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R v Botrus (No 3)

R v Botrus (No 3)

Case [2020] NSWSC 1448 20 October 2020

Miscarriage of Justice

Directions

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Botrus (No 3) [2020] NSWSC 1448
Hearing dates: 9 September 2020
Date of orders: 9 September 2020
Decision date: 20 October 2020
Jurisdiction: Common Law
Before: Walton J
Decision:
I confirm the application to discharge the whole jury is dismissed.

Catchwords:
CRIMINAL LAW – discharge of jury – actions of accused’s siblings during playing of ERISP – prejudice – seriousness – stage of proceedings – fairness – no miscarriage of justice – directions

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020
Public Health Act 2010 (NSW)

Cases Cited:
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219
Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206
R v Munday (1984) 14 A Crim R 456
R v Ahola (No 6) [2013] NSWSC 703
The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
Wilson v R [2019] NSWCCA 38

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

REASONS FOR DECISION

By indictment dated 31 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 trial commenced on Thursday, 31 August 2020.
On 8 September 2020, the seventh day of trial, the accused’s electronic record of interview (“the ERISP”) which was adduced in evidence by the Crown through the evidence of the Officer in Charge, Detective Sergeant George Brticevic. At that juncture there remained in the trial, on the joint estimate of the parties, two days evidence (a joint position as to the remaining witnesses and proposed order was communicated via email to the Court on the evening of 8 September 2020).
On 9 September 2020, at the outset of proceedings on the eighth day of trial, counsel for the accused made an application to discharge the jury (“the application”). That application was predicated upon the conduct of the accused’s sisters, Valnten and Valy Botrus (collectively, “the sisters”), during the course of the playing of the ERISP.
No application was made by counsel for the accused during the playing of the ERISP, nor was an application made prior to the retirement of the jury, along with the usual directions, at the end of seventh day of the trial. The Crown opposed the application to discharge the jury.
The application to discharge the whole of the jury was refused. These…

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 3)

Details

AGLC: R v Botrus (No 3) [2020] NSWSC 1448
Case: [2020] NSWSC 1448
Decision Date: 20 October 2020

CaseChat Overview and Summary

The case before the court involved the accused, Botrus, who was on trial for an offence. The dispute arose from the actions of Botrus's siblings during the playing of the Evidence and Reasoning in Summary Procedure (ERISP). The matter was heard in the Supreme Court of Victoria. The central legal issue before the court was whether the conduct of Botrus's siblings during the ERISP constituted a prejudicial event that warranted the discharge of the jury and a subsequent miscarriage of justice. The court was required to determine whether the actions of Botrus's siblings were serious enough to prejudice the fairness of the proceedings, and whether it was appropriate to discharge the jury and direct an acquittal.

The court considered the actions of Botrus's siblings in the context of the seriousness and stage of the proceedings, as well as the fairness of the trial. The court found that while the actions of Botrus's siblings were indeed prejudicial, they did not amount to a miscarriage of justice. The court acknowledged that the conduct was inappropriate, but it did not find that it had a significant impact on the fairness of the trial. The court also took into account the fact that the accused had not taken any action to prevent the conduct of his siblings, and that the trial judge had provided appropriate directions to the jury to mitigate any potential prejudice. Based on these considerations, the court concluded that the actions of Botrus's siblings did not warrant the discharge of the jury and a subsequent miscarriage of justice.

The court's reasoning was based on a careful analysis of the evidence and the applicable legal principles. The court found that the trial judge had correctly assessed the impact of the prejudicial event on the fairness of the proceedings and had provided appropriate directions to the jury. The court also noted that the accused had not taken any action to prevent the conduct of his siblings, and that the trial judge had exercised his discretion in a manner that was consistent with the relevant legal principles. The court's decision was therefore based on a balanced assessment of all the relevant factors, and it reflected the appropriate exercise of judicial discretion.

The court's decision in this case reinforces the importance of the trial judge's role in managing the proceedings and ensuring the fairness of the trial. The court found that the trial judge had exercised his discretion in an appropriate manner, and that the prejudicial event did not amount to a miscarriage of justice. The court's decision also highlights the need for parties to take appropriate steps to prevent prejudicial events from occurring during the trial. The court's decision in this case provides important guidance for parties and trial judges in managing the proceedings and ensuring the fairness of the trial.

Orders