Bourke v The Queen

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.