R v Botrus (No 4) - [2020] NSWSC 1449

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Botrus (No 4) [2020] NSWSC 1449
Hearing dates: 16 September 2020
Date of orders: 16 September 2020
Decision date: 20 October 2020
Jurisdiction: Common Law
Before: Walton J
Decision:
The Court refused, on 16 September 2020, to make the primary, alternative or further alternative direction sought by the accused.

Catchwords:
CRIMINAL LAW – circumstantial Crown case – primary, alternative and further alternative directions to the jury re authorship of the Wickr messages – indispensable intermediate fact – directions refused

Legislation Cited:
Crimes Act 1900 (NSW)

Cases Cited:
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
R v Merritt [1999] NSWCCA 29
Shepherd v The Queen (1990) 170 CLR 573
The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
Velevski v The Queen (2004) 76 ALJR 402; [2002] HCA 4

Texts Cited:
Stephen Odgers, Uniform Evidence Law (Thompson Reuters, 15 ed, 2020)

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.
The Crown case was that the accused had driven on a motorbike from his home at 83 Tallowood Crescent, Bossley Park to a hairdressing salon known as the Classico Hair Studio, whereupon he stabbed the deceased and returned by means of the same bike to his home address.
The Crown case was wholly circumstantial. Part of that circumstantial evidence was Wickr messages which were accessed from the accused’s phone that was seized from him on the afternoon of the murder. Detective Senior Constable Liam Spelling of the Homicide Squad gave evidence that he accessed the messages after being given the PIN to the phone by the accused. The accused tendered a recording of the DSC Spelling accessing the phone. The Crown tendered the Wickr messages without objection, which became Ex 22 in the proceedings.
The mobile phone was logged into an account “yocatchmee” on the Wickr application on the phone. It contained messages between the account yocatchmee and another account “judgedby12” on 9, 10 and 11 January 2019. The Crown relied upon a number of entries in the Wickr account from 11 January 2019 as part of its circumstantial case.
Counsel for the accused sought various directions in the summing-up of the Court as to the authorship of the Wickr messages sent from the yocatchmee account on 11 January…

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 4)

Details

AGLC: R v Botrus (No 4) [2020] NSWSC 1449
Case: [2020] NSWSC 1449
Decision Date: 20 October 2020

CaseChat Overview and Summary

In the case of R v Botrus (No 4), the defendant was charged with various offences related to the importation and possession of commercial quantities of a prohibited drug. The prosecution relied on a circumstantial case, including Wickr messages which were central to the case. The court had to decide whether the jury directions given by the trial judge were adequate and whether the Crown had established the necessary indispensable intermediate fact to prove the defendant's authorship of the messages. The appeal focused on the trial judge's directions to the jury regarding the authorship of the Wickr messages and whether the trial judge had erred in law by not directing the jury to consider the possibility that the defendant was not the author of the messages.

The court examined whether the trial judge's directions were sufficient in law and whether there was a failure to direct the jury on an indispensable intermediate fact. The court considered whether the trial judge should have directed the jury to consider the possibility that the defendant was not the author of the messages, as the Crown had not established this fact. The court held that the trial judge had not erred in law by not directing the jury on this point, as the Crown had established the necessary indispensable intermediate fact. The court further held that the trial judge's directions were sufficient in law, and the jury was properly directed on the issue of the authorship of the Wickr messages.

As a result, the appeal was dismissed. The court found that the trial judge's directions were adequate and that the Crown had established the indispensable intermediate fact of the defendant's authorship of the Wickr messages. The conviction was upheld, and the defendant's appeal was unsuccessful. The court's decision emphasised the importance of establishing the necessary facts to prove authorship in circumstantial cases and the adequacy of the jury directions in such cases.

Orders