R v Botrus (No 1) [2020] NSWSC 1204

R v Botrus (No 1) [2020] NSWSC 1204

Although the ERISP was obtained improperly due to a failure to administer the full caution required by s 139(1)(c), the desirability of admitting the evidence outweighs the undesirability in this murder case. The accused had been given the caution multiple times prior, understood his rights, and the omission was inadvertent. The probative value of the ERISP, particularly regarding the alleged lies relevant to consciousness of guilt, is significant. Accordingly, the application to exclude the ERISP is dismissed.

Jurisdiction
Australia
Judgment Date
27 August 2020
Procedural Posture
Criminal / Interlocutory/pre Trial Motion
Outcome
Notice of motion dismissed
Legal Topics
['evidence' 'admissibility' 'statements During Police Interview' 'exclusion of Improperly Obtained Evidence' 'cautions' 'evidence Act Ss 138, 139']
['criminal Law'] ['evidence' 'admissibility' 'statements During Police Interview' 'exclusion of Improperly Obtained Evidence' 'cautions' 'evidence Act Ss 138, 139']

Case Brief

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Procedural Posture

Criminal / Interlocutory/pre Trial Motion

Legal Issues

  1. 1 ['Whether the Electronically Recorded Interview of a Suspected Person (ERISP) should be excluded due to failure to administer a proper caution under s 139(1)(c) of the Evidence Act 1995 (NSW)' 'Whether improperly obtained evidence should be excluded under s 138(1) of the Evidence Act 1995 (NSW)']

Ratio Decidendi

Although the ERISP was obtained improperly due to a failure to administer the full caution required by s 139(1)(c), the desirability of admitting the evidence outweighs the undesirability in this murder case. The accused had been given the caution multiple times prior, understood his rights, and the omission was inadvertent. The probative value of the ERISP, particularly regarding the alleged lies relevant to consciousness of guilt, is significant. Accordingly, the application to exclude the ERISP is dismissed.

Court Disposition

Notice of motion dismissed

Orders

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