Citation: R v Bowie (No 5) [2022] NSWSC 1506
Court: Supreme Court of New South Wales
Date: 4 November 2022
Judge: Yehia J
Background
The accused stood trial for the alleged murder of his wife, Roxlyn Bowie, who disappeared on 5 June 1982 at Walgett and has never been found. The Crown alleged that the accused committed a deliberate act or acts causing her death with an intention to kill, framing the entire case on that sole basis. The accused pleaded not guilty and denied any involvement in her death, maintaining he was away from the family home drinking at the Imperial Hotel and the RSL Club during the relevant window of approximately 7.00 pm to 11.00 pm.
At the conclusion of the Crown case, the trial judge also left manslaughter as an alternative count, accepting it was open on the Crown's circumstantial evidence. Late in the trial, the Crown sought a jury direction on intoxication in relation to the murder charge. The defence firmly opposed that application.
The question before Yehia J was whether the evidence of the accused's drinking on the night of 5 June 1982 had been sufficiently raised to warrant an intoxication direction, notwithstanding that intoxication formed no part of the defence case.
Legal Issues
- Whether a trial judge is obliged to give the jury an intoxication direction where the issue has not been raised by the defence but the Crown contends it is sufficiently raised on the evidence
- Whether the evidence of the accused's alcohol consumption on the night in question was sufficient to require such a direction
- Whether giving an intoxication direction would distract the jury from the real issues in the case
Decision
The legal duty to direct on intoxication:
Yehia J accepted the general principle that a defence counsel's disavowal of intoxication as an issue does not, by itself, relieve a trial judge of the duty to direct the jury on it, provided the issue has been sufficiently raised in the evidence (at [36]). The judge drew on Stokes & Difford, Hayes, and Beattie to confirm this baseline obligation.
Whether the real issues in the case warranted a direction:
The trial judge emphasised that the essential role of a trial judge is to identify the real issues for the jury, and that directing on non-issues risks distracting the jury: Tully v The Queen (at [37]). In this trial, the real issues were clear: whether Roxlyn was deceased, and whether the accused caused her death during the relevant window (at [38]-[39]). On the defence case, the accused could not have caused her death because he was away from the home throughout that period.
Sufficiency of the evidence of intoxication:
The trial judge found that intoxication had not been sufficiently raised on the evidence (at [40]). Although some witnesses described the accused as appearing affected by alcohol at around 11.00 pm, the accused himself did not describe being intoxicated, he was able to drive, and Norman Pearson observed him to be his "normal self" at the Imperial Hotel (at [41]). Crucially, the observations of Ruth Ovens and Eddie Ovens were made at approximately 11.00 pm, and on the Crown's own case the relevant deliberate act or acts were more likely to have occurred earlier in the evening (at [42]).
Outcome:
Finding the evidence of intoxication insufficient to require a direction, and mindful of the need to keep the jury focused on the real issues, Yehia J refused the Crown's application (at [43]).
Orders Made
- The Crown's application to give the jury an intoxication direction was refused.
Key Takeaways
- A trial judge's duty to give an intoxication direction arises only where intoxication has been sufficiently raised on the evidence; a Crown application for such a direction does not automatically succeed simply because some evidence of drinking exists (at [36], [40]).
- The disavowal of intoxication by defence counsel does not, as a matter of law, relieve the trial judge of the obligation to direct on it, but the sufficiency of the evidence remains the critical threshold question (at [36]).
- Under the principle in Tully v The Queen, trial judges carry an obligation to identify the real issues for the jury and to avoid directing on matters that would distract from those issues (at [37]).
- Where the timing of alleged intoxication does not align with the timing of the alleged offence as put by the Crown's own case, that factual mismatch is a relevant consideration in assessing whether intoxication has been sufficiently raised (at [42]).
- In refusing the direction, the Supreme Court drew a distinction between Beattie, where intoxication was a central issue, and the present case, where neither party treated the accused's drinking as a matter of significant concern (at [31]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) ss 18 (1)(a) and 65
Cases
- 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