Franchesca Kororia Borell v The Queen - [2020] NZSC 101

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 52/2020
[2020] NZSC 101

BETWEEN	FRANCHESCA KORORIA BORELL Applicant
AND	THE QUEEN Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	E Huda for Applicant B F Fenton for Respondent
Judgment:	25 September 2020

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Ms Borell, the applicant, was found guilty by a jury of murdering her partner, Mr Singh. She applies for leave to appeal against the Court of Appeal decision dismissing her appeal against conviction.

Background

On Christmas Day 2016, Ms Borell and Mr Singh got into a series of arguments. The arguments culminated in Ms Borell telling Mr Singh that she was going to leave him. Mr Singh responded by blocking her path to prevent her from leaving. Ms Borell then went to the kitchen, retrieved a large knife, and inflicted a deep wound in Mr Singh’s chest with it. He was admitted to hospital but died of the wound two days later.
Ms Borell accepted she had committed culpable homicide. The issue at trial was whether the jury’s verdict should be one of manslaughter or murder. Ms Borell’s account was that she had thrown the knife at Mr Singh and inflicted the wound that way. The Crown case was that she deliberately plunged the knife into Mr Singh’s chest. The jury convicted Ms Borell of murder.

Court of Appeal judgment

Ms Borell appealed her conviction to the Court of Appeal on two grounds.[1] We need only refer to the single ground still pursued in this Court. That is that the trial was unfair because there were no procedures in place to protect Ms Borell from the prejudicial effects of any racial bias the jury may have harboured. Ms Borell is Māori by descent and appearance, and, it was argued, there is widespread prejudice against Māori defendants in the criminal justice system. The essence of this ground was that allowing the trial to proceed despite the unaddressed risk of prejudice to Ms Borell breached her rights to freedom from discrimination and to a fair hearing before an independent and impartial court.[2] Ms Borell relied particularly on the decision of the Canadian Supreme Court in R v Williams,[3] in which that Court considered the potential for juror bias against indigenous Canadians in circumstances where the appellant has sought to examine jurors with a view to challenging for cause should evidence of discriminatory attitudes become apparent. Applying an approach adopted by the Court in an earlier decision,[4] the issue for the Court in Williams was whether “the [accepted] evidence of widespread bias against aboriginal people in the community raises a realistic potential of partiality”.[5] The Court held that it did and that the appellant should have been permitted to challenge jurors for cause.[6]
[1]Borell v R [2020] NZCA 235 (Cooper, Wylie and Muir JJ) [CA judgment].
[2]See New Zealand Bill of Rights Act 1990, ss 19 and 25(a).
[3]

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.

Keep reading for free

Create a free CaseChat account to read Franchesca Kororia Borell v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NZSC 101
Decision Date: 25 September 2020

CaseChat Overview and Summary

The applicant, Ms. Franchesca Kororia Borell, sought leave to appeal against her conviction of murder by the Court of Appeal. Ms. Borell was convicted of murdering her partner, Mr. Singh, after a knife attack on Christmas Day in 2016. Ms. Borell appealed her conviction on the basis that the trial was unfair due to the prejudicial effects of racial bias against Māori in the jury. Ms. Borell argued that her rights to freedom from discrimination and to a fair hearing before an independent and impartial court were breached. The Court of Appeal dismissed the appeal and the Supreme Court was asked to grant leave to appeal.

The legal issue was whether the Court of Appeal erred in dismissing Ms. Borell's appeal on the ground that the trial was unfair because there were no procedures in place to protect her from the prejudicial effects of racial bias among the jury. Ms. Borell argued that the Court of Appeal erred in distinguishing the Canadian case of R v Williams, which found that the appellant should have been permitted to challenge jurors for cause based on potential racial prejudice. Ms. Borell submitted that a challenge for cause at trial would have been futile in this country due to the Court of Appeal's decision in R v Sanders. Ms. Borell also argued that the Court of Appeal failed to appreciate the "invasive and elusive" nature of racial prejudice.

The Supreme Court found that the appeal did not arise squarely in this proposed appeal as there was no evidence of racist attitudes in relation to the case or in the community from which the jury was drawn. There was also no evidence about the ethnic make-up of the jury. The absence of evidence about these matters would render any appeal an abstract exercise substantially uncoupled from the context of the case. The Supreme Court also found that the matter of potentially biased jurors was not raised at trial, either generally or in respect of a particular juror or jurors. The application for leave to appeal was dismissed.

The Supreme Court dismissed Ms. Borell's application for leave to appeal against her conviction of murder. The Court found that there was no basis upon which it may be said that a substantial miscarriage of justice may have occurred in this case. The Court also found that the appeal did not arise squarely in this proposed appeal due to the absence of evidence about the prejudicial effects of racial bias among the jury. The Court held that the matter of potentially biased jurors was not raised at trial, either generally or in respect of a particular juror or jurors.

Orders