Bulejcik v The Queen [1996] HCA 50

High Court of Australia Brennan CJ Toohey, Gaudron, McHugh and Gummow JJ Bulejcik v The Queen [1996] HCA 50

ORDER

1. Appeal allowed.

2. Set aside the order of the New South Wales Court of Criminal Appeal and in lieu thereof order that the appeal to that Court be allowed, the appellant's conviction be quashed and a new trial be held.

Cur adv vult

The following written judgments were delivered:—

17 April 1996 Brennan CJ.

This is an appeal from a judgment of the Court of Criminal Appeal of New South Wales dismissing an appeal by the appellant against his conviction in the District Court on a charge of supplying a prohibited drug, namely, heroin. The evidence given at the trial before Judge Nield and the course of the trial so far as relevant to the present appeal are set out in the reasons for judgment of Toohey and Gaudron JJ. An important issue at the trial was whether the appellant's voice was the voice on a tape recording of conversations that allegedly occurred at the door of the appellant's house, in a car and at a car park where the heroin was to be delivered. A police officer, Detective Sergeant Wilding, who had been fitted with a transmitting device in order to record what might happen and who had taken part in an alleged conversation in the car park, gave evidence that the appellant had taken part in that conversation and that the appellant's voice was one of the voices in a tape recording of the conversation. That tape recording was tendered as Ex H. An edited copy available to the jury was Ex D.

The appellant made an unsworn statement at the trial. At the end of that statement, the appellant said that he did not recognise his voice on Ex D and added: "You can — this technology can do anything I suppose." No suggestion of fabrication had been put expressly to Detective Sergeant Wilding in cross-examination, though the content of the alleged conversation was challenged.