R v Bowie

Competence under s 13 of the Evidence Act

1. Section 13 of the Evidence Act provides that a person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability), the person does not have the capacity to understand a question about the fact, or the person does not have the capacity to give an answer that can be understood to a question about the fact, and that capacity cannot be overcome.
2. There is no medical, psychological or psychiatric evidence to suggest that the witness has a mental, intellectual or physical disability that renders her incapable of understanding a question about a fact, or incapable of providing an answer that can be understood in response to a question about a fact.
3. The accused relies upon the evidence given by the witness, both in her evidence-in-chief before the jury and in evidence given on the voir dire, in support of the contention that the witness' memory is so flawed that she is unable to give rational answers to questions asked of her. In particular, the contention that she is unable to give rational answers to questions relating to the description and/or identification of the subject rings.
4. I have reviewed the evidence of the witness both before the jury and on the voir dire. Clearly, there were times when she was unable to recall detail. The witness is in her eighties, and her description of the subject rings relies upon observations she made between 1971 and 1974.
5. However, neither the witness' difficulties with memory in respect of some of the detail, nor any inconsistencies between her evidence and the contents of her statement, are such as to render her not competent to give evidence.
6. I am not persuaded, therefore, that the witness is not competent to give evidence.

Application to refresh memory per s 32 of the Evidence Act

1. Section 32 of the Evidence Act provides that a witness must not, in the course of giving evidence, use a document to try to revive his/her memory about a fact or opinion unless the Court grants leave. The Crown sought leave to have the witness refresh her memory from paragraphs 6 and 21 of her statement dated 3 April 2019. The Crown makes this application relying on s 32(2)(b)(ii).
2. The accused objects to leave being granted on two bases: 1. The statement was not written or made by the witness when the events recorded in it were fresh in her memory; and 2. The Crown has not established that at the time of making the statement, the witness found it to be accurate.
3. During evidence-in-chief, the witness was unable to recall the description of Roxlyn's wedding and engagement rings. In paragraph 6 of her statement, however, she states that Roxlyn' s engagement ring had: "three diamonds in it. The middle diamond was set higher than the ones either side of it. She had a plain gold wedding band. Her wedding band wasn't very wide."
4. The witness was able to give a description of the dress ring during her evidence- in-chief before the jury. She gave evidence that the dress ring contained an initial "R", and had what she believed to be "little diamonds". When asked about the colour of the ring, she responded: "[s]ilver, I think". True it is she did not say, as recorded in her statement: "I don't think they were diamonds but they look like diamonds". She also did not say, as recorded in her statement, that the ring was "antique looking". However, she did give a description of the dress ring.
5. The witness met Roxlyn and John Bowie at a barbecue not long after she moved to Kallangur in 1971 or 1972. She became good friends with Roxlyn, who would often visit her at her home where they would spend hours together at a time.
6. It was during this time that the witness saw Roxlyn's rings and had a conversation with her about the dress ring. She recalled that Roxlyn told her that the ring was a gift from her parents. The witness said: "I think it was a birthday present".
7. The last time the witness saw Roxlyn was sometime in 1974. There is, therefore, a period of some 45 years between the time the witness last saw Roxlyn's rings, and the time she gave a description of the rings to police and was asked whether she recognised the dress ring from a single photograph.
8. Clearly, the statement (dated 3 April 2019) is not a document that was written or made by the witness when the events recorded in it were fresh in her memory. However, the witness did sign the statement as accurately setting out the evidence that she would be prepared, if necessary, to give in court as a witness. She also stated that the document was true to the best of her knowledge and belief. I am satisfied that the statement the Crown proposes to take the witness to passages of in order to refresh her memory, is a copy of a document that the witness found to be accurate at the time of its making.
9. Put another way, I am content that s 32(2)(b)(ii) of the Evidence Act is satisfied. I grant leave to the witness to refresh her memory about the description of the wedding and engagement rings from paragraph 6 of her statement.
10. I am not persuaded that the witness should be granted leave to refresh her memory from paragraph 21 of her statement. She did give a description of the dress ring in her evidence-in-chief. The witness did not indicate that she could not remember the description of that ring.

