Citation: R v Bowie (No 4) [2022] NSWSC 1505
Court: Supreme Court of New South Wales
Date: 4 November 2022
Judge: Yehia J
Background
The accused stood trial for the murder of his wife, who disappeared on 5 June 1982 at Walgett, New South Wales. Her body has never been found. The Crown's case was entirely circumstantial and alleged that the accused committed a deliberate act or acts causing her death, with an intention to kill.
The Crown's evidence included the absence of any sign of life since 1982 (no bank account activity, no Medicare use, no driver's licence renewal, no sightings), evidence of the accused's extramarital relationship, alleged admissions, a tendency to inflict intentional violence on domestic partners, pawned jewellery, and items buried near the family home. Two letters purportedly written by the deceased after her disappearance were central to the Crown case. The Crown alleged these letters were written under duress at the direction of the accused.
The accused did not give or call evidence. At the close of the Crown case, defence counsel applied for the trial judge to give the jury a "Shepherd direction," a direction requiring the jury to be satisfied of a specific intermediate fact beyond reasonable doubt before using it to reason toward guilt.
Legal Issues
- Whether the fact that the two letters were written by the deceased under duress at the accused's direction constituted an "indispensable intermediate fact" within the meaning of Shepherd v The Queen (1990) 170 CLR 573, requiring a specific jury direction.
- Whether the distinction between a "link in the chain" of reasoning (requiring a Shepherd direction) and a "strand in a cable" (not requiring one) applied to this fact.
- Whether a Shepherd direction would be redundant given the broader directions already to be given about proof of each element of the offence beyond reasonable doubt.
Decision
Yehia J refused the application to give a Shepherd direction. The ruling turned on the distinction established in Shepherd v The Queen between facts that are "links in a chain" (each indispensable to the chain of reasoning, each requiring the jury to be satisfied beyond reasonable doubt) and facts that are "strands in a cable" (multiple strands of circumstantial evidence that collectively support an inference, without any single strand being indispensable).
The Crown acknowledged that if the jury rejected the coerced-letters finding, its murder case would be substantially weakened. However, the Crown did not concede that the letters were an indispensable intermediate fact. Her Honour accepted this position. Even without the letters, other evidence, including motive, the accused's rapid transfer to Bankstown, his statements to his daughter about a new stepmother within days of the disappearance, and the alleged admissions, remained available to support the inference of guilt.
On the element of intention to kill specifically, Her Honour found that the alleged admission that the accused had "killed before" was not probative of an intention to kill as opposed to an unlawful and dangerous act causing death. However, motive evidence, taken at its highest, remained capable of establishing the requisite state of mind, even if it was arguably unconvincing standing alone.
Her Honour concluded that giving a Shepherd direction would be redundant. The jury would be clearly directed to identify the circumstances the Crown relied upon to establish intention to kill, and would be directed that the Crown must prove that element beyond reasonable doubt. That existing framework adequately addressed the defence concern without the additional complication of a Shepherd direction.
Orders Made
No formal orders were made in this decision. The ruling was a pre-charge procedural determination refusing the defence application for a Shepherd direction.
Key Takeaways
- A Shepherd direction is required only where a particular intermediate fact is a "link in the chain" of reasoning, that is, where the entire chain of reasoning collapses if that fact is not established. It is not required merely because a finding significantly weakens the Crown case.
- Where multiple strands of circumstantial evidence collectively support an inference, no single strand need be treated as indispensable, and a Shepherd direction for that strand is not warranted.
- The Supreme Court held that a Shepherd direction can be redundant where the trial judge will already give the jury clear directions identifying the Crown's circumstantial case and directing proof of each element beyond reasonable doubt.
- In a wholly circumstantial murder trial without a body, the Crown need not rely on any single piece of evidence as the indispensable foundation for its case, provided the cumulative evidence is capable of establishing each element.
- Manslaughter was left as an alternative count at defence request, on the basis that the circumstantial evidence, even if insufficient to prove intent to kill, was capable of supporting a finding of an unlawful and dangerous act causing death.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 18(1)(a) (definition of murder)
- Evidence Act 1995 (NSW), s 65 (hearsay exception for civil and criminal proceedings where maker is not available)
Cases
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- 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