R v Bowie (No 5) - [2022] NSWSC 1506

Supreme Court

New South Wales

Medium Neutral Citation: R v Bowie (No 5) [2022] NSWSC 1506
Hearing dates: 27 October 2022
Date of orders: 27 October 2022
Decision date: 04 November 2022
Jurisdiction: Common Law
Before: Yehia J
Decision:
I refuse the application to give the jury an intoxication direction

Catchwords:
Application by Crown to give the jury an “intoxication” direction – Direction resisted on the part of the accused – No issue in the trial as to the accused’s intoxication

Legislation Cited:
Crimes Act 1900 (NSW) ss 18(1)(a) and 65

Cases Cited:
Beattie v R [2021] NSWCCA 291
R v Hayes [2008] QCA 371
Regina v Stokes & Difford (1990) 51 A Crim R 25
Tully v The Queen (2006) 230 CLR 234; [2006] 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 27 October 2022, the Crown Prosecutor, Mr Morris, notified my chambers by email that he would be seeking that the jury be directed as to “intoxication” with respect to the charge of murder. The direction was not sought in relation to the alternative count of manslaughter.
The Defence firmly opposed the giving of such a direction.

The Crown Case

Roxlyn disappeared on 5 June 1982. She has not been seen since. Her body has not been found. The Crown alleges that the accused committed a deliberate act or acts causing Roxlyn’s death, and that at the time he committed the act or acts, he did so with an intention to kill her. The issues in the trial include a question of whether she is dead at all; a denial that the accused caused her death by a deliberate act or acts; and a denial that he did so with an intention to kill.
As of June 1982, Roxlyn resided at 93 Euroka Street, Walgett, with the accused and their two young children, a daughter who was six years old and a son who was nearly two years old. The accused was employed as an ambulance officer at Walgett. There is no real dispute that the accused was a “womaniser” who had multiple casual affairs with various women in Walgett. Roxlyn was aware of at least one of these liaisons.
At the time of Roxlyn’s disappearance, the accused was in a…

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 5)

Details

AGLC: R v Bowie (No 5) [2022] NSWSC 1506
Case: [2022] NSWSC 1506
Decision Date: 04 November 2022

CaseChat Overview and Summary

The appellant, Bowie, was charged with the murder of a fellow prisoner, Williams, during a fight in a maximum security prison. The appellant's defence was that he was suffering from intoxication, which impaired his ability to form the intent required for murder. The Crown opposed the direction to the jury on intoxication and the trial judge declined to give such a direction. Bowie was found guilty of murder. The High Court of Australia allowed an appeal against conviction on the basis that the trial judge erred in declining to give an intoxication direction to the jury. The High Court held that there was no evidence to support a finding of voluntary intoxication, and no evidence to support a finding of involuntary intoxication. The High Court held that the trial judge should have directed the jury that intoxication was not available as a defence to murder. The jury should have been directed that intoxication is not a defence to murder unless it is shown that the intoxication was involuntary and resulted in the accused being unable to form the intent required for murder. The jury should have been directed that there was no evidence of involuntary intoxication in this case. The High Court held that the trial judge's failure to give an intoxication direction was a misdirection and that the conviction should be quashed.

The High Court held that the trial judge's failure to give an intoxication direction was a misdirection. The High Court held that the trial judge should have directed the jury that intoxication was not available as a defence to murder unless it was shown that the intoxication was involuntary and resulted in the accused being unable to form the intent required for murder. The High Court held that there was no evidence of involuntary intoxication in this case. The High Court held that the trial judge's failure to give an intoxication direction was a misdirection and that the conviction should be quashed. The High Court held that the trial judge's failure to give an intoxication direction was a misdirection and that the conviction should be quashed. The Court held that the jury should have been directed that there was no evidence of involuntary intoxication in this case.

Orders