Paragraph 22 of the Statement and evidence on the voir dire

1. I turn now to consider the admissibility of the contents of paragraph 22 of the statement, and the admissibility of any "in-court identification" of the dress ring.
2. The Crown submitted that the evidence is recognition, rather than identification, evidence. This is not a case where the witness is being asked to identify an object with which she has no prior familiarity. Instead, the witness met Roxlyn and the accused sometime in 1971 or 1972 and became close friends with Roxlyn in the period between about 1972 and 1974. Roxlyn visited her approximately once a week, and they spent hours together on each visit. In these circumstances, the witness had ample opportunity to observe Roxlyn's jewellery.
3. I am not persuaded that much turns on the categorisation of the evidence as either recognition or identification evidence. The witness was provided with a single photograph (depicting a single ring) sometime in 2019, and was asked whether she could comment on it. She recognised it as a piece of jewellery she had last seen some 45 years previously.
4. During the voir dire, the witness was provided with the photograph (now Item 3 in Exhibit A on the voir dire) that was thought to be the photograph shown to her by police. She confirmed during the voir dire evidence that she had been shown that photograph and had recognised the ring as belonging to Roxlyn. Immediately after that evidence, the Crown showed the witness the dress ring (Exhibit C43) and asked her whether she had seen that ring before. The witness looked at it for no more than two or three seconds, before giving evidence that she had previously seen the ring on "Roxlyn's finger".
5. I pause to note that it has become evident that the witness was shown a different photograph by police which is now Exhibit C37 in the trial. Nothing turns on the fact that she was shown the wrong photograph during her voir dire evidence. It remains that the witness was shown only one photograph depicting a single dress ring by police sometime in 2019.
6. That photograph depicted a dress ring that was discovered following excavations at 123 Euroka Street, Walgett, in 2019. As a result of numerous media releases, information was received by police and some of that information led to the excavation of land at 123 Euroka Street, Walgett. The excavation resulted in the dress ring being found. Located in the same area was a metal fragment with a scalpel wrapper (Exhibit C44) and two face masks (Exhibit C41).
7. Dr McCardie, Forensic Anthropologist and Archaeologist, examined the contents of deposits during the excavation on 29 April to 1 May 2019. In respect of the dress ring, the two facemasks, the metal fragment, and the scalpel foil wrapper, she opined that the items had been deliberately buried, not placed or dropped on the ground surface.
8. Evidence in the trial has already established that the accused and Roxlyn Bowie resided at 93 Euroka Street, Walgett at the relevant time.
9. Item 4 of Exhibit A on the voir dire is an expert certificate prepared by Karen Lindley on 16 April 2019. Ms Lindley is a Gemmologist. She examined the signet ring, and described it as a ladies initial "R" twisted wire ring with a 1.8 mm wide shank that is only 0.06 mm thick and that has been resized from L to T with both solder joins and detritus from the centre join clearly visible. Size L is a normal female ring finger size, and size T would be for an index or middle finger or a male finger. There is one small stone at the base of the "R", and a missing stone on the opposite side. The ring is said to be sterling silver and the piece has been rhodium plated.

Objection to the identification/recognition evidence of the signet ring portrayed in a single photograph and the in-court identification of the ring itself.

1. Mr Terracini SC, on behalf of the accused, raised a number of objections to the evidence of Ms Komene relating to the identification or recognition of the dress ring as belonging to Roxlyn Bowie. Mr Terracini SC submitted that the evidence is not relevant pursuant to s 55 of the Evidence Act, and even if relevant, is not admissible pursuant to s 138 of the Evidence Act. It was submitted that if admissible pursuant to s 138 of the Evidence Act, the probative value of the evidence is outweighed by the danger of unfair prejudice, and it should therefore be excluded pursuant to s 137.

Relevance (s 55)

