Citation: R v Bushell; R v Tozer (No 15) [2023] NSWSC 1451
Court: Supreme Court of New South Wales
Date: 17 August 2023
Judge(s): Rothman J
Background
Two accused faced a murder charge, and the Crown sought to tender surveillance device audio recordings captured on 26 and 27 July 2018. The recordings contained a series of conversations, and both the Crown and defence disputed the admissibility of various passages within them.
Defence counsel raised a range of objections across multiple timestamped segments, including concerns about audibility, unfair prejudice, right to silence, and the relevance of material relating to matters separate from the murder charge.
The court dealt with each objection in sequence, ruling on whether passages should be admitted, excluded, or modified before being placed before the jury.
Legal Issues
- Whether inaudible recordings should be accompanied by a transcript
- Whether certain passages were unfairly prejudicial under ss 135 and 137 of the Evidence Act (unfair prejudice provisions)
- Whether portions of the recordings impinged on the accused's right to silence
- Whether passages touching on topics unrelated to the murder charge (including drug matters, weapons, and terrorism) were admissible
- Whether the context-setting function of certain passages justified their admission despite potential prejudice
Decision
Issue 1: Inaudible recording and transcript
The court ruled that one recording was inaudible and should go before the jury without any accompanying transcript (at [2]). The related objection was disallowed (at [3]).
Issue 2: Unfair prejudice from apparent "playacting" before jury
The court rejected the argument that conduct by the accused that might appear as playacting and laughing was unfairly prejudicial within the meaning of the unfair prejudice provisions. Any prejudice arising from that conduct could be addressed by a proper judicial direction to the jury (at [4]).
Issue 3: Right to silence
The court found that a passage which went beyond a certain sentence, identified by the Crown as no longer pressed, would be struck out if still relied upon, on the basis that it impinged on the accused's right to silence and would cut across the standard direction prohibiting adverse inferences from a failure to testify (at [7]). A related passage at a later timestamp did not independently give rise to a right-to-silence problem once the earlier passage was removed or not pressed (at [8]).
Issue 4: Drug matter versus murder charge
The court rejected the objection that a particular timestamped entry concerned only the drug matter. The intent of the conversation was characterised as a question of fact for the jury, and the objection was overruled (at [6]).
Issue 5: Context and the DPP charge discussion
A passage in which the question of whether the DPP would charge for murder was discussed was admitted on the basis that it set context for later conversations. The court found that any unfair prejudice could be overcome by a direction addressing the expression of views about the accused and the limited relevance of opinions held by anyone other than the jury, including legal representatives (at [9]).
Issue 6: Weapons and terrorism references
The court upheld the objection to the second passage attributed to one accused at the 16:35:35 timestamp. That passage raised issues relating to weapons possession and terrorism that were irrelevant to the current charges. The court found the material was unfairly prejudicial and ordered deletion of the passage following the first sentence beginning with the words "but he said to me," to the end of the paragraph, across all versions of the transcript (at [10]).
Orders Made
- The surveillance device audio recordings of 26 July 2018 and 27 July 2018 are admitted, subject to certain exclusions as identified in the rulings above.
Key Takeaways
- Apparent prejudice arising from an accused's conduct captured in surveillance recordings does not automatically constitute "unfair prejudice" under ss 135 and 137 of the Evidence Act where a judicial direction can adequately address the risk (at [4]).
- A passage in a recorded conversation will be excluded if it impinges on an accused's right to silence and would undermine the standard direction against drawing adverse inferences from a failure to testify (at [7]).
- Where a disputed recording touches on both a separate drug matter and a murder charge, the intent of the conversation is a question for the jury rather than a threshold admissibility question (at [6]).
- Recorded passages that raise matters entirely foreign to the charges before the court, such as weapons possession and terrorism, are susceptible to exclusion as unfairly prejudicial even within an otherwise admissible recording (at [10]).
- Contextual relevance can justify admission of passages that might otherwise attract a prejudice objection, provided a suitable direction can address the risk that jurors will treat third-party opinions as determinative (at [9]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated