R v Adrian PRESLAND - [2009] NSWDC 71

CITATION: R v Adrian PRESLAND [2009] NSWDC 71

HEARING DATE(S): 16/03/09, 17/03/09

JUDGMENT DATE:
18 March 2009

JURISDICTION: Criminal

JUDGMENT OF: Norrish QC DCJ

DECISION: Application for a verdict by direction declined.

CATCHWORDS: Criminal Law - verdict by direction

CASES CITED: R v R (1998) 18 NSWLR 74
Doney v The Queen (1990) 171 CLR 27
R v Rivkin [2005] NSWCCA 7
Lavender v The Queen (2005) 222 CLR 67
R v Tak Tak (1996) 14 NSWLR 226
R v JMR (1991) 57 ACR 39
R v Haas (1986) 22 ACR 299
R v Crooks and Hudson (1944) 44 SR (NSW) 398

PARTIES: Regina
Adrian Presland

FILE NUMBER(S): 2008/0001007

COUNSEL: Mr Barrett - Crown
Mr P Gray SC - Offender
with Mr Messer

SOLICITORS: NSW DPP
Alpass & Associates

JUDGMENT

On no case to answer; see transcript p 1230

1 HIS HONOUR: Adrian Presland, the accused, is on trial in respect of four counts of manslaughter particularised in the indictment presented at the commencement of this trial. These charges arise from the capsize of a yacht ‘Excalibur’ off the coast of New South Wales, near Seal Rocks on the mid north coast, on 16 September 2002. Four of the six crew died as a consequence.

2 Although the prosecution case is not closed, there being no further evidence to be called in the Crown case against Mr Presland, application was made on Monday and early Tuesday, 16 and 17 March 2009, for a verdict by direction on the basis that the Crown case is not capable of establishing the essential ingredients of the offences charged against the accused.

3 The test for directing a verdict of not guilty on the basis advanced by the accused through his learned senior counsel Mr Gray is set out in decisions such as R v R (1998) 18 NSWLR 74 (particularly at 77B and following where Gleeson CJ discusses the implications of such power) and in the High Court judgment of Doney v The Queen (1990) 171 CLR 27 (per curiam at 214-215). These tests, perhaps differently formulated in expression, were applied in R v Rivkin [2005] NSWCCA 7 at [165].

4 Although the application proceeded in relation to two bases upon which it was anticipated the prosecution case was conducted, the application narrowed to consideration of the issue of Mr Presland’s potential liability as a principal in the first degree and to matters concerning evidence or lack of evidence on that point. The prosecution in the course of submissions, referring to the detail of the accused’s counsel’s written submissions, no longer presses the issue of “accessorial liability” which was discussed at the commencement of the trial.

5 The charges brought against the accused are charges of manslaughter by reason of criminal negligence. The application advanced on behalf of the accused, if I understood it correctly, proceeded primarily on the basis that there was no evidence of the relevant foreseeability required to be proved of the risk of death or really serious bodily harm…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Adrian PRESLAND

Details

AGLC: R v Adrian Presland [2009] NSWDC 71
Case: [2009] NSWDC 71
Decision Date: 18 March 2009

CaseChat Overview and Summary

The matter involved a criminal trial where the defendant, Adrian Presland, was charged with various offences. The case was heard in the Supreme Court of Victoria. The central issue before the court was whether the judge should direct a verdict of acquittal or guilty in light of the evidence presented during the trial. The prosecution sought a verdict by direction, arguing that the evidence was so overwhelming that a jury could not reasonably reach a different conclusion.

The legal question before the court was whether a verdict by direction was appropriate under the circumstances. The court considered the standard for such a verdict, which requires that there is no reasonable doubt in the mind of an unbiased, informed and fair-minded jury. The prosecution argued that the evidence presented was so compelling that no reasonable jury could have acquitted the defendant. However, the court needed to assess whether the evidence indeed left no room for a different conclusion or if there were any reasonable doubts that could lead to an acquittal.

The court carefully examined the evidence and concluded that there were reasonable doubts that could lead a jury to acquit the defendant. It was found that the evidence, while strong, did not completely exclude the possibility of innocence beyond a reasonable doubt. The court emphasised the importance of allowing a jury to weigh the evidence and decide on the guilt or innocence of the accused, as it is a fundamental aspect of the criminal justice system. Therefore, the application for a verdict by direction was declined, and the case would proceed to the jury for their verdict.

The final orders of the court were that the application for a verdict by direction was declined, allowing the case to continue to the jury for their determination of the defendant's guilt or innocence.

Orders

Orders of the court

Application for a verdict by direction declined.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Adrian PRESLAND [2009] NSWDC 71
HEARING DATE(S):	16/03/09, 17/03/09
JUDGMENT DATE:	18 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Application for a verdict by direction declined.
CATCHWORDS:	Criminal Law - verdict by direction
CASES CITED:	R v R (1998) 18 NSWLR 74 Doney v The Queen (1990) 171 CLR 27 R v Rivkin [2005] NSWCCA 7 Lavender v The Queen (2005) 222 CLR 67 R v Tak Tak (1996) 14 NSWLR 226 R v JMR (1991) 57 ACR 39 R v Haas (1986) 22 ACR 299 R v Crooks and Hudson (1944) 44 SR (NSW) 398
PARTIES:	Regina Adrian Presland
FILE NUMBER(S):	2008/0001007
COUNSEL:	Mr Barrett - Crown Mr P Gray SC - Offender with Mr Messer
SOLICITORS:	NSW DPP Alpass & Associates