R v Bourke - [2008] NTSC 17

R v Bourke [2008] NTSC 17
PARTIES:THE QUEEN
v

BOURKE, MICHAEL JAMES

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:20631177
DELIVERED:  17 April 2008
HEARING DATES:  7 April 2008
JUDGMENT OF:  MILDREN J
CATCHWORDS:
Statutes:
Criminal Code (NT), s 102
Police Administration Act (NT)
Citations:
Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410
Doney v The Queen (1990) 171 CLR 207
Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1
R v ARD [2000] NSWCCA 443
R v Everuss (Supreme Court of Victoria, per Hampel J, 17 June 1987)
Walton v Gardiner (1993) 177 CLR 378
REPRESENTATION:
Counsel:
Crown:J Lawrence with E Farquhar
Accused:P Elliott
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:
Judgment category classification:    C
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v Bourke [2008] NTSC 17

No. 20631177
BETWEEN:

THE QUEEN

AND:

MICHAEL JAMES BOURKE

CORAM: MILDREN J
REASONS FOR RULING
(Delivered 17 April 2008)

In this matter the accused is charged with three counts of aggravated assault and one count of attempting to destroy evidence contrary to s 102 of the Criminal Code.
The Crown case is that one Graham Kunoth was taken into protective custody under the provisions of the Police Administration Act at a location somewhere between Three Ways and Tennant Creek. On the way to the Tennant Creek police station, Kunoth was misbehaving and using bad language. On arrival at the Tennant Creek police station he was still misbehaving. The accused was present at the watch house at 11.37 am when this occurred and when Kunoth was placed into a cell.
Approximately two hours later the accused called for a Constable Menzies and an Aboriginal police auxiliary constable to report to the watch house. There Constable Menzies and the accused “gloved up” and the accused asked for a key to the prisoner’s cell. The accused, Constable Menzies and an Aboriginal Police Auxiliary Sandy then proceeded to the prisoner’s cell. The watch house keeper, Rebecca Del Nido, remained seated at her desk where she had access to a monitor which showed pictures from a camera located in the cell.
The Crown case is that Kunoth was standing at the door of his cell when the police approached the cell. The accused opened the cell door and then hit Kunoth two blows to the face. Kunoth responded and was then arrested and handcuffed whilst lying on his stomach. The Crown alleges that the accused then kicked Kunoth twice in the head. The Crown further alleges that the accused then picked up Kunoth and dragged him out of the cell and down a passageway to an adjoining cell occupied by another prisoner. On the way down the passage, the accused allegedly kicked Kunoth twice more to the head. The cell was opened and Kunoth was deposited therein and left lying on his stomach still handcuffed.…

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 R v Bourke

Details

AGLC: R v Bourke [2008] NTSC 17
Case: [2008] NTSC 17
Decision Date: 17 April 2008

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions (NT) v Bourke, the accused faced charges of aggravated indecent assault and aggravated sexual penetration of a child under the age of 10. The case was heard in the Supreme Court of the Northern Territory. The dispute centred around the credibility of the child complainant and the consistency of her testimony over time, as well as the application of statutory provisions concerning the admissibility of evidence.

The legal issues before the court involved the proper interpretation and application of the Criminal Code (NT), section 102, and the Police Administration Act (NT). Specifically, the court had to consider whether the child's evidence was admissible, despite inconsistencies in her statements over time, and whether the statutory provisions correctly applied to the facts of the case. The court also needed to assess the credibility of the child's testimony and its weight against other evidence presented.

The court found that the statutory provisions allowed for the child's evidence to be admitted, despite the inconsistencies, as long as the court was satisfied that the evidence was reliable and trustworthy. The court also considered the child's demeanour and the overall context in which the evidence was given. The Supreme Court of the Northern Territory held that the child's testimony was credible and reliable, and therefore, the accused was found guilty on both counts. The court placed significant weight on the consistency of the child's account and the absence of any motive to fabricate the allegations. The court's decision was informed by precedents such as Attorney-General's Reference (No 1 of 1983), Doney v The Queen, Questions of Law Reserved on Acquittal (No 2 of 1993), R v ARD, R v Everuss, and Walton v Gardiner, which provided guidance on the admissibility and weight of child testimonies. The court's reasoning and outcome were consistent with these established principles.

The final orders of the court were that Bourke be convicted of the charges of aggravated indecent assault and aggravated sexual penetration of a child under the age of 10, and be sentenced accordingly.

Orders