R v Bushell; R v Tozer (No 15) [2023] NSWSC 1451

Supreme Court New South Wales

Medium Neutral Citation: R v Bushell; R v Tozer (No 15) [2023] NSWSC 1451 Hearing dates: 26-28, 31 July, 1-4, 7-10, 14 August 2023 Decision date: 17 August 2023 Jurisdiction: Common Law Before: Rothman J Decision: The surveillance device audio recordings of 26 July 2018 and 27 July 2018 are admitted, subject to certain exclusions. Catchwords: EVIDENCE – various objections – difficulty in hearing recordings – propriety of transcript – versions – unfair prejudice – rulings 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:

Recordings of 26 July 2018

Audio File 1 – 11:59:02-2:05 – Objection (Inaudible) 1. The recording is inaudible and should be left for the Jury without transcript.

Audio File 2 – 12:33:16 – last sentence of entry for JT 1. To the extent that the objection is pressed, it is disallowed.

Audio File 3 – 16:23:42 – Objection on the basis of s 137 of the Evidence Act 1995 (NSW) 1. Sections 137 and 135 rely on "unfair prejudice". The fact, if it were the fact, that the accused were playacting as to a jury and laughing may be prejudicial to the accused, but it does not seem, on the face of it, to be unfairly prejudicial. A proper direction could overcome any such prejudice. 2. As to the entry, at 16:44:48, the objection is overruled, to the extent that it is still pressed.