R v Kuol Ngong Majok Adup

[2008] NSWDC 382

CITATION:	R v Kuol Ngong Majok ADUP [2008] NSWDC 382
JUDGMENT DATE:	27 November 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I will not give a Prasad direction.
CATCHWORDS:	CRIMINAL LAW - trial - application for Prasad direction - submission by Defence that cross-examination of the complainant has exposed significant inconsistencies between her evidence and statements given to police and that therefore the Crown case lacks cogency - matter entirely within Judge's discretion
CASES CITED:	Narendra Prasad (1979) 2 A Crim R 45 R v Pahuja (1987) 30 A Crim R 118 R v Reardon [2002] NSWCCA 203
PARTIES:	Regina Kuol Ngong Majok Adup
FILE NUMBER(S):	2008/8372
COUNSEL:	Mr Pincott for the Director of Public Prosecutions Mr Taylor for the accused

JUDGMENT

1. I have to make a decision about whether or not I give a direction to this jury. The direction is known by reference to the case that it is based on, Narendra Prasad (1979) 2 A Crim R 45. It is commonly referred to as the Prasad direction.

2. Mr Taylor, counsel for the accused, has applied for such a direction. He advanced his argument just before the Crown Prosecutor closed his case in the absence of the jury but knowing, as has just now occurred, that the Crown Prosecutor would close his case.

3. This is a case concerning a sexual assault. The complainant has given evidence and has been cross-examined by Mr Taylor. Mr Taylor’s argument for a Prasad direction is that the cross-examination has exposed significant inconsistencies between the complainant’s evidence and the statement or statements which she gave to the police. There may also be inconsistencies between her account and some evidence of other witnesses. He argues that the Crown case, because of those inconsistencies, lacks cogency.

4. Whether or not I give a Prasad direction is a matter entirely within my discretion. In R v Pahuja (1987) 30 A Crim R 118, Cox J with whom Johnston J agreed, referred to the circumstances in which such a direction is given as “usually some serious weakness in the Crown case that has emerged during its presentation” (at 145). His Honour pointed out that the “typical occasion for it in a sexual case will be the discrediting of the complainant in the witness box - admitted lies or plain contradictions or vacillations - or important contradictions with other Crown witnesses.”

5. In R v Reardon [2002] NSWCCA 203 Simpson J, sitting in the New South Wales Court of Criminal Appeal, dealt with an argument that the trial judge had wrongly rejected a Prasad direction. Hodgson JA and Barr J agreed with her Honour. Her Honour pointed out that the power to give the direction was entirely discretionary and depended, amongst other matters, “upon the assessment of the trial judge of the weight of the evidence against the particular accused” (at 157). Her Honour observed that, as was pointed out in Prasad, “a direction by the judge to the jury as to the weight it should attribute to admissible evidence intrudes upon the jury function.” Her Honour noted that an appropriate Prasad direction carefully avoids trespassing upon that function. But, as her Honour proceeded, nevertheless “to give such a direction can carry with it a suggestion to the jury that admissible evidence should be given little or no weight.” Her Honour said that a trial judge giving a Prasad direction has to tread a very fine line to avoid trespassing upon the jury function.

6. I have decided not to give a Prasad direction. I appreciate the argument of Mr Taylor about the inconsistencies. These are matters, in my opinion, which the jury needs to take into account in weighing up whether or not they accept the complainant’s evidence beyond reasonable doubt. Whilst Mr Taylor will no doubt argue in his address that the inconsistencies to which he has referred must result in the jury not accepting her evidence, it may be that the jury would regard such inconsistencies as being the result of the comparison between giving a statement at a time recently close to what the complainant claims are traumatic events and giving evidence in court some ten months later. There are, in my opinion, appropriate arguments both ways on the question of the acceptability of the complainant’s evidence.

7. I regard this question in this case as really a matter for the jury and I regard it as inappropriate for me to, by giving a Prasad direction, as Simpson J says, indirectly suggest to the jury that the evidence should be given little or no weight. For that reason I do not propose to give the direction.

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