1. The Crown case is a circumstantial case. The Crown contends that when considered as a whole, the circumstantial evidence establishes that Roxlyn Bowie is dead; the accused caused her death by a deliberate act or acts; and, at the time he caused her death by deliberate act or acts, he had an intention to kill her.
2. One of the circumstances relied upon by the Crown is the discovery of a number of items that had been buried at a property located at 123 Euroka Street, Walgett. A summary of the relevant evidence is set out above. The evidence of the witness recognising (or identifying) the dress ring as belonging to Roxlyn is said to be powerful evidence in the Crown circumstantial case. This is particularly so having regard to the proximity between where the accused lived at the relevant time, and the property where the dress ring and other items were buried.
3. The accused submitted that the evidence is not relevant. I understand the submission to be that the evidence is so lacking in probative value that it is not capable of rationally affecting (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings.
4. Section 55 of the Evidence Act provides: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to - (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence.
5. In submitting that the evidence is not relevant, the accused relied heavily on what was said by the High Court at [39] of the judgment in IMM v The Queen [2016] HCA 14; 257 CLR 300. That case was concerned with the meaning of "significant probative value" in the context of tendency evidence. However, I am not persuaded that the principles enunciated therein are limited to a consideration of s 97 of the Evidence Act.
6. It was noted that a trial judge's ability to assess the weight of the evidence in question when a ruling on its admissibility is made will usually be limited. The first question is a threshold one for all evidence - whether it is relevant. It is necessary to identify the purpose or purposes for which the evidence is tendered.
7. In addressing the questions of relevance and probative value, French CJ, Kiefel, Bell and Keane JJ said at [38] - [39]: "[38] By s 55, evidence is relevant if it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." There can be no doubt that the reference to the effect that the evidence "could" have on proof of a fact is a reference to the capability of the evidence to do so. The reference to its "rational" effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact. [39] The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words "if it were accepted", which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance."
8. Mr Terracini SC took me to the Macquarie Dictionary definition of the word "incredible" in support of the contention that the evidence of the witness is inherently lacking in credibility such as to make it "inherently incredible, fanciful or preposterous". He stated (at T917): "Incredible includes, (1) seeming too extraordinary to be possible, not credible, that cannot be believed and then goes on to words like credulous, incredulous, incredibility. It is plain, again using English words in their normal natural meaning, that if something is incredible it is not credible."
9. Mr Terracini also took me to the definition of "fanciful" per the Macquarie Dictionary: "Exhibiting fancy, suggested by fancy, unreal, whimsical".
10. None of those definitions can be ascribed to the evidence of this witness. Her evidence is not whimsical, unreal or too extraordinary to be possible. The extent to which it lacks reliability is a matter of weight, rather than relevance.
11. I find that the evidence that the witness recognised the dress ring depicted in the photograph shown to her by police as belonging to Roxlyn Bowie is relevant.
12. I am not persuaded that the evidence of any in court identification of the dress ring itself is relevant. The Crown proposed to show the dress ring located during excavations at 123 Euroka Street to the witness, immediately after showing her the photograph depicting the very same ring. That photograph was the one she was shown by police sometime in 2019. What is the relevance of showing her the actual dress ring in these circumstances? Arguably, all the witness would be doing is recognising an inanimate object that she has already recognised from a photograph. If relevant, I exclude evidence of "in court recognition" pursuant to s 137 of the Evidence Act for the reasons set out below.

Improperly obtained evidence (s 138)

1. The accused contends that the evidence of the witness relating to the recognition or identification of the dress ring from the photograph and/or from the physical ring itself in court, is "improperly" obtained evidence, and that the desirability of admitting the evidence does not outweigh the undesirability of admitting it.
2. The impropriety alleged is that there was a serious procedural irregularity brought about by the police failing to show the witness an array of photographs depicting different dress rings. That impropriety was exacerbated by the police failing to show the witness the actual dress ring together with other similar rings, before asking her whether she recognised the item.
3. I have not been provided with any material establishing internal protocols or standard procedures that should or must be followed by police in the circumstances. There is no evidence at all as to what the standard operating procedures are.
4. The onus of establishing impropriety under s 138(1) rests upon the party seeking the exclusion, which in this case is the accused. If the impropriety is established, the onus falls upon the party seeking the admission of the evidence to establish that the desirability of admitting the evidence outweighs the undesirability of admitting it: see Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612 ("Robinson") at [33] per Basten JA; and Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 at [28] per French CJ; R v Meyn, John Michael (No 1) [2012] NSWSC 1441 at [6]-[8].
5. In discussing the concept of impropriety in Robinson, Basten JA at [23] stated three propositions, the first two of which are: "It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as the 'minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement'. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respects; it must be 'quite inconsistent with' or 'clearly inconsistent' with those standards."
6. Later, at [36] his Honour stated: "In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct would not be sufficient to demonstrate impropriety."
7. Then his Honour continued at [37]: "Where no relevant pre-existing standard has been breached, it should be a rare case in which impropriety would lead to exclusion".
8. There is no definition of "impropriety" in the Evidence Act. Specific content to the notion of "impropriety" is provided in s 138(1) and s 139 of the Act. As Adams J observed in R v Hawat (No 3) [2019] NSWSC 1701 at [27]: "Additional examples of impropriety can include breach of internal guidelines by police. It can also include misstatements of fact in affidavits, entrapment, offering an inducement to a witness by telling them that they do not have to give evidence and others."
9. In this case, the accused relied upon what were referred to as "procedural imperfections in the way the police showed [the witness] one solitary photograph". The accused said that this "would come within the definition of being improper". Mr Terracini SC suggested that this was due to either "incompetence" or to a "conscious decision not to show her the ring because they did not want to risk the fact that the lady did not identify it".
10. True it is that showing a witness one photograph of one inanimate object and asking that witness whether they have any comment about it is less than ideal procedure to adopt and should not be encouraged. This is particularly so in circumstances where the witness was being asked whether she recognised a photograph of an inanimate object some 45 years after she made her observations of it. Such a procedure lends itself to the possibility of producing unreliable evidence. However, the question here is whether the procedure adopted by the investigating police establishes an "impropriety".
11. I am not persuaded that the conduct the subject of complaint amounts to an "impropriety" as comprehended by s 138(1) of the Evidence Act.

