R v Bowie

The Application

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.
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]: "The second ground of appeal taken by Stokes is that the judge erred in not directing the jury that, in considering whether the Crown had established the specific intention required, the Crown had to remove any reasonable doubt as to the existence of that intention on the part of Stokes which may have been raised by the evidence of his intoxication. The evidence relating to intoxication on the part of both appellants was as follows. One of the prisoner witnesses called by the Crown gave evidence that, prior to the assault upon Partlic, both appellants were staggering. He formed the view that Difford was intoxicated, and he repeated a comment by Stokes that Difford was "too pissed" to hold the punching bag. Another prisoner gave evidence of hearing a similar comment by one or other of the appellants. One prison officer said that, prior to the assault, the appellants appeared by their manner to have been drunk, although they were not staggering. Another prisoner officer said that, after the assault, he noticed from the distinctive smell that both appellants had been drinking "gaol brew". A Senior Assistant Superintendent of the Gaol Complex said that gaol brew was a prohibited alcoholic beverage made from fermented fruits, sugar, vegemite and water, and that it was fairly frequently available in the gaol at the relevant time. He agreed that the mixture when fermented was fairly potent, and that it could change the behaviour of prisoners who drank it, making them more aggressive (particularly in a verbal way). In his unsworn statement, Stokes told the jury that he was "a pretty quiet bloke" who minded his own business. On the day in question, he said, he had had a gaol brew and had become "pretty drunk". He said that he did not know how long he had been drinking when he entered the fine defaulters' yard. When asserting that he had not intended to hurt Partlic, Stokes suggested that he was "happy" that day, perhaps "a bit boisterous, jump around a bit, you know, but who doesn't when they've had a few drinks". He then claimed that gaol brew is about 100 times stronger than any alcoholic drink which can be purchased outside the gaol, and he recounted an anecdote heard from a prison officer that a toothbrush had disintegrated when left in a bucket of brew. Stokes also said: "I know what I did and what I didn't do, and it's up to you people to find … whether I am guilty or not guilty." (Difford also referred in his unsworn statement to the two of them drinking, and to them being too drunk to carry the punching bag before the assault took place.) Although the Crown bears the legal onus of eliminating the issue of intoxication, Stokes bore an evidentiary onus to point to or to produce evidence (or material in an unsworn statement) from which it could be inferred that there was at least a reasonable possibility that intoxication had affected his intention to inflict grievous bodily harm upon Partlic: cf Youssef (1990) 50 A Crim R 1at 2-4. Minds may perhaps differ as to whether, despite the evidence of intoxication, the actions of Stokes which I have described could reasonably be found to have been done otherwise than with an intention to inflict such harm. The likelihood that a jury would, by reason of that evidence of intoxication, have had a reasonable doubt upon this issue is a matter more properly considered at a later stage. If there is any doubt as to whether intoxication has been sufficiently raised in the evidence, it is the duty of the judge to leave the issue to the jury: Viro (1978) 141 CLR 88 at 118. It was not argued by the Crown that the issue had not been sufficiently raised. In the present case, in my view, the issue should have been left to the jury. … It is reasonably obvious why counsel then appearing for the appellants wished to avoid the usual direction concerning the relationship of intoxication to the formation of a specific intention: as to which, see Coleman (1990) 19 NSWLR 467 at 486-488; 47 A Crim R 306. Whatever benefit that direction could possibly have given Stokes upon the issue of his specific intention, it would no doubt also have considerably weakened his denials that he had kicked Partlic and speared him headfirst onto the concrete floor if the jury had been warned that, in many cases, intoxication does no more than remove inhibitions or self-restraints and induce a sense of self-confidence and (sometimes) of aggressiveness: see Coleman at 486; 323. The judge did, quite properly, suggest that intoxication may be an explanation for what had happened, but that suggestion would not have caused the damage to Stokes's denials which the full warning would have caused. The disavowal by counsel then appearing for the appellants that intoxication was being raised as an issue, though no doubt made for tactical reasons which were bona fide thought to be in the best interests of their clients, did not relieve the judge of the duty to give directions in relation to that issue in this case: Pemble (1971) 124 CLR 107 at 117-118, 130. Counsel cannot concede a matter of law to the disadvantage of the accused: Pemble at 133; Galambos (1980) 2 A Crim R 388 at 395, 396-397. The judge must comply with his duty to put to the jury any issue sufficiently raised by the evidence even if that issue gives an air of unreality to the case sought to be made by the accused in relation to some other issue: Lawson and Forsythe [1986] VR 515 at 548; (1986) 18 A Crim R 360 at 394-395; Marshall (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Priestley, Sharpe JJ, 17 July 1990) at pp 1-2. An error of law has therefore been established by Stokes, in that the judge erred in acceding to the request of his own counsel, made for tactical reasons to benefit the appellant's own case, not to put intoxication to the jury as being relevant to an issue which the Crown had to establish. The irony of such a conclusion - that the judge erred by doing precisely what the appellant had asked him to do - is even greater because, had the direction been given which Stokes now says should have been given, it would have been likely to weaken his case."
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.
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.
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.
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.
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: "Any intoxication that you find was affecting the accused at the relevant time can be taken into account by you with regard to whether the Crown has proven an intention to cause really serious physical injury. Intoxication can be taken into account both for and against the Crown case."
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.
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".
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.
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.
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]: "Having regard to the basis on which the appellant's Counsel at trial had fought the case, no more complicated or elaborate direction from the trial judge on the issue of intoxication was necessary to ensure that the jury did not "omit consideration of important matters … and wrongly conclude that guilt has been demonstrated beyond reasonable doubt."
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?

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.
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.
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.
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.
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.
Furthermore, although there is some evidence that the accused was intoxicated, I am not persuaded that intoxication has been sufficiently raised on the evidence.
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.
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.
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. 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

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Judgment (6 paragraphs)

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Cases Cited (7)