R v Bushell (No 17) [2023] NSWSC 1453

Supreme Court New South Wales

Medium Neutral Citation: R v Bushell (No 17) [2023] NSWSC 1453 Hearing dates: 26-28, 31 July, 1-4, 7-10, 14, 16-18, 21-23 August 2023 Decision date: 23 August 2023 Jurisdiction: Common Law Before: Rothman J Decision: The evidence, being a recording between the accused and a cellmate in prison, is allowed. Catchwords: EVIDENCE – recording of conversation in cell – unfair for jury to be aware of prison term for accused – other evidence to like effect – any unfair prejudice outweighed by probative value – further, the directions of the Court to the jury will ameliorate issues of unfairness otherwise agitated Category: Procedural rulings Parties: Rex (Crown/Respondent) Daniel Michael Bushell (Accused) Representation: Counsel: G Wright SC (Crown) R Pontello SC (Accused)

Solicitors: Director of Public Prosecutions (NSW) (Crown) Jamieson Criminal Law (Accused) File Number(s): 2018/229735

EX TEMPORE JUDGMENT 1. HIS HONOUR: Before the Court is an objection to an aspect of evidence that is to be adduced. The evidence to be adduced is a recording between the accused and a cellmate in prison. The unfair prejudice to which counsel, on behalf of the accused, points is the unfair prejudice associated with the use the jury might make of the fact that the accused was in gaol and how that impacts upon his guilt or innocence, rather than using the evidence in a relevant and appropriate manner. 2. There are a number of aspects in weighing the unfair prejudice. First, I emphasise the authorities that make clear the prejudice is not simply a prejudice to the case of the accused, it must be an unfair prejudice. In that sense the authorities point, and I say with respect correctly, to the proposition that the prejudice to the accused must be by an inappropriate or irrational use of evidence or material that may be adduced. 3. In this case there is already evidence before the Court, and which is not in any sense contested, that the accused was involved in other criminal activity, that is criminal activity other than that with which he has been charged and for which he now faces trial. That activity relates to drugs. The Court will be required in summing up to give an extensive direction relating to how, if at all, that aspect of the conduct of the accused may be used, or more accurately, may not be used, in the proceedings. 4. There is also evidence that the accused was otherwise imprisoned; by "otherwise" I mean other than as a consequence of remand for these charges. Frankly, it would surprise me if anyone on the jury were surprised that the accused was, at some stage or other in the course of his life, and/or for extensive periods, in gaol given what is, in effect, an agreed position that the accused was involved in the manufacture of methylamphetamines. 5. It seems to me that while ordinarily one would seek to avoid the jury becoming aware of time spent in prison and indeed current imprisonment, for that matter, this is a recording of a conversation in a prison cell. Its probative value is high because it is alleged that, properly understood, it inculpates the accused. Secondly, it corroborates evidence otherwise provided by a prison informer, which other evidence is also inculpatory. As a consequence, the probative value of the recording is high and is directly and indirectly relevant to an issue of fact in the trial. Plainly, without making any admissions, the accused would need to question the veracity and/or reliability of the evidence adduced already by the prison informer, bearing in mind the usual warnings that will need to be given, in any event. 6. It seems to me I can imagine an unfair prejudice, indeed it is more than an imagination. However, whatever unfairness arises will need to be the subject of fairly strict directions as to how to treat material such as this and those directions will have to be given, in any event, because of the evidence about prison terms already served. 7. There are two aspects of that. Firstly, whether or not directions were given it seems to me the probative value outweighs the unfair prejudice; but in light of the fact that directions are required, I think most, if not all, of the unfairness can be overcome by an appropriate direction or a number of directions. Therefore, I allow the evidence.