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 1. 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. 2. 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. 3. 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. 4. 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 transcript, would not otherwise be discerned. 5. The Court, as presently constituted, was in the same position as Johnson J. The audiotape could not be heard, notwithstanding the use of noise reducing earphones and other enhancement devices. Nevertheless, there was at least a strong argument that the relevance of material should not depend upon the subjective capacity of a particular judicial officer to hear it. There have been judicial officers who were technically deaf. 6. However, there are other reasons why the Court, as presently constituted, should not depart from the earlier ruling of Johnson J. First, there are the provisions of s 130A of the Criminal Procedure Act 1986 (NSW) to the effect that a pre-trial order made by a judge in proceedings on Indictment is binding on the trial judge. Given that I am the trial judge, and the earlier judgment of Johnson J was a "pre-trial order", prima facie, the provisions of s 130A(1) of the Criminal Procedure Act apply. 7. The foregoing subsection has an exemption if the trial judge considers or is of the opinion that being bound by the earlier pre-trial order "would not be in the interests of justice". If with additional enhancement or on a different factual basis the audio recording could be heard, it would plainly be in the interests of justice not to be bound by the earlier ruling. 8. Apart from the provisions of s 130A of the Criminal Procedure Act, there is the general proposition that the Court should operate in the principle of finality. This issue was discussed by me in the course of agreeing with Bell CJ in Gould v The King [3] in which I commented on the reopening of proceedings, including interlocutory proceedings that have given rise to an interlocutory order. [4] I adhere to those comments. 9. In short, when an interlocutory judgment, even one not covered by the provisions of s 130A of the Criminal Procedure Act, issues the Court has determined the issue and the matter ought not to be re-agitated on the same basis already determined by the Court, in the absence of different or new circumstances. When new facts are brought before the Court, or where it is shown that the original orders may create an unnecessary inconvenience or an injustice, the Court may have a requirement to re-visit the judgment. 10. In this case, no different facts are adduced; there is no change in circumstances; there is no reason "in the interests of justice" [5] nor any other reason that the judgment of Johnson J, delivered on 23 June 2021 ought to be varied. ********** Endnotes 1. Tcpt, 24 July 2023, p 16. 2. R v Bushell; R v Tozer (No 6) [2021] NSWSC 750. 3. Gould v The King [2023] NSWCCA 103. 4. Ibid, at [155]. 5. Criminal Procedure Act 1986 (NSW), s 130A. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2023