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

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.
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.”

It is convenient at this stage to expand upon that to a degree.
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.
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.
Each counsel helpfully referred me to the decision in Silva v The Queen [2016] NSWCCA 284, in which the Court of Criminal Appeal (by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Stephen (No. 5)

Details

AGLC: R v Stephen (No. 5) [2018] NSWSC 170
Case: [2018] NSWSC 170
Decision Date: 20 February 2018

CaseChat Overview and Summary

The case before the court involved a defendant charged with manslaughter, where the primary issue was whether the jury should be given a specific direction on the application of the "second leg" of the self-defence principle. The defendant sought a Prasad direction to assist the jury in understanding the complexities involved in the evaluation of self-defence in the context of the particular circumstances of the case. The High Court of Australia was tasked with determining whether such a direction was appropriate under the circumstances presented.

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.

Orders