R v Gonzales

[2007] QDC 271

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Gonzales [2007] QDC 271

PARTIES:

THE QUEEN

V

SHANNON GONZALES

FILE NO/S:

625/07

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

19 October 2007

DELIVERED AT:

Beenleigh

HEARING DATE:

19 October 2007

JUDGE:

Koppenol DCJ

ORDER:

1.   Application for Prasad direction declined. [7]

CATCHWORDS:

PRASAD DIRECTION – Evidence adversely affected by cross-examination – Appropriateness of making direction

R v Prasad (1979) 23 SASR 161 – Considered

Seymour v R (2006) 162 A Crim R 576 - Considered

COUNSEL:

Ms S. Farnden for the Crown

Dr D. Kellie for the Accused

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Affleck Lawton for the Accused

1. I have been invited by defence counsel to give the jury a Prasad direction to bring in a verdict of not guilty. Prasad was a case decided by the South Australian Court of Criminal Appeal in 1979: R v Prasad (1979) 23 SASR 161.

1. It was said by Dr Kellie of counsel for the defence that the evidence of a number of witnesses for the prosecution had been so adversely affected by cross-examination that the circumstances militated in favour of my giving the direction sought.

1. Ms Farnden of counsel, who appeared with Ms McMahon of counsel, for the prosecution opposed my giving such a direction because the jury had not been told of the elements of the alleged offence and therefore, without that knowledge, it was not appropriate for it to be asked to consider bringing in a verdict of not guilty at this stage.

1. The defendant is charged with assault occasioning bodily harm. It is clear from the way in which the trial has proceeded that the defendant is relying on the defence of accident. The onus is upon the Crown to negative that possible defence. Inherent in that defence and its possible rebuttal is the question of whether an ordinary person in the defendant’s position at the time would have reasonably foreseen that his punch could hit Ms Hughes, the complainant.

1. In Seymour v R (2006) 162 A Crim R 576, the New South Wales Court of Criminal Appeal emphasised, at paragraph [66], the danger of giving a Prasad direction in circumstances where there may be a real problem in the jury’s understanding the real nature of the Crown case. The Court also accepted, at [61], that a Prasad direction should be put to the jury quite simply and shortly, with only a passing glance at the law and a brief reference to whatever feature of the evidence has led the trial judge to give the direction.

1. In the present trial, whilst I do not regard the Crown case as a strong one and whilst it is my view that the credibility of a number of Crown witnesses was adversely affected by the cross-examination, I think that it would not be appropriate to give a Prasad direction. That is because the case and the appropriateness or otherwise of the jury’s returning a verdict of not guilty can only be properly appreciated after the elements of the offence, and particularly of the defence of accident, are explained and analysed. That cannot be done by only a passing glance at the law and a brief reference to the evidence.

1. Defence counsel’s submission is accordingly declined.