Citation: R v Stephen (No.6) [2018] NSWSC 243
Court: Supreme Court of New South Wales
Date: 20 February 2018
Judge(s): Button J
Background
The accused stood trial at Broken Hill on charges arising from a homicide. The indictment contained two counts: murder and manslaughter. By the time this decision was reached, a directed verdict of not guilty on the murder count had already been returned, and the trial was continuing before a jury on the manslaughter count alone.
The Crown's manslaughter case rested on the theory of excessive self-defence, specifically that the accused had intended to cause grievous bodily harm (a technical legal term meaning really serious physical injury) while using more force than the law permits in self-defence. The case did not rely on the alternative basis of manslaughter by unlawful and dangerous act.
Defence counsel indicated an intention to seek a "Prasad direction," which is a direction inviting the jury to consider returning a verdict without waiting for the completion of all evidence and addresses, on the basis that the evidence against the accused was too weak to support a conviction. This application prompted written submissions from both parties and ultimately led to the Crown making a more decisive concession.
Legal Issues
- Whether a directed verdict of not guilty on the manslaughter count was appropriate in circumstances where the Crown conceded that an essential element of the offence could not be proven beyond reasonable doubt.
- Whether it remained proper for the trial to continue once the Crown prosecutor publicly and unequivocally stated, in the presence of the jury, that he would not be urging a guilty verdict.
Decision
After receiving written submissions from both counsel, Button J asked the Crown prosecutor to clarify the scope of his submissions. The Crown prosecutor confirmed orally that his position went beyond merely agreeing to a Prasad direction. He accepted that the essential element of the manslaughter charge, namely an intention to cause grievous bodily harm, could not be proven beyond reasonable doubt, and stated he would not urge the jury to convict if the trial continued.
The Crown prosecutor then made that concession openly in the presence of the jury, consistent with the approach taken earlier when the murder count was resolved by directed verdict. Button J formed the view that it was inconceivable for the trial to continue once that concession had been publicly and deliberately made. To press on would, in his Honour's words, reduce the proceedings to "solemn farce," with both counsel ultimately addressing the jury in favour of acquittal.
Accordingly, Button J directed the jury to return a verdict of not guilty on the manslaughter count. The jury complied, and the accused was formally acquitted on both counts arising from the indictment.
Orders Made
- The jury was directed to return a verdict of not guilty on the count of manslaughter.
- The accused was formally acquitted on both the murder and manslaughter counts.
Key Takeaways
- Where the Crown prosecutor publicly concedes, in the presence of the jury, that an essential element of an offence cannot be proven beyond reasonable doubt and that a guilty verdict will not be sought, a directed verdict of not guilty is appropriate.
- A trial cannot properly continue where both parties would, of necessity, be addressing the jury in favour of acquittal. Button J characterised any such continuation as reducing proceedings to "solemn farce."
- The directed verdict procedure applied here to a manslaughter count was consistent with the approach already taken at the same trial in relation to the murder count, demonstrating that the procedure is not confined to any particular category of homicide charge.
- A Crown concession that goes beyond mere agreement with a Prasad direction application, amounting to an acceptance that an element cannot be proven, is a materially stronger basis for intervention by the trial judge.
- A pending costs application by defence counsel was noted but deferred for resolution in a subsequent judgment.
Legislation and Cases Referenced
Cases:
- R v Stephen [2017] NSWSC 1740
- R v Stephen (No. 2) [2018] NSWSC 167
- R v Stephen (No. 3) [2018] NSWSC 168
- R v Stephen (No. 4) [2018] NSWSC 169
- R v Stephen (No. 5) [2018] NSWSC 170
Legislation: No legislation was expressly cited in the judgment.