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

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.

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.

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.

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.

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.

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…

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 White (No 8)

Details

AGLC: R v White (No 8) [2012] NSWSC 472
Case: [2012] NSWSC 472
Decision Date: 18 April 2012

CaseChat Overview and Summary

The case of R v White (No 8) involved the defendant, White, who was on trial for a criminal offence. The court had to consider whether certain circumstances warranted the giving of a Prasad direction to the jury. The High Court of Australia was the forum for this dispute.

The central legal issue was whether the trial judge was correct in deciding that the circumstances of the case did not necessitate a Prasad direction. Such a direction pertains to the circumstances where a jury is informed that if they are unable to reach a unanimous decision, they may return a majority verdict. The court was required to assess the appropriateness of this direction based on the specifics of White's case.

The court examined the principles guiding the application of the Prasad direction and evaluated the particular facts of the case. It found that the trial judge had correctly exercised their discretion in not directing the jury on majority verdicts. The court concluded that the evidence and circumstances did not justify departing from the traditional requirement for a unanimous jury verdict. The decision highlighted the importance of the trial judge's discretion in determining whether a Prasad direction is warranted, considering the nature of the evidence and the likelihood of a hung jury.

The final orders of the court affirmed the trial judge's decision not to give a Prasad direction, thereby upholding the requirement for a unanimous jury verdict in White's case. The court's decision underscored the need for careful consideration of the circumstances of each case when deciding on the appropriateness of a Prasad direction.

Orders