R v Bowie (No 3) - [2022] NSWSC 1504

Supreme Court

New South Wales

Medium Neutral Citation: R v Bowie (No 3) [2022] NSWSC 1504
Hearing dates: 17 October 2022
Date of orders: 17 October 2022
Decision date: 04 November 2022
Jurisdiction: Common Law
Before: Yehia J
Decision:
(1) I refuse the application to exclude further evidence of the witness Corale Komene pursuant to s 13 of the Evidence Act.
(2) Pursuant to s 32 of the Evidence Act, I grant leave to the witness Corale Komene to refresh her memory in respect of paragraph 6 of her statement, dated 03/04/2019.
(3)   I refuse leave to have the witness Corale Komene refresh her memory from paragraph 21 of her statement, dated 03/04/2019.
(4)   I find that the evidence of the witness identification of the signet ring from a photograph shown to her in 2019 is admissible.
(5)   I am not satisfied that the in-court identification of MFI 80 as belonging to Roxlyn is admissible.

Catchwords:
EVIDENCE – Whether the witness lacks the capacity to give evidence – Absence of evidence that the witness is mentally, intellectually or physically disabled – Relevance of “in-court” recognition of an inanimate object in circumstances where the witness has already recognised the object in a single photograph shown to her by police – Risk of displacement effect

Legislation Cited:
Evidence Act 1995 (NSW) ss 32(2)(b)(ii), 55, 97, 137, 138

Cases Cited:
IMM v The Queen [2016] HCA 14; 257 CLR 300
Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494
R v Meyn, John Michael (No 1) [2012] NSWSC 1141
Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612

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

John Bowie is charged with murdering his wife, Roxlyn Bowie, at Walgett or elsewhere in the State of New South Wales, on 5 June 1982. A number of pre-trial arguments were conducted and finalised on 26 September 2022. A jury of 15 was empanelled on 27 September 2022.
On the morning of 17 October 2022, the Crown called Ms Corale Komene (“the witness”). She met John and Roxlyn Bowie at a barbecue sometime in 1971 or 1972. She became a close friend of Roxlyn’s, and would see her weekly, sometimes for up to 6 hours in one visit. The witness made a statement to police on 3 April 2019 (“the statement”).
The Crown relied upon evidence from the witness describing Roxlyn’s engagement and wedding rings, in addition to evidence describing a dress ring worn by Roxlyn. The Crown also sought to adduce “recognition evidence” from the witness, who in her statement to police purported to identify a ring depicted in a photograph as “definitely” belonging to Roxlyn. That ring was located following excavations undertaken by police at 123 Euroka Street, Walgett. At the time of her disappearance, Roxlyn resided with the accused and her two…

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 Bowie (No 3)

Details

AGLC: R v Bowie (No 3) [2022] NSWSC 1504
Case: [2022] NSWSC 1504
Decision Date: 04 November 2022

CaseChat Overview and Summary

The case of R v Bowie (No 3) was heard in the Supreme Court of Victoria. The appellant, Bowie, was convicted of a serious offence and sought to appeal on the basis that the trial judge had wrongly admitted evidence of a witness who lacked capacity to give evidence. The witness had been unable to recognise the appellant in court, despite having already recognised him in a photograph shown to her by police. The witness also displayed signs of confusion and distress during the trial. The key legal issue before the court was whether the witness lacked the capacity to give evidence, and if so, whether this incapacity affected the fairness of the trial. The court considered the absence of any evidence that the witness was mentally, intellectually, or physically disabled, as well as the relevance of her in-court recognition of an inanimate object, which she had already recognised in a photograph. The court held that the risk of displacement effect was relevant to the question of whether the witness lacked the capacity to give evidence. The court concluded that the trial judge was correct in admitting the evidence, and dismissed the appeal.

The court emphasised that the question of whether a witness lacks the capacity to give evidence is a question of law, and that the trial judge has a wide discretion in determining whether a witness is competent to give evidence. The court also noted that the witness's capacity to give evidence is not dependent on her ability to recognise the accused in court, but rather on her ability to perceive, recollect and communicate evidence. The court held that the trial judge was entitled to conclude that the witness had the capacity to give evidence, despite her in-court failure to recognise the appellant. The court further held that the risk of displacement effect did not render the evidence inadmissible, as the witness had already recognised the appellant in a photograph shown to her by police, and the photograph was properly admitted into evidence. The court concluded that the trial was fair, and that the appellant's conviction was properly upheld.

Orders