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Supreme Court 27 August 2020

R v Botrus (No 1)

[2020] NSWSC 1204

Homicide
CRIMINAL LAW EVIDENCE ADMISSIBILITY CAUTIONS REQUIREMENTS OF S 139(1)(C) DISCRETIONARY FACTORS

Citation: R v Botrus (No 1) [2020] NSWSC 1204
Court: Supreme Court of New South Wales
Date: 27 August 2020
Judge(s): Walton J

Background

An accused was charged with the murder of a man allegedly stabbed at a Bossley Park barbershop on 11 January 2019. On the afternoon of the alleged offence, police attended the accused's home address, where they interviewed him in the backyard. That interview included three separate cautions. The accused was then transported to Fairfield Police Station, where a custody sergeant read him his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) and confirmed his verbal acknowledgment.

Later that evening, detectives conducted a formal Electronically Recorded Interview of a Suspected Person (ERISP) at the police station. Critically, the detectives did not administer a further caution at the commencement of the ERISP itself, though they confirmed with the accused that the custody sergeant had explained his rights and asked whether he wished to exercise any of them.

Prior to trial, the accused applied to have the ERISP excluded in its entirety. The accused was 18 years old at the time, had been an adult for less than six months, and was facing a serious criminal charge for the first time.

  • Whether the failure to administer a caution immediately before the ERISP engaged the deeming provision in s 139(1)(c) of the Evidence Act 1995 (NSW), rendering the ERISP contents improperly obtained under s 138(1)(a).
  • If the evidence was improperly obtained, whether the Court should exercise its discretion under s 138 to exclude the ERISP, having regard to whether the desirability of admitting the evidence outweighs the undesirability.
  • What weight, if any, should be given to the accused's age, inexperience, and the Crown's reliance on the ERISP as circumstantial evidence of consciousness of guilt.

Decision

Walton J accepted that the failure to caution the accused at the commencement of the ERISP engaged s 139(1)(c) of the Evidence Act, which deems evidence improperly obtained where a caution is not given before questioning of a suspected person begins. Accordingly, the threshold question under s 138 was established: the onus shifted to the Crown to demonstrate that the desirability of admitting the ERISP outweighed the undesirability of doing so.

Turning to the s 138(3) discretionary factors, his Honour identified three components of the ERISP on which the Crown relied as evidence of consciousness of guilt, including denials of knowing the deceased. In a circumstantial case where identity was in issue, this evidence carried significant probative value. The impropriety, while real, was assessed as relatively limited given the cautions already administered, including three times during the backyard interview and again by the custody sergeant approximately one hour before the ERISP commenced.

His Honour acknowledged the accused's youth and inexperience as relevant discretionary considerations. However, Walton J observed that the accused answered questions willingly throughout the day, consistently chose not to exercise his right to silence, and demonstrated a clear understanding of the rights read to him. The steadiness and consistency of his responses were not consistent with the panic or fear suggested by defence counsel.

Weighing all of the s 138(3) factors and other relevant matters, his Honour was satisfied that the desirability of admitting the ERISP outweighed the undesirability, and dismissed the application. His Honour also indicated a willingness to consider any application to redact a reference to bail within one component of the ERISP, should a formal application be made.

Orders Made

  • The notice of motion dated 7 August 2020 is dismissed.

Key Takeaways

  • Under s 139(1)(c) of the Evidence Act 1995 (NSW), a failure to caution a suspected person before the commencement of a recorded interview deems the resulting evidence improperly obtained, triggering the s 138 framework regardless of earlier cautions given on the same day.
  • Improperly obtained evidence is not automatically excluded: s 138 requires the court to weigh the desirability of admitting the evidence against the undesirability, and the Crown bears the onus of establishing that balance favours admission.
  • Where multiple cautions were administered in the hours preceding a formal interview, the degree of impropriety attending a missing pre-ERISP caution may be treated as relatively limited in the s 138(3) balancing exercise.
  • In a circumstantial case where identity is in issue, statements in a recorded interview capable of being used as lies demonstrating consciousness of guilt can carry sufficient probative weight to tip the s 138 balance in favour of admission.
  • An accused's age and inexperience are relevant discretionary considerations under s 138(3), but the court here found those factors did not override the evidence of the accused's evident confidence, consistency, and demonstrated understanding of his rights throughout questioning.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Evidence Act 1995 (NSW), ss 138, 139
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 9

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