R v Tantra (No 1)

[2010] NSWSC 394

CITATION:	R v Tantra (No 1) [2010] NSWSC 394
HEARING DATE(S):	27 April - 30 April 2010
JUDGMENT DATE :	30 April 2010
JUDGMENT OF:	R A Hulme J
DECISION:	I decline the invitation to return a verdict of acquittal at this stage.
CATCHWORDS:	CRIMINAL LAW - murder - judge alone trial - Prasad application
LEGISLATION CITED:	Mental Health (Forensic Provisions) Act 1990
CASES CITED:	R v Pahuja (1987) 49 SASR 191 R v Prasad (1979) 23 SASR 161
PARTIES:	Regina Vita Tantra
FILE NUMBER(S):	SC 2008/5737
COUNSEL:	Mr C McPherson (Crown) Mr C Bruce SC (Accused)
SOLICITORS:	Solicitor for Public Prosecutions Legal Aid

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

R A Hulme J

30 April 2010

2008/5737 Regina v Vita TANTRA

JUDGMENT

1 HIS HONOUR: The accused is the subject of a special hearing, having been found unfit to be tried and the Mental Health Review Tribunal having found that he would not become fit to be tried in the ensuing twelve months. He has been arraigned upon an indictment alleging that he had murdered Ms Linda Tregerthan at Byron Bay on 30 August 2004. He is taken to have pleaded not guilty. All of the foregoing have been pursuant to provisions of the Mental Health (Forensic Provisions) Act 1990.

2 Mr Bruce SC who is appearing for the accused has made what is referred to as a "Prasad application". He has asked that I direct myself that I can bring in a verdict of not guilty at any stage after the end of the Crown case. We have now reached that stage.

3 This is a reference to R v Prasad (1979) 23 SASR 161 which stands for the proposition that an accused person can ask the trial judge to direct the jury that they are entitled to acquit the accused at any time after the close of the Crown case without hearing the defence case, addresses or the summing-up. It has been said that the power of a trial judge to do so should be exercised sparingly and only where the evidence lacks cogency: R v Pahuja (1987) 49 SASR 191.

4 I am presiding over this special hearing without a jury: s 21A Mental Health (Forensic Provisions) Act. Taken literally, the submission is to the effect that I should direct myself that I may acquit the accused at any time after the close of the Crown case. There is no need for me to direct myself in that fashion because I already know that I can do so in my role as the tribunal of fact. Rather, I take the submission to be to the effect that I should in fact return a verdict of not guilty at this stage. That requires brief consideration of the cogency of the evidence upon which the Crown relies.

5 Ms Tregerthan's deceased body was found in the sunroom of her house in Byron Bay in the early afternoon of 30 August 2004. She died from the effects of multiple stab wounds to the neck and torso. The Crown case alleging that the perpetrator of her murder was the accused is entirely circumstantial.

6 Submissions were made by Mr Bruce concerning the evidence of Ms Cynthia Scopel and Mr Peter Hardwick. It was pointed out that they were giving evidence of conversations with the accused that occurred many years ago, in fact almost six years ago. Mr Bruce submitted that the evidence amounted to interpretations by the witnesses of what they believed was said rather than what was in fact said. Consequently, it was submitted, their evidence should be regarded as unreliable.

7 If accepted, Ms Scopel's evidence tended to suggest some antipathy or resentment by the accused towards Ms Tregerthan. Her evidence was to the effect that about two weeks before the murder the accused approached her and said, "I know, I know, I know what you do". She said that he may have said, "I know what you do with your eyes". Ms Scopel implied that this was said in an intimidating fashion.

8 If accepted, Mr Hardwick's evidence tended to suggest that the accused had, in a month or two after Ms Tregerthan's death, harboured thoughts suggesting that he was not averse to causing the death of another person. He claimed that the accused had said to him, "It's no big deal to kill somebody". He also claimed that there was a statement made by the accused to the effect that he knew somebody who had died, been killed, or had been murdered. This evidence is relied upon by the Crown as suggesting involvement, or tending to confirm involvement, in the recent death of Ms Tregerthan.

9 Even if the evidence of the conversations were to be accepted, they do not alone establish that the accused was the person responsible for the death of Ms Tregerthan. They are, in the context of the Crown case overall, relatively minor pieces of circumstantial evidence suggesting that the accused might have been the person responsible. There are serious questions about the accuracy of the evidence given by both of the witnesses given the time that has elapsed.

10 Reference was also made to records of the accused's bank account that were tendered by the Crown. The submission was made that they simply established the presence in Byron Bay of the accused on the day of the murder. They, of course, place him at an ATM machine, not at the deceased's home.

11 The major component of the Crown case is the DNA evidence. DNA was recovered from fingernails from the deceased's left and right hand and from a blood-stained pillow case found in the vicinity of her body.

12 In one fingernail from the left hand there was found to be DNA from two contributors. The DNA of the major contributor was consistent with being the deceased's and the DNA of the minor contributor was consistent with being the accused's. The DNA profile of the minor contributor was expected to be found in 1 in 100 million individuals in the general population.

13 In respect of a fingernail from the right hand there was DNA recovered which was also from two contributors. The DNA of the major contributor was consistent with being the deceased's and the DNA of the minor contributor consistent with being the accused's. The DNA profile of the minor contributor was expected to be found in 1 in 86,000 individuals of the general population.

14 A stain on one area of a pillow case was also the source of DNA from two contributors, the major contributor's DNA profile being consistent with that of the deceased and the profile of the minor contributor consistent with that of the accused. The DNA profile of the minor contributor was expected to be found in 1 in 1.7 billion individuals in the general population.

15 Mr Bruce submitted, in effect, that the problem with this evidence is that even if it is accepted that the accused was the source of the DNA found in each of the minor contributions, there is no evidence as to when some bodily tissue or fluid of his came to be on the fingernails of the deceased and on the pillow case. There was evidence from the forensic biologist, Ms Sharon Neville, to the effect that it was not necessarily the case that such DNA would have come to be on those surfaces at the same time as the deceased's DNA.

16 The problem with that submission is that the evidence, at face value at least, is reasonably compelling and there is nothing, so far at least, to explain how DNA with a fairly distinctive profile consistent with being the accused's came to be on those surfaces.

17 In my view it cannot be said that the Crown case so lacks cogency that I should return a verdict of not guilty at this stage. This should not be taken to indicate that I have formed any particular view at this stage as to what the appropriate verdict should be. There is a good deal of evidence and, I anticipate, potential arguments going in either direction as to how I should evaluate it and what I should conclude from it. I will be assisted, at least, by hearing closing submissions from counsel in this respect.

18 I decline the invitation to return a verdict of acquittal at this stage.

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