R v Blackman (No 3) [2018] NSWSC 405

Supreme Court New South Wales

Medium Neutral Citation: R v Blackman (No 3) [2018] NSWSC 405 Hearing dates: 3 April 2018 Decision date: 04 April 2018 Jurisdiction: Common Law - Criminal Before: Button J Decision: (1) "Prasad invitation" accepted (2) Verdicts of not guilty returned on all counts Catchwords: CRIMINAL LAW – count of murder – alternative counts – special hearing – judge alone – application for Prasad direction – asserted inadequacy of evidence against accused – Crown case incapable of proving beyond reasonable doubt that accused was the perpetrator – application accepted – accused acquitted of all counts Legislation Cited: Evidence Act 1995 (NSW), s128 Mental Health (Forensic Provisions) Act 1990 (NSW), s 21 Cases Cited: R v Blackman [2018] NSWSC 395 R v Pahuja (1987) 49 SASR 191; 30 A Crim R 118 R v Prasad (1979) 23 SASR 161; 2 A Crim R 45 Seymour v The Queen (2006) 162 A Crim R 576; [2006] NSWCCA 206 Category: Procedural and other rulings Parties: Regina Gary Clifford Blackman Representation: Counsel: P Rosser QC (Crown) J Watts (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Universal Law (Accused) File Number(s): 2014/00104664 Publication restriction: Nil.

Judgment

Introduction 1. At the conclusion of the tender of all of the evidence in this judge-alone special hearing – in which Gary Clifford Blackman (the accused) has been arraigned on a count of murder and two alternative counts – defence counsel submitted that I should "give myself" a "Prasad invitation", as discussed in the decisions of R v Prasad (1979) 23 SASR 161; 2 A Crim R 45, R v Pahuja (1987) 49 SASR 191; 30 A Crim R 118, and Seymour v The Queen (2006) 162 A Crim R 576; [2006] NSWCCA 206. 2. Oral submissions were thereafter received from both counsel, and I reserved my judgment about whether as the tribunal of law I should give the invitation, and, if so, whether as the tribunal of fact I should accept it, thereby putting an end to the trial. 3. Two bases for the invitation were relied upon by defence counsel. The first was the asserted inadequacy of the state of the expert medical evidence with regard to the cause of the death of the deceased. That basis can be put to one side, because I do not consider that the expert evidence, in support of the Crown case that the violence meted out to the deceased caused her death, was so weak or otherwise unsatisfactory that it should found such an invitation. 4. The other basis of the application was the asserted inadequacy of evidence that it was the accused and the accused alone (that being the Crown case) who administered a very severe beating to the deceased in April 2014 that allegedly caused her death. That submission requires deeper analysis. 5. Section 21 of the Mental Health (Forensic Provisions) Act 1990 (NSW) speaks of a special hearing by judge alone replicating as closely as possible a trial by jury, and of course a jury provides no reasons in accepting or declining such an invitation. 6. As well as that, I have already delivered a very substantial judgment with regard to the admissibility of certain evidence in the Crown case (R v Blackman [2018] NSWSC 395), and many of the findings of fact that I made for that purpose are relevant at this stage of the special hearing. I do not believe that it is necessary for me, laboriously and formalistically, to repeat or incorporate all that I have written in that publicly available judgment in this judgment. 7. Nevertheless, despite those two aspects of the matter, I believe that it is incumbent upon me to provide reasons – albeit reasonably concise ones – for my response to the submission of defence counsel, and to deliver them orally in open Court.