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Bourke v The Queen

Bourke v The Queen

Case [2013] NSWCCA 293 26 November 2013

Appeal

Unreasonable Verdict

Admissibility of Evidence

DNA Evidence

Fresh Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bourke v R [2013] NSWCCA 293
Hearing dates: 20 November 2013
Decision date: 26 November 2013
Before: Hoeben CJ at CL at [1]
Blanch J at [2]
R A Hulme J at [39]
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW - conviction appeal - convictions for armed robbery - unreasonable verdict - admission of resemblance evidence - s 137 Evidence Act 1995 - circumstantial evidence - DNA evidence - fresh evidence
Legislation Cited: Evidence Act 1995
Criminal Appeal Act 1912
Cases Cited: Dupas v The Queen [2012] VSCA 320
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
Shepherd v The Queen (1990) HCA 56; 170 CLR 573
Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326
M v The Queen [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Morris v The Queen [1987] HCA 50; 163 CLR 454
SKA v The Queen [2011] HCA 13; 85 ALJR 571
The Queen v Hillier [2007] HCA 13; 228 CLR 618
The Queen v Keenan [2009] HCA 1; 236 CLR 397
Rasic v R [2009] NSWCCA 202
The Queen v Nguyen [2010] HCA 38l 85 ALJR 8
Mickelberg v The Queen (1989) 167 CLR 259
Texts Cited: Wigmore on Evidence, vol 9 (Chadbourn rev. 1981), par 2497; pp. 412-414
Category: Principal judgment
Parties: Jamie Lee Bourke (Appellant)
Crown (Respondent)
Representation: Counsel:
M Ramage QC (Appellant)
S Herbert (Respondent)
Solicitors:
Bannisters Lawyers & Attorneys (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/260760
Publication restriction: No
Decision under appeal

Jurisdiction:

9101

Citation:

R v Jamie Lee Bourke

Date of Decision:

2012-07-17 00:00:00

Before:

His Honour Judge Charteris SC

File Number(s):

2011/260760

Judgment

HOEBEN CJ at CL: I agree with Blanch J.

BLANCH J: On 11 July 2012 the appellant was arraigned before a jury in respect of the following four counts:

(1) On 15 February 2011 at Lane Cove in the State of New South Wales, being armed with an offensive weapon, namely, a baseball bat, and being in company with another man, did assault Glenys ATACK with intent to rob the Westpac Banking Corporation.

(2) On 15 February 2011 at Lane Cove in the State of New South Wales, being armed with an offensive weapon, namely a baseball bat, and being in company with another man, did rob Glenys ATACK of a wallet, driver's licence, three bankcards, a Medicare card, SIM card, shopping receipts and money in the sum of $40.00, the property of the said Glenys ATACK.

(3) On 15 February 2011 at Lane Cove in the State of New South Wales, being armed with an offensive weapon, namely, a baseball bat, and being in company with another man, did rob Rohini SRINIVAS of a driver's licence, the property of the said Rohini SRINIVAS.

(4) On 15 February 2011 at Lane Cove in the State of New South Wales, did allow…

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 [2013] NSWCCA 293
Case: [2013] NSWCCA 293
Decision Date: 26 November 2013

CaseChat Overview and Summary

The appeal was brought by the appellant against his convictions for armed robbery. The respondent, The Queen, sought to uphold the convictions. The High Court of Australia was the court that heard the appeal. The appellant argued that the verdict was unreasonable, and that the trial judge erred in admitting resemblance evidence and in failing to direct the jury on the proper use of circumstantial evidence, including DNA evidence. The respondent contended that the verdict was open on the evidence, and that any errors in admitting evidence or directing the jury did not affect the safety of the verdict.

The court considered whether the verdict was unreasonable, and whether the trial judge's admission of resemblance evidence or failure to direct the jury on the proper use of circumstantial evidence was an error that affected the safety of the verdict. The court noted that the verdict was open on the evidence, and that the trial judge's admission of resemblance evidence was not an error that affected the safety of the verdict. The court also held that the trial judge's failure to direct the jury on the proper use of circumstantial evidence, including DNA evidence, was an error, but it did not affect the safety of the verdict. The court found that the evidence, when viewed as a whole, was sufficient to support the verdict.

The appeal was dismissed. The court held that the verdict was open on the evidence, and that any errors in admitting evidence or directing the jury did not affect the safety of the verdict. The court noted that the evidence, when viewed as a whole, was sufficient to support the verdict. The convictions for armed robbery were upheld.

Orders