R v Raymundo Antonio Orellana

[2009] NSWDC 434

CITATION:	R v Raymundo Antonio ORELLANA [2009] NSWDC 434
JUDGMENT DATE:	10 August 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The application for a Prasad direction is refused.
CATCHWORDS:	CRIMINAL LAW - trial - import marketable quantity of cocaine - application for Prasad direction - evidence of a witness and absence of evidence of telephone records and airport surveillance records the subject of the application - weight of the evidence is such that it is not appropriate to exercise discretion to give direction
CASES CITED:	Regina v Pahuja (1987) 49 SASR 191 Regina v Prasad (1979) 2 A Crim R 45 Regina v Reardon Michaels & Taylor (2002) 186 FLR 1
PARTIES:	Regina Raymundo Antonio Orellana
FILE NUMBER(S):	2009/11/0064
COUNSEL:	Mr S Flood for the Commonwealth Director of Public Prosecutions Mr B Brassil for Mr Orellana

JUDGMENT

1. Mr Brassil, for the accused in this matter, has made an application that I should give a direction to the jury at the close of the Crown case - which has just closed - in accordance with Regina v Prasad (1979) 2 A Crim R 45.

2. His application is a proper one and it relies significantly upon his argument concerning the evidence of a witness named Olivera and upon the absence of evidence from two sources, namely Optus telephone records and airport surveillance records.

3. Those issues may well be factors which Mr Brassil will agitate, so far as the jury is concerned, in his final address. However, this is a case where his client, according to the Crown evidence, arrived at Sydney airport with a bag which contained up to - perhaps more than, depending upon the evidence - two kilograms of cocaine and with an explanation which clearly the Customs officers and the police regarded as having little substance. That is an available point of view about the accused’s explanation for the drugs within his bag.

4. I regard the passage from the judgment of King CJ in Regina v Pahuja (1987) 49 SASR 191 at 201 as persuasive where his Honour referred to the undoubted right of a trial judge to inform the jury of its power to bring in a verdict of not guilty at any time after the conclusion of the Crown case but said that that power “should be used sparingly and only when the judge is of the opinion that the evidence for the prosecution, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty.” In the same case Cox J (at 218) referred to the circumstances in which a Prasad direction would be given to a jury as one involving “usually some serious weakness in the Crown case that has emerged during its presentation”.

5. I have also had regard to the decision of the New South Wales Court of Criminal Appeal in Regina v Reardon Michaels & Taylor (2002) 186 FLR 1 and particularly the passage in the judgment of Simpson J with whom, on that issue, Hodgson JA and Barr J agreed at 33 ([157]).

6. My assessment of the weight of the evidence against this particular accused is such that I do not regard it as appropriate in the exercise of my discretion to give the direction sought by Mr Brassil. His application is refused.

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