R v Stephen (No.6)

[2018] NSWSC 243

Supreme Court

New South Wales

Medium Neutral Citation:	R v Stephen (No.6) [2018] NSWSC 243
Hearing dates:	20 February 2018
Decision date:	20 February 2018
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	(1) Verdict of not guilty directed on the count of manslaughter
Catchwords:	CRIMINAL LAW – procedure – miscellaneous powers of court and judges – trial by jury on count of manslaughter – application for verdict by direction – Crown prosecutor concedes before jury that manslaughter cannot be proven and will not be contended for – verdict of not guilty directed on the count of manslaughter
Cases Cited:	R v Stephen [2017] NSWSC 1740 R v Stephen (No. 2) [2018] NSWSC 167 R v Stephen (No. 3) [2018] NSWSC 168 R v Stephen (No. 4) [2018] NSWSC 169 R v Stephen (No. 5) [2018] NSWSC 170
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. The final aspect of the homicide trial of Jonda Rhani Stephen at Broken Hill that I consider requires elucidation by way of a short judgment was itself the conclusion of the trial.

2. As earlier judgments of mine have shown (R v Stephen [2017] NSWSC 1740, R v Stephen (No. 2) [2018] NSWSC 167, R v Stephen (No. 3) [2018] NSWSC 168, R v Stephen (No. 4) [2018] NSWSC 169 and R v Stephen (No. 5) [2018] NSWSC 170), by Monday, 19 February 2018, a verdict by direction of not guilty had been returned on the count of murder, and the trial by jury was continuing on a count of manslaughter.

3. After the receipt of undisputed expert and character evidence in the defence case, on the afternoon of that day defence counsel indicated that she would seek a “Prasad direction” on the count of manslaughter, on the basis of the asserted weakness of the evidence of the element of an intention to cause grievous bodily harm. (As earlier judgments of mine have shown, the Crown was alleging manslaughter on the basis of excessive self-defence, and not relying upon manslaughter by unlawful and dangerous act.)

4. I expressed my desire not to detain the jury whilst such an application was heard. I also expressed a desire to be assisted by written submissions. Accordingly, the hearing of the application was deferred until the morning of Tuesday, 20 February 2018.

5. By that stage, written submissions had been received from each counsel. At my request, the Crown prosecutor confirmed that his written submissions went well beyond merely agreeing in the application for the “Prasad direction.” He explained orally that they were an acceptance that the essential element of manslaughter (founded upon excessive self-defence) of an intention to cause grievous bodily harm could not be proven beyond reasonable doubt by the Crown. He also explained that, if the trial were to continue, he would not be urging upon the jury a verdict of guilty of manslaughter in his final address. He concluded that he would be content to make that concession, and briefly explain it, in the presence of the jury, just as he had done prior to me ordering a verdict of not guilty by direction on the count of murder (see TT 726.18 and following).

6. Having had that position clarified, and just as I had done in highly similar circumstances with regard to the count of murder, I formed the view that it was inconceivable that the trial could proceed further. And I took that view whatever the informality or atypicality of the procedure that was proposed to be adopted.

7. After all, that concession having been publicly and advisedly made in the presence of the jury, for me to have insisted that the trial proceed nevertheless would have, in my opinion, led it to descend to the level of solemn farce. Quite apart from anything else, the trial would have featured, at the conclusion of the evidence, both counsel addressing the jury to the effect that the Crown case had not been proven, and both counsel calling upon the jury to acquit on the count of manslaughter.

8. For those reasons, the foreshadowed concession having been made by the Crown prosecutor in the presence of the jury, thereafter on 20 February 2018 I directed the jury to return a verdict of not guilty on the remaining count of manslaughter. They duly did so, and thereafter I formally acquitted Ms Stephen of the two forms of homicide arising from the indictment upon which she had been arraigned on 7 February 2018.

9. Finally, I note that a costs application had been foreshadowed for some time by defence counsel. I shall discuss its resolution in a further judgment in due course.

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Decision last updated: 02 March 2018