Bourke v The Queen

The applicant, Tania Michelle Bourke, sought special leave to appeal to the High Court of Australia against a majority decision of the Court of Criminal Appeal that dismissed her appeal against a conviction for manslaughter. The Crown was the respondent. The applicant's case was that her trial had miscarried due to a number of errors, resulting in a deprivation of a fair trial.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence that was highly prejudicial and lacked sufficient probative value, thereby creating an atmosphere that prevented the jury from properly discharging their function. Specifically, the applicant contended that the admission of a neuro-surgeon's testimony, which stated that the type of subdural haemorrhage suffered by the victim was "very commonly seen in abused babies," was improper and prejudicial.

The applicant argued that this evidence, particularly when the Crown encouraged the witness to expand on the comment, suggested to the jury that the applicant was guilty of child abuse without sufficient direct evidence. The submission was that the trial judge should have excluded this evidence as it was not strictly admissible or properly relevant, and its prejudicial effect outweighed any minimal probative value. The applicant's counsel highlighted that the case against her was circumstantial, and the admission of such evidence, especially in the context of a child abuse case, was likely to have unduly influenced the jury's verdict.

The High Court granted special leave to appeal.