R v Bowie (No 1) [2022] NSWSC 1502 (4 November 2022)
R v Bowie (No 1) [2022] NSWSC 1502 (4 November 2022)
Intro:
This is a murder case where John Bowie, the accused, on many occasions started saying the following:
“Pigs don’t leave any evidence”.
“The police are giving me a hard time about my wife, but the pigs do a good job and don’t leave anything behind”.
“There is nothing left when pigs get it, he had seen pigs devour bones and flesh”.
“If you ever want to get rid of anybody feed them to the wild pigs because they don’t leave anything not even the bones”.
He said that if he was going to do something to Roxlyn he would have fed her to the pigs as there would have been nothing left to find”.
The following statements were treated by Sergeant Lauren Atwood as admissions of Mr. Bowie.
Facts:
Roxlyn Bowie (“Roxlyn”) disappeared on 5 June 1982. At the time, Roxlyn lived at 93 Euroka Street, Walgett, with her husband, John Bowie (“the accused”), and their two children, a daughter aged six years old and a son who was nearly two years old. She has not been seen or heard from since.
On 5 October 2019, the accused was arrested and charged with the murder of Roxlyn. The accused pleaded not guilty to the one count of murder on the indictment, an offence contrary to s 18 of the Crimes Act 1900 (NSW) (“Crimes Act”). The trial was listed to commence on 26 September 2022.
The Crown case is wholly circumstantial. It is alleged that the accused killed Roxlyn sometime between about 7.00pm and about 11.00pm, on 5 June 1982. Although the Crown does not have to establish to any requisite standard the manner in which the accused disposed of Roxlyn’s body, the primary case theory is that the accused disposed of her body by feeding her to pigs.
On the first day of the trial, the Crown made an application, pursuant to s 79(1) of the Evidence Act 1995 (NSW) (“Evidence Act”), to adduce portions of a report prepared by Sergeant Lauren Atwood (“Sergeant Atwood”), dated 20 May 2021, as expert evidence.
Over the years that followed Roxlyn’s disappearance, the accused is alleged to have made statements to various persons about pigs “not leaving evidence”. Those representations are relied upon by the Crown as admissions that the accused disposed of Roxlyn’s body. They constitute part of the circumstantial case to establish that Roxlyn is dead and that the accused caused her death by way of a deliberate act or acts.
Issues:
1.) Whether or not the opinion is based upon specialised knowledge
2.) Whether or not the reliability of the opinion is relevant to the determination of admissibility of expert evidence.
Ruling:
That reasoning is wholly misconceived for reasons.
The accused focused on the lack of evidence to establish that there is a field of expertise on the topic. Furthermore, Sergeant Atwood’s conclusions were drawn from a single experiment. The opinions are not based upon a field of study, but rather are the results of one experiment. Accordingly, the opinion is not wholly or substantially based on specialised knowledge.
Pursuant to s 76 of the Evidence Act, evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed (“the opinion rule”).
There is no dispute that Sergeant Atwood has extensive training and experience as a scientific researcher. However, upon drilling down, and in an effort to identify with some clarity the specialised knowledge upon which the opinion is said to be wholly or substantially based, it was conceded by the Crown, during oral argument, that there is no “prior” area of specialised knowledge.
A failure to demonstrate that an opinion expressed by a witness is founded on the witness’s specialised knowledge based on their training, study or experience is a matter that goes to the admissibility of the evidence, not its weight.
“Reference to specialised knowledge in s 79(1) requires evidence that something is known – that is, already known. Does not refer to things that could be known, to things that seem plausible, to something that might be exposed during a trial, or what a jury might accept. Un-reliable knowledge is oxymoronic. Specialised knowledge that is not demonstrably reliable is not knowledge. Similarly, things that are uncertain, speculative or not well supported do not constitute knowledge.”
As Dawson J stated in Murphy v The Queen (1989) 107 CLR 94; [1989] HCA 28 at [216]:
“The mission of such [expert evidence] carries with it the implication that the jury are not equipped to decide the relevant issue without the aid of expert opinion and thus, if it is wrongly admitted, it is likely to divert them from their proper task which is to decide the matter for themselves using their own common sense. And even though most juries are not prone to pay undue deference to expert opinion, there is at least a danger that the manner of its presentation may, if it is wrongly admitted, give it an authority which is not warranted.”
Conclusions
Returning then to the evidence the subject of this application. As indicated above, I am not persuaded that evidence that the pigs used in the experiment will feed on, and are capable of digesting flesh and bones of porcine and kangaroo carcasses, is relevant to any issue in this trial. It is, therefore, inadmissible, pursuant to s 55 of the Evidence Act.
Alternatively, the Crown has failed to identify with some precision the area of specialised knowledge upon which the opinion is wholly are substantially based. Indeed, the Crown has conceded that there is no “prior” area of specialised knowledge; the witness is a “pioneer” in the field. I am not satisfied that an area of specialised knowledge has been identified. I am therefore not persuaded that Sergeant Atwood’s opinion is wholly or substantially based on an area of specialised knowledge.
The evidence from Sergeant Atwood that pigs will feed on human teeth effectively to the point that identifiable remains may be difficult to recover due to size, is relevant to a fact in issue, namely, the disposal of Roxlyn’s body without leaving a trace. However, that evidence goes to the capacity of pigs to digest human teeth, as distinct from human flesh and bone. Although relevant, its probative value is slight.
The evidence is, however, inadmissible under s 79(1) of the Evidence Act. The Crown has failed to establish an area of specialised knowledge. There is no peer reviewed literature from which any conclusion can be drawn as to the comparability of the findings from this experiment (conducted with porcine and kangaroo carcasses) and the issue of whether pigs can feed on human flesh and bones effectively to the point that identifiable remains may be difficult to recover. Put another way, I am not satisfied that the opinion expressed is wholly or substantially based on an area of specialised knowledge. Accordingly, the evidence is not admissible.
The evidence of Sergeant Lauren Atwood is inadmissible
