R v Bowie (No 4) - [2022] NSWSC 1505

Supreme Court

New South Wales

Medium Neutral Citation: R v Bowie (No 4) [2022] NSWSC 1505
Hearing dates: 24 October 2022
Date of orders: 24 October 2022
Decision date: 04 November 2022
Jurisdiction: Common Law
Before: Yehia J
Decision:
I refuse the application to give the jury a Shepherd direction.

Catchwords:
Application to give the jury a “Shepherd” direction —What constitutes a “link in the chain” as opposed to “a strand in a cable” — Where the Crown relies solely on an intention to kill as the requisite intention for murder — Where the accused wife disappeared in 1982 and her body has not been found — Where the majority of facts relied upon go to establishing death and deliberate act or acts inflicted by the accused as opposed to an intention to kill-where a Shepherd direction may be redundant given that the jury will be directed that the Crown must prove each element of the offence beyond reasonable doubt

Legislation Cited:
Crimes Act 1900 (NSW) s 18(1)(a)
Evidence Act 1995 (NSW) s 65

Cases Cited:
D’Agostino v Regina [2019] NSWCCA 259
Davidson v R [2009] NSWCCA 150; (2009) 75 NSWLR 150
Minniti v The Queen (2006) 196 FLR 431
R v Merritt [1999] NSWCCA 29
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

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

By Indictment dated 26 September 2022, John Bowie (“the accused”) was charged that he, on or about 5 June 1982, at Walgett or elsewhere in the State of New South Wales, did murder Roxlyn Margaret Bowie (“Roxlyn”), contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The accused pleaded not guilty to the offence.
The trial commenced on Monday 26 September 2022 by way of pre-trial argument, and a jury was empanelled on Tuesday 27 September 2022. The Crown case concluded on Friday 21 October 2022. The accused did not give evidence or call evidence.
On the morning of 21 October 2022, Mr Terracini SC, on behalf of the accused, filed written submissions in support of an application that I direct the jury that the fact that the “Dear John” and “Dear Mum and Dad” letters were each written by Roxlyn under duress at the direction of the accused is an indispensable intermediate fact requiring a direction in accordance with Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 (“a Shepherd direction”).
The Crown resisted the giving of such a direction. Although the Crown acknowledged that if the jury is not satisfied that the accused forced Roxlyn to write the letters, the Crown case on murder would be substantially weakened, it is not conceded that this is an indispensable intermediate fact.
It was necessary that I decide whether to give such a direction in advance of the commencement of closing addresses. The Crown was…

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 4)

Details

AGLC: R v Bowie (No 4) [2022] NSWSC 1505
Case: [2022] NSWSC 1505
Decision Date: 04 November 2022

CaseChat Overview and Summary

The case of R v Bowie (No 4) involved an application to provide the jury with a 'Shepherd' direction in relation to the murder of a woman who disappeared in 1982 and whose body has never been found. The accused, the defendant's wife, was alleged to have been killed by the defendant, who was also her husband. The primary legal issue before the court was whether the jury should be given a 'Shepherd' direction to help them distinguish between a 'link in the chain' and 'a strand in a cable' in the context of the defendant's intent to kill. The court had to determine whether such a direction was necessary, given that the jury would already be instructed that the Crown must prove each element of the offence beyond reasonable doubt.

The court examined the nature of the evidence presented by the Crown, which largely focused on establishing the defendant's deliberate acts that led to the death of the accused, rather than solely on the defendant's intention to kill. The majority of the facts relied upon by the Crown demonstrated the defendant's deliberate acts and the resulting death, which made the distinction between a 'link in the chain' and 'a strand in a cable' less critical. The court concluded that, in light of the evidence presented, a 'Shepherd' direction might not be necessary because the jury would already be adequately instructed on the need for the Crown to prove each element of the offence beyond reasonable doubt.

The court decided not to give a 'Shepherd' direction to the jury, finding that the jury would be sufficiently guided by the existing instructions on the elements of the offence. The court's decision was based on the premise that the jury would already understand the necessity for the Crown to establish each element of the offence beyond reasonable doubt, which would inherently guide them in assessing the significance of the defendant's intention to kill. Consequently, the court found that the jury did not require additional direction on the distinction between a 'link in the chain' and 'a strand in a cable'.

Orders