R v Botrus (No 2)

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.

During the course of the examination of a witness called by the Crown, Mr Zaya Amanoael, the Crown sought leave under s 38(1)(c) of the Evidence Act 1995 (NSW) to cross-examine the witness. Counsel for the accused, Fredon Botrus, opposed the grant of leave.

Leave was granted for the following reasons.

The Crown application enlivened two provisions of the Evidence Act: ss 38 and 192.

Section 38 provides:

Section 192 provides:

Mr Amanoael gave evidence that he had spoken to a person at the rear door of the hairdresser salon, “Classico Hair Studio”, shortly before the stabbing of the deceased. The person to whom Mr Amanoael spoke to was wearing a motorbike helmet. However, the visor of the helmet was raised so that, according to Mr Amanoael’s evidence, he could see the person’s eyes and the skin under his eyes. Mr Amanoael believed that he saw that person hit the deceased at the salon chair he was working at was the same person he had spoken to at the door.

The s 38 application sprung out of the following evidence singular question and answer:

The Crown contended that Mr Amanoael had made a prior inconsistent statement. This was to be found, it was contended, in para 8 of his police statement of 11 January 2019 (“the police statement”), made on the day the stabbing of the deceased.

For completeness, I have extracted the whole of para 8, although the part of the paragraph upon which the Crown relied upon is italicised (“the italicised passage”):

The answer given in evidence in this trial, which attracted the s 38 application, and the italicised passage shall be collectively referred to as “the statements”.

The Crown submitted that the evidence given by Mr Amanoael was inconsistent with the police statement. The Crown placed no reliance upon s 38(1)(a).

Counsel for the accused, Mr S Pararajasingham submitted to the contrary, relying upon the absence of an inconsistency between the statements as well as the ambiguity contained within the italicised passage.

Inconsistency for the purpose of s 38(1)(c) is not to be determined by “splitting hairs” about the form of a statement but by examining whether it is inconsistent with a prior statement as a matter of common sense: Cotton v Commissioner for Road Transport and Tramways (1942) 43 SR (NSW) 66 at 71 (per Jordan J).

Given that Mr Amanoael otherwise made unequivocal statements in those parts of para 8 of his police statement other than the italicised passage, Mr Amanoael may be taken as using the words “I think”, in his statement “I think he had black eyes”, in an ordinary or common place manner. Thus, he should be understood as stating that he believed his statement regarding the colour of the eyes of the person standing at the rear door of the salon to be true but he was not sure.

Even if the statement was treated as one of opinion (and I do not consider it was), it may nonetheless qualify, in that alternative scenario, as a prior inconsistent statement if, as occurred in this case, it implied an assertion of fact that is contrary to the witness evidence.

In either case, the witness made, by the prior statement (vis-à-vis the italicised passage), an assertion of fact as to the colour of the eyes of the person wearing the motorbike helmet, albeit with some equivocation.

The answer given in evidence denies the prior statement of fact. It does not do so directly in the sense of stating the obverse, but by denying the fact of having observed the colour. The statement that “I didn’t pay much attention” does not communicate, as per the italicised passage, some equivocation as to the colour of the eyes, having stated he saw the person’s eyes, but a statement to the effect that he had not observed the colour of the eyes or had not paid sufficient attention to the eyes so as to express a view as to their colour.

It follows that para 8 of the police statement contains a prior inconsistent statement for the purposes of s 38(1)(c) of the Evidence Act. There were no factors raised or apparent under ss 38(6) or 192 which would warrant refusal of leave.