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

1. 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.

2. 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.

3. 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.

4. The Defence firmly opposed the giving of such a direction.

The Crown Case

5. 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.

6. 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.

7. At the time of Roxlyn’s disappearance, the accused was in a sexual relationship with Gail Clarke, who, at that time, resided in Sydney. Gail Clarke is now deceased. Leave was granted pursuant to s 65 of the Evidence Act to have her evidence read onto the record as follows:

“On 24 April 1988, interviewed Gail Maree Clarke, born 23 April 1954, at her home at 7 Kew Way, Airds, phone [phone], re her relationship with the missing person's husband, John Douglas Bowie

Mrs Clarke, who is divorced, stated that about six months prior to June 1982 she had separated from her husband and, during the two weeks of the May school holidays 1982, she had holidayed in a caravan with friends on the banks of the Barwon River, Walgett. It was during this time she met John Bowie in his capacity as an ambulance officer and formed a brief relationship with him.

She went out with Bowie on a number of occasions in his van and on one occasion accompanied him to the Walgett RSL Club

She had previously been informed by Bowie that he and Roxlyn lead different lives and that she had a boyfriend. On the occasion they attended the RSL, Bowie pointed out a woman and a man to her in the club and told her that the woman was Roxlyn with her male friend. Mrs Clarke is now unable to describe that woman or man. She stated she continued seeing Bowie for the duration of the holidays and then returned to her home at 17 Tempe Street, Chullora. Some weeks later, Bowie phoned her and told her he was coming to Sydney.

Towards the end of June 1982, Bowie arrived at her home and told her that his wife had left him and suggested that he move in with her. She refused this request and, although she went out with him on a number of occasions, she terminated the relationship after two to three weeks and has not seen him since.

She said at that time Bowie was living in a flat at Lakemba. She stated that she had accompanied him to his in‑law's home at Killara during that time and she had also met his children on a number of occasions. Both children appeared to be well cared for, although she was surprised that the older child, Brenda, made no mention at all of her mother. She also stated that Bowie did not discuss his wife or her disappearance, other than to say she had left him.

During the time Mrs Clarke knew him, Bowie was not a heavy drinker. She stated that when Bowie arrived in Sydney he was extremely keen to form a serious relationship with her, but she never entertained the idea and terminated the relationship.”

8. The accused worked a shift at Walgett Ambulance Station on Saturday 5 June 1982. His shift ended at 5.00pm, and he was at home with Roxlyn and the children at about 7.00pm, when the children were put to bed. At some stage, he left the house and went to the Imperial Hotel where he stayed for a period of time. At some point later in the evening, he was seen at the RSL Club.

9. There is a dispute in the trial as to whether he returned home in the period between 7.00pm and about 11.00pm. The defence case is that he left the house at about 7.00pm. He went to the Imperial Hotel, where he stayed for some hours before attending the RSL Club. He returned home at about 11.00pm to find Roxlyn missing.

10. The Crown case is that this account is a fabrication. The Crown contends that the accused returned home sometime after 7.00pm and before 11.00pm, and in that window of time killed Roxlyn.

11. Evidence adduced from Ruth Ovens and Eddie Ovens suggested that the accused had returned home at about 11.00pm. Ruth and Eddie lived in one of two caravans in the backyard of 93 Euroka Street. On the night of 5 June 1982, the accused knocked on their caravan door looking for Roxlyn. The Crown case is that the attempt made by the accused to raise the alert and search for Roxlyn was a ruse; a performance intended to deflect attention from himself.

12. The last time Roxlyn was seen by anyone was on 5 June 1982. In support of the contention that the accused murdered Roxlyn, the Crown relies upon a number of facts which include, but are not limited to, the following:

• Roxlyn was a loving and devoted mother, and a devoted daughter who had a good relationship with her parents. She was unlikely to leave her children, never to communicate with them or her parents again.

• There is no evidence of normal life activities. There is no evidence that Roxlyn has used her bank account or Medicare health card; renewed her driver’s licence; or been sighted by, or heard from by, anyone since 5 June 1982.

