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Regina v Bowhay

Regina v Bowhay

Case [2000] NSWCCA 54 14 March 2000

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Reported Decision: [2000] A Crim R 271

New South Wales

Court of Criminal Appeal

CITATION: Regina v Bowhay [2000] NSWCCA 54

FILE NUMBER(S): CCA 60011/99

HEARING DATE(S): 25 October 1999

JUDGMENT DATE:
14 March 2000

PARTIES :

Regina v Adam John Bowhay

JUDGMENT OF: Stein JA at 1; Hulme J at 25; Greg James J at 67

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70074/97

LOWER COURT JUDICIAL
OFFICER : Dunford J

COUNSEL : S J Odgers (Appellant)
R Hulme (Respondent)

SOLICITORS: Conditsis & Associates (Appellant)
Director of Public Prosecutions (Respondent)

CATCHWORDS: MURDER - appeal on conviction - whether sufficient evidence capable of constituting provocation for it to be left to jury - whether trial judge erred in summing up on provocation - whether trial judge erred in written directions provided to jury on provocation - whether written direction contrary to Green v The Queen - s 6 Criminal Appeal Act 1912 - whether substantial miscarriage of justice - whether accused denied fair chance of acquittal - appeal against sentence - whether manifestly excessive

LEGISLATION CITED: Crimes Act 1900; ss 23(1), 23(2)(a), 23(2)(b)
Criminal Appeal Act 1912; s 6

CASES CITED:
Glennon v Regina (1994) 179 CLR 1
Green v The Queen (1997) 191 CLR 334
Krakouer v R (1998) 72 ALJR 1229
Masciantonio v R (1995) 69 ALJR 598
Mraz v Regina (1955) 93 CLR 493
Quartermaine v Regina (1980) 143 CLR 595
Regina v Storey (1978) 140 CLR 364
Stingel v The Queen (1990) 171 CLR 312
Wilde v Regina (1988) 164 CLR 365
Woolmington v DPP [1935] AC 462

DECISION: Appeal on conviction dismissed; Leave to appeal against sentence granted; Appeal against sentence dismissed

IN THE COURT OF
CRIMINAL APPEAL

No. 60011/99

STEIN JA

HULME J
Greg JAMES J

Tuesday, 14 March 2000

REGINA v Adam John BOWHAY

MURDER - appeal on conviction - whether sufficient evidence capable of constituting provocation for it to be left to jury - whether trial judge erred in summing up on provocation - whether trial judge erred in written directions provided to jury on provocation - whether written direction contrary to Green v The Queen - s 6 Criminal Appeal Act 1912 - whether substantial miscarriage of justice - whether accused denied fair chance of acquittal - appeal against sentence - whether manifestly excessive.

The appellant, Adam John Bowhay was convicted on a charge of murdering Steven Lindsay Jarvis at Casino on 9 March 1997. He was tried and found guilty in the Supreme Court, and on 18 December 1998 was sentenced to a minimum term of 16 years with an additional term of 7 years.

This is an appeal against both conviction and sentence. The appellant submitted that the trial judge erred in giving directions to the jury on the issue of provocation.

Held (Stein JA, Greg James J agreeing):

Although far-fetched, there was sufficient evidence capable of constituting provocation for it to be left to a jury.

Contra Hulme J:

The issue of provocation should not…

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 Regina v Bowhay

Details

AGLC: Regina v Bowhay [2000] NSWCCA 54
Case: [2000] NSWCCA 54
Decision Date: 14 March 2000

CaseChat Overview and Summary

The appeal in Regina v Bowhay was heard by the High Court of Australia, concerning a conviction for murder and a subsequent appeal on both conviction and sentence. Bowhay was convicted of murdering his partner, with the central issue being whether there was sufficient evidence of provocation to leave the matter to the jury. The case also examined potential errors in the trial judge's summing up and written directions to the jury regarding the concept of provocation, particularly in light of the principles set out in Green v The Queen. The appeal further contested whether the trial judge's actions amounted to a substantial miscarriage of justice or denied Bowhay a fair chance of acquittal. Additionally, the appeal addressed the severity of the sentence, questioning whether it was manifestly excessive.

The legal issues before the court revolved around the sufficiency of evidence for provocation, the correctness of the trial judge's summing up and written directions on the matter, and the potential for a miscarriage of justice. The court was required to assess whether the trial judge's instructions to the jury were in line with established legal principles, particularly those articulated in Green v The Queen. Furthermore, the court had to determine whether the sentence imposed was manifestly excessive, potentially constituting a substantial miscarriage of justice. The appeal raised significant questions about the adequacy of the trial process and the fairness of the resulting conviction and sentence.

The court found that the evidence of provocation was not so clear as to preclude the matter from being left to the jury. It held that the trial judge's summing up and written directions did not contain any errors that would warrant a new trial, as they were consistent with the relevant legal principles. The court also determined that there was no substantial miscarriage of justice, as Bowhay had not been denied a fair chance of acquittal. Finally, regarding the sentence, the court concluded that it was not manifestly excessive, thus dismissing the appeal against both conviction and sentence.

The High Court upheld the conviction and sentence, affirming that the trial process was fair and that the evidence of provocation was appropriately left to the jury. The appeal was dismissed, and the original conviction and sentence were upheld.

Orders