July 2018 and 27 July 2018, then it would be difficult to sustain a submission that the transcripts should nevertheless go in, in the absence of the recordings. Accordingly, I will, in due course, decline to allow the Crown to adduce that evidence, either in audio form or transcript form.

The Ropes Crossing Recording on 22 April 2017

65. I turn to the recording of 22 April 2017, being the Ropes Crossing recording. It is the case that this is an unusual recording. This was not a surveillance device recording or a telephone intercept recording. There were, it would seem, some eight CCTV cameras surrounding the premises at Ropes Crossing in which the Accused Tozer, Tara Micallef and apparently the Accused Bushell were residing at the relevant time. It is said that Camera 8 picked up certain things said on the evening of 22 April 2017 to which reference has been made.

66. I listened to this recording, as I have mentioned, for the purpose of the separate trial application. My knowledge of the matter at that time was far more rudimentary than it is now. Of course, I did not then have the benefit of a wide range of evidence together with different technical facilities to listen to the recording.

67. Having listened to this recording, I can discern a number of words. Once again I am conscious that I can only speak for myself in this respect. I am not the jury, and it will be a matter for the jury, if this is admitted, to determine what is heard. But I can discern the words “speed”, “Xanax”, "rack” and “napland”.

68. Now, I make clear that I cannot detect every word spoken in complete sentences. Of course, if I could detect all the words spoken in complete sentences, we would probably not be undertaking this exercise by way of an objection. It is the very nature of this type of objection that there is a poor quality recording, with the Court having to determine the question of admissibility.

69. Thus, there is a contrast between the Court's position on this recording and that concerning the MRRC recordings on 26 and 27 July 2018.

70. It is true, as counsel for the Accused Tozer submitted, that care must be taken when it is particular words that may be heard, because if one is hearing particular words, one is not hearing all the words, at least not clearly. At the same time, the words that I can detect do have some significance to this trial. I have mentioned those words (at [67] above). Given the issue in the trial to which this evidence is directed (see [36] above), the evidence is relevant and probative and it is open to a jury to regard this, if they accepted these words were spoken, as being in the nature of an admission.

71. A number of criticisms were made by counsel for the Accused Tozer, including that the reference to “speed” does not seem to align with the scientific evidence because “speed” is not said to have been a drug used. Of course, that involves the question whether, if the Accused Tozer did use that word, he had any understanding of the correct description of the drug. The criticism that counsel raises is open as an argument, but it seems to me it does not take the matter very far.

72. Accordingly, the position with respect to this recording is that there are areas of criticism counsel has addressed, by reference to matters raised with Detective Senior Constable Oldfield in his evidence about what he heard at different times. The present question is whether the sounds contained in the audio recording should be admitted.

73. I am satisfied that this material is sufficiently audible, it is relevant and it is of probative value. I am not satisfied that the recording should be excluded under s.137 Evidence Act 1995. It will be a matter for the jury at the trial to determine what they hear. Counsel will make submissions with respect to that issue. I am satisfied, however, that the material ought be admitted and I will make an order to that effect shortly.

74. That leads to the question of the transcript prepared by Detective Senior Constable Oldfield. It seems to me that, despite the submissions made by the Crown by reference to the cases, there is at least an open question as to whether Detective Senior Constable Oldfield is an ad hoc expert of the type recognised in cases such as R v Leung and Morgan v R (cf Smith v The Queen at [10]-[12]; Honeysett v The Queen at [48]; Nasrallah v R [2015] NSWCCA 188 at [17]-[47]; Morgan R at [37]-[38]; Nguyen v R (2017) 264 A Crim R 405; [2017] NSWCCA 4 at [13]-[50], [89]-[91], [103]-[105]). The exercise undertaken by Detective Senior Constable Oldfield involved repeated listening. Voice identification played some role here, although he alleges that this is a conversation between a male and a female and not two males.

75. It seems to me as well that, if the Crown was entitled to deploy the transcript at the time when the recording is tendered and played to the jury, an area of concern arises. The evidence of Dr Rhodes about the “priming” effect is important. A jury being asked to listen to a poor quality recording to determine what is being said, but having put before them in concrete terms in black and white what a police officer familiar with the case says he heard, runs the significant risk of those words being given undue weight.

76. I accept that juries are expected to follow directions from trial judges. At the same time, as cases such as Papakosmas v The Queen and R v Clark make clear, the Court must consider, for the purpose of s.137, the risk that there may be misuse of evidence. There is also, in my view, a risk that the provision of the transcript to the jury may serve to build into their thought processes what appears on the page, which itself may (if not replaced by their own thought processes) at least guide them in a particular direction.

65. All of that leads me to conclude that it is not appropriate that the transcript prepared by Detective Senior Constable Oldfield be placed before the jury at the trial, certainly as I understand the issues at the trial at this time.

66. The Crown will be entitled to adduce evidence of the contents of the audio recording. As discussed in submissions (PT253-254), the Crown will be entitled to advance submissions inviting the jury to consider that the words audible are the words asserted by the Crown based upon (in effect) the instructions of Detective Senior Constable Oldfield. However, the Crown would not have available to it the evidence of Detective Senior Constable Oldfield, nor would the transcript be put before the jury in the manner which I have identified, either as primary evidence under s.48(1)(c) Evidence Act 1995, nor as an aide memoire.

67. Now, it is possible, as the evidence in the trial unfolds, that a question may arise as to whether evidence may be given. If, for example, counsel for the Accused Tozer determined to call Dr Rhodes as a witness as to what he did or did not hear in the 22 April 2017 recording, that may bring about circumstances which could lead to a revisiting of this issue. It may be that other events may occur in the trial that lead to this issue being revisited.

68. I am saying this because the present ruling is not intended to foreclose once and for all the question of the role of the evidence of Detective Senior Constable Oldfield or Dr Rhodes on this issue.

69. What is clear, however, is that the Crown will not be able to rely upon the transcript prepared by Detective Senior Constable Oldfield, and if there was any question of evidence being led or the issue of the contents of the transcript being raised in the presence of the jury, it would be necessary for that issue to be raised with me in the absence of the jury before any reference could be made to that topic.

70. Accordingly, the position is that I will allow the recording to be played but the transcript will not be able to be put before the jury, unless there is some development in the trial that brings about a scenario where the Court considers that it is appropriate.

Orders

83. Accordingly, I make the following orders:

1. I decline to allow the Crown to adduce evidence, by way of recording or transcript, of what was allegedly said by each Accused on 26 July 2018 and 27 July 2018 as objected to in paragraphs (1)(i) and (1)(ii) of the Notice of Motion of 16 June 2021.

2. I allow the Crown to adduce evidence of the audio recording of what was allegedly said on 22 April 2017 in the CCTV recording at Ropes Crossing.

3. I decline, at this time, to allow the Crown to place before the jury the transcript of the 22 April 2017 conversation as prepared by Detective Senior Constable Oldfield.

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Decision last updated: 24 July 2025