R v Bowie (No 5)

1. [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. [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. [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. [4]

   The Defence firmly opposed the giving of such a direction.

The Crown Case

1. [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.

2. [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.

3. [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:

4. [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.

5. [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.

6. [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.

7. [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.

8. [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:

9. [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.

10. [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.

11. [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.

12. [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.

13. [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”.

14. [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.

15. [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”.

16. [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”.

17. [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

1. [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.

2. [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]:

3. [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.

4. [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.

5. [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.

6. [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.

7. [28]

   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:

8. [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.

9. [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”.

10. [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.

11. [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.

12. [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]:

13. [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?

1. [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.

2. [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.

3. [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.

4. [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.

5. [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.

6. [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.

7. [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.

8. [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.

9. [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.