R v Smart (Ruling no 5)

[2008] VSC 94

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1533 of 2007

THE QUEEN

v

KEITH HERBERT SMART

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2008
DATE OF RULING:	1 April 2008
CASE MAY BE CITED AS:	R v Smart (Ruling No. 5)
MEDIUM NEUTRAL CITATION:	[2008] VSC 94

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CRIMINAL LAW – Murder – Prasad direction.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms G. Cannon	Office of Public Prosecutions
For the Defendant	Mr W. Toohey	Galbally & O’Bryan

HIS HONOUR:

1. Keith Herbert Smart is charged with the murder of Katie Lee Tanner at North Cranbourne on 14 October 2006. 

1. The trial is in its fifteenth day before the jury.  On behalf of the accused, Mr Toohey of counsel has applied for me to give the jury a direction generally known as a Prasad direction, which arises initially from the judgment in R v Prasad.[1] 

   [1](1979) 23 SASR 161.

1. In the course of the judgment in that case King CJ said the following:

It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more.  It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings …[2]

[2]Ibid at 163.

1. In the later case of R v Pahuja,[3] Justice Cox noted that such a direction should be put to the jury “simply and shortly”.  His Honour observed that it was not the occasion “for any more than a passing glance at the law and a brief reference to whatever feature of the evidence it is that has led the trial judge to give the direction”.[4]  Usually, his Honour noted, that would be some serious weakness in the Crown case that has emerged during its presentation. 

   [3](1987) 49 SASR 191.

   [4]Ibid at 218.

1. In that same case it was observed that such a procedure should only be used sparingly and the Court considered that it should be used only in circumstances where the trial judge was of the view that the evidence was not sufficiently cogent to justify a conviction. 

1. In this case it is not I think necessary for me to conduct a detailed analysis of the evidence beyond stating my opinion that it is appropriate to extend a Prasad direction to the jury. 

1. As is clear from the debate between counsel, this is a completely circumstantial case.  The case against the accused is that he murdered Ms Tanner at his home on the night of 14 October 2006.  It is then put by the Crown that he disposed of her body on the following day by the use of a motor vehicle which he borrowed from his estranged wife and then did various other things over the next period of time for the purpose of concealing his involvement.

1. Although we have not yet had a detailed discussion about this, as I follow it the Crown also would propose to rely on what the Crown says are lies told by the accused in relation to his activities and would be asking the jury to rely on those as demonstrating, in effect, a consciousness of guilt or an implied admission of responsibility.

1. However, it is a fact that Ms Tanner’s body has never been found and the forensic information that might be revealed by such a discovery is not available to the Crown.  It is also a fact that the accused was not seen by anybody committing the murder the Crown alleges he carried out.  Further, there is no witness to suggest that he at any time confessed or admitted to any involvement in the death of Ms Tanner.  Further, so far as the accused is concerned, he appears to have no motive that is apparent to me to kill Ms Tanner.

1. To these basic facts may be added the following factors which are in evidence.  The accused is a man of good character without prior convictions.  There are other members of the Smart family who have in the past been violent to Ms Tanner.  That list does not include the accused.  The evidence is that the accused and Ms Tanner got on very well and that he treated her as though she was his daughter.  He is the grandfather to her child Jayden. 

1. Whilst there is forensic evidence on which the Crown relies to connect the accused to the death of Ms Tanner, in my opinion the evidence is at least ambiguous.  Further, there are a number of witnesses attesting to Ms Tanner’s drug use and the maintenance by her of contacts with people for the purpose of being supplied with drugs. 

1. As I have said, this is a circumstantial case and one must be careful, as Redlich J (as he then was) noted in R v Quong Kuok Lam & Ors,[5] not to allow a “blurring of the distinction between the facts upon which the Crown rely to draw the disputed inferences and the inferences themselves”. 

   [5][2005] VSC 295.

1. In Pahuja, King CJ notes that in his opinion the decision whether to inform the jury of its power to bring back a verdict of not guilty must be made by the trial judge in light of his assessment of the case.  It is my opinion that the evidence may not be sufficiently cogent to justify a verdict of guilty.  I note that that is a test different from the test which would apply had a submission been made on behalf of the accused that there was not a case for him to answer. 

1. In all the circumstances I propose to give a Prasad direction on the closing of the Crown case.

1. A second issue arose in relation to this application. That issue concerned whether or not in this trial there should be an alternative put to the jury to the count of murder which it was submitted was the offence of accessory after the fact pursuant to s 325 of the Crimes Act 1958 (Vic).

1. Ms Cannon submits that if a Prasad direction is to be put it should include this as an alternative in order to “clear the presentment”. 

1. During the course of discussion I expressed the view that that might be an appropriate course.  However, to this date the trial has been conducted on the basis that the Crown alleges that the accused murdered Ms Tanner and disposed of her body.  The accused has conducted the case on the basis that he is not guilty of that offence.  The jury are therefore unaware of any potential alternative and in my view, having reflected on it, it seems to me that I should not raise it in the course of a Prasad direction.  It is potentially confusing and may generate an element of unfairness.

1. If the jury were to return a verdict of not guilty in response to the Prasad direction then it might be open to the Director of Public Prosecutions to present the accused on the offence of accessory after the fact of murder, although it is difficult to identify the evidence, as opposed to the theory, on which such a case would be based.  In any event, that would be a matter for the Director. 

1. I propose to put the Prasad direction to the jury only on the offence of murder and conduct the trial in accordance with the result. 

1. I should also say that I propose to provide a copy of my direction to the jury to the parties and once they have read it and had an opportunity to make submissions about it I will give the jury the direction and I will also give them a written version of the direction which they can take into the jury room in order to facilitate their decision. 

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