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Supreme Court 20 February 2018

R v Stephen (No. 5)

[2018] NSWSC 170

Homicide
CRIMINAL LAW PROCEDURE TRIAL BY JURY FOR MANSLAUGHTER APPLICATION FOR PRASAD DIRECTION “SECOND LEG” OF SELF DEFENCE

Citation: R v Stephen (No. 5) [2018] NSWSC 170
Court: Supreme Court of New South Wales
Date: 20 February 2018
Judge: Button J

Background

The accused was on trial for manslaughter on a theory of excessive self-defence, following proceedings in which the original charge had been reduced to manslaughter (addressed in a separate judgment). The essential factual issue concerned whether the accused's act of stabbing the deceased in the chest, while he was striking her about the head with a clothes iron, constituted a reasonable response in the circumstances as she perceived them.

Defence counsel applied for a Prasad direction. A Prasad invitation is a judicial act of informing a jury, usually at the close of the Crown case, that it has the right to return a verdict of not guilty without hearing further evidence or submissions. It is not the equivalent of a directed acquittal; it simply makes the jury aware of an existing right.

The Crown did not forcefully oppose the application but acknowledged that the relevant legal question was complex.

  • Whether a Prasad invitation was appropriate in respect of the "second leg" of self-defence, specifically the question of whether the accused's response was reasonable in the circumstances as she perceived them under ss 418(2) and 421(1)(b) of the Crimes Act 1900 (NSW)
  • Whether the jury had been given sufficient directions about the structure of self-defence to be properly informed at the point the invitation was sought
  • Whether the Crown case on the normative question of reasonable response was sufficiently weak to justify the court providing even an implicit hint to the jury through such an invitation

Decision

Button J refused the application on two distinct grounds. The first concerned the state of the jury's legal education at the point of the application. The jury had received only passing oral references to self-defence and its two limbs; no structured written or step-by-step explanation had been given. Offering a Prasad invitation before proper directions on so complex an area of law would have been, in the judge's assessment, inappropriate: the jury could not meaningfully exercise the right being communicated without understanding the legal framework.

The second ground concerned the evaluative nature of the central question. Button J held no firm or decisive view about the weakness of the Crown case on the normative question of whether stabbing the deceased in the chest was a reasonable response in the circumstances as the accused perceived them. The judge observed that such a question opens up a range of "sub-questions," including the availability of alternative protective measures, the social realities of life in an outback town compared to an urban setting, and the complexities of an extended relationship marked by domestic violence.

Button J was also candid about the practical effect of a Prasad invitation. In his experience, juries invariably receive such an invitation as a hint about how the evaluative question should be resolved, regardless of how the invitation is expressed. Given that he held no decisive view on the reasonableness question, providing any such hint was not appropriate.

The defence had relied on Silva v The Queen for the proposition that appellate judges are sometimes prepared to overrule a jury's normative finding, and that this should reduce a trial judge's reticence to act in an analogous way. Button J acknowledged the argument but it did not change his conclusion on the facts before him.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A Prasad invitation is not equivalent to a directed acquittal; it is an act of informing the jury of its existing right to return a verdict without hearing more, and does not remove the issue from the jury.
  • Button J identified two threshold considerations for a Prasad application: whether the jury has received sufficient legal directions to meaningfully understand the right being communicated, and whether the judge holds a sufficiently firm view about the weakness of the Crown case to justify the step.
  • Where the central question in a self-defence case is a normative or evaluative one (whether a response was reasonable in the circumstances as the accused perceived them), the complexity of that assessment can itself weigh against offering a Prasad invitation.
  • The Supreme Court treated the practical reality of how juries receive a Prasad invitation as a legitimate factor: in Button J's experience, juries typically receive the invitation as a signal about the answer, even when the judge intends otherwise.
  • The decision confirms that Silva v The Queen establishes that appellate courts can set aside a verdict of excessive self-defence manslaughter as unreasonable, but this principle does not automatically translate into an obligation or strong reason for a trial judge to give a Prasad invitation on equivalent facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 418(2), 421(1)(b)

Cases:
- R v Prasad (1979) 23 SASR 161; 2 A Crim R 45
- Silva v The Queen [2016] NSWCCA 284
- Seymour v The Queen [2006] NSWCCA 206; (2006) 162 A Crim R 576