Borell v R

• Jurisdiction: New Zealand
• Judge: Cooper J
• Judgment Date: 15 June 2020
• Neutral Citation: [2020] NZCA 235
• Court: Court of Appeal
• Docket Number: CA199/2019
• Date: 15 June 2020

Between

Franchesca Kororia Borell

Appellant

and

The Queen

Respondent

[2020] NZCA 235

Court:

Cooper, Wylie and Muir JJ

CA199/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Procedure — appeal against a conviction for murder — whether a statement the appellant made to the police following her arrest was improperly obtained in consequence of a breach of her right to a lawyer and her right to silence — whether prospective jurors should have been questioned and/or challenged for the purpose of ensuring that jury members were not racially prejudiced — Evidence Act 2006 — Juries Act 1980 — New Zealand Bill of Rights Act 1990

Counsel:

E Huda for Appellant

J E L Carruthers for Respondent

The appeal against conviction is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Cooper J)

1 The appellant, Franchesca Kororia Borell, stood trial on a charge of murder before Mander J and a jury in the High Court at Christchurch. After the jury found her guilty she was convicted and sentenced to life imprisonment with a direction that she serve a minimum term of 10 years. 1

2 She now appeals against her conviction raising two arguments neither of which was raised before or at the trial. She claims, first, that the trial proceeded on the basis

of a statement that she made to the police following her arrest which should not have been before the jury. It is said it was improperly obtained in consequence of a breach of her right to a lawyer and her right to silence under s 23 of the New Zealand Bill of Rights Act 1990. Its admission into evidence created a real risk that the outcome of the trial was affected, leading to a miscarriage of justice in terms of s 232(4)(a) of the Criminal Procedure Act 2011

3 Secondly, she submits that her trial was procedurally unfair in terms of s 25(a) of the New Zealand Bill of Rights Act. This is because prospective jurors were not questioned and/or challenged for cause under s 25 of the Juries Act 1981 for the purpose of ensuring that jury members were not racially prejudiced against Māori and were therefore indifferent between the Crown and the defendant, a person of the Māori race. The second ground is based on s 232(4)(b) of the Criminal Procedure Act, on the basis that the failure to question or challenge jurors meant there was an error resulting in an unfair trial.

4 If successful, either ground of appeal would establish there was a miscarriage of justice with the consequence that Ms Borell's conviction for murder must be set aside and a retrial ordered.

Background

5 The offending occurred on Christmas Day 2016. The deceased was Ms Borell's partner, Mr Singh. She was 22 years of age, he was 26. They had been in a relationship for some months and were living together at a house in Cashmere which he was minding for a friend. On the morning of Christmas Day Ms Borell and Mr Singh argued. She left the house and went for a drive.

6 When she returned, Mr Singh was no longer present. She telephoned him and they arranged to meet in a car park near at the top of the Port Hills. There was further conflict when, while they were at the car park, a friend of Mr Singh's arrived, and it was suggested that he return with them to the house in Cashmere. The friend left, and both Mr Singh and Ms Borell returned to the house.

7 After they arrived back, they continued to argue. Ms Borell stated that she was going to leave Mr Singh but he prevented her from leaving by blocking her path. Ms Borell was very angry. She went into the kitchen and obtained a large kitchen knife.

8 The Crown case was that she used the knife by plunging it into the most vulnerable part of Mr Singh's body, his chest. The knife penetrated his heart and caused significant internal bleeding.

9 After the fatal wound occurred Ms Borell rang emergency services and a recording of the call showed that she was in a very distressed state. In the course of this call she said there had been “an argument, domestic violence” and she had thrown an object at her partner. After describing his state and referring to his “really heavy breathing” she said she thought he was going to die. Asked what she had thrown at him she said “I threw a knife at him. I threw a knife at him”.

10 The police arrived at the scene at about 2.30 pm. Mr Singh appeared to be unconscious. Detective Constable Sell said that Ms Borell was kneeling over Mr Singh and screaming for help. She was in a “hysterical” state. After the ambulance officers arrived another police officer, Constable Collins, knelt beside Ms Borell and asked her what happened, referring to the knife that he had found. She told him she and Mr Singh had argued and she had thrown the knife at him. Ms Borell had to be moved away to enable the ambulance officers to assist Mr Singh. Detective Constable Sell and Constable Collins took her into the adjacent kitchen.

