R v Bowie (No 2)

[2022] NSWSC 1503

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Bowie (No 2) [2022] NSWSC 1503

Hearing dates:

26 September 2022

Date of orders:

26 September 2022

Decision date:

04 November 2022

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

(1)   The evidence relating to the alleged violence against Judith Said is inadmissible as tendency evidence.

(2)   The evidence contained in the statement of Donna Kuhnell, dated 19 August 2022, namely:

(a)   Paragraphs [7] and [8] are admissible as tendency evidence;

(b)   In respect of paragraphs [12] and [13], the evidence referring to the statement: “he struck me on a regular basis”, is admissible as tendency evidence as long as it is of events that allegedly took place during the domestic relationship; and

(c)   Paragraphs [14] and [15] and paragraphs [16] – [23] are inadmissible as tendency evidence.

(3)   The evidence contained in the statement of Officer Troy Yarrow, dated 29 July 2022, is inadmissible as tendency evidence.

Catchwords:

EVIDENCE – Tendency evidence – Tendency to be intentionally violent towards women with whom the accused was in a domestic relationship – Domestic violence against subsequent partners – Evidence relevant to whether the accused caused death of his wife – Relevant to rebut possibility wife abandoned children – Where alleged victim of domestic violence has never complained of violence at the hands of the accused and is now deceased – Probative value outweighed by risk of unfair prejudice – Evidence of Donna Kuhnell admissible in part – Evidence relating to alleged violence against Judith Said inadmissible

Legislation Cited:

Evidence Act 1995 (NSW) ss 97 and 101

Category:

Procedural rulings

Parties:

Rex (Crown)
John Douglas Bowie (Accused)

Representation:

Counsel:
A Morris (Crown)
W Terracini SC (Accused)
Solicitors:
Department of Public Prosecution (Crown)
LY Lawyers (Accused)

File Number(s):

2019/00146792

Judgment

1. The Crown alleges that the accused, John Bowie, murdered his wife, Roxlyn Bowie, at Walgett or elsewhere, in the state of New South Wales, on or about 5 June 1982. The trial commenced by way of pre-trial arguments on 26 September 2022.

2. This judgment is concerned with the admissibility of certain “tendency” evidence the Crown proposes to adduce in the trial. Previous pre-trial rulings were made by his Honour Justice R A Hulme. Some of those rulings related to proposed tendency sought to be adduced by the Crown relating to violence perpetrated by the accused against Roxlyn Bowie and Anne Bowie, the accused’s subsequent wife.

3. The application to adduce tendency evidence concerning Donna Kuhnell (“Ms Kuhnell”) and Judith Said (“Ms Said”) was deferred. On 22 August 2022, the Crown served an amended Tendency Notice seeking to re-enliven the application to adduce proposed tendency evidence relating to violence perpetrated by the accused against Ms Kuhnell and Ms Said.

4. The Crown contended that if the jury were to accept that the accused had the tendency to be intentionally violent towards women with whom he was in a domestic relationship, the evidence would have significance in establishing that the accused caused the death of Roxlyn Bowie, and in rebutting the alternative possibility that she may have simply walked out on him and her children.

Tendency Notices

Judith Said

5. In this application, the Crown sought to lead evidence that the accused was intentionally violent towards Ms Said during the course of their relationship. The substance of the evidence that the Crown sought to adduce to support this tendency comes from the observations made by the accused’s daughter, Brenda Boyd (“Ms Boyd”), as set out in her statement dated 4 August 2022. The Crown intended to adduce this evidence to demonstrate that the accused was a person who had a tendency to be intentionally violent towards women with whom he was in a domestic relationship.

6. Ms Said is deceased. There is no account by her of any violence perpetrated against her by the accused. The only statement made by Ms Said is dated 29 July 1989, in which she stated that she commenced a relationship with the accused in about June 1988, and they separated at the end of October 1988. She said that the reason they separated was because the accused would often go away for days at a time, without any reasonable explanation.

7. The particulars of the evidence the Crown sought to lead from the statement of Ms Boyd, dated 4 August 2022, were as follows:

