R v Hawi (No 22)

[2011] NSWSC 1668

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawi & ors (No 22) [2011] NSWSC 1668
Hearing dates:	22 August 2011
Decision date:	22 August 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Application for Prasad direction refused
Catchwords:	CRIMINAL LAW - procedure - verdict - Prasad direction - whether circumstances appropriate to give such direction
Legislation Cited:	Crimes Act 1900
Cases Cited:	R v Pahuja (1987) 49 SASR 191 R v Prasad (1979) 23 SASR 161
Category:	Procedural and other rulings
Parties:	Regina David Padovan
Representation:	Counsel: Ms N Adams with Ms H Roberts (Crown) Mr A Conwell (Accused) Solicitors: Solicitor for Public Prosecutions Nyman Gibson Stewart
File Number(s):	2009/59368

Judgment

1. HIS HONOUR: The Crown has closed its case. In the time between then and now the Court has been concerned with a number of legal issues, including a submission made on behalf of the accused Padovan to the effect that he has no case to answer in respect of the two charges for which he stands trial. I indicated earlier this morning that I did not propose to direct verdicts of acquittal in respect of either of those charges.

1. Mr Conwell, on behalf of Mr Padovan, has now made an application commonly referred to as a Prasad application. That is a reference to R v Prasad (1979) 23 SASR 161. It has been said that the power to invite the jury to consider returning a verdict of not guilty at any time after the close of the Crown case should be used sparingly and only where the evidence lacks cogency: see R v Pahuja (1987) 49 SASR 191.

1. In the course of making the no case submissions, Mr Conwell identified a considerable number of what he asserted were deficiencies in the evidence in respect of his client and I acknowledge that there are many arguments available which may persuade the jury that there should be a reasonable doubt in respect of Mr Padovan's guilt in relation to both charges.

1. A Prasad invitation is most appropriate in cases where little or no explanation of the law is required; the issues are straightforward and there is no need for there to be any detailed review of the evidence. For example, such an invitation to the jury may most commonly be found in cases involving alleged personal or sexual violence where the only evidence upon which the prosecution relies is that of the alleged victim and where there is a real issue as to whether the victim can be believed.

1. In the present case, Mr Padovan is but one of seven accused who are the subject of this trial. The trial has been proceeding for three months before the jury and there is a substantial body of evidence that has been adduced in the course of the prosecution case. In my view, it would be impossible for the jury to fully understand amongst that volume of evidence what aspects of it are relied upon by the Crown, on the one hand, and by Mr Padovan, on the other.

1. It would be inappropriate for addresses to be made by counsel for either party so as to appraise the jury as to those matters and it would be similarly inappropriate for me to take the jury through the competing arguments that were presented to me in the course of considering the no case submissions.

1. There is another factor that is relevant as well and that is that the case for Mr Padovan appears to raise significant issues as to self-defence. To properly consider those issues, the jury would need to have an explanation as to the matters mentioned in s 418 of the Crimes Act 1900 and would require an explanation of the necessity for the Crown, in order for the Crown to succeed, to negative either of the two limbs of self-defence.

1. In my view, there are too many complications of the nature that I have just briefly outlined to make this a situation in which giving the jury a Prasad invitation appropriate.

1. The application is refused.

**********