R v Bushell; R v Tozer (No 9) [2023] NSWSC 1445

Supreme Court New South Wales

Medium Neutral Citation: R v Bushell; R v Tozer (No 9) [2023] NSWSC 1445 Hearing dates: 25 July 2023 Decision date: 25 July 2023 Jurisdiction: Common Law Before: Rothman J Decision: The Court rules that the crime scene photos and video (edited) of the deceased contained in VD Ex H and VD Ex J be admitted into evidence in the trial. Catchwords: EVIDENCE – photographs and video of deceased – body partly decomposed – relevant but not overly probative – risk of unfair prejudice – rulings made 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

ex tempore JUDGMENT 1. HIS HONOUR: Before the Court is an application in relation to some evidence sought to be adduced by the Crown, being three photographs, which have been marked Exhibit H on the Voir Dire and body camera video which has been marked Exhibit J on the Voir Dire. In relation to the latter, the objection is taken to two aspects. 2. The first is the depiction visually of the body. I hasten to add that the Crown has already pixilated it, so as to blur the face of the deceased, but there are visions of some parts of the body that have started to decompose, both from a longer shot towards the middle of the chest and also a photograph of some decomposition near the neck. 3. In relation to three photographs, which were initially the subject of objection, the objection has been confined. 4. Essentially, photograph 28 shows, with the face blocked out, the area of some decomposition in the middle of the chest. I will deal with this photograph first. 5. It is always a disadvantage of many criminal trials involving violence, particularly murder, that the jury is overborne with photographs that can be confronting. Without being too anecdotal, I recall one child murder in which the child had been tortured and photographs were relevant. The difficulty always from a judicial perspective is that fortunately, or unfortunately, we have experienced this over many years and perhaps become a bit inured to some of the worst aspects of it. 6. In relation to photograph 28, while the decomposition in the middle of the chest is visible, I am not sure that a member of the Jury who was not otherwise experienced in these matters anyway, would realise that was decomposition. I assume during the course of the trial it will be pointed out to them. 7. There is a difference between seeing a photograph of what is known to be a real body or real injuries and that which is seen in movies, which is sometimes significantly more confronting than material we see in trials. Nevertheless, there are reasons why the Court Officers and the Court offer counselling to jurors after trials which may involve referred trauma of a kind such as this. 8. It is always difficult to rule on evidence at this point in time because it is unclear the extent to which the evidence is "necessary" or important. Ultimately, the test of admissibility is whether it is relevant. Plainly, the photographs are relevant and the issue really becomes whether the photographs, because of their confronting nature, are more prejudicial than they are probative and will have an effect beyond that which is an appropriate use of the photographs by the jury. 9. I have to say, I do not consider the photographs so confronting that they should be rejected as evidence and I would admit all three of the photographs to the extent there are still objections to some of them. 10. As to the body camera footage, there is really only a small part of that footage that is the subject of objection. It seems to me that the officer's opinion, while I do not think it will make very much difference in the scheme of the trial, that the injury to the neck is not yet known whether it is "misadventure or decomposition" (I think were the words the officer used), it seems to me that is an opinion which may ultimately mislead the Jury. It is not going to be the subject of evidence that there was something that could be described as misadventure and the damage that is displayed in the video is decomposition only. 11. As a consequence, it seems to me those words need to be muted out and, to be fair to the Crown, they accept the reasonableness of that proposition. 12. As I said, I am not overly convinced that in the wash-up it would make that much difference, but it seems to me to be inadmissible and, therefore, ought not be allowed in. 13. The second aspect is the depiction itself. It seems to me the only part of the depiction that is worrying is the close-up of the decomposition of the neck, which, for those who are not used to these things, may cause some concern amongst the Jurors. Unless I am persuaded, and I have not really heard the parties on it, that the depiction of that decomposition is important to the Crown case and the reasons why it is important, it would seem to me to be unnecessary and I would consider it inappropriate to disclose to the Jury, unless, as I said, it had some particular significance or relevance beyond the general relevance of depicting the deceased's body and its position. 14. I so rule.