Director of Public Prosecutions v Kocoglu
[2012] VSC 184
•26 April 2012. Revised 9 May 2012
IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
CRIMINAL LAW DIVISION
No. S CR 2011 0110
BETWEEN:
| DIRECTOR OF PUBLIC PROSECUTIONS |
| - and - |
| HALIL KOCOGLU |
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JUDGE: | KYROU J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 17, 18, 19, 20, 23, 24, 26 April 2012 | |
DATE OF RULING: | 26 April 2012. Revised 9 May 2012 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Kocoglu | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 184 | |
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CRIMINAL LAW – Application for Prasad direction – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Brown | Solicitor for Public Prosecutions |
| For the Accused | Mr J. Desmond | C. Marshall & Associates |
HIS HONOUR:
The Accused is charged with the murder of Branko Juran at Dandenong on 17 February 2008.
The trial commenced on 17 April 2012. As at 24 April 2012, the jury heard evidence from seven witnesses.[1] On that day, the evidence of XYZ[2] concluded. He gave evidence that he saw the Accused stab the Deceased and later wipe the knife with a piece of yellow paper. He also gave evidence that the Accused told him, in relation to the Deceased, that the Accused was ‘going to go and finish him off’ and that the Accused slit his throat like you slit a lamb’s throat, and that he made a noise like a sheep.
[1]The evidence of one witness was in the form of a reading of his statement by agreement.
[2]The name of the witness has been anonymised because his identity is the subject of a suppression order made on 18 April 2012.
The Crown case has not concluded. It is expected to conclude on 27 April 2012.
At the end of the evidence on 24 April 2012, defence counsel applied for a Prasad direction.[3] The prosecutor did not oppose the giving of such a direction.
[3]R v Prasad (1979) 23 SASR 161 (‘Prasad’).
Both counsel agreed that, notwithstanding that the Crown case has not concluded, the Crown case had reached its highest on 24 April 2012. It is common ground that the Accused cannot be convicted of murder unless the jury accepts the evidence of XYZ that is referred to at [2] above. He is the only witness whose evidence, if believed, links the Accused to the death of the Deceased. There are no other eyewitness accounts and no fingerprint or DNA evidence that implicates the Accused. The Crown has not suggested that the Accused had any motive to kill the Deceased.
Defence counsel has conceded that, on 21 February 2008, which was the day that the body of the Deceased was discovered and this discovery featured in the media, the Accused sent to XYZ the following text message:
What the hell!! Is going on. Why are you avoiding me and avoiding my fucking money. I’ll tell you why because you don’t need me anymore since I have helped you kill a Serb that may be the reason. Also, I want my cash back in cash! ASAP thank you. One difference between you and me, I haven’t got anything to lose my dear friend.
The Crown has expressly refrained from using the text message as an alternative basis of conviction based on complicity. In the Crown opening, however, the prosecutor informed the jury that if it finds that the Accused stabbed the Deceased and, as a result of the text message, the jury has a reasonable doubt whether XYZ was involved in the murder of the Deceased, that would not necessarily mean that the Accused could not be convicted of murder.
Defence counsel put to XYZ the defence case, namely that, while the Accused gave to XYZ a kitchen knife for the purpose of scaring a man that XYZ said was in his car, the Accused was not present at the crime scene and had no involvement in the crime. XYZ denied the Accused’s version of events. He also denied that he had murdered the Deceased alone or in the company of another and that his evidence that implicated the Accused was a concoction.
It is fair to say that, following extensive and effective cross-examination of XYZ, it would be open to the jury to conclude that he was not a witness of truth and to thereby reject all his evidence that implicated the Accused.
Before XYZ gave evidence, I gave to the jury a brief ‘criminally concerned witness’ warning in a form that had been agreed with the parties. To date, I have not given any directions to the jury about admissions and the drawing of inferences. While I mentioned to the jury the elements of the offence of murder in my preliminary directions to it, I have not given the jury any explanation about those elements.
In R v Smart,[4] Lasry J gave a succinct explanation of a Prasad direction and the circumstances in which it was appropriate to give it. His Honour said:[5]
[4][2008] VSC 94 (Ruling No. 5, 1 April 2008) (‘Smart’).
[5]Smart [2008] VSC 94 (Ruling No. 5, 1 April 2008) [3]-[5].
In the course of the judgment in [Prasad] King CJ said the following:
It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings … [6]
[6]Prasad (1979) 23 SASR 161, 163.
In the later case of R v Pahuja,[7] Justice Cox noted that such a direction should be put to the jury ‘simply and shortly’. His Honour observed that it was not the occasion ‘for any more than a passing glance at the law and a brief reference to whatever feature of the evidence it is that has led the trial judge to give the direction’.[8] Usually, his Honour noted, that would be some serious weakness in the Crown case that has emerged during its presentation.
In that same case it was observed that such a procedure should only be used sparingly and the Court considered that it should be used only in circumstances where the trial judge was of the view that the evidence was not sufficiently cogent to justify a conviction.
[7](1987) 49 SASR 191 (‘Pahuja’).
[8]Pahuja (1987) 49 SASR 191, 218.
Had it not been for the text message, I would have seriously entertained the giving of a Prasad direction. The jury has heard and observed XYZ and has probably formed a view about which parts, if any, of his evidence to accept as soon as he concluded his evidence.
The text message, however, renders a Prasad direction inappropriate. This is because it would be necessary for me to give the jury reasonably detailed directions about, among other matters, admissions, the difference between evidence relevant to credit and evidence relevant to facts in issue, the drawing of inferences and how the jury is to deal with any finding that there was a reasonable possibility that XYZ was involved in the death of the Deceased. In the absence of such directions, the jury would not have a proper understanding of the legal parameters within which to consider whether to return a verdict of ‘not guilty’ at this stage of the trial.
In other words, I do not believe that I could sensibly give to the jury a short and simple direction that makes only a passing reference to the law and a brief reference to the issue of XYZ’s credit.
Accordingly, the application is refused.
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