R v White (No 8)

[2012] NSWSC 472

Supreme Court

New South Wales

Medium Neutral Citation:	R v White & ors (No 8) [2012] NSWSC 472
Hearing dates:	18 April 2012
Decision date:	18 April 2012
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Application for Prasad direction refused
Catchwords:	CRIMINAL LAW - procedure - verdict - Prasad direction - whether circumstances appropriate to give such direction
Cases Cited:	R v Pahuja (1987) 49 SASR 191 R v Prasad (1979) 23 SASR 161 R v White & ors (No 6) [2012] NSWSC 470
Category:	Procedural and other rulings
Parties:	Regina Jessica Tess Birkensleigh
Representation:	Counsel: Mr J McLennan (Crown) Mr E Johnston (Accused) Solicitors: Solicitor for Public Prosecutions James Fuggle Rummery
File Number(s):	2011/329820

Judgment

1. HIS HONOUR: The Crown has closed its case, the case for the accused White has been presented and concluded, and we are halfway through the case for the accused Serone.

1. Mr Johnston, on behalf of the accused Birkensleigh, has now made an application, commonly referred to as a Prasad application. This is a reference to R v Prasad (1979) 23 SASR 161. It has been said the power to invite the jury to consider returning a verdict of not guilty at any time after the close of the Crown case should be used sparingly and only where the evidence lacks cogency: see R v Pahuja (1987) 49 SASR 191.

1. Mr Johnston has previously made an application that I direct the jury to return a verdict of not guilty of the charge of robbery at the close of the Crown case. At the same time he applied for a directed verdict in respect of the charge of accessory after the fact to murder. I acceded to the application in respect of the latter charge but not in relation to the former. In the course of giving judgment on that occasion I referred, in brief terms, to the nature of the Crown case in relation to the robbery charge: R v White & ors (No 6) [2012] NSWSC 470.

1. The Crown case against Ms Birkensleigh is circumstantial. It relies, in particular, upon the purchase by her of cable ties and tape to be used in a proposed robbery of the deceased. That is a conclusion that is open to the jury to draw and, if drawn, exposes Ms Birkensleigh to potential conviction for the charge of robbery on the basis that she was an accessory before the fact.

1. Mr Johnston's submissions this morning have been to the effect that the case against the accused Birkensleigh for the robbery charge is a weak one and it would be appropriate to inform the jury of their right to return a verdict of not guilty at any stage from now.

1. A Prasad invitation is most appropriate in cases where little or no explanation of the law is required; the issues are straightforward; and there is no need for there to be any detailed review of the evidence. Such an invitation to the jury may most commonly be found in cases involving alleged personal or sexual violence, where the only evidence upon which the prosecution relies is that of the alleged victim and where there is a real issue as to whether the victim can be believed.

1. In the present case, Ms Birkensleigh is one of three accused who are the subject of this trial. This is the sixth week of the trial. Although there has been a substantial amount of time lost because of necessary juror absences and for the Easter break, there is a considerable body of evidence that has been adduced in the course of the prosecution case and it has some complexity. In my view it would be very difficult for the jury to fully understand, amongst that volume of evidence, what aspects of it are relied upon by the Crown on the one hand and by Ms Birkensleigh on the other in the case that concerns her. That is to say, it would be difficult for the jury to have that understanding, absent the assistance they would be given by hearing closing addresses by counsel and a summing-up by me.

1. The Crown Prosecutor has often mentioned when exhibits have been tendered as to which accused they relate, but this has not always been the case. It has been resolved that prior to the jury retiring to consider their verdicts they will be provided with a list of all the exhibits, which will include an indication as to which accused each item is relevant. It would be inappropriate to spend the time now isolating for the jury which exhibits and which parts of the oral evidence are admissible in relation to just one of the accused. It would be inappropriate for addresses to be made by the Crown and counsel for the accused Birkensleigh so as to appraise the jury as to those matters and it would be similarly inappropriate for me to take the jury through the competing arguments that are available to the Crown and to counsel for the accused Birkensleigh.

1. In my view, there are too many complications of the nature I have just outlined to make this a situation in which giving the jury a Prasad invitation is appropriate.

1. The application is refused.

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Decision last updated: 09 May 2012