The appellant, Franchesca Kororia Borell, stood trial on a charge of murder before Mander J and a jury in the High Court at Christchurch. After the jury found her guilty she was convicted and sentenced to life imprisonment with a direction that she serve a minimum term of 10 years.[1]
[1]R v Borell [2018] NZHC 3281.
She now appeals against her conviction raising two arguments neither of which was raised before or at the trial. She claims, first, that the trial proceeded on the basis of a statement that she made to the police following her arrest which should not have been before the jury. It is said it was improperly obtained in consequence of a breach of her right to a lawyer and her right to silence under s 23 of the New Zealand Bill of Rights Act 1990. Its admission into evidence created a real risk that the outcome of the trial was affected, leading to a miscarriage of justice in terms of s 232(4)(a) of the Criminal Procedure Act 2011.
Secondly, she submits that her trial was procedurally unfair in terms of s 25(a) of the New Zealand Bill of Rights Act. This is because prospective jurors were not questioned and/or challenged for cause under s 25 of the Juries Act 1981 for the purpose of ensuring that jury members were not racially prejudiced against Māori and were therefore indifferent between the Crown and the defendant, a person of the Māori race. The second ground is based on s 232(4)(b) of the Criminal Procedure Act, on the basis that the failure to question or challenge jurors meant there was an error resulting in an unfair trial.
If successful, either ground of appeal would establish there was a miscarriage of justice with the consequence that Ms Borell’s conviction for murder must be set aside and a retrial ordered.

Background

The offending occurred on Christmas Day 2016. The deceased was Ms Borell’s partner, Mr Singh. She was 22 years of age, he was 26. They had been in a relationship for some months and were living together at a house in Cashmere which he was minding for a friend. On the morning of Christmas Day Ms Borell and Mr Singh argued. She left the house and went for a drive.
When she returned, Mr Singh was no longer present. She telephoned him and they arranged to meet in a car park near at the top of the Port Hills. There was further conflict when, while they were at the car park, a friend…

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 Borell v The Queen

Details

AGLC: Borell v The Queen [2020] NZCA 235
Case: [2020] NZCA 235
Decision Date: 15 June 2020 at 11 am

CaseChat Overview and Summary

In this case, Franchesca Borell appealed against her conviction for murder, claiming that the trial was unfair due to an improperly obtained statement and the failure to challenge for cause prospective jurors on racial prejudice. The Court of Appeal dismissed the appeal. The court found that the statement was properly obtained as Borell was effectively informed of her rights on multiple occasions. Furthermore, the court held that the failure to challenge for cause did not result in a miscarriage of justice, as there was no evidence to suggest that the jury was racially prejudiced against Borell. The court concluded that Borell's trial counsel did not commit any error by not challenging for cause, and therefore, the appeal could not succeed based on this ground. The appeal against conviction was dismissed, and Borell's conviction for murder was upheld.

Orders