R v RWB

[2004] SASC 296

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Leave to Appeal in Private)

R v RWB

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)

23 September 2004

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION

Application for leave to appeal against conviction - applicant convicted after a trial by jury of three counts of unlawful sexual intercourse - applicant granted leave to appeal on six of seven grounds - application for leave to appeal on remaining ground - whether evidence of uncharged and previously unreferred to acts required the trial Judge to give a Prasad direction - leave to appeal refused.

Supreme Court Criminal Appeal Rules 1996 r 15(8)(b), referred to.

R v RWB
[2004] SASC 296

Court of Criminal Appeal:  Leave to Appeal in Private

1. Doyle CJ, Duggan and Gray JJ:             This is an application for leave to appeal against conviction.

2. The applicant was convicted after a trial before a jury in the District Court.   He was convicted of three counts of unlawful sexual intercourse.

3. His notice of appeal raises seven grounds of appeal.  A Judge of this Court granted leave to appeal on six of those grounds, but refused leave to appeal on ground two.

4. The applicant has requested that his application for leave to appeal on this ground be considered and determined by the Full Court.

5. The applicant did not ask the Full Court to exercise its powers under r 15(8)(b) of the Supreme Court Criminal Appeal Rules 1996 to order that the application be listed for oral argument.  Accordingly, the application has been considered by the Court on the material available to the Court.

6. The Court has had access to the amended notice of appeal, the summing up, the transcript of argument before the single Judge, the reasons of the single Judge, and a letter from the applicant’s solicitor of 16 August 2004 putting submissions in support of ground two.

7. Ground two complains that the Judge should have given the jury a Prasad direction, even though no such direction was sought by defence counsel.

8. The trial in question was a re-trial of the applicant.  During the course of the trial there was an application by the prosecutor to have the jury discharged from giving a verdict.  That was unsuccessful.  Subsequently defence counsel sought the discharge of the jury.  These applications were made as a result of the complainant, in the course of her evidence in chief, giving evidence raising uncharged and previously unreferred to acts of intercourse.  This appears to have taken both counsel by surprise.  Although no application was made at trial for a Prasad direction, it is now put forward as requiring one.

9. The decision to give a Prasad direction is very much a matter of judgment for the trial Judge.  There is no rule that in any particular set of circumstances a Judge is obliged to give such a direction, or should do so.  It is difficult to conceive of circumstances in which a refusal to give such a direction could result in a miscarriage of justice.  Indeed, in this State the use of a Prasad direction has been discouraged, except in very clear cases.

10. We are unanimously of the opinion that leave to appeal should be refused, on the basis that ground two is not reasonably arguable.

11. First, as we have said, the decision to give such a direction is very much a matter for the judgment of the trial Judge.

12. Second, there is no arguable basis for saying that the Judge’s decision was wrong.  If a direction of the kind sought had been given, presumably it would have been along the lines that the jury might consider bringing in a not guilty verdict, because the witness had raised some new allegations against the accused. The jury would have been justifiably puzzled by such a direction.  In any event, if there was a case to answer, and if the Court was satisfied that the verdict was not unsafe, we fail to see how it could be said that the failure to give a Prasad direction could give rise to a miscarriage of justice.

13. Any complaints that the applicant wishes to make about the relevant evidence can be raised under other grounds of appeal.

14. For those reasons leave to appeal is refused.