R v Bowie (No 3)

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.