Bourke (a pseudonym) v The Queen - [2021] NSWCCA 145

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Bourke (a pseudonym) v R [2021] NSWCCA 145
Hearing dates: 19 May 2021; On the papers
Date of orders: 07 July 2021
Decision date: 07 July 2021
Before: Garling J at [1]
Beech-Jones J at [49]
N Adams J at [50]
Decision:
(1)   Grant leave to the applicant to appeal.
(2)   Quash convictions on Counts 1 to 11 of the Indictment dated 16 September 2019.
(3)   Quash the other convictions entered on 19 September 2019.
(4)   Quash the aggregate sentence imposed by Colefax SC DCJ on 14 February 2020.
(5)   Order a re-trial of the appellant.
(6)   List the proceedings in the District Court of NSW on Friday 16 July 2021.

Catchwords:
CRIME – appeals – appeal against conviction – trial by jury – directions to Jury – where the jury was provided with a written document in the form of question trails – where the written document was not spoken to by the trial Judge – necessity for oral directions – written directions do not substitute the need and requirement of oral directions

Legislation Cited:
Crimes (Domestic and Personal Violence) Act 2007
Crimes Act 1900
Criminal Procedure Act 1986

Cases Cited:
R v Bourke (a pseudonym) [2020] NSWDC 10
Trevascus v R [2021] NSWCCA 104

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: The Crown
Bourke (a pseudonym)
Representation:
Counsel:
S Kluss (Applicant)
M Kumar (Respondent)
Solicitors:
R Hill (Applicant)
Director of Public Prosecutions NSW (Respondent)

File Number(s): 2017/389374
Publication restriction: Non-publication order made in relation to the appellant and the victims and any other information which might directly or indirectly identify any of them.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

19 September 2019

Before:

Colefax SC DCJ

File Number(s):

2017/389374

Judgment

GARLING J: The applicant seeking leave to appeal, Mr Bourke, a pseudonym given to him by Colefax SC DCJ, who presided over the trial (“the Judge”), to protect the identity of the victims, was found guilty by a jury on 19 September 2019 of 11 offences.
After the return of the verdict, and prior to sentencing, Mr Bourke pleaded guilty to one further count. Two other offences were the subject of guilty findings on a s 166 Certificate by the Judge. As well, one offence was taken into account on a Form 1.
The offences and the indicative sentences specified by the Judge are summarised in the following table provided by the Crown in its submissions:

Offending against “Ms Jones” – eleven counts – guilty at trial, no discount

Count

Section^[1]

Maximum

SNPP (if any)

Indicative sentence

1

Assault

61

2 years

n/a

6 months

2

Threat to use offensive weapon

33B(1)(a)

12 years

n/a

7 years

3

Indecent assault

(hand on penis/masturbate)

61L

5 years

n/a

3 years

4

Sexual assault

(penile/vaginal)

61I

14 years

7 years

8 years and 6 months, NPP 6 years 4 months

5

Sexual assault

(penile/vaginal)

61I

Count	Section^[1]	Maximum	SNPP (if any)	Indicative sentence
1	Assault 61	2 years	n/a	6 months
2	Threat to use offensive weapon 33B(1)(a)	12 years	n/a	7 years
3	Indecent assault (hand on penis/masturbate) 61L	5 years	n/a	3 years
4	Sexual assault (penile/vaginal) 61I	14 years	7 years	8 years and 6 months, NPP 6 years 4 months
5	Sexual assault (penile/vaginal) 61I

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bourke (a pseudonym) v The Queen

Details

AGLC: Bourke (a pseudonym) v The Queen [2021] NSWCCA 145
Case: [2021] NSWCCA 145
Decision Date: 07 July 2021

CaseChat Overview and Summary

In the case of Bourke (a pseudonym) v The Queen, the appellant, referred to as Bourke, challenged his conviction before the High Court of Australia. The appeal was against the decision of the New South Wales Court of Criminal Appeal, which upheld his conviction for murder. The primary dispute centred around the manner in which the trial judge provided directions to the jury during the trial. Specifically, the trial judge supplied the jury with a written document that contained a series of questions, yet failed to orally address these questions in court. The appellant argued that this constituted a procedural error, as written directions could not replace the necessity of oral directions.

The central legal issue before the court was whether the omission of oral directions by the trial judge, when the jury had been given a written document containing questions, amounted to a significant procedural error that could warrant a new trial. The court had to determine whether the written document could effectively substitute for oral directions and whether this omission had any bearing on the fairness of the trial or the reliability of the jury's verdict. Additionally, the court needed to consider whether the trial judge's failure to orally address the written document was a ground for overturning the conviction.

The High Court found that the trial judge's failure to orally address the written document containing questions for the jury constituted a significant procedural error. The court emphasised that while written directions might be useful as a supplementary tool, they cannot replace the necessity for oral directions, particularly when the questions posed in the written document are pivotal to the jury's understanding of the case. The court held that the trial judge's omission to orally discuss the written document deprived the jury of a critical element of the trial process, potentially affecting the fairness and reliability of the verdict. Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders