By Paul Gregoire and Ugur Nedim
In Australian criminal trials, the Crown (or prosecution) presents its case first – calling its witnesses to testify one at a time. Those witnesses give ‘evidence in chief’ for the prosecution before they are subjected to cross-examination by the defence.
After all of the prosecution witnesses have finished testifying, the Crown closes its case. The judge may, at this time or any time thereafter, direct the jury that they may bring a verdict of not guilty because, although the essential ingredients of the offence are capable of being made out, the evidence is tenuous, lacking in cogency or otherwise weak. This is called a ‘Prasad direction’.
A Prasad direction can be differentiated from a ‘directed verdict’ in so far as it advises the jury that they have a right to return a not guilty verdict, whereas a directed verdict requires the jury to acquit because “there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty”: Doney v R (1990); LK v The Queen (2010).
R v Prasad
The Prasad direction has its origins in the 1979 South Australian Supreme Court case of R v Prasad.
During the proceedings, then South Australian Chief Justice Len King found that, it’s “open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty.”
His Honour further explained that it is “within the discretion of the judge to inform the jury of this right.”
In the 1987 case R v Pahuja, the Chief Justice made it clear that the direction should only be issued if “the judge is of opinion that the evidence for the prosecution, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty.”
The Victorian Director of Public Prosecutions (DPP) recently brought a challenge to the legal validity of Prasad directions to a three-judge panel of the Victorian Court of Appeal (VCA) justices.
The practice of issuing this type of direction arose in the English courts in the 1930s and 1940s.
Since the mid-1960s, the practice has become subject to controversy in the English court system, as certain judges have expressed disapproval of its use.
In Australia, the Prasad decision is firmly entrenched in common law. It’s not only been approved in South Australia, but also in NSW, the ACT, Victoria and Tasmania. The Prasad decision has been cited with approval in at least 45 ensuing reported cases around the country.
The DPP brought its appeal after the acquittal of a woman who’d been charged with murdering her de facto partner. On 18 July 2015, she struck the deceased in the back of the head with a footstool, causing his death.
On calling emergency services, she claimed to have found the deceased on the floor after he’d fallen. However, the prosecution asserted that a number of statements she made during the call raised an inference of guilt. She was charged with murder on 15 November 2016, and entered a plea of not guilty.
By the time of the trial, she had admitted striking her partner. The deceased had a 25 year history of extreme domestic violence towards the defendant, so the key issue at trial was whether the actions were undertaken in self-defence.
Administering the direction
On 22 November 2016, the prosecution closed its case and the woman’s defence lawyer asked the trial judge to issue a Prasad direction.
The next day, the judge told the jury they could return a verdict of not guilty for murder or manslaughter, or a verdict of not guilty for murder and hear more evidence in respect of manslaughter, or they could acquit the woman of both charges.
The jury chose to hear more evidence for both charges. The woman then gave sworn evidence and was cross-examined. The judge thereafter reminded the jury they could return a verdict of not guilty at that time.
After a short deliberation, the jury acquitted the woman of both charges.
The DPP challenged the Prasad direction under the provisions of section 308 of the Victorian Criminal Procedure Act 2009, which provides that if a person has been acquitted of all charges in the Supreme Court, “the DPP may refer any point of law that has arisen in the proceeding” to the VCA.
This is the first time the legal foundation of the Prasad direction has been disputed in Australia. The DPP emphasised that it was “not concerned with the correctness or otherwise of giving a Prasad direction in this trial, but rather the correctness of the practice itself.”
On 26 October last year, the DPP argued that the direction is contrary to law and should never be administered in a criminal trial. The Director asserted that the English authorities had effectively determined it was contrary to law, and that the only rationale for its use is to save time and money.
The English position
VCA Justices Mark Weinberg and David Beach noted that the English authorities all spoke of the existence of a practice whereby a jury is informed of their right to stop a case. And while some have deprecated the practice, none have ruled it is contrary to law.
In the 1964 English Court of Appeal case R v Young, Lord Chief Justice Hubert Parker expressed the view that the “practice should be only rarely, if ever, used.” In 1995’s R v Kemp, the court found that the direction might have led the jury to feel they were pressured into returning a not guilty verdict.
And in the 2007 case R v Collins, Lord Justice William Gage identified eight “specific dangers” in the direction, including the difficulty in avoiding the impression of pressuring the jury to acquit, and the verdict being made without the benefit of final addresses and legal directions.
The ruling of the VCA
Justices Weinberg and Beach, being the majority, found there is no reason for the Prasad direction not to be given, provided it is only done rarely and in the proper circumstances.
Their Honours remarked that the direction should be avoided in “a case of any significant complexity.” It must almost never be issued in “a case involving more than one accused”, they added. If utilised, the direction should be “accompanied by adequate instructions as to the relevant substantive law”, their Honours found.
In the case of the woman acquitted murder and manslaughter, the justices found the direction had been given lawfully.
Accordingly, on 23 March this year, the VCA ruled, “The giving of a Prasad direction, in appropriate circumstances, is not contrary to law.”
A dissenting judgment
However, VCA Justice Chris Maxwell disagreed. He questioned the decision of the trial judge in giving the direction in the case of the acquitted woman, as the judge had provided a lengthy direction of more than 20 pages which included points about the evidence that was given.
His Honour was of the view that the conduct exposes the “inherent problems” of the Prasad direction. The justice said that in issuing the direction, the trial judge had provided “what amounts to an incomplete charge.”
“In my respectful opinion, the reasons given by the English Court of Criminal Appeal in Collins… for disapproving this practice are cogent and compelling,” Justice Maxwell stated.
“Although the direction commonly referred to as the Prasad direction is not contrary to law, such a direction should no longer be administered to a jury determining a criminal trial between the Crown and an accused person,” his Honour concluded.