R v Ravindran (No 3) [2013] NSWSC 1055

Supreme Court New South Wales

Medium Neutral Citation: R v Ravindran (No 3) [2013] NSWSC 1055 Hearing dates: 29th, 30th, 31st July; 1st, 5th August 2013 Decision date: 05 August 2013 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: Application for Prasad direction refused Catchwords: CRIMINAL LAW - procedure - judge alone trial - application for Prasad direction - whether circumstances appropriate to give such direction Cases Cited: The Queen v Prasad (1979) 23 SASR 161 Category: Procedural and other rulings Parties: Regina (Crown) Joshua John Ravindran (Defendant) Representation: Counsel: T Thorpe (Crown) S Russell and D Randle (Defendant) Solicitors: Solicitor for Public Prosecutions (Crown) Peter Murphy Criminal Law (Defendant) File Number(s): 2011/133776

ex tempore JUDGMENT 1In a careful, well-prepared and thoughtful submission, Mr Russell and Mr Randle of counsel who appear for the accused have submitted that this is an appropriate case for me, in a judge alone trial, to remind myself of the judgment of Chief Justice King in The Queen v Prasad (1979) 23 SASR 161 and exercise my undoubted power to terminate the trial now and bring in a decision that the accused is not guilty of the crime of murder with which he is charged. 2In Prasad at page 163 Chief Justice King said the following: Where there is evidence which, if accepted, is capable in law of proving the charge, a direction to bring in a verdict of not guilty would be, in my view, a usurpation of the rights and the function of the jury. I think that there is a clear distinction for this purpose between a trial before a magistrate or other court which is the judge of both law and facts and a trial by judge and jury. I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This power is analogous to the power of the jury, as judges of the facts, to bring in a verdict of not guilty at any time after the close of the prosecution's case. 3In a case where there is a trial before a judge and jury, counsel sometimes ask for a direction to the jury in accordance with that dictum of Chief Justice King, usually referred to as a "Prasad direction". 4It has also been observed in cases of authority that the occasions for giving such a direction are likely to arise infrequently, and that if the giving of the direction requires a deal of elaboration on the part of the trial judge, probably such an occasion has not arisen. 5The present case certainly has some unusual features. The case for the Crown is that the accused murdered his father by striking him very forcibly with a baseball bat and by strangling him using a length of rope as a ligature. 6The case is necessarily put in that complex way because the expert evidence before me is that the injuries suffered by the deceased, which led to his death, cannot be explained by a single mechanism of infliction. 7Moreover, the accused has given an account of what happened to his father on the day his father died, especially to persons associated with the Ambulance Service, which has become, inevitably perhaps, a focus of the evidence led before me, as the issues in this trial have been fought out between the parties. That account - and I summarise it but briefly - is that he came upon his father hanging from a bolt in a beam in the ceiling of his father's bedroom, and believed him to have committed suicide by hanging. He lifted his father's body down from a make-shift platform, or scaffold, which, implicitly in this account, his father had erected for the purpose of facilitating his own demise, laying him on the bed. He was so overcome by passion, I use the word neutrally, because his father had abandoned him in this way, that he took a baseball bat and struck his father at least twice, but perhaps more than twice, to and about his head. At the time he inflicted these blows he believed his father was dead. 8Without going into the matter in great detail, there is now a great deal of common ground amongst the experts who have given evidence either orally or in report form before me. A previously apparent issue between the two forensic pathologists has disappeared because of an exchange of reports between the parties in the weeks leading up to the trial. 9But it is now apparent to me, and this forms a significant part of the foundation for the application, that the experts agree that a large proportion of the injuries that led to the death of the deceased, at least as a possibility, could have been inflicted as a result of him attempting to hang himself, consistently with the account given by the accused to the ambulance officers. 10There are other aspects of the expert evidence which are relevant to the determination of the question whether, in this case, the Crown has proved beyond reasonable doubt that the accused is guilty of the murder of his father, which, if I reject the present application, I will need to carefully consider when the time comes for making a final decision. 11However, Mr Russell and Mr Randle say that the significance of the common ground between the forensic pathologists is that the Crown cannot prove what they have referred to as an indispensable intermediate fact to make good the Crown circumstantial case beyond reasonable doubt. That indispensable intermediate fact is, according to the careful argument of counsel, the exclusion of the consideration, even as a possibility, that the deceased attempted to hang himself. The real significance of that fact, as I understand the argument put to me at this stage, is that the Crown cannot exclude that at the time the blows were struck, which may have contributed to the death of the deceased, the accused believed that the deceased was already dead. 12As far as the elements of murder are concerned, there is no real issue in the case, as I understand the evidence so far, that the accused voluntarily did an act that caused, in the sense that it significantly contributed to, the death of the deceased, and that that act was the act of striking him about the throat with a baseball bat. 13What is very much in issue is whether at the time of the commission of that act the accused intended to kill, or to cause really serious physical injury to, the deceased. 14On the basis of the way the case has been opened, and fought, no question of recklessness arises in this particular case. The indispensable intermediate fact that needs to be proved is the exclusion of an attempt at suicide if the Crown is to prove the necessary intent. 15There are, as I have said, a number of other issues. Consistently with authority counsel for the accused accept that there is no occasion for me to direct myself to acquit the accused for a want of evidence on the part of the Crown. Counsel accept there is a legal sufficiency of evidence to support a verdict. The real issue is whether the proofs put forward by the Crown are so lacking in weight and reliability that no reasonable tribunal could safely convict on it. 16Whilst acknowledging the force of the submission, I am not satisfied that the Crown case is so lacking in weight and reliability that a conviction could not reasonably be made on the basis of it. 17In expressing this view, I am, of course, exercising no judgment whatsoever, one way or the other, about the critical issue of whether the Crown has actually proved beyond reasonable doubt that the accused is guilty of murder. 18It seems to me, however, that the complexity of the matter is such that I am not persuaded that this is an appropriate case for me to make a decision on a more or less summary basis. 19My mind remains entirely open on the question whether the Crown has discharged the stringent and heavy onus of proof that rests upon it in a serious criminal charge. I am simply unpersuaded that the Crown evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. 20For those reasons, having been reminded of my right as the tribunal of fact to terminate the case now by way of acquittal, I decline to accede to the application that I should do so.