Teen found guilty of murdering Maryborough man John Bourke has appealed his conviction

The Victorian Supreme Court this week heard there had been a "substantial miscarriage of justice" in the 2020 ruling which found the teenager murdered John Bourke on July 15, 2018.

Then 15-years-old, the accused and his co-accused left a party that evening to confront a man who had allegedly sexually assaulted a close friend. Instead, the pair mistakenly went to Mr Bourke's home.

The teen kicked in the front door of the man's home and began assaulting him when he came to the door on crutches. Mr Bourke had osteogenesis imperfecta, or 'brittle bone disease', which left him highly susceptible to fractures.

The older boy, then aged 17, punched the 45-year-old twice in the head and stomped on his leg between two and four times. The 15-year-old continued to attack Mr Bourke even after his older friend tried to stop him, stomping on the man's head twice.

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The teen's defence counsel Rishi Nathwani said the trial by jury was unfair, and the accused and co-accused should not have been tried together.

Mr Nathwani's arguments hinged on the inability of the jury to follow the judge's directions to ignore the co-accused's interview statement when deciding the teen's guilt. He argued the co-accused's interview downplayed his role and amplified the role of the accused, who in an interview the day after the attack said he could not remember much because he was intoxicated.

The co-accused was sentenced to three years in a youth justice centre after he pleaded guilty to recklessly causing serious injury and home invasion.

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Senior Crown Prosecutor Christopher Boyce disagreed that the jury was unable to follow directions given the cause of death and circumstances around the cause of death - the accused's head stomping - were understood.

"[The co-accused] says two things really, he says, 'look, I didn't stomp on his head and I attempted to withdraw', or 'I withdrew and I attempted to get [the accused] to stop'," he said.

The matter will return to court at a later date.

- ELLIE MITCHELL

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