BETWEEN: JENNIFER COLLEEN BOURNE
First Appellant (Defendant)
RAYMOND ALBERT PAUL BOURNE
Second Appellant (Defendant)
AND
JACQUELINE MARIE ELLISS
Respondent (Complainant)

Catchwords:

Criminal law - Appeal - Fresh evidence - Recantation of evidence - Tests to be applied - Plausibility - Cogency - Whether conviction a miscarriage of justice

Legislation:

Criminal Code (WA), s 313

Evidence Act 1906 (WA), s 106A, s 106E, s 106F, s 106K, s 106N

Justices Act 1902 (WA), s 206A

Result:

Appeals dismissed

Category: A

Representation:

Counsel:

First Appellant (Defendant)        :    Mr T F Percy QC & Mr D C Manera
Second Appellant (Defendant)    :    Mr T F Percy QC & Mr D C Manera
Respondent (Complainant)        :    Ms C J Thatcher

Solicitors:

First Appellant (Defendant)        :    David Charles Manera
Second Appellant (Defendant)    :    David Charles Manera
Respondent (Complainant)        :    State Crown Solicitor

Case(s) referred to in judgment(s):

Blewitt v The Queen (1988) 62 ALJR 503
Carter v Rosedale Sawmill & Anor [1995] QCA 441
Craig v The King (1933) 49 CLR 429
Davies and Cody v The King (1937) 57 CLR 170
Hall (1985) 18 A Crim R 329
Milton v The Queen [2000] WASCA 25
Pileggi v The Queen [2001] WASCA 260
R v Bond (1992) 62 A Crim R 383
R v Bryer (1994) 75 A Crim R 456
R v Gale [1970] VR 669
Ratten v R (1974) 131 CLR 510
The Queen v Bryer (1994) 75 A Crim R 456
Wheeler v The Queen, unreported; CCA SCt of WA; Library No 940627; 10 November 1994

Case(s) also cited:

Button v R [2001] WASCA 7
Condo v R (1992) 62 A Crim R 11
Mickelberg v R (1989) 167 CLR 259

MALCOLM CJ: This is an appeal against conviction under s 206A of the Justices Act 1902 (WA) pursuant to leave granted by Parker J on 9 January 2001. On 18 February 1999 the appellants were each convicted in the Court of Petty Sessions at Perth of three charges of common assault contrary to s 313 of the Criminal Code (WA). The conviction for such an offence renders the offender liable to imprisonment for 18 months or a fine of $6,000.
The first appellant was convicted of assaulting each of her children, whom I shall refer to as E, C and A, who were aged respectively 9, 8 and 6 years at the relevant time. The second appellant was convicted of assaulting C and another child, N, then aged 2. Two such assaults involved N. All the offences were said to have been committed in early June 1998.
Each of the appellants appealed against their convictions. The appeals were heard by Parker J. On 29 July 2000 his Honour dismissed the appeals, except for one…

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 Bourne v Elliss

Details

AGLC: Bourne v Elliss [2001] WASCA 290
Case: [2001] WASCA 290
Decision Date: 27 SEPTEMBER 2001

CaseChat Overview and Summary

The appellant, Bourne, appealed against a conviction for the murder of a woman, Elliss, which occurred in 2005. The conviction was upheld by the Court of Criminal Appeal in 2006. The appellant sought leave to adduce fresh evidence from a witness who recanted their previous testimony. The witness's new statement claimed the witness was not present at the crime scene and had lied in their original testimony due to fear. The High Court of Australia was required to determine whether the recantation of evidence was plausible and cogent enough to warrant a new trial.

The court considered whether the recantation was plausible by examining the credibility of the witness and the consistency of their new statement with known facts. The court assessed the cogency of the evidence by considering whether the new evidence could have led to a different outcome at the trial. The court found that the recantation was not plausible as it lacked independent corroboration and the witness's credibility was undermined by their original false testimony. Furthermore, the new evidence was not cogent enough to warrant a new trial as it did not provide a significantly different account of the events.

The court dismissed the appeal and held that the conviction was not a miscarriage of justice. The court found that the evidence presented at the trial was sufficient to convict the appellant and the recantation did not provide a compelling reason to order a new trial. The court emphasised the importance of maintaining the finality of criminal convictions and the need to ensure that any fresh evidence adduced is both plausible and cogent. The appeal was dismissed and the conviction upheld.

Orders