Citation: R v White & ors (No 8) [2012] NSWSC 472
Court: Supreme Court of New South Wales
Date: 18 April 2012
Judge(s): Hulme J
Background
The decision arose during a lengthy criminal trial involving three accused. By the point of this ruling, the Crown had closed its case, one accused had completed their defence, and the trial was midway through the case for a second accused.
Counsel for the third accused, Ms Birkensleigh, made a "Prasad application." This is an application asking the trial judge to inform the jury of their right to return a verdict of not guilty at any stage, without waiting for addresses and a summing-up. The application derived its name from the South Australian decision of R v Prasad (1979) 23 SASR 161.
Ms Birkensleigh faced a charge of robbery. The Crown's case against her was entirely circumstantial, resting in particular on her alleged purchase of cable ties and tape intended for use in a proposed robbery of the deceased. Her counsel had previously sought, unsuccessfully, a directed verdict of acquittal on the robbery charge at the close of the Crown case. A directed verdict on a separate charge of accessory after the fact to murder had been granted.
Legal Issues
- Whether the circumstances of the trial were appropriate for the court to give the jury a Prasad invitation on the robbery charge against Ms Birkensleigh.
- Specifically, whether the complexity of a multi-accused trial with a substantial volume of evidence made such an invitation inappropriate.
Decision
Hulme J refused the application. His Honour noted that a Prasad invitation is most appropriate in straightforward cases requiring little explanation of the law, no detailed review of evidence, and no complex legal directions. The paradigm case is one involving alleged personal or sexual violence where the only prosecution evidence is from the alleged victim and credibility is the central issue.
The present trial was the antithesis of that paradigm. It was a multi-accused trial in its sixth week, with a considerable body of evidence and significant complexity. Hulme J found it would be very difficult for the jury to identify, without the assistance of closing addresses and a summing-up, which parts of the evidence were relevant specifically to Ms Birkensleigh's case.
His Honour also noted a practical complication: exhibits had not always been identified as to which accused they related. To isolate the relevant evidence for Ms Birkensleigh at that stage would require the court to conduct a partial mini-trial within the main trial, with targeted addresses and a partial summing-up. That exercise was, in the court's view, inappropriate given the stage and complexity of the proceedings.
Orders Made
No formal orders were recorded beyond the refusal of the application.
Key Takeaways
- The power to give a Prasad invitation must be exercised sparingly and only where the evidence against the relevant accused lacks cogency: R v Pahuja (1987) 49 SASR 191.
- A Prasad invitation is best suited to simple, single-issue cases, typically those turning on the credibility of a sole witness, where little legal explanation or evidence review is needed.
- In a complex multi-accused trial with substantial volumes of evidence, giving a Prasad invitation mid-trial risks leaving the jury without the context needed to properly assess one accused's position in isolation.
- The Supreme Court identified that isolating the relevant evidence for a single accused, without the benefit of closing addresses and a judicial summing-up, would be procedurally inappropriate and potentially unfair.
- A prior refusal of a directed verdict on the same charge was a relevant part of the procedural backdrop, reinforcing that the Crown's case against Ms Birkensleigh, while circumstantial, remained one that was open for a jury to consider.
Legislation and Cases Referenced
Cases:
- R v Prasad (1979) 23 SASR 161 (the foundational authority for Prasad applications)
- R v Pahuja (1987) 49 SASR 191 (the principle that the power should be used sparingly and only where evidence lacks cogency)
- R v White & ors (No 6) [2012] NSWSC 470 (earlier ruling in the same trial, refusing a directed verdict on the robbery charge)
Legislation: No specific legislation was cited in this decision.