The High Court Rules the Prasad Direction Is Unlawful

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By Paul Gregoire and Ugur Nedim

The Prasad direction was a practice available in criminal trials, whereby a judge could inform a jury that it was open to acquit the accused at any point following the close of the prosecution case if the evidence was considered insufficient to support a conviction.

The use of the Prasad direction arose in this country during the 1979 SA Supreme Court case R v Prasad, in which then SA Chief Justice Len King explained that it was “within the discretion of the judge to inform the jury of this right”.

The practice of inviting an early acquittal began in the English courts in the 1930s and 40s. And since this controversial practice had become a part of Australian common law, it had been cited at least 45 times, and utilised in not only SA, but NSW, the ACT, Victoria and Tasmania.

However, just last week, the full bench of the High Court of Australia ruled that the issuing of the Prasad direction is unlawful, and it should no longer be “administered to a jury determining a criminal case”.

The direction in action

The Victorian Director of Public Prosecutions (DPP) appealed to the highest court in the land against a determination made by the Victorian Court of Appeal (VCA) in March last year, in which Justices Mark Weinberg and David Beach – being the majority – found that a judge could issue the direction.

Their Honours further stated that the Prasad direction should only be issued rarely and in proper circumstances. And they made clear that the practice should never be utilised in “a case of significant complexity” or “involving more than one accused”.

The DPP brought its appeal following the acquittal of a woman who’d been charged with murdering her de facto partner in July 2015. Although, initially denying she’d struck the man over the head, by the time of the trial, she’d admitted to doing so, and had entered a plea of not guilty.

The deceased has a 25 year long history of extreme violence towards the defendant, and so her case boiled down to whether it was self-defence. On the day following the close of the prosecution’s case, the trial judge told the jury it could then acquit the accused of murder or manslaughter.

However, the jury chose to hear more evidence. And after the accused gave sworn evidence and was cross-examined, the trial judge once again notified the jury that it could then return a verdict of not guilty. And after a short deliberation, it acquitted her of both charges.

A questionable right

The High Court made clear that the DPP was not interested in appealing the jury decision to find the accused not guilty on both charges.

Rather, the DPP was challenging the legitimacy of the direction under the provisions of section 308 of the Criminal Procedure Act 2009 (VIC) (the CPA), which stipulates that if a person has been acquitted, the DPP may appeal “any point of law that has arisen in the proceeding”.

During the VCA proceedings, the DPP challenged the discretion of the judge to inform the jury that it had the right to issue an acquittal at that point, whereas in the High Court it challenged whether the right to issue the early acquittal actually exists.

And the Director further argued that provisions within the CPA, coupled with those contained in the Jury Directions Act 2015 (VIC) (the JDA), which both govern criminal trials in Victoria, were “inconsistent with the discretion to give a Prasad direction”.

The dangers of the practice

The High Court looked to former SA Chief Justice King’s assertion in 1987’s R versus Pahuja that the right to return a verdict of not guilty after the conclusion of the prosecution’s case is exercisable only via the invitation of the judge. And this right cannot be applied without the Prasad direction.

And while he recognised the validity of the Prasad direction, Chief Justice King further stated in Pahuja that it should only be used “sparingly”, a judge should bear in mind that defence evidence could strengthen the prosecution’s case, and there should be nothing like “a pre-trial summing up”.

The panel of justices also cited the 2007 English and Wales Court of Appeal case R versus Collins, where the whole list of English criticisms of the practice was cited, including the jury being deprived of the judge’s summing up, and juries reacting against perceived pressure to deliver acquittals.

The statutory challenge

On whether the combined provisions within the CPA and the JDA ruled out the use of the Prasad direction, the High Court justices found that they didn’t. Indeed, section 213(2) of the CPA specifically states that nothing in that legislation limits powers judges had prior to its enactment.

“Nor does the absence of reference to the Prasad direction in the CPA and the JDA necessitate the conclusion that the power to give the direction has been abolished by implication,” their Honours added.

At common law

The justices cited the 1990 High Court case Doney versus the Queen, in which it was put forth that allowing a trial judge to have the power to direct an acquittal based on “insufficiency of evidence” was rejected as wrongfully enlarging the powers of the judge at the expense of those of the jury.

While it’s still left up to the jury to deliberate on the evidence, their Honours continued, the issuing of the Prasad direction makes it difficult to exclude the possibility that the jury will take the direction as an “authoritative pronouncement” on the “unsatisfactory” nature of the evidence.

And further the High Court found that to invite the jury to stop a trial prior to hearing all the evidence, the final addresses and the summing up is to allow the jury to form its decision based on “ignorance, which may be profound”.

“If evidence taken at its highest is capable of sustaining a conviction, it is for the jury as the constitutional tribunal of fact to decide whether the evidence establishes guilt beyond reasonable doubt,” the High Court found.

The orders of the court

On 20 March this year, the High Court ruled that the appeal be allowed, while the VCA decision from March last year be set aside. And it pronounced the Prasad direction is “contrary to law” and should no longer be issued by judges during criminal trials in this country.

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