R v Bushell; R v Tozer (No 8) - [2023] NSWSC 1444

Supreme Court

New South Wales

Medium Neutral Citation: R v Bushell; R v Tozer (No 8) [2023] NSWSC 1444
Hearing dates: 24 July 2023
Date of orders: 24 July 2023
Decision date: 24 July 2023
Jurisdiction: Common Law
Before: Rothman J
Decision:
The recording and/or transcript of what was allegedly said by each accused on 26 July 2018 and 27 July 2018 is not admitted.

Catchwords:
EVIDENCE – audio recordings – unable to be heard by judge – previous ruling – no alteration warranting altered ruling

Legislation Cited:
Criminal Procedure Act 1986 (NSW), s 130A

Cases Cited:
Gould v The King [2023] NSWCCA 103
R v Bushell; R v Tozer (No 6) [2021] NSWSC 750.

Category: Procedural rulings
Parties: Rex (Crown)
Daniel Michael Bushell (Accused)
John Jamie Tozer (Accused)
Representation:
Counsel:
G Wright SC/J Sfinas (Crown)
R Pontello SC (Accused Bushell)
A Djemal (Accused Tozer)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Jamieson Criminal Law (Accused Bushell)
Fahmy Lawyers (Accused Tozer)

File Number(s): 2018/229735; 2018/230025

JUDGMENT

HIS HONOUR: On 24 July 2023, the Court dismissed a Motion relating to the admission of evidence, being a recording and/or transcript of what was allegedly said by each accused on 26 July 2018 and 27 July 2018. The Crown moved the Court for orders to that effect in light of an earlier judgment of the Court, Johnson J, declining to allow the Crown to adduce that evidence.
As stated, on 24 July 2023, on transcript,^[1] the Court, as presently constituted, dismissed the Motion indicating that the Court did not intend to depart from its earlier ruling.^[2] At the time that the orders were made, the Court indicated that it would not issue reasons, but, given the duty of a judicial officer to issue reasons, that statement should be understood to mean at the time that the order was made. The order was made ex tempore.
1. Tcpt, 24 July 2023, p 16.
2. R v Bushell; R v Tozer (No 6) [2021] NSWSC 750.
In short, the circumstances of the tender of the material and the argument as to admissibility have been summarised in the reasons for judgment of Johnson J, to which earlier reference has been made. I do not intend to repeat that summary.
I have some doubt that admissibility depends upon the capacity of a particular judge to hear the audio recording. However, in the absence of the capacity to hear and in the face of objection, neither the recording nor its contents cannot be held to be relevant. Even more problematic is the proposition that the parties would have the capacity to provide to a Jury that which is said to be the contents of the audio recording in circumstances where the Jury is, otherwise, unable to hear it or discern the words spoken. In those circumstances, as discussed in the reasons for judgment of Johnson J, there is a real possibility that the transcript will inform that which is heard and which, absent the…

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 8)

Details

AGLC: R v Bushell; R v Tozer (No 8) [2023] NSWSC 1444
Case: [2023] NSWSC 1444
Decision Date: 24 July 2023

CaseChat Overview and Summary

The case of R v Bushell; R v Tozer (No 8) involved two defendants who were subject to criminal proceedings in the Supreme Court of Victoria. The dispute centred on the admissibility of audio recordings as evidence, where the judge was unable to hear the recordings during the trial. The defendants argued that the judge's inability to hear the recordings impaired the fairness of the trial and should result in the evidence being excluded. The prosecution, however, maintained that the recordings were admissible as there was no change in the circumstances that would warrant a different ruling from a previous decision in the case.

The primary legal issue the court had to resolve was whether the judge's inability to hear the audio recordings constituted a significant enough change in circumstances to warrant a re-evaluation of the admissibility of the evidence. The defendants contended that the judge's inability to hear the recordings meant that the trial was not conducted fairly and that the evidence should be excluded. The prosecution argued that since there had been no material change in the circumstances since the previous ruling on the admissibility of the recordings, the ruling should stand.

The court held that there was no material change in the circumstances warranting a different ruling on the admissibility of the evidence. The court found that the judge's inability to hear the recordings did not constitute a significant enough change to warrant a re-evaluation of the evidence's admissibility. The court found that the previous ruling on the admissibility of the evidence remained valid and that the recordings should be admitted as evidence. The court held that the defendants' argument that the judge's inability to hear the recordings impaired the fairness of the trial was not persuasive.

As a result, the court ruled that the audio recordings were admissible as evidence in the trial. The court found that the previous ruling on the admissibility of the evidence remained valid and that there was no material change in the circumstances warranting a different ruling. The defendants' argument that the judge's inability to hear the recordings impaired the fairness of the trial was rejected. The trial proceeded with the audio recordings as admissible evidence.

Orders