R v Botrus (No 4)

1. [1]

   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.

2. [2]

   The trial commenced on Thursday, 31 August 2020.

3. [3]

   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.

4. [4]

   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.

5. [5]

   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.

6. [6]

   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 2019. The directions were sought in the form of a primary direction, an alternative direction and a further alternative form of direction.

7. [7]

   The primary direction sought by the accused was to the effect that the jury must be satisfied beyond reasonable doubt that the accused was the author of the Wickr messages sent from the yocatchmee account on 11 January 2019.

8. [8]

   The alternative contention was that the Court should give a direction to the effect that, if the jury regarded the fact as an intermediate fact, they must be satisfied of that fact beyond reasonable doubt.

9. [9]

   In the further alternative, if the Court rejected the primary or alternative directions, then the accused sought a further alternative direction expressed in the following terms:

10. [10]

    As to the primary direction sought, counsel for the accused made the following submissions:

11. [11]

    As to the alternative direction, counsel for the accused submitted:

12. [12]

    As for the further alternative direction, counsel for the accused accepted that there was no authority for the direction proposed. Rather, he relied upon an extract from the learned author Stephen Odgers in the text Uniform Evidence Law (Thompson Reuters, 15 ed, 2020) in which it was suggested that Australian Courts should give a model direction of the kind sought by the accused whenever the prosecutor relied upon circumstantial evidence. The author’s arguments in favour of such an approach were as follows (at 1379):

13. [13]

    The Court refused, on 16 September 2020, to make the primary, alternative or further alternative direction sought by the accused. These are the reasons for decision.

LEGAL PRINCIPLES

1. [14]

   The starting point for the discussion of these issues is the judgment of the High Court in Shepherd v The Queen (1990) 170 CLR 573 (“Shepherd”).

2. [15]

   Mason CJ observed in Shepherd (at 575):

3. [16]

   He also observed, as to Chamberlain v The Queen (No 2) (1984) 153 CLR 521 (“Chamberlain”) at 536, as follows (at 576):

4. [17]

   Dawson J (with whom Toohey and Gaudron JJ agreed) identified the issues under consideration in the matter as follows (at 577 and 578):

5. [18]

   A well-known passage of the judgment of Dawson J appears at 579 of Shepherd. I shall extract a slightly larger extract from his Honour’s judgment than is often referred to, placing in italics those parts significant to the present case:

6. [19]

   His Honour then stated, after reference to a passage from Chamberlain, as follows (at 580 and 581):

7. [20]

   Dawson J returned to Chamberlain at 585. His Honour observed:

8. [21]

   After categorising the evidence in Shepherd, Dawson J held (at 586):

9. [22]

   Reference may also be made to the judgment of McHugh J in Shepherd (at 593) as follows:

10. [23]

    Further, I refer to a closing passage of the judgment of McHugh J where he states (at 594):

11. [24]

    The Crown relied upon the judgment of the New South Wales Court of Appeal in Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150 (“Davidson”). In that matter Spigelman CJ (who wrote additional observations) and James J agreed with the judgment of Simpson J (James J also agreed with the then Chief Justice). The then Chief Justice was particularly concerned with the reliance placed in Davidson upon R v Merritt [1999] NSWCCA 29 (“Merritt”). His discussion, in that respect, is instructive in the present matter.

12. [25]

    Spigelman CJ observed at [2] as follows:

13. [26]

    His Honour observed that members of the Court in Merritt had subsequently dismissed the case as one where there was a “paucity of evidence” (Davidson at [5], citing Merritt).

14. [27]

    After referring to passages from Dawson and McHugh JJ in Shepherd, the then Chief Justice stated (at [8]):

15. [28]

    His Honour also referred to Velevski v The Queen (2004) 76 ALJR 402; [2002] HCA 4 (“Velevski”). (This judgment was also relied upon by the Crown as to the further alternative direction sought). The Chief Justice stated at [9]-[11]:

16. [29]

    Then after referring to the circumstances relied upon by the appellant as indispensable intermediate fact in Davidson, his Honour observed (at [17]-[19]):

17. [30]

    In the light of this judgment of Shepherd, Simpson J stated as follows (at [70]-[75]):

The Primary Direction

1. [31]

   It is possible to classify the circumstantial case brought by the Crown against the accused into five broad categories.

2. [32]

   First, the circumstantial evidence demonstrated, it was submitted, that the assailant who was responsible for the stabbing of the deceased and who was captured on CCTV footage riding a motorbike and entering and exiting the hairdressing salon, was the accused. It was submitted that what was depicted was the accused’s motorbike, jumper and helmet that were used in the offence. The motorbike which was used in the commission of the offence was ridden regularly by the accused around Tallowood Crescent prior to 11 January 2019 and the assailant had a similar build, height and ethnicity to the accused. Reference was also made to the similarity of boots found in a cupboard in the garage at the accused’s home.

3. [33]

   Secondly, the deceased’s blood was found on the inside of the blue Henley branded hoodie which was seized from him when stopped in the car he was traveling with his father on 11 January 2019.

4. [34]

   Thirdly, the motorbike had been stripped in the garage and when located by police had two fans blowing upon it. Two persons were observed, it was submitted, taking the removed parts of the bike from 83 Tallowood Crescent. The accused’s blood was found on one of the forks of the bike. There was a wet towel located next to the bike, which, it was submitted, was used in attempt to wipe down the bike (somewhat unsuccessfully) in that the accused left behind the smear of blood.