• Walgett, the town in which she lived with the accused and their two young children, was a particularly isolated town in 1982. There was no public transport leaving town on the weekend. Of particular relevance to this case, is that there was no public transport leaving town on Saturday nights.

• The accused had a motive to kill his wife because he wanted to have a serious unfettered relationship with Gail Clarke.

• The accused had a tendency to inflict intentional violence on his domestic partners.

• The accused pawned jewellery that is alleged to have belonged to his wife after she disappeared.

• Police located a dress ring buried at 123 Euroka Street, which has been identified by one witness, Corale Komene, as belonging to Roxlyn. Also located at that site was a metal fragment with a scalpel wrapper, and two facemasks (items that the accused would have had access to as an ambulance officer in 1982).

• An alleged admission made by the accused regarding having “killed before”, and a number of representations made by him from which the Crown invites the jury to infer that he disposed of Roxlyn’s body by feeding her to pigs.

• The accused told a number of lies that are said to constitute consciousness of guilt.

13. The Crown case has been conducted on the basis that the accused caused the death of his wife Roxlyn by a deliberate act or acts, done with an intention to kill. The Crown opened, and conducted the trial, on this sole basis.

14. At the end of the Crown case, Mr Terracini SC requested that I leave manslaughter to the jury as an alternative count. The Crown case is a wholly circumstantial one. If the jury finds that the Crown has failed to establish the requisite state of mind, it remains open, on the Crown’s circumstantial evidence, to find that the accused caused Roxlyn’s death by way of an unlawful and dangerous act. Put another way, I am satisfied that it is open on the evidence for the jury to consider an alternative count of manslaughter. The Crown did not wish to be heard against such a course.

What was the extent of the accused’s intoxication on 5 June 1982?

15. There is no dispute that the accused was drinking beer on the night; however, accounts of the extent to which he was inebriated vary.

16. Mr Bowie’s first account of his whereabouts and alcohol consumption on the night of 5 June 1982 is contained in his police statement, dated 19 August 1982 (Exhibit C33). In that statement, he said that he left home around 6.30pm to 7.00pm. He drove to the Imperial Hotel where he drank beer with Norman Pearson, Eddie Ovens and “a number of other people” until about 10.30pm or 11.00pm. At that point, he went to the RSL Club and “had a few more beers”, stayed for about half an hour, walked to the ambulance station near where his car was parked, and then drove home. After first looking for Roxlyn and going down to the caravan in which Eddie and Ruth Ovens resided to make inquiries about whether Roxlyn was with them, he drove back to the RSL, purchased a case of beer, and then returned home.

17. Norman Pearson’s evidence was that at the Imperial Hotel, he had a drink (beer) with the accused, but he did not specify the number of drinks either he or the accused consumed. He said that John seemed to be his “normal self”.

18. John Clarke observed the accused have one beer in the RSL Club and then leave, but his record of interview contained no questions or answers which spoke to the accused’s observed level of intoxication.

19. At some point between 9.00pm and 10.00pm, the accused was seen by Edward Gudgeon at the Ambulance Station, who described him as seeming “a bit under the weather”. When asked what he meant by that phrase, he indicated that it seemed that the accused had “probably one or two beers too many”.

20. Mr Bowie was asked in cross-examination at the Coronial Inquest about his level of intoxication. He denied being drunk and stated he “didn’t have a wobbly boot, but [he] had a few under [his] belt”.

21. At some time around 11.00pm, the accused knocked on the door of one of the caravans in the backyard of the property at 93 Euroka Street. Ruth Ovens recalled that Mr Bowie seemed “fairly intoxicated” and was “unsteady on his feet”. She said it was “obvious” to her “that he had quite a bit to drink” and that he was “drunk that night” to an extent she had only seen on a couple of prior occasions. Her partner, Eddie Ovens, told police in his record of interview that John “looked like he’d had a few”. Mr Coleman, who was also present in the caravan that night John knocked on the door, said that Mr Bowie presented as “inebriated”.

