A teenage boy found guilty of murdering a Central Victorian man with a disability in his home during July 2018 is fighting the nine-year minimum jail sentence handed to him by the Supreme Court of Victoria last year.
The March 2020 trial heard the then 15-year-old boy and a 17-year-old co-accused had gone to John Bourke's house while at a party nearby.
The trial was told the 15-year-old, who was sentenced a year ago this month, wanted to confront the man who he believed had sexually assaulted a close friend, but because he was drunk he went to the wrong house.
The jury heard the pair stomped and punched Mr Bourke, causing his death.
The younger teenage boy was sentenced to a maximum of 14 years in jail, nine before he is eligible for parole, although he has already served nearly three years.
Co-accused interview 'prejudicial'
On Monday, the younger boy's lawyer Rishi Nathwani told the Court of Appeal that the evidence used by the jury to find the boy guilty of murder was from his co-accused's "self-serving" interview.
He said it was prejudicial to the jury forming a separate opinion of his client's own actions.
The boy's counsel is seeking leave to appeal the sentence handed down to him.
Mr Nathwani told the court that within notes handed by the jury to Justice Elizabeth Hollingworth during the jury's deliberations, they had asked, 'What if we concluded that [the younger boy] was being pulled away by [the older boy]?'.
Mr Nathwani said that claim was unfairly prejudicial because it was only recorded in the older boy's interview with police.
"It did not come from his [the guilty boy's] mouth."
Court of Appeal justice Philip Priest agreed that the older boy tried to downplay his role while amplifying the younger boys' role during his police interview.
At the March 2020 trial, lawyers for the older teen told the jury there was reasonable doubt and asked the jury not to convict him of either murder or manslaughter, saying he only punched Mr Bourke twice and stomped on his legs until he heard Mr Bourke yell: "Stop, stop, stop."
Mr Nathwani told the court on Monday that the older boy's police interview "wholly undermined" his own client's recollection, which was given in his own police interview the day after Mr Bourke's murder.
"She [Justice Hollingworth] kept repeating the directions or making it clear that [the older boy's] interview wasn't admissible against the applicant, but it still didn't appear from the original point of writing that no direction could cure it," he said.
Directions given by trial judge
Appeal Justice Priest told Mr Nathwani that the jury was told by sitting trial judge, Justice Hollingworth, not to speculate on how much involvement the older boy played in the fatal bashing of John Bourke.
The prosecution on Monday reiterated that Justice Hollingworth had given several directions to the jury to deal with the two accused as separate trials.
The 17-year-old boy was found not guilty of murder and the jury could not reach a verdict on an alternative charge of manslaughter so it was discharged.
In December 2020, he was sentenced to three years in a youth justice centre — already having served more than two years — after he pleaded guilty to recklessly causing serious injury and home invasion.
Victorian law has prevented the ABC from identifying the two teens or witnesses.
A victim of mistaken identity
Known as Little John in the Central Victorian town where he and the two boys lived, Mr Bourke was found dead and bloodied by a neighbour inside his home on the morning of July 15, 2018.
Mr Bourke lived several houses down from where the two boys were at a party that Saturday night.
When they went to his house in the early hours of that Sunday morning, Mr Bourke confronted the pair at the front of his house while leaning on one of his crutches.
Several witnesses told the jury the next morning the 17-year-old was overheard saying to the younger teen, "We got the wrong house".
Mr Bourke had osteogenesis imperfecta (known as a brittle bone syndrome) and possible kidney disease from being an insulin-dependent diabetic.
He had suffered more than 400 bone breaks during his life and spent four of his school years in hospital.
The trial in March 2020 heard how the attack on Mr Bourke had caused his skull to cave in and restricted his breathing, killing him. The appeal is adjourned to an unknown date.
