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. Recordings of 27 July 2018 Audio File 1 – 1:27:27 and following 1. The objection is that this recording relates to the drug matter. There is a dispute between the Crown and the accused as to whether it relates to the drug matter or to the murder charge, or partly to each. The intent of the conversation is a matter for the Jury and the objection is overruled. The foregoing applies to 1:28:17 as well. Audi File 3 – 16:21:34 1. As I understand the current position, the Crown does not press anything beyond the second sentence starting "he said" to the end of first entry. If it is still pressed, the Court would strike it out as it impinges the right to silence and counters the proper direction to be given by the Court on the prohibition on drawing any inference as a consequence of the failure to testify. 2. The passage at the foot of that page seemingly with the time marking of 16:22:58 (struck through), the objection relates to the right to silence issue again. However, in the absence of the passage either not pressed or strike out referred to in the immediately preceding paragraph, that problem does not exist and the matter is not unfairly prejudicial. 3. The passage at 16:24:45 relating to the question as to whether the DPP will charge for murder sets the context for later conversations and is, for that reason, relevant. I do not consider that the unfair prejudice, if there be any, cannot be overcome by an appropriate direction from the Court. The direction will deal with the expression of a view about whether one or other of the accused has a problem and/or the irrelevance of the views of anybody over the Jury themselves, including any solicitors. 4. In relation to the passage marked at 16:35:35, the second passage attributed to JT is objected to on the basis of unfair prejudice and the relevance of the views expressed by lawyers and repeated in the conversation. I agree that the passage is unfairly prejudicial: it raises issues relating to the possession of weapons and terrorism which are irrelevant to the current charges and the passage after the first sentence starting with the words "but he said to me" and ending at the end of that paragraph (in each version) should be deleted. ********** 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