R v Botrus (No 1) - [2020] NSWSC 1204

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Botrus (No 1) [2020] NSWSC 1204
Hearing dates: 14 August 2020
Date of orders: 27 August 2020
Decision date: 27 August 2020
Jurisdiction: Common Law - Criminal
Before: Walton J
Decision:
The notice of motion dated 7 August 2020 is dismissed.

Catchwords:
CRIMINAL LAW – evidence – admissibility – admissibility of statements made by the accused during police interview – application to exclude the entirety of the Electronically Recorded Interview of a Suspected Person – cautions – requirements of s 139(1)(c) – evidence improperly obtained pursuant to s 138(1)(a) of the Evidence Act – exclusion of improperly obtained evidence – discretionary factors – non-exhaustive matters in s 138(3) – desirability of admitting evidence outweighs undesirability of admitting evidence – application dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases Cited:
Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Kadir v The Queen; Grech v The Queen (2020) 94 ALJR 168; [2020] HCA 1
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
Lee v The Queen (2014) 308 ALR 252; [2014] HCA 20
Parker v Comptroller-General of Customs (2009) 252 ALR 614; [2009] HCA 7
R v Burton [2013] NSWCCA 335
R v Camilleri [2007] NSWCCA 36
R v Dalley (2002) 132 A Crim R 169; [2002] NSWCCA 284
R v Deng [2001] NSWCCA 153
R v Lane (2011) 221 A Crim R 309; [2011] NSWCCA 157
R v Nguyen (2013) 117 SASR 432; [2013] SASCFC 91
Strickland v Commonwealth Director of Public Prosecutions (2018) 361 ALR 23; [2018] HCA 53
Zheng v R (1995) 83 A Crim R 572

Category: Principal judgment
Parties: Regina (Crown)
Fredon Botrus (Defendant)
Representation:
Counsel:
M Clark (Crown)
S Pararajasingham (Defendant)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Sayad Sahinovic Legal (Defendant)

File Number(s): 2019/11627

Judgment

HIS HONOUR: By amended indictment dated 14 August 2020 Fredon Botrus (“the accused”), was charged that, on 11 January 2019, at Sydney in the State of New South Wales, he did murder Alfredo Isho (“the deceased”) contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The accused pleaded not guilty to the offence. The matter is listed for trial to commence on Thursday 27 August 2020.
After some earlier preliminary hearings, the Court listed hearing for pre-trial argument of a notice of motion brought by the accused dated 7 August 2020, supported by an affidavit of Alen Sahinovic. The order sought was that the record of interview conducted with the accused on 11 January 2019 be ruled inadmissible. In substance, the accused made an application to exclude the entirety of the Electronically Recorded Interview of a Suspected Person (“ERISP”) conducted on 11 January 2019 between police and the accused at Fairfield Police Station.
The gravamen of the application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Botrus (No 1)

Details

AGLC: R v Botrus (No 1) [2020] NSWSC 1204
Case: [2020] NSWSC 1204
Decision Date: 27 August 2020

CaseChat Overview and Summary

In the matter of R v Botrus (No 1), the appellant faced criminal charges in the Supreme Court of Victoria. The dispute centred around the admissibility of statements made by the accused during a police interview. The respondent applied to exclude the entirety of the electronically recorded interview, asserting that the evidence was improperly obtained and should be excluded under s 138 of the Evidence Act. The application hinged on whether the evidence met the criteria set out in s 139(1)(c) and whether it should be excluded under s 138(1)(a).

The court was tasked with determining whether the statements made by the accused were obtained in a manner that contravened the principles of natural justice and fairness. The central issue was whether the evidence should be excluded due to improper conduct by the police. Additionally, the court had to consider the discretionary factors outlined in s 138(3) of the Evidence Act, which includes the desirability of admitting evidence as a non-exhaustive matter. The court needed to weigh the public interest in admitting the evidence against the undesirability of the means by which it was obtained.

The court concluded that the desirability of admitting the evidence outweighed its undesirability. Despite the procedural issues, the court found that the evidence was crucial to the case and its exclusion would result in a miscarriage of justice. The court dismissed the application to exclude the statements, allowing the evidence to be presented at trial. The ruling emphasised the importance of balancing the need for fair procedure with the overarching objective of justice.

Orders