R v Bourke (a pseudonym) - [2021] NSWDC 665

District Court

New South Wales

Medium Neutral Citation: R v Bourke (a pseudonym) [2021] NSWDC 665
Hearing dates: 30 November 2021, 1 December 2021, 2 December 2021, 3 December 2021, 7 December 2021
Date of orders: 9 December 2021
Decision date: 09 December 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Verdict of Not Guilty

Catchwords:
CRIME – assault occasion actual bodily harm – victim 3 week old child
CRIMINAL PROCEDURE - Trial - Judge alone - Reasons of trial judge - expert evidence that a medical cause of injury highly unlikely - actual mechanism for injuries unknown - conflict of evidence - possibility of accident - who done it? - witnesses lie on oath – accused and key witness drug affected - reasons for not accepting key witnesses – suspicion is not proof beyond reasonable doubt
CRIMINAL PROCEDURE - Trial - Judge alone - fundamental principles applied

Legislation Cited:
Crimes Act 1900

Cases Cited:
Azzopardi v The Queen, (2001) 205 CLR 50; [2001] HCA 25;
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Evidence Act 1995
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Meissner v The Queen (1994-1995) 184 CLR 132; [1995] HCA 41
Plomp v The Queen1963) 110 CLR 234; [1963] HCA 44
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
The Queen v Baden-Clay [2016] HCA 35
TheQueenv Hillier (2007) 228 CLR 618; [2007] HCA 13
Weissensteiner v The Queen [(1993) 178 CLR 217; [1993] HCA 65.
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Category: Principal judgment
Parties: Steven Bourke (the accused)
Director of Public Prosecutions
Representation:
Counsel:
Mr P Williams (for the accused)
Mr M Fox, Crown Prosecutor
Solicitors:
Dillon-Smith Lawyers (for the accused)

File Number(s): 2021/00005130
Publication restriction: The name of the child is not to be published, nor is any other information or material that could lead to the identification of a child. Accordingly, in this judgment the child and her parents and other family members will be referred to by pseudonyms: s578A of the Crimes Act 1900.

Judgement

Introduction

Frances was born at a NSW south coast hospital on 16 November 2020. Although 3 weeks premature she had what was described as an “uncomplicated” natural birth. She left hospital after 7 days to live with her mother Ms Hay and her great grandmother Ms Byron. Her father Mr Bourke lived nearby.
It is not in dispute that Mr Bourke and Ms Hay went out early in the morning of 6 December 2020 to buy cigarettes and methylamphetamine (ice), leaving Frances with her great grandmother. At that time Frances’ ‘corrected age,’ to take into account she was born premature, was one or two days old. On their return Ms Hay fed Frances. Ms Byron fell asleep on the lounge but woke to find Mr Bourke holding Frances and a bottle. Ms Hay was either in the…

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 (a pseudonym)

Details

AGLC: R v Bourke (a pseudonym) [2021] NSWDC 665
Case: [2021] NSWDC 665
Decision Date: 09 December 2021

CaseChat Overview and Summary

In the matter of R v Bourke, the accused faced charges related to the assault of a three-week-old child, which resulted in actual bodily harm. The case was heard by a single judge in a criminal court, with the central issue being whether the accused was responsible for the injuries inflicted upon the infant. The court had to consider various pieces of evidence, including expert medical testimony suggesting that a natural cause for the injuries was highly improbable, as well as the conflicting testimonies of witnesses who had been under the influence of drugs at the time of the incident.

The legal issues for determination involved assessing the credibility of the witnesses and the reliability of the evidence presented. The court needed to decide whether the prosecution had proven the accused's guilt beyond reasonable doubt, particularly in light of the expert opinion that a medical cause for the injuries was unlikely and the possibility that the injuries could have been accidental. Given the conflict in the testimonies and the fact that key witnesses were under the influence of drugs, the court also had to consider the broader principles of criminal procedure and the standard of proof required in such cases.

The trial judge carefully evaluated the evidence, noting that suspicion alone was insufficient to meet the high standard of proof. The judge highlighted the unreliability of the key witnesses due to their drug-affected states and the inconsistencies in their statements. Additionally, the judge concluded that while the expert evidence suggested a medical cause for the injuries was unlikely, the actual mechanism of the injuries remained unknown, and the possibility of an accidental occurrence could not be ruled out. Consequently, the judge found that the prosecution had not proven the accused's guilt beyond reasonable doubt and delivered a verdict of not guilty.

Orders

Orders of the court

Verdict of Not Guilty

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Bourke (a pseudonym) [2021] NSWDC 665
Hearing dates:	30 November 2021, 1 December 2021, 2 December 2021, 3 December 2021, 7 December 2021
Date of orders:	9 December 2021
Decision date:	09 December 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Verdict of Not Guilty
Catchwords:	CRIME – assault occasion actual bodily harm – victim 3 week old child CRIMINAL PROCEDURE - Trial - Judge alone - Reasons of trial judge - expert evidence that a medical cause of injury highly unlikely - actual mechanism for injuries unknown - conflict of evidence - possibility of accident - who done it? - witnesses lie on oath – accused and key witness drug affected - reasons for not accepting key witnesses – suspicion is not proof beyond reasonable doubt CRIMINAL PROCEDURE - Trial - Judge alone - fundamental principles applied
Legislation Cited:	Crimes Act 1900
Cases Cited:	Azzopardi v The Queen, (2001) 205 CLR 50; [2001] HCA 25; Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 Evidence Act 1995 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Meissner v The Queen (1994-1995) 184 CLR 132; [1995] HCA 41 Plomp v The Queen1963) 110 CLR 234; [1963] HCA 44 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 The Queen v Baden-Clay [2016] HCA 35 TheQueenv Hillier (2007) 228 CLR 618; [2007] HCA 13 Weissensteiner v The Queen [(1993) 178 CLR 217; [1993] HCA 65. Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
Category:	Principal judgment
Parties:	Steven Bourke (the accused) Director of Public Prosecutions
Representation:	Counsel: Mr P Williams (for the accused) Mr M Fox, Crown Prosecutor Solicitors: Dillon-Smith Lawyers (for the accused)
File Number(s):	2021/00005130
Publication restriction:	The name of the child is not to be published, nor is any other information or material that could lead to the identification of a child. Accordingly, in this judgment the child and her parents and other family members will be referred to by pseudonyms: s578A of the Crimes Act 1900.