Paragraph	Summary	Objection?
[1] – [6]	The violence between Ms Boyd’s father and Ms Said commenced almost immediately upon moving into Ms Said’s residence in Foster. Ms Boyd recalls that the accused and Ms Said often had arguments that ended in physical punching, scratching, shoving, and choking.	Objected to by Defence
[7]	A particular incident where the accused was driving, and Ms Said was in the passenger seat. The family had just purchased McDonalds before the accused and Ms Said began arguing. Ms Boyd states that she saw the accused “throw his whole thick shake at Judith, he was then punching the side of her head and body whilst he was driving”.	Objected to by Defence
[8] – [12]	Occasions where Ms Boyd, the accused, and her younger brother were kicked out of Ms Said’s home and forced to stay at the caravan park for a few nights. Following the accused’s separation from Ms Said, Ms Boyd and her younger brother remained living with Ms Said. During this time, Ms Boyd recalled her father being increasingly “jealous” and controlling of Ms Said.	Objected to by Defence
[14]	The last time Ms Boyd witnessed the accused being physically violent towards Ms Said. The incident involved money and Ms Boyd recalled that the accused left Judith with a “black eye” and bruises.	Objected to by Defence
[17]	Ms Boyd witnessed “a lot of violence in all houses I lived in when I was younger”. She stated that it was a “regular occurrence” with respect to all of the accused’s partners. Ms Boyd witnessed multiple occasions where the accused physically violent towards Roxlyn, Anne and Judith.	Objected to by Defence

8. The accused objected to the proposed tendency evidence in respect of Ms Said. In essence, the accused submitted that the probative value of the evidence does not outweigh the danger of unfair prejudice: s 101(1) of the Evidence Act 1995 (NSW) (“Evidence Act”). The unfair prejudice asserted includes the fact that the witness has not disclosed any incidents of violence perpetrated against her by the accused in her statement, dated 29 July 1989. Further, the witness is deceased and, therefore, cannot be questioned about the violence which is alleged by Ms Boyd.

Donna Kuhnell

9. The Crown sought to adduce evidence regarding the accused’s relationship with Ms Kuhnell, which commenced after his relationship with Ms Said and lasted for about 10 years. The Crown sought to rely on this evidence to demonstrate that the accused was intentionally violent towards Ms Kuhnell during the course of their relationship and following their separation.

10. The substance of the evidence that the Crown sought to adduce to support this tendency came from the observations made by Ms Kuhnell as set out in her statement, dated 17 August 2022.

11. The particulars of the evidence the Crown sought to lead from that statement are as follows:

Paragraph	Summary	Objection?
[5] and [6]	An occasion where Ms Kuhnell was driving back from Toowoomba with her daughter and the accused. Ms Kuhnell and Mr Bowie were in a verbal argument before he hit her across her mouth. Ms Kuhnell’s recalled that her mouth was swollen.	Not objected to by Defence
[7] and [8]	Ms Kuhnell recalled an incident in which the accused attended her mother’s home in Murwillumbah, NSW. Ms Kuhnell and the accused engaged in a verbal argument on the front veranda before the accused pushed her against the wall of the house and placed his hand around her throat. Ms Kuhnell felt scared as the accused had his hand around her throat and her youngest daughter had walked out at this point.	Objected to by Defence
[9] to [11]	Further occasion where the accused hit Ms Kuhnell after she answered his phone. She gave an account to police that the accused hit her across her face and then placed both his hands on her upper chest whilst yelling at her.	Not objected to by Defence
[12] and [13]	Ms Kuhnell stated that the accused “was always violent towards me not only physically but also mentally”. She indicated that the accused struck her on a “regular basis”. Ms Kuhnell detailed numerous occasions where the accused left her in the middle of the road following a verbal argument in the car, and an instance where he took her ventilator away from her and hid it.	Objected to by Defence
[14] and [15]	Ms Kuhnell gave an account of an occasion in which she contacted police following the accused threatening to kill her.	Objected to by Defence
[16] – [23]	Ms Kuhnell detailed numerous incidents where the accused chased her, emotionally abused her, and threatened to kill her. In particular, Ms Kuhnell recalled a time where the accused told her to “look out” and made a gesture where he sliced his fingers across his throat.	Objected to by Defence

12. In respect of paragraphs [12] – [13] and [16] – [23], the accused submitted the material contained therein does not relate to intentional violence during a time when the accused and Ms Kuhnell were in a domestic relationship. Put another way, the accounts contained in paragraphs [12] – [13] and [16] – [23] is material that falls outside the scope of the Tendency Notice.

Evidence of Senior Constable Robert Yarrow

13. The Crown relied upon the evidence of Senior Constable Yarrow as contained in his statement dated 29 July 2022, to establish the accused had a tendency to be violent towards women with whom he was in a domestic relationship. The substance of Senior Constable Yarrow’s statement refers to an allegation made by a caseworker in 2010 that the accused, in reference to Ms Kuhnell, stated: “I should just shoot the bitch for all the trouble she has caused”.

14. I note that at the time of the pre-trial hearing before his Honour Justice R A Hulme, the statement of Senior Constable Yarrow in relation to the threat was not available.

15. The threat relied upon as tendency evidence was clearly uttered at a time after the relationship ended. It does not fall within the scope of the Tendency Notice. In any event, I am not persuaded that the probative value of the evidence outweighs the danger of unfair prejudice. The danger of unfair prejudice is that there is a risk the jury will place undue weight on the threat uttered. The threat was added in circumstances that make it more likely to be an angry comment made in the heat of the moment rather than a serious intention of doing harm to Ms Kuhnell.

