R v Bowie (No 2) [2022] NSWSC 1503

Citation: R v Bowie (No 2) [2022] NSWSC 1503
Court: Supreme Court of New South Wales
Date: 4 November 2022
Judge(s): Yehia J

Background

The accused stands charged with murdering his wife at Walgett or elsewhere in New South Wales on or about 5 June 1982. Pre-trial proceedings commenced in September 2022, and the Crown proposed to adduce tendency evidence to support its case at trial.

The Crown's theory was that evidence of the accused's intentional violence towards women in subsequent domestic relationships would be significant in two ways: establishing that the accused caused his wife's death, and rebutting the possibility that she simply walked out on him and their children.

This judgment dealt with the admissibility of tendency evidence relating to two women: Judith Said, a subsequent partner of the accused who is now deceased, and Donna Kuhnell, a subsequent partner with whom the accused had a relationship lasting approximately ten years. An earlier ruling by Hulme J had addressed tendency evidence relating to other individuals; this decision resolved the deferred questions about Ms Said and Ms Kuhnell.

Legal Issues

Whether the proposed tendency evidence relating to Judith Said was admissible under ss 97 and 101 of the Evidence Act 1995 (NSW), specifically whether its probative value outweighed the danger of unfair prejudice to the accused
Whether various portions of Donna Kuhnell's statement were admissible as tendency evidence, including whether the alleged acts of violence occurred during the period the parties were in a domestic relationship as particularised in the Tendency Notice
Whether a threat attributed to the accused regarding Ms Kuhnell, recorded in a police officer's statement, was admissible as tendency evidence

Decision

Issue 1: Tendency evidence relating to Judith Said

The court found that Ms Said is deceased and, critically, gave no account of violence in any statement she made to police. Her 1989 statement described only that the relationship ended because the accused frequently went away for days without explanation. The Crown relied solely on observations by the accused's daughter, Ms Boyd, as evidence of violence against Ms Said (at [21]-[22]).

Yehia J accepted that Ms Boyd's evidence had significant probative value, but held that the probative value did not outweigh the danger of unfair prejudice to the accused (at [22]-[23]). The unfair prejudice was compounded by two features: the accused could not effectively challenge the allegation because Ms Said was deceased, and Ms Said herself had given an explanation for the relationship's breakdown that contained no mention of violence (at [22]). The tendency evidence relating to Ms Said was ruled inadmissible.

Issue 2: Tendency evidence relating to Donna Kuhnell

The Crown sought to rely on multiple paragraphs of Ms Kuhnell's statement. The accused did not contest some portions but argued that several described events occurring outside any domestic relationship. The Crown was given an opportunity to adduce further evidence on this point but did not do so (at [27]-[28]).

In the absence of evidence placing the events in paragraphs 12 to 13 and 16 to 23 within a domestic relationship, the court found those paragraphs fell outside the scope of the Tendency Notice and were inadmissible (at [28]). However, for the events described in paragraphs 7 and 8, the court found that the parties' "on again off again" arrangement meant they remained in a domestic relationship even though Ms Kuhnell was temporarily staying at her mother's house. The accused later moved into that same house and the relationship continued, so this evidence was not beyond the scope of the Tendency Notice and was admissible (at [29]-[30]).

Issue 3: Threat recorded in Senior Constable Yarrow's statement

The accused had allegedly stated, in reference to Ms Kuhnell, that he "should just shoot the bitch for all the trouble she has caused." This statement was made after the relationship had ended. The court held that the threat fell outside the scope of the Tendency Notice because it was not uttered during a domestic relationship (at [15]). Even if the threat had fallen within the Notice, the court was not persuaded that its probative value outweighed the danger of unfair prejudice. The circumstances suggested it was more likely an angry comment made in the heat of the moment than evidence of a serious intention to cause harm (at [15]-[16]).

Orders Made

The tendency evidence relating to alleged violence against Judith Said is inadmissible.
From Donna Kuhnell's statement dated 19 August 2022:
Paragraphs 7 and 8 are admissible as tendency evidence.
From paragraphs 12 and 13, the statement "he struck me on a regular basis" is admissible as tendency evidence only to the extent it refers to events during the domestic relationship.
Paragraphs 14 and 15 and paragraphs 16 to 23 are inadmissible as tendency evidence.
The evidence in Senior Constable Yarrow's statement dated 29 July 2022 is inadmissible as tendency evidence.

Key Takeaways

Under ss 97 and 101 of the Evidence Act 1995 (NSW), tendency evidence must clear the threshold that its probative value substantially outweighs any danger of unfair prejudice; where the alleged victim of domestic violence is deceased and gave no account of violence, that threshold may not be met even if a third-party witness describes the violence (at [22]-[23]).
Tendency evidence relating to conduct by a domestic partner must fall within the scope of the Tendency Notice as particularised; where the Crown cannot establish that alleged acts of violence occurred during the relevant domestic relationship, those acts cannot found admissible tendency evidence (at [28]).
A domestic relationship does not require physical co-habitation at every point. The Supreme Court found that an "on again off again" relationship remained a domestic relationship for tendency purposes even when one party was temporarily residing elsewhere, provided the relationship had not conclusively ended (at [29]).
Post-separation threats or statements fall outside a Tendency Notice that is confined to conduct occurring during a domestic relationship, and such statements may also fail the probative value versus unfair prejudice balancing exercise if they are more consistent with heated language than genuine intention (at [15]-[16]).
Where the Crown is given an opportunity on the voir dire to adduce further evidence supporting the temporal scope of proposed tendency evidence but does not do so, the court will not draw inferences in favour of admissibility (at [27]-[28]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 97 and 101

Cases
- Not stated