5. [35]

   Fourthly, the accused’s phone seized by police when he was pulled over was logged into the account yocatchmee, on the Crown’s case, the accused’s account, on the application Wickr which contained messages sent to the account judgedby12. The Crown emphasised a number of entries from 11 January 2019 as well messages from judgedby12 that reference “Bona”, who was a contact in the accused’s phone.

6. [36]

   Fifthly, the Crown relied on two classes of lie: credibility lies and lies evidencing a consciousness of guilt.

7. [37]

   Whilst it is possible to categorise the Crown’s circumstantial case in this manner as a convenient means of considering the issues associated with the primary direction sought by the accused, namely whether the Wickr messages of 11 January 2019 (or more particularly their authorship) were “links in a chain” or an indispensable intermediate fact (as well as similar questions arising with respect to alternative directions), it is not necessary for the jury to reach any conclusion upon the evidence in one category before considering all the evidence together or proceeding to consider another category such that the evidence would be considered in compartments: Shepherd at 586; Velevski at [44].

8. [38]

   In my view, the suggested intermediate indispensable fact relied upon by the defence is, on a proper assessment of the Crown case, as exposed above, not an indispensable fact at all. Similarly to the case in Velevski, it may serve a forensic purpose of the accused to isolate one piece of evidence as critical to conclude the issue of guilt but the evidence in question is simply not an intermediate indispensable fact. The jury will consider the evidence as a whole.

9. [39]

   To apply the analysis of Simpson J in Davidson (at [74]), even if the evidence in question (the Wickr messages of 11 January 2019) were wholly removed from the Crown case, there would remain a case to go to the jury.

10. [40]

    The Wickr messages of 11 January 2019 are clearly important, but not indispensable. In Davidson, Simpson J considered a case where the Crown case would be weakened, even considerably, but her Honour nonetheless found that the fact was not indispensable. Here, I consider the Crown was correct to submit that it would still have a strong case to go to the jury, having regard to the above five other categories of evidence, even if the Wickr messages of 11 January 2019 (or the accused’s authorship of them) were removed. The Crown case is a classic circumstantial “strands in the cable” case.

11. [41]

    Further, this is a case where there are numerous separate facts (or for that matter categories of evidence as discussed above) of varying degrees of probative force. In those circumstances, the primary direction would, in my view, also be confusing. The jury needs to consider the evidence as a whole (see Shepherd at 593 and Davidson at [8]). The directions the Court will otherwise give as to the standard of proof and circumstantial evidence (which were without dispute (save as to the primary, alternative and further alternative directions sought) are appropriate and sufficient, including a direction that when the Crown has relied (wholly) on circumstantial evidence, an inference adverse to the accused can only be drawn when it is the only rational inference available.

The Alternative Direction

1. [42]

   This process of reasoning is also apposite to the alternative direction.

2. [43]

   The judgment of the High Court in The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 concerned, inter alia, whether a complainant’s evidence of an accused’s uncharged acts in relation to her may be admissible as tendency evidence in proof of sexual offences which the accused was alleged to have committed against that complainant and whether or not, the uncharged acts have about them some special factors of the kind mentioned in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14.

3. [44]

   As to jury directions in single complainant sexual offence cases, the High Court stated (at [86]) as follows:

4. [45]

   Whilst the Crown submissions did place some emphasis upon the particular Wickr messages, I do not consider that reliance was overall given prominence in the submissions and, in any event, I do not, having regard to my reasoning as to the primary direction and having regard to the entirety of the Crown submissions, consider that there is a significant possibility of the jury treating “the uncharged acts” as an indispensable link in the chain of reasoning to guilt.

The Further Alternative Direction

1. [46]

   No authority was proffered in support of this contention. It was premised upon the notion that a juror may by “inductive reasoning” consider, even if the Court found by deductive reasoning that an intermediate fact was not indispensable, a particular fact was indispensable to the jury without excluding any reasonable doubt of guilt.

2. [47]

   It would appear that the direction sought by the accused was intended to be a universal one for all cases where the Crown relied upon circumstantial evidence.

3. [48]

   There are a number of difficulties with that contention. First, there is, as I have noted, no authority in support of such a direction provided by counsel. In any event, the direction appears to be at odds with the analysis of the judgment of the then Chief Justice in Davidson where his Honour analysed a particular passage from Merrit (at [70]) and placed reliance, in that respect, upon Velevski (see Davidson at [9]-[11]). There is also a tension with the judgment of Dawson J in Shepherd at 579 as extracted (and emphasised) above.

4. [49]

   Secondly, I consider the circumstantial direction the Court will give (marked MFI 35 in the proceedings) is appropriate and sufficient. I consider that the jury would act in accordance with those directions and would consider the evidence as a whole.

5. [50]

   Thirdly, and in any event, such an assessment of the direction given to the jury must, in my view, depend upon the circumstances of the Crown’s circumstantial evidence in a particular trial. The strength of the circumstantial evidence of the Crown case, absent the Wickr evidence in question, would make the prospects of a jury relying on Wickr messages as an indispensable fact entirely remote.

6. [51]

   Lastly, I also have doubts that the jury should be cast in a role which, by its nature, may trespass into question properly reposing in the Court.