R v Saurav Mahay

[2010] NSWDC 340

CITATION:	R v Saurav MAHAY; Michael Dean KHAN; Dushand RANA [2010] NSWDC 340
JUDGMENT DATE:	26 August 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	There is a case to answer and I do not propose to give a Prasad direction.
CATCHWORDS:	CRIME - jury trial - specially aggravated detain for ransom - no case submission and application for Prasad direction on behalf of one co-accused - submission that Crown fails to prove accused's intentional involvement in joint criminal enterprise - reasons for refusing Prasad direction
CASES CITED:	R v Prasad (1979) 2 A Crim R 45 R v Reardon (2002) 186 FLR 1
PARTIES:	Regina Saurav Mahay Michael Dean Khan Dushand Rana
FILE NUMBER(S):	2008/82064; 2008/211508; 2008/254927
COUNSEL:	Mr S De Silva for the Director of Public Prosecutions Ms K Stares for Mr Khan Ms ST Hall for Mr Rana
SOLICITORS:	Mr WJ Sandilands for Mr Mahay

JUDGMENT

1. Ms Stares, counsel for the accused Michael Khan in this case, makes an application that I should direct an acquittal of her client because there is no case to answer against her client.

2. This is a case where her client and two others are accused of kidnapping a man as well as assaulting him. Briefly, the evidence is that the man spent some time at Michael Khan's home. The complainant said that after a period of time he was required to stay at that home. The requirement was made clear to him by the two co-accused in the Punjabi language.

3. He was assaulted at the home in the backyard, he said in the presence of Mr Khan. He was not allowed to go home but required to spend the night in Mr Khan's home. The following morning contact had been made with the police. Mr Khan and the two co-accused drove the complainant to a location near the police station after an arrangement had been made between Mr Khan and the police for the complainant to be delivered to the police station. The police arrested the three accused at the place near the police station.

4. Ms Stares argues that the Crown fails to prove her client's intentional involvement in the joint criminal enterprise with his co-accused. She argues that there is no evidence that Mr Khan had knowledge of the crime being committed or that he was ready to provide the two co-accused with assistance. I should have added, part of the Crown case is a piece of cardboard found in Mr Khan's pocket on which is, in his handwriting, information concerning the complainant and his address and the figure $7,100 and some calculations.

5. Evidence from the complainant is to the effect that the initial ransom figure was $7,000. Ms Stares argues that there is evidence that Mr Khan did not speak Punjabi, the language in which threats were made. That is so but there is evidence that her client was present at the time that he was assaulted. Also there is a good deal of force in Mr De Silva's submission - the Crown Prosecutor - that the complainant spent the evening and the night and the following morning at Mr Khan's house.

6. Coupled with evidence that he was beaten at that house and spoken to by the co-accused in a way that suggested he was not free to leave the inference is available in my opinion that his stay at Mr Michael Khan's house was not voluntary.

7. Ms Stares argues that the amount mentioned on the cardboard is not the exact amount of $7,000 nor an amount of $4,000 which was an adjusted demand which the complainant was said was made after the initial demand of $7,000. She said that there is no evidence other than in Mr Khan's own interview as to how the figure came to be noted on the cardboard. Those are matters which she may well put to the jury by way of explanation but clearly, in my opinion, there is an inference available from the fact that a piece of cardboard was found in her client's pocket with a figure close to the initial ransom sum that he was involved in the demand of $7,000 for releasing the man who had spent the night at his home.

8. In addition I see force in Mr De Silva's submission that after initial contact between Mr Khan and the police at five minutes to 12 and an arrangement that the complainan should be delivered to the police station safe and sound at 12.30 at a parking place to be organised by the police in front of the police station. Mr Khan and the two other co-accused who were driving the complainant did not comply with that agreement but were arrested some at least half an hour later than the agreed time.

9. To my mind there is clearly a case for Mr Khan to answer.

10. Ms Stares' alternative submission was that I should direct the jury in the way which has come to be associated with the decision of the South Australian Court of Criminal Appeal in R v Prasad (1979) 2 A Crim R 45. That is a direction which needs to be made with care. It is, as Simpson J said in R v Reardon (2002) 186 FLR 1 at 157, a direction which is entirely within my discretion. Although Ms Stares has pointed to witnesses in the prosecution case these are, in my view, matters which are for the jury. As Simpson J said in the same paragraph, such a direction "can carry with it a suggestion to the jury that admissible evidence should be given little or no weight. A judge giving a Prasad direction has to tread a very fine line to avoid trespassing upon the jury function."

11. It would be my concern in this case, given the evidence against her client, that a direction may well convey that impression and I do not propose to give it.

**********