The Application

22. The Crown contends that intoxication has been sufficiently raised in the evidence such as to warrant a direction to the jury. Mr Terracini SC, on behalf of the accused, submitted that the Crown’s application for an intoxication direction “is nonsense… is an absurdity”. Essentially, the accused position is that is no part of his case that he was so intoxicated as not to have formed the requisite intention to kill Roxlyn.

23. In support of the contention that it is necessary to give an intoxication direction, the Crown relied on the case of Regina v Stokes & Difford (1990) 51 A Crim R 25. The issues in that case were referred to by Hunt J at [9]-[14]:

“The second ground of appeal taken by Stokes is that the judge erred in not directing the jury that, in considering whether the Crown had established the specific intention required, the Crown had to remove any reasonable doubt as to the existence of that intention on the part of Stokes which may have been raised by the evidence of his intoxication.

The evidence relating to intoxication on the part of both appellants was as follows. One of the prisoner witnesses called by the Crown gave evidence that, prior to the assault upon Partlic, both appellants were staggering. He formed the view that Difford was intoxicated, and he repeated a comment by Stokes that Difford was “too pissed” to hold the punching bag. Another prisoner gave evidence of hearing a similar comment by one or other of the appellants. One prison officer said that, prior to the assault, the appellants appeared by their manner to have been drunk, although they were not staggering. Another prisoner officer said that, after the assault, he noticed from the distinctive smell that both appellants had been drinking “gaol brew”. A Senior Assistant Superintendent of the Gaol Complex said that gaol brew was a prohibited alcoholic beverage made from fermented fruits, sugar, vegemite and water, and that it was fairly frequently available in the gaol at the relevant time. He agreed that the mixture when fermented was fairly potent, and that it could change the behaviour of prisoners who drank it, making them more aggressive (particularly in a verbal way).

In his unsworn statement, Stokes told the jury that he was “a pretty quiet bloke” who minded his own business. On the day in question, he said, he had had a gaol brew and had become “pretty drunk”. He said that he did not know how long he had been drinking when he entered the fine defaulters' yard. When asserting that he had not intended to hurt Partlic, Stokes suggested that he was “happy” that day, perhaps “a bit boisterous, jump around a bit, you know, but who doesn't when they've had a few drinks”. He then claimed that gaol brew is about 100 times stronger than any alcoholic drink which can be purchased outside the gaol, and he recounted an anecdote heard from a prison officer that a toothbrush had disintegrated when left in a bucket of brew. Stokes also said:

“I know what I did and what I didn't do, and it's up to you people to find … whether I am guilty or not guilty.”

(Difford also referred in his unsworn statement to the two of them drinking, and to them being too drunk to carry the punching bag before the assault took place.)

Although the Crown bears the legal onus of eliminating the issue of intoxication, Stokes bore an evidentiary onus to point to or to produce evidence (or material in an unsworn statement) from which it could be inferred that there was at least a reasonable possibility that intoxication had affected his intention to inflict grievous bodily harm upon Partlic: cf Youssef (1990) 50 A Crim R 1at 2-4. Minds may perhaps differ as to whether, despite the evidence of intoxication, the actions of Stokes which I have described could reasonably be found to have been done otherwise than with an intention to inflict such harm. The likelihood that a jury would, by reason of that evidence of intoxication, have had a reasonable doubt upon this issue is a matter more properly considered at a later stage. If there is any doubt as to whether intoxication has been sufficiently raised in the evidence, it is the duty of the judge to leave the issue to the jury: Viro (1978) 141 CLR 88 at 118. It was not argued by the Crown that the issue had not been sufficiently raised. In the present case, in my view, the issue should have been left to the jury.