Does the probative value of the evidence outweigh the danger of unfair prejudice? (s 137)

1. Mr Terracini SC contended that the evidence of the witness falls into the category of "inherently incredible, fanciful or preposterous", such as to render its probative value slight.
2. He submitted that I would be cautious about applying the reasoning of the High Court in IMM v The Queen when determining the range of matters that I can take into account in assessing "probative value". The High Court was concerned with the concept of "probative value" in the context of s 97(1) of the Evidence Act. It was submitted on behalf of the accused that it does not follow that a trial judge, when considering the exclusion of evidence pursuant to s 137 of the Evidence Act, is prohibited from taking into account issues of credibility and reliability.
3. I reject that submission. It is contrary to the clear statement in the joint judgment of French CJ, Kiefel, Bell and Keane JJ at [54]: "[54] The view expressed in Dupas v The Queen, which reserved a particular role for the trial judge with respect to the reliability of evidence, did not have its foundations in textual considerations of the Evidence Act, but rather in a policy attributed to the common law. The Evidence Act contains no warrant for the application of tests of reliability or credibility in connection with ss 97(1)(b) and 137. The only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence, is provided by s 65(2)(c) and (d) and s 85. It is the evident policy of the Act that, generally speaking, questions as to the reliability or otherwise of evidence are matters for a jury, albeit that a jury would need to be warned by the trial judge about evidence which may be unreliable pursuant to s 165."
4. In determining the probative value of the evidence for the purposes of s 137, I am to take the evidence at its highest. I am then to consider whether the probative value is outweighed by the danger of unfair prejudice. When taken at its highest, the evidence that the witness recognised the ring depicted in the photograph shown to her by police in 2019 as belonging to Roxlyn Bowie, is probative of a fact in issue.
5. Any risk of unfair prejudice can be cured by strong directions as to the reasons why such evidence may be unreliable. Firstly, the witness was first asked whether she recognised the ring some 45 years after she had made her observations of Roxlyn's jewellery. Secondly, the witness was shown a single photograph depicting a single ring, as opposed to an array of photographs depicting an array of rings. Thirdly, no other witness has given evidence recognising or identifying the dress ring as belonging to Roxlyn Bowie. Given that I am satisfied that the risk of unfair prejudice can be cured by judicial direction, I would admit the evidence that the witness recognised the ring depicted in the photograph as belonging to Roxlyn Bowie.
6. Had I been satisfied that the in-court recognition or identification of the ring itself as belonging to Roxlyn Bowie was relevant, I would have excluded such evidence pursuant to s 137. The probative value is outweighed by the danger of unfair prejudice. The danger of unfair prejudice arises from a risk that the jury would place un-due weight on the in-court identification/recognition in circumstances where the witness has already given evidence that she recognised the item from the photograph that was shown to her by police in 2019.
7. Put another way, the risk of displacement brought about by the witness having seen the photograph depicting the dress ring immediately before she is asked to identify the actual item in the witness box, is significant. I am not persuaded that the unfair prejudice can be cured by judicial direction.

Orders

1. Accordingly, I make the following rulings: 1. I refuse the application to exclude further evidence of the witness Corale Komene pursuant to s 13 of the Evidence Act; 2. Pursuant to s 32 of the Evidence Act, I grant leave to the witness Corale Komene to refresh her memory in respect of paragraph 6 of her statement, dated 03/04/2019; 3. I refuse leave to have the witness Corale Komene refresh her memory from paragraph 21 of her statement, dated 03/04/2019; 4. I find that the evidence of the witness identification of the signet ring from a photograph shown to her in 2019 is admissible; and 5. I am not satisfied that the in-court identification of MFI 80 as belonging to Roxlyn is admissible. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2022