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 45Category: Procedural and other rulings Parties: Regina
Jonda Rhani StephenRepresentation: Counsel:
Solicitors:
L Shaw (Crown)
P Dwyer (Accused)
Director Of Public Prosecutions (Crown)
PJ Donnellan & Co (Accused)
File Number(s): 2017/00099898 Publication restriction: Nil
Judgment
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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.
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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.”
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It is convenient at this stage to expand upon that to a degree.
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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.
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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.
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Each counsel helpfully referred me to the decision in Silva v The Queen [2016] NSWCCA 284, in which the Court of Criminal Appeal (by…
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- AGLC
- R v Stephen (No. 5) [2018] NSWSC 170
- Case
- [2018] NSWSC 170
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the judge should provide an additional direction to the jury concerning the "second leg" of the self-defence principle. This principle involves the evaluation of whether the defendant's response was reasonable in the circumstances. The defendant argued that the jury required a detailed explanation due to the complexity of the legal issues involved. The prosecution contended that the existing directions were sufficient and that the matter should be left to the evaluative judgment of the jury.
In reaching its decision, the court considered the principles of self-defence and the role of the jury in assessing such matters. The court concluded that while the "second leg" of self-defence involved a complex evaluation, it was ultimately an evaluative judgment for the jury to make. The court held that the trial judge had already provided adequate directions to the jury on the matter, and that further explanation would not necessarily aid in the jury's understanding. Therefore, the court rejected the application for a Prasad direction.
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