Citation: R v Johnson (No 3) [2017] NSWSC 572
Court: Supreme Court of New South Wales
Date: 11 May 2017
Judge(s): Button J
Background
The accused stood trial for the murder of a man who died following an alleged assault on the evening of Friday 15 May 2015. The deceased, though already in poor health, was mobile and socialising on that evening. Within 24 hours of the alleged assault he was complaining of severe pain, and within a little over 24 hours he was dead.
At the close of the Crown case, defence counsel applied for what is known as a "Prasad invitation." This is an invitation from the trial judge to the jury to consider, at that early stage of the trial, whether they are unanimously satisfied that the Crown has not proven its case beyond reasonable doubt.
The application was made before any defence evidence was called. Button J considered the application and delivered a ruling from the bench.
Legal Issues
- Whether the Crown case was sufficiently weak to warrant the trial judge extending a Prasad invitation to the jury to consider acquittal at the close of the Crown case
- More specifically, whether the evidence relating to identity, the mental element for murder, and causation of death was weak in any respect that would support such an invitation
Decision
The Prasad invitation and the threshold requirement: Button J confirmed that a practical precondition for extending a Prasad invitation is the trial judge's own assessment that the Crown case is, in some way, weak. His Honour found the Crown case was not weak but strong, and on that basis rejected the application (at [2], [12]-[13]).
Identity: The court found compelling the recurring evidence from multiple Crown witnesses that the assailant wore a football jersey closely resembling a South Sydney Rabbitohs jersey. It was not disputed in cross-examination, consistently with the rule in Browne v Dunn, that the accused was wearing such a jersey when police arrived and removed it at their request (at [3]). Divergences and inconsistencies among the many eyewitnesses were noted, but regarded as entirely expected given the circumstances and not indicative of a weak Crown case (at [4]). Hearsay evidence from the deceased, approached with due caution, also pointed to the accused as the sole assailant (at [5]).
Mental element: Button J regarded the evidence on the mental element for murder as strong. In particular, a witness gave a compelling demonstration of repeated, extremely forceful kicks directed at the deceased, and other witnesses gave similar evidence capable of supporting an intention to inflict grievous bodily harm (at [6]).
Causation: His Honour recalled the established principle that the Crown must prove the accused's assault substantially contributed to the death, and that pre-existing ill-health, prior injury, or a failure to seek medical assistance does not exculpate an accused where that contribution is established (at [7]), citing R v Moffatt. While defence counsel relied on forensic pathology evidence that splenic injuries could have predated 15 May 2015, Button J observed that scientific opinion was not the only evidence of causation (at [8]). The deceased had been ambulatory and socialising before the assault, and was dead little more than 24 hours later. As a matter of common sense, Button J considered the jury would be well open to infer that the assault substantially contributed to death, whatever other factors were also present (at [9]-[10]). There was nothing to suggest negligent hospital treatment as an intervening cause (at [11]).
Orders Made
- Application for a "Prasad invitation" rejected.
Key Takeaways
- A Prasad invitation, which invites the jury to consider acquittal at the close of the Crown case, requires as a practical precondition that the trial judge personally assess the Crown case as weak in some respect (at [2]).
- Inconsistencies and divergences among multiple eyewitnesses to a violent incident are not, without more, sufficient to render a Crown case on identity weak; such inconsistencies are consistent with ordinary human experience (at [4]).
- Under the causation principles affirmed in R v Moffatt, it is sufficient for the Crown to prove that the accused's conduct substantially contributed to the death. Pre-existing ill-health, prior injury, a failure to seek medical assistance, or a combination of those factors does not exculpate an accused where that contribution is established (at [7]).
- Scientific or forensic pathology evidence about possible alternative causes of injury does not automatically displace the broader body of causation evidence available to a jury, including lay observation and common sense reasoning from the deceased's condition before and after the assault (at [8]-[10]).
- Button J assessed the Crown case as strong on murder and very strong on homicide more broadly, illustrating the high threshold a defendant must meet to obtain a Prasad invitation (at [12]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Browne v Dunn (1893) 6 R 67 (HL),
- R v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174 at [70]-[72]
- R v Prasad (1979) 2 A Crim R 45; (1979) 23 SASR 161