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

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

Case [2021] NSWSC 750 23 June 2021

Admissibility of Evidence

Expert Evidence

Appeal

Criminal Law

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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…

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

Details

AGLC: Decision restricted [2021] NSWSC 750
Case: [2021] NSWSC 750
Decision Date: 23 June 2021

CaseChat Overview and Summary

The respondents, Bushell and Tozer, were charged with the murder of a person in Australia. They objected to the admission of certain audio recordings and transcripts obtained under surveillance warrants, which the Crown intended to use as admissions. The recordings in question were made on 22 April 2017, and 26 and 27 July 2018. The court had to determine whether the recordings and transcripts were admissible as evidence. The key issues were whether the recordings were clear enough to be admitted, and if the transcripts prepared by police officers could be used.

The court examined the clarity of the audio recordings, determining that the conversations on 26 and 27 July 2018 were largely inaudible and therefore could not be admitted. However, the conversation on 22 April 2017 was partly audible and was deemed admissible. Regarding the transcripts, the court held that they could not be admitted as they were not based on the original recordings, but rather on the recollections of the police officers who prepared them. The court ruled that the transcripts did not meet the reliability standards required for admissibility.

Consequently, the court ordered that the audio recordings from 26 and 27 July 2018, and the transcripts of those recordings, were not to be admitted as evidence. However, the partly audible recording from 22 April 2017 was to be admitted, but the transcript of the alleged words in that recording was not to be admitted. This decision significantly impacts the Crown's case, as it limits the evidence they can use to establish the respondents' guilt.

Orders