…

It is reasonably obvious why counsel then appearing for the appellants wished to avoid the usual direction concerning the relationship of intoxication to the formation of a specific intention: as to which, see Coleman (1990) 19 NSWLR 467 at 486-488; 47 A Crim R 306. Whatever benefit that direction could possibly have given Stokes upon the issue of his specific intention, it would no doubt also have considerably weakened his denials that he had kicked Partlic and speared him headfirst onto the concrete floor if the jury had been warned that, in many cases, intoxication does no more than remove inhibitions or self-restraints and induce a sense of self-confidence and (sometimes) of aggressiveness: see Coleman at 486; 323. The judge did, quite properly, suggest that intoxication may be an explanation for what had happened, but that suggestion would not have caused the damage to Stokes's denials which the full warning would have caused.

The disavowal by counsel then appearing for the appellants that intoxication was being raised as an issue, though no doubt made for tactical reasons which were bona fide thought to be in the best interests of their clients, did not relieve the judge of the duty to give directions in relation to that issue in this case: Pemble (1971) 124 CLR 107 at 117-118, 130. Counsel cannot concede a matter of law to the disadvantage of the accused: Pemble at 133; Galambos (1980) 2 A Crim R 388 at 395, 396-397. The judge must comply with his duty to put to the jury any issue sufficiently raised by the evidence even if that issue gives an air of unreality to the case sought to be made by the accused in relation to some other issue: Lawson and Forsythe [1986] VR 515 at 548; (1986) 18 A Crim R 360 at 394-395; Marshall (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Priestley, Sharpe JJ, 17 July 1990) at pp 1-2.

An error of law has therefore been established by Stokes, in that the judge erred in acceding to the request of his own counsel, made for tactical reasons to benefit the appellant's own case, not to put intoxication to the jury as being relevant to an issue which the Crown had to establish. The irony of such a conclusion — that the judge erred by doing precisely what the appellant had asked him to do — is even greater because, had the direction been given which Stokes now says should have been given, it would have been likely to weaken his case.”

24. The Crown submitted that where there is any doubt as to whether intoxication has been sufficiently raised on the evidence, it is the duty of the judge to leave the issue to the jury. In that case, the Court held that the issue of intoxication, having been sufficiently raised, should have been left to the jury.

25. The Crown also relied upon R v Hayes [2008] QCA 371 (“Hayes”), where the accused did not rely on intoxication, but the trial judge, nonetheless, felt compelled to direct the jury on intoxication because it was raised on the evidence.

26. In that case, the Crown alleged that the appellant, motivated by jealousy and possessiveness, set fire to the house where the victims were living, causing the deaths in question with the intention of killing or causing grievous bodily harm to at least one of the victims of the fire. The Crown case was based, in the alternative, on what is often referred to as ‘felony murder’. The case put for the appellant at trial was that he was not the person who set the fire in question. Evidence was adduced that the appellant had consumed amphetamine about five hours before the fire.

27. The gravamen of the appellant’s complaint on Ground 2 was that the trial judge did not adequately direct the jury in relation to the onus of proof on the issue of intoxication. Counsel who represented the appellant at his trial did not seek a redirection, no doubt because it was no part of the appellant’s case that he was so intoxicated as not to have formed the requisite intention for the offence of arson. The ground of appeal was dismissed.

24. The Crown also relied on the decision of Beattie v R [2021] NSWCCA 291 (“Beattie”). In that case, the applicant acknowledged that the trial judge did in fact give an intoxication direction that was in accordance with the New South Wales Criminal Trial Courts Bench Book. However, it was contended that a miscarriage of justice nevertheless arose by virtue of the written direction provided to the jury, which stated:

“Any intoxication that you find was affecting the accused at the relevant time can be taken into account by you with regard to whether the Crown has proven an intention to cause really serious physical injury. Intoxication can be taken into account both for and against the Crown case.”

29. The applicant contended that it was erroneous “to direct the jury to adopt the same approach with respect to the defence reliance on the evidence of intoxication”. The Court found, however, that the direction given did not direct the jury as to the approach they should take to an assessment of the evidence; rather, “it simply expanded upon the proposition that intoxication was relevant to the element of intention by noting that it was a factor that could both support and undermine the Crown case on that issue” (see [33]). Ultimately, the Court refused leave to appeal, finding that no direction given by the trial judge led to a misdirection, or created a miscarriage of justice.

