Bourke v The Queen - [1988] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B60 of 1987
B e t w e e n -
TANIA MICHELLE BOURKE

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ
DEANE J
DAWSON J

Bourke

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 29 JUNE 1988, AT 10.02 AM

(Continued from 28/6/88)

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29/6/88

25

MASON CJ:	Yes, Mr Hanson.
MR HANSON:	Your Honours when we adjourned I was taking the

Court through the directions to the jury which, in our submission, misquoted or misrepresented the

effect of the evidence. Could I ask Your Honours to
go to page 535? This is a summary of the evidence of Mr Thomassen, a neighbour, and commencing at the
top of the page:
Joseph Thomassen said he saw the accused a
few times in the back yard when he was
watering his garden. He said that the Hawes family were their neighbours and
Mr Thomassen said his back fence was

almost directly opposite. So his yard shared
an almost common boundary -

et cetera. He saw the accused and the child and

they had a dog. He did not notice anything about
the child:
On one occasion he heard a sound or heard

something and he told you about it. You
remember he said he came back from holidays
on 2 January of this year and it was then,
to use his words, "About then things started

to liven up." He said, "Now and then you
would hear the boy crying and screaming and
together with the raised voices, a little
smack."

Your Honours, if we go to the evidence of Mr Thomassen
at 351, it is our submission plain that he did not

say that or convey that impression. The evidence
of Mr Thomassen in that regard commencing at line 5
on 351:
When did you come back from holidays?---On
2 January.

And then on that occasion after your return

was there anything that occurred?---Yes. I
would say after we came back from our holidays
things started to liven up, you know, in that
area.
What actually were you hearing or seeing?---You
know, you could hear - now and then you could
hear the boy crying or screaming and voices -
raised voices - which is really - I wasn't too
concerned about because every child now and
then needs to be disciplined, you know, and
a little smack, probably every child gets a
smack now and then, you know.
Then what happened?---Well, some of the screaming
of the child - well, after a while it started to
concern me because I - - -

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Bourke

And then he goes on. Your Honours, that is all he

had to say at that passage about a smack. It is
plain from that passage, surely, he is talking about
children being smacked in general, not this child

being srra.cked to…

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 v The Queen

Details

AGLC: Bourke v The Queen [1988] HCATrans 135
Case: [1988] HCATrans 135
Decision Date

CaseChat Overview and Summary

The applicant, Tania Michelle Bourke, sought special leave to appeal to the High Court of Australia against a decision of a lower court. The dispute concerned the directions given by the trial judge to the jury regarding the evidence of a neighbour, Mr Thomassen. The applicant contended that the judge's summary of Mr Thomassen's evidence misrepresented its effect, potentially misleading the jury.

The central legal issue before the High Court was whether the trial judge's directions to the jury concerning Mr Thomassen's testimony constituted a misstatement or misrepresentation of that evidence. Specifically, the applicant argued that the judge's summary implied Mr Thomassen had heard the child being smacked, whereas his evidence, when examined closely, did not support this conclusion and indicated he had not heard any blows or smacking noises.

The applicant's counsel argued that the judge's summary at page 535 of the transcript conveyed the impression that Mr Thomassen had heard a smack, which was contrary to his actual testimony. Counsel referred to passages where Mr Thomassen stated he heard crying and screaming, and raised voices, but also conceded that he had no recollection of hearing any smacking noises or blows. The applicant submitted that the judge's direction, by referring to "a little smack" and then stating the screaming continued and started to concern Mr Thomassen, created an inference of violence that was not supported by the witness's direct evidence. The judge's interpretation of the screaming as indicative of "violence happening to the" child was also challenged as an unwarranted inference drawn from the evidence.

Orders