16. Accordingly, I find that the evidence is inadmissible.

Legislation

17. The tendency rule is primarily governed by ss 97 and 101 of the Evidence Act.

18. Section 97 relevantly provides:

97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Subsection (1) (a) does not apply if—

(a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

Note—

The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.

19. Section 101 provides:

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

Consideration

Judith Said

20. Ms Said is deceased. She made a statement to police on 29 July 1989. There is no account by her of being the victim of violence perpetrated by the accused during the term of their relationship. Indeed, Ms Said made a statement to police that included details about when the pair met and the commencement of their relationship. Ms Said also gave an account that the relationship ended because the accused would often go away for days at a time without any reasonable explanation. There is no suggestion in her statement that he had inflicted violence upon her.

21. Instead, the Crown relied upon accounts from Ms Boyd about having witnessed violence perpetrated by the accused towards Ms Said during the course of their relationship.

22. I am satisfied that Ms Boyd’s evidence, either by itself, or having regard to other evidence adduced, or yet to be adduced, by the Crown, has significant probative value. However, I am not persuaded that the probative value of the evidence outweighs the danger of unfair prejudice to the accused. The danger of unfair prejudice is that the accused cannot effectively challenge the allegation that he perpetrated intentional violence towards Ms Said in circumstances where she is deceased. The danger of unfair prejudice is compounded in this case in light of the fact that Ms Said has given no account of violence perpetrated against her at the hands of the accused. Ms Said gave an account to police explaining the reason the relationship ended. That explanation did not include any allegation of violence. She cannot, for instance, be asked to confirm that there was no violence in the relationship.

23. I am comfortably of the view that the proposed tendency evidence relating to Judith Said is inadmissible.

Donna Kuhnell

24. Ms Kuhnell made two statements to the police, dated 10 October 2018 and 17 August 2022 respectively. She met the accused when she was approximately 30 years of age. At the time, she was residing in Pottsville, New South Wales. After their first meeting, they commenced a relationship.

25. The accused did not object to some of the evidence relied upon by the Crown to establish a tendency to commit intentional acts of violence towards his domestic partners. However, the accused did object to evidence of violence that was committed at a time when the accused and Ms Kuhnell were not in a domestic relationship.

26. The Crown accepted that for the evidence to be admissible as tendency evidence, it must come within the scope of the tendency as particularised in the Tendency Notice.

27. The Crown was given an opportunity to place further evidence before me on the voir dire relevant to the period/s in which the pair were in a domestic relationship. No further evidence was forthcoming.

28. In the absence of further evidence, I am unable to find that the events described in paragraphs [12] – [13] and [16] – [23] took place during the period that the accused and Ms Kuhnell were involved in a domestic relationship. The evidence is, therefore, beyond the scope of the Tendency Notice. There was no application made to amend the Tendency Notice. It follows that I am not satisfied that the evidence contained in paragraphs [12] – [13] and [16] – [23] is admissible as tendency evidence.

29. I turn to consider the evidence contained in paragraphs [7] and [8]. Objection was taken to the admission of this evidence on the same ground that the Crown cannot establish that the accused and Ms Kuhnell were in a domestic relationship at the time the violence is said to have occurred. However, the mere fact that they were not physically residing together at the time does not negate a domestic relationship. They were engaged in an “on again off again” relationship. Although Ms Kuhnell was staying with her mother on this occasion, the relationship had not conclusively ended. In fact, the accused moved into Ms Kuhnell’s mother’s house, and it is clear that their relationship continued. In these circumstances, I am not persuaded that the evidence falls outside the scope of the Tendency Notice.

30. The contents of paragraphs [7] and [8] are, therefore, admissible as tendency evidence.

Orders

31. Accordingly, I make the following rulings:

1. The evidence relating to the alleged violence against Judith Said is inadmissible as tendency evidence.

2. The evidence contained in the statement of Donna Kuhnell, dated 19 August 2022, namely:

1. Paragraphs [7] and [8] are admissible as tendency evidence;

2. In respect of paragraphs [12] and [13], the evidence referring to the statement: “he struck me on a regular basis”, is admissible as tendency evidence as long as it is of events that allegedly took place during the domestic relationship; and

3. Paragraphs [14] and [15] and paragraphs [16] – [23] are inadmissible as tendency evidence.

3. The evidence contained in the statement of Officer Troy Yarrow, dated 29 July 2022, is inadmissible as tendency evidence.

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Amendments

04 November 2022 - Typographical error in coversheet

Decision last updated: 04 November 2022