Citation: R v Bushell; R v Tozer (No 13) [2023] NSWSC 1449
Court: Supreme Court of New South Wales
Date: 14 August 2023
Judge(s): Rothman J
Background
This decision arose in the course of a criminal trial in which two accused faced proceedings before the Supreme Court. The case involved circumstances in which the accused, the deceased, and several witnesses were all connected to the manufacture of methamphetamine.
An evidentiary objection was raised concerning evidence that a prosecution witness, referred to as Witness E, was to give. The objection centred on whether that evidence should be excluded because it disclosed that the accused had engaged in drug manufacture, making it unfairly prejudicial.
The ruling is one in a series of interlocutory decisions (indicated by the "No 13" designation), dealing with discrete evidentiary questions as they arose during the trial.
Legal Issues
- Whether the proposed evidence of Witness E was admissible under the hearsay exception in s 66 of the Evidence Act 1995 (NSW), given that the witness was to be called at trial
- Whether the evidence should be excluded under ss 135 or 137 of the Evidence Act 1995 (NSW) on the ground that its unfair prejudice outweighed its probative value
Decision
Issue 1: Hearsay
Rothman J noted that because Witness E was to be called to give evidence at trial, s 66 of the Evidence Act applied as an exception to the general exclusion of hearsay evidence. The question of whether evidence in chief would be adduced from the witness was immaterial to that analysis (at [1]). As a result, the hearsay concern did not require further consideration (at [2]).
Issue 2: Unfair Prejudice under ss 135 and 137
The court observed that the entire context of the trial already involved the accused, the deceased, and multiple witnesses being connected to the cooking of methamphetamine. Against that backdrop, evidence relating to a request (or possible request) that someone undertake a drug cook was not regarded as unfairly prejudicial in the sense contemplated by ss 135 and 137 (at [2]).
Rothman J then assessed whether any residual unfair prejudice could outweigh the evidence's probative value. His Honour found that the evidence did carry probative value because it connected or "joined the dots" with respect to a later conversation in the trial narrative (at [3]). On that basis, the evidence was allowed.
Orders Made
- The evidence of Witness E to which objection was taken is admissible.
Key Takeaways
- Where a witness is to be called at trial, s 66 of the Evidence Act 1995 (NSW) operates as an exception to the hearsay rule, rendering concerns about hearsay exclusion largely immaterial (at [1]).
- Unfair prejudice under ss 135 and 137 must be assessed in the context of the trial as a whole. Evidence that might ordinarily appear prejudicial can lose that character where the subject matter already permeates the broader trial context (at [2]).
- Under ss 135 and 137, the critical question is whether unfair prejudice outweighs probative value, not merely whether some prejudice exists. Evidence that connects discrete parts of the prosecution case can carry sufficient probative value to clear that threshold (at [3]).
- The Supreme Court's ruling illustrates that contextual factors, particularly the extent to which the impugned subject matter is already before the court, are relevant to the unfair prejudice analysis.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) , ss 66, 135, 137
Cases
- Not stated