Director of Public Prosecutions v Gillespie (Ruling No 2)

[2012] VSC 553

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0114 of 2011

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY GILLESPIE

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2012
DATE OF RULING:	13 November 2012
CASE MAY BE CITED AS:	DPP v Gillespie (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2012] VSC 553

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CRIME – Accused charged on four counts – No case submission upheld on some counts – Whether Prasad direction appropriate on sentencing counts.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Rochford SC	Office of Public Prosecutions
For the Accused	Mr R Richter QC and Mr Z Zayler	Melasecca Kelly & Zayler

HIS HONOUR:

1. The accused man was charged on indictment with four counts in respect of an incident which occurred at the intersection of the South Gippsland Highway and Huon Park Road Cranbourne North at about 10 p.m. on 12 September 2009.  The first Count 1 was one of intentionally causing serious injury to Troy Broughton; the second count, which was an alternative, was of recklessly causing serious injury to Broughton; the third count was of criminal damage to Broughton’s vehicle; and the fourth was of affray. 

1. The prosecution case has closed.  Mr Richter of Queen’s Counsel, who appears with Mr Zayler, has made a submission that there is no case to answer on Counts 1 and 2.  Mr Rochford of Senior Counsel, in the course of those submissions, conceded that there is no case to answer in respect of those two counts.  I agree with that concession.  It was made for good reason.  And I shall, as I have foreshadowed, direct entry of verdicts of not guilty on both those two counts.

1. I say that Mr Rochford’s concession is correct for the following brief reasons.  It is common ground that Troy Broughton suffered two displaced fractures of his jaw, which obviously constituted a serious injury, during or arising out of the incident to which I have just referred.  It is also conceded by the defence that at some stage, either during or after that incident Mr Gillespie, the accused man struck Broughton to the head.  But one issue which has remained in dispute is whether it was Mr Gillespie who struck the blow or blows which fractured Broughton’s jaw.  There is also an issue of self‑defence in relation to the first two counts.

1. The main prosecution witness was Michael Burgess.  On his description of the events, it was only Mr Gillespie who struck Broughton and in doing so he forced him to the ground.  If Burgess’s evidence stood alone, then it would be sufficient to sustain a case to go to the jury on Counts 1 and 2.

1. However, there are nine other eye‑witnesses who gave quite a different account of what happened near Broughton’s vehicle.  Each of them saw more than one person involved in the assault near the Commodore, and it is clear from the evidence of at least three of them, Millon De Kauwe, Ryan Golby and Alyce Golby, that the person who was then being assaulted must have been Troy Broughton.  It could not have been Scott Shaw, because at that time they saw Scott Shaw north of the intersection of Huon Park Road and the South Gippsland Highway.

1. In those circumstances, the jury could not be satisfied beyond reasonable doubt that only one person, that is Mr Gillespie, struck Broughton to the face in the course of the incident near the Commodore.  In his evidence, Burgess did not describe the blows, which were struck by Gillespie, as having been delivered with such force which must have caused him to have a fractured jaw.

1. Thus, I agree with Mr Richter’s submission that it would only be a matter of speculation, and not permissible inference, for the jury to conclude that it was Gillespie’s blows which broke the jaw of Broughton.  In those circumstances, there is no case to answer on Counts 1 and 2.

1. Mr Richter has sought a “Prasad” direction from me to the jury in relation to the remaining counts.  On Count 3 he did so on the basis that the evidence on that count is so confused and contradictory it could not sustain a conviction on Count 3.  On Count 4 he has sought a Prasad direction on the basis that the jury should not be satisfied beyond reasonable doubt that the participation of Mr Gillespie in the incident by the Commodore was unlawful, that is, it is he not acting in self‑defence.

1. A Prasad direction of course derives its genesis from the judgment of King CJ in Prasad.[1]  In that case His Honour, identified the long‑standing principle that it is open to a jury at any stage after the close of the Crown case to return a verdict of not guilty.  His Honour stated that in each case a trial judge has a discretion to inform the jury of that right after the close of the Crown case. 

   [1](1979) 23 SASR 161 at 163.

1. In a subsequent decision of Pahuja[2] his Honour stated that, if such a direction is to be given, it must be put simply and shortly.  His Honour stated, using his words, that there should only be a “passing glance” at the law and a “brief reference” to the feature of the evidence which has led the judge to give that direction.

   [2](1987) 30 A Crim R 118 at 145.

1. Generally, for those reasons, trial judges are cautious in reaching the conclusion that a case is appropriate to give a Prasad direction.

1. In this case, I have reached the conclusion that a Prasad direction should not be given because of the difficulties involved with Count 4.  I have reached that conclusion for two reasons.  First, while the evidence elicited in the cross‑examination of Burgess does raise self‑defence as an issue for the jury on Count 4, the evidence in relation to that matter is not so convincing or straightforward as to make the case an appropriate one for a Prasad direction.  It is true that Burgess in cross‑examination said that he considered Gillespie was acting in self‑defence of himself or of Burgess, but Burgess at the same time in re‑examination was not able to explain why he thought that Mr Gillespie was acting in self‑defence at that time.

1. Indeed, his description of the assault by Mr Gillespie on Broughton does not at all support the proposition that, at that stage, Mr Gillespie was acting in any way in self‑defence.  Rather, on Mr Burgess’s description, Broughton was then in full flight, Gillespie intercepted him and without any hint of any threat to himself, twice struck Broughton.

1. Furthermore, all the other nine witnesses to the incident describe an incident in which two or more mature males were attacking a single male who was doing nothing which suggested that they needed to act at that stage in self‑defence.  To the contrary, it would seem on their description that the single male was outnumbered.  Some of them had him placed either prone in the Commodore or prone on the ground.  For those reasons it would seem to me to be inappropriate to give a Prasad direction on Count 4.

1. If Count 3 stood alone, it might be appropriate for a Prasad direction, because of the confused state of the evidence, but I would not be inclined to give a Prasad direction on that count alone, firstly, because the facts of it are inter‑related with the facts of Count 4 and, secondly, because I do consider that the jury would derive some benefit from a short summary of the various witness’s evidence in relation to that aspect of the case.

1. For those reasons, whilst I shall direct an entry of not guilty on Counts 1 and 2 and discharge the jury without verdict on those counts, I shall not give a Prasad direction on Counts 3 and 4.