R v Bowie (No 2) [2022] NSWSC 1503

R v Bowie (No 2) [2022] NSWSC 1503

Although Ms Boyd's evidence concerning alleged violence towards Judith Said had significant probative value, its probative value did not outweigh the danger of unfair prejudice because Ms Said was deceased, had given no account of violence by the accused, and could not be questioned. Parts of Donna Kuhnell's evidence were admissible where they concerned alleged violence during a continuing domestic relationship, but material not shown to have occurred during the domestic relationship or otherwise outside the Tendency Notice was inadmissible. Senior Constable Yarrow's evidence concerned a threat made after the relationship ended, fell outside the Tendency Notice, and in any event its...

Jurisdiction
Australia
Judgment Date
04 November 2022
Procedural Posture
Criminal Proceeding Concerning an Alleged Murder / Pre Trial Ruling on Admissibility of Tendency Evidence
Outcome
Tendency evidence admitted in part and otherwise excluded.
Legal Topics
['tendency Evidence' 'domestic Violence Evidence' 'probative Value' 'unfair Prejudice' 'evidence Act 1995 (nsw) Ss 97 and 101']
['evidence' 'criminal Law'] ['tendency Evidence' 'domestic Violence Evidence' 'probative Value' 'unfair Prejudice' 'evidence Act 1995 (nsw) Ss 97 and 101']

Case Brief

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Procedural Posture

Criminal Proceeding Concerning an Alleged Murder / Pre Trial Ruling on Admissibility of Tendency Evidence

Legal Issues

  1. 1 ['Whether evidence of alleged violence by the accused towards Judith Said was admissible as tendency evidence.' "Whether parts of Donna Kuhnell's statement were admissible as tendency evidence of the accused being intentionally violent towards women with whom he was in a domestic relationship." 'Whether the statement of Senior Constable Yarrow concerning an alleged threat by the accused was admissible as tendency evidence.' 'Whether the probative value of the proposed prosecution tendency evidence outweighed the danger of unfair prejudice to the accused.']

Ratio Decidendi

Although Ms Boyd's evidence concerning alleged violence towards Judith Said had significant probative value, its probative value did not outweigh the danger of unfair prejudice because Ms Said was deceased, had given no account of violence by the accused, and could not be questioned. Parts of Donna Kuhnell's evidence were admissible where they concerned alleged violence during a continuing domestic relationship, but material not shown to have occurred during the domestic relationship or otherwise outside the Tendency Notice was inadmissible. Senior Constable Yarrow's evidence concerned a threat made after the relationship ended, fell outside the Tendency Notice, and in any event its...

Court Disposition

Tendency evidence admitted in part and otherwise excluded.

Orders

  • ['The evidence relating to the alleged violence against Judith Said is inadmissible as tendency evidence.' 'The evidence contained in the statement of Donna Kuhnell, dated 19 August 2022: paragraphs [7] and [8] are admissible as tendency evidence.' 'In respect of paragraphs [12] and [13] of the statement of Donna...