R v Stephen (No. 5)

[2018] NSWSC 170

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Stephen (No. 5) [2018] NSWSC 170
Hearing dates:	16 February 2018
Decision date:	20 February 2018
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) Application for “Prasad direction” rejected
Catchwords:	CRIMINAL LAW – procedure – trial by jury for manslaughter – application for Prasad direction – “second leg” of self-defence – complex explanation of legal matters required – reasonableness an evaluative judgment for the jury – application rejected
Legislation Cited:	Crimes Act 1900 (NSW), ss 418(2), 421(1)(b)
Cases Cited:	Seymour v The Queen [2006] NSWCCA 206; (2006) 162 A Crim R 576 Silva v The Queen [2016] NSWCCA 284 R v Prasad (1979) 23 SASR 161, 2 A Crim R 45
Category:	Procedural and other rulings
Parties:	Regina Jonda Rhani Stephen
Representation:	Counsel: L Shaw (Crown) P Dwyer (Accused)   Solicitors: Director Of Public Prosecutions (Crown) PJ Donnellan & Co (Accused)
File Number(s):	2017/00099898
Publication restriction:	Nil

Judgment

1. On Friday, 16 February 2018, I rejected an application for a “Prasad invitation” with regard to the “second leg” of self-defence in what had become a trial for manslaughter (a separate judgment of mine sets out the circumstances in which that occurred): see R v Prasad (1979) 23 SASR 161, 2 A Crim R 45.

2. At that stage, I said (TT 596.31 and following):

“I do not believe I should give a Prasad invitation on manslaughter. That is so for two reasons. First, the law about the topic of excessive self-defence is not simple and not easy to explain concisely, in my experience, and the jury has not previously had any detailed written or oral directions about it.

Secondly, I hold no firm view about the weakness of the Crown case about the normative social question about whether the conduct of the accused in stabbing the deceased in the chest was a reasonable response in the circumstances as she perceived them pursuant to s 418(2) and s 421(1)(b) of the Crimes Act 1900.”

3. It is convenient at this stage to expand upon that to a degree.

4. Defence counsel had submitted that it was “preposterous” for it to be suggested that the act of the accused in stabbing the deceased in the chest, when he was undisputedly bashing her to the head with a domestic clothes iron, was not a proportionate response, in the sense discussed in what I shall refer to as the “second leg” of self-defence.

5. The Crown prosecutor had submitted that the question with regard to me giving a Prasad direction or invitation to do with a normative social evaluation (that is, the question of the reasonableness of the response, but in the circumstances as the accused perceived them) was a complex one, but he did not forcefully stand in the way of the application: see TT 587.28 and following.

6. Each counsel helpfully referred me to the decision in Silva v The Queen [2016] NSWCCA 284, in which the Court of Criminal Appeal (by majority) found that a verdict of excessive self-defence manslaughter (founded on acceptance by the jury that unreasonableness of response, in the circumstances perceived by the appellant, had been proven beyond reasonable doubt) was itself unreasonable or unable to be supported. The case was relied upon for the proposition that, in appropriate cases, a judge sitting in the Court of Criminal Appeal will “overrule” a normative finding by a jury. It was said that that provided some support for me not being reticent in this analogous context.

7. And of course, it was submitted by both counsel that a Prasad invitation is not to be equated with a verdict of acquittal by direction; properly understood, it is merely an act of informing the jury of its right, not in any sense a removing of an issue from the jury.

8. My reasons at that stage, already given for refusing the application do not bear much expansion. I was concerned that (for valid reasons) the jury at that stage had been given virtually no directions about the structure of the elements of self-defence, in the context of homicide. There had been some oral mention of it, and its two limbs, by both counsel and by me. But no structural or step-by-step written or oral explanation of how one might approach the question of self-defence in the context of homicide had been given to the jury at the stage of the application: see Seymour v The Queen [2006] NSWCCA 206; (2006) 162 A Crim R 576 at [66].

9. Separately, as I said, I held no decisive view about the strength of the Crown case about the normative or evaluative social question of whether the response of stabbing the deceased in the chest was a reasonable one in the circumstances as the accused perceived them.

10. As I remarked to counsel in discussing the application, such a question perhaps raises all sorts of “sub-questions” about the availability of alternative ways of protecting oneself; about how life is in an outback town as opposed to an urban centre; about possible alternative ways of getting help within an extended relationship marred by domestic violence; and countless other social matters.

11. In short, I felt uncomfortable, with regard to that evaluative judgment, about providing even a “hint” to the jury as to how it should be determined; and, no matter how one expresses it, in my experience that is always how a Prasad invitation is received by a jury.

12. It was for those reasons that I refused the Prasad application with regard to the second limb of self-defence.

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Amendments

26 February 2018 - Added another case to cover page.

Decision last updated: 26 February 2018