R v Raymundo Antonio ORELLANA [2009] NSWDC 434

New South Wales District Court

CITATION: R v Raymundo Antonio ORELLANA [2009] NSWDC 434

JUDGMENT DATE: 10 August 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The application for a Prasad direction is refused.

CATCHWORDS: CRIMINAL LAW - trial - import marketable quantity of cocaine - application for Prasad direction - evidence of a witness and absence of evidence of telephone records and airport surveillance records the subject of the application - weight of the evidence is such that it is not appropriate to exercise discretion to give direction

Regina v Pahuja (1987) 49 SASR 191 CASES CITED: Regina v Prasad (1979) 2 A Crim R 45 Regina v Reardon Michaels & Taylor (2002) 186 FLR 1

PARTIES: Regina Raymundo Antonio Orellana

FILE NUMBER(S): 2009/11/0064

COUNSEL: Mr S Flood for the Commonwealth Director of Public Prosecutions Mr B Brassil for Mr Orellana

JUDGMENT

1. Mr Brassil, for the accused in this matter, has made an application that I should give a direction to the jury at the close of the Crown case - which has just closed - in accordance with Regina v Prasad (1979) 2 A Crim R 45.

2. His application is a proper one and it relies significantly upon his argument concerning the evidence of a witness named Olivera and upon the absence of evidence from two sources, namely Optus telephone records and airport surveillance records.

3. Those issues may well be factors which Mr Brassil will agitate, so far as the jury is concerned, in his final address. However, this is a case where his client, according to the Crown evidence, arrived at Sydney airport with a bag which contained up to - perhaps more than, depending upon the evidence - two kilograms of cocaine and with an explanation which clearly the Customs officers and the police regarded as having little substance. That is an available point of view about the accused's explanation for the drugs within his bag.