30. The Crown whilst referring to the Queensland Supreme Court decision of Hayes, stated that “the circumstances of that case were different from the present as to make the comparison, with respect, unhelpful”.

31. Similarly, I am of the view that a comparison between the case of Beattie and the present case is “unhelpful” due to the very substantial differences between them. While in Beattie the matter of intoxication was the central issue, in this case, the intoxication of the accused is not a matter of significant concern to either party.

32. This renders the case before me much closer in kind to the Queensland matter of Hayes. There, the accused did not rely on intoxication, and, similarly to the accused in the matter before me, contended that he had nothing to do with the charge brought against him. In that case, the trial judge gave a direction of intoxication as they were of the view that it was raised on the evidence.

33. It was contended by the appellant that the trial judge did not adequately direct the jury regarding the onus of proof in relation to the issue of intoxication. This allegation was dismissed by Keane JA. It was held at [67]:

“Having regard to the basis on which the appellant's Counsel at trial had fought the case, no more complicated or elaborate direction from the trial judge on the issue of intoxication was necessary to ensure that the jury did not "omit consideration of important matters … and wrongly conclude that guilt has been demonstrated beyond reasonable doubt.”

34. McMurdo P, in additional observations, commented that the trial judge “rightly recognised that the issue of intoxication, although not part of the defence case, was raised on the evidence and so obliged him as trial judge to direct the jury on it”, holding that the direction given was appropriate and any more complex direction would not have assisted the jury in understanding the real issues in the case” (at [6]).

Should an intoxication direction be given?

35. Noting those principles, I now turn my mind to their application to the present case, and to the question as to whether an intoxication direction should be given to the jury in relation to the charge of murder.

36. The disavowal by counsel appearing for the accused that intoxication is being raised as an issue does not relieve the trial judge of the duty to give directions in relation to that issue where it has been sufficiently raised in the evidence.

37. That said, it is an essential aspect of the role of the trial judge to identify for the jury the “real issues” in the case. It is essential to the proper administration of criminal justice that the jury’s attention be focused on the “real issues’, and that the jury is not distracted by non-issues: Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56.

38. I accept that there may be cases in which it may not be at all clear whether there is a real issue about some particular aspect of the matter. There may well be cases where minds may differ about what the issues are. In the present case, the issues are very clear.

39. The accused does not concede that Roxlyn is deceased and, importantly, denies any involvement in her death, if the Crown establishes that she is dead. Indeed, on the defence case, the accused could not have caused his wife’s death because during the relevant period between about 7.00pm and 11.00pm (“the window of opportunity”), he was in town drinking at the Imperial Hotel and the RSL Club. The issues are clear.

40. Furthermore, although there is some evidence that the accused was intoxicated, I am not persuaded that intoxication has been sufficiently raised on the evidence.

41. The accused, in his account, does not describe himself as intoxicated. He was able to drive. Norman Pearson observed the accused to be his “normal self” at the Imperial Hotel. The accused attended the ambulance station between 9.00pm and 10.00pm and was able to make his way to the RSL Club. Mr Clarke does not give an account either way about the accused’s level of intoxication.

42. Ruth and Eddie Ovens make their observations at about 11.00pm, that is, after the accused had attended the Imperial Hotel and, immediately after the accused attended the RSL Club. It is unlikely, on the Crown case, that the accused forced Roxlyn to write the two letters (Exhibits C18 and C21) and killed her sometime between leaving the RSL Club and knocking on the caravan door. It is more likely, on the Crown case, that the deliberate act or acts constituting murder took place earlier on the evening of 5 June 1982.

43. Given that I am not persuaded that intoxication has been sufficiently raised in the evidence, I refuse the application to give the jury an intoxication direction.

Decision last updated: 04 November 2022