Citation: R v Bushell; R v Tozer (No 8) [2023] NSWSC 1444
Court: Supreme Court of NSW
Date: 24 July 2023
Judge(s): Rothman J
Background
Two accused faced proceedings on indictment in the Supreme Court. At issue in this interlocutory ruling was whether audio recordings and associated transcripts of statements allegedly made by each accused on 26 and 27 July 2018 could be admitted into evidence.
An earlier pre-trial ruling by Johnson J, delivered on 23 June 2021, had declined to admit the recordings. The Crown brought a Motion seeking to revisit that ruling before Rothman J, who was constituted as the trial judge.
The Crown's application required the Court to consider whether there was any proper basis to depart from the prior pre-trial decision, including whether there had been any change in facts or circumstances that might justify doing so.
Legal Issues
- Whether the audio recordings and transcripts of the accused's statements were admissible at trial
- Whether the trial judge was bound by the earlier pre-trial ruling under s 130A of the Criminal Procedure Act 1986 (NSW)
- Whether any exception to that binding effect applied, in particular whether departing from the prior ruling would be "in the interests of justice"
- Whether, absent changed circumstances, there was any other basis to re-open a prior interlocutory order
Decision
Issue 1: Audibility and Relevance
Rothman J noted some doubt about whether admissibility should turn on a particular judge's ability to hear a recording, acknowledging that some judicial officers have been technically deaf (at [5]). However, where the recording could not be heard even with noise-reducing earphones and enhancement devices, and where there was objection, neither the recording nor its contents could be established as relevant (at [4]).
A further difficulty arose from the risk that a transcript would impermissibly shape what the jury understood to have been said on the recording. Where the jury could not independently discern the words spoken, placing the transcript before them risked it informing the hearing of the recording rather than merely reflecting it (at [4]).
Issue 2: Binding Effect of the Pre-Trial Ruling under s 130A
Section 130A of the Criminal Procedure Act 1986 (NSW) provides that a pre-trial order made by a judge in proceedings on indictment is binding on the trial judge. Rothman J held that the earlier decision of Johnson J constituted such a pre-trial order and that s 130A(1) applied prima facie to bind him (at [6]).
The subsection contains an exception where being bound "would not be in the interests of justice." However, no different factual basis had been advanced, and there was no suggestion that the recording could now be heard with additional enhancement. Accordingly, no basis for the interests-of-justice exception was made out (at [7], [10]).
Issue 3: Principle of Finality
Beyond the statutory position, Rothman J applied the general principle of finality to interlocutory orders. Consistent with his comments in Gould v The King, the Court confirmed that an interlocutory judgment ought not to be re-agitated on the same basis already determined, absent different or new circumstances (at [8]-[9]).
No new facts were adduced and no change in circumstances was demonstrated. The Motion was accordingly dismissed (at [10]).
Orders Made
- The recording and/or transcript of what was allegedly said by each accused on 26 July 2018 and 27 July 2018 is not admitted.
Key Takeaways
- Under s 130A of the Criminal Procedure Act 1986 (NSW), a pre-trial admissibility ruling made by a judge in indictable proceedings is binding on the trial judge, with an exception only where departure would be in the interests of justice (at [6]-[7]).
- Where no new facts or changed circumstances are advanced on a Crown motion to revisit a prior ruling, the interests-of-justice exception to s 130A is not engaged (at [10]).
- The general principle of finality applies to interlocutory orders: a court should not re-examine a prior interlocutory ruling on the same basis already determined unless new facts emerge or the original order creates unnecessary inconvenience or injustice (at [8]-[9]).
- A recording that cannot be heard by the court, even with enhancement devices, cannot be established as relevant in the face of objection; and placing a transcript before a jury where the underlying audio is inaudible carries the risk that the transcript shapes what is understood to have been said (at [4]-[5]).
- Rothman J reserved some doubt about whether admissibility should in principle depend on the subjective auditory capacity of a particular judicial officer, but found it unnecessary to resolve that question given the absence of any changed circumstances warranting departure from the prior ruling (at [5]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 130A
Cases
- Gould v The King [2023] NSWCCA 103
- R v Bushell; R v Tozer (No 6) [2021] NSWSC 750.