11 Mr Singh was able to be resuscitated and underwent emergency surgery. However, he died two days later.

Police interview

12 The initial discussion with Constable Collins adjacent to Mr Singh as he lay on the ground understandably took place without any reference to Ms Borell's right to silence or to legal advice. There was a further discussion in the kitchen in which she was again asked what happened. Detective Constable Sell said that Ms Borell told them Mr Singh had prevented her from leaving, they had argued and the argument had become physical. Ms Borell repeated that she had thrown the knife at Mr Singh. Constable Collins described that she had given a demonstration of how she had thrown the knife, which he said was like throwing a frisbee.

13 She recounted events during her 111 call and said that Mr Singh had made gurgling noises and then stopped breathing. Ms Borell said she wanted to accompany Mr Singh to the hospital, but the police said she could not do so. They remained at the house awaiting the imminent arrival of police officers from the Criminal Investigation Branch. However, at this point Detective Constable Sell decided to advise Ms Borell of her rights to remain silent and to speak to a lawyer. The Detective Constable explained that she knew it was likely Ms Borell would be questioned and thought she should make sure she knew what her rights were. She read the rights from a form that she kept in the back of her notebook. Ms Borell acknowledged she had done so.

14 The Criminal Investigation officers arrived at 3.30 pm and at 3.47 pm took over responsibility for dealing with Ms Borell. Detective Healey placed her under arrest and again advised her of her rights. He asked her if she understood her rights and she said that she did. Accompanied by Detective Constable Sell he walked her to a waiting police car. She was searched by Detective Constable Sell before getting into the car. Detective Healey described her as calm and cooperative but upset. He smelt alcohol on her breath and she confirmed she had been drinking.

15 They arrived at Christchurch Central police station at 3.57 pm. She was then subject to a formal interview commencing at 4.38 pm. There were some preliminary exchanges during which Ms Borell gave Detective Healey her name and address, her cell-phone number and said where she worked. She also said that she was studying criminal law at university. The interview then proceeded: 2

CH In terms of how we've got to where we are now um I arrived at … Cashmere Road today at um 3.30pm. When I've arrived at Cashmere Road I um walked up the driveway and I saw you speaking to a Constable in uniform.

FB (Nods head)

CH Um Constable SELL and she had been talking to you prior to my arrival. Um she came over and explained the circumstances to me as to as to what had happened and then I came over to you and introduced myself as Chris.

FB (Nods head)

CH I shook your hand and I started talking to you a ah um about a few a few bits and pieces. I explained the procedure um that was going to happen, namely that we were going to to leave the address and come to the Police Station. While we were there um you asked me who the people were out on the road.

FB (Nods head)

CH Um and they were the people with all the cameras and I said to you that they were the media um and rightly so you were a bit concerned about the media being there because you said it wasn't your house.

FB Mm.

CH Um we managed to get to the to the to the car and then we we left straight to Christchurch Central Police Station which probably took about five minutes, is that fair.

FB Mm (nods head).

CH On, in the back of the patrol car at ah I I advised you before we went to the car that you you are under arrest for assault um and I know that Constable SELL previously gave you some rights but I gave you those rights again in the back of the patrol car. For the record I told you that you have the right to remain silent. You do not have to make any statement. Anything you say will be recorded and may be given in evidence in court. You have the right to consult and instruct a lawyer without delay and in private before deciding whether to answer any questions and Police have a list of lawyers you may speak to for free. I asked you um after I had given you those rights, do you understand your rights which I ah noted in my notebook and you replied yep. Is that fair.

FB Yeah.

CH On the way to the Police Station you and I talked about ah Christmas morning um and you explained to me how you had ah paua fritters for breakfast.

FB Mm.

CH And you also said that you made some croissants. You said you'd had a lovely morning…

FB (Nods head)

CH And that you had um contacted your whanau in Gisborne and that ah your partner um Hardeep…

FB Mm.

CH Had contacted his family in India. Um it was about 5 o'clock in the morning in India um and you ah indicated that most or all of his family were living in India. Is that fair.

FB Yeah.

CH We've come to the Police Station. We've done a few...