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CRIMINAL LAW Prasad Direction abolished by the High Court of Australia KRISTIE MOLLOY, BARRISTER, LEGOE CHAMBERS & LAW LECTURER, FLINDERS UNIVERSITY AND DAVID STILES, ACADEMIC, FLINDERS UNIVERSITY INTRODUCTION On 20 March, 2019 the Full Bench of the High Court of Australia in a joint judgment unanimously held: 1 “The direction commonly referred to as the ‘Prasad direction’ is contrary to law and should not be administered to a jury determining a criminal trial between the Crown and an accused person.” A Prasad direction is “directing a jury in a criminal trial that it is open at any time after the close of the prosecution case to acquit the accused if the jury considers the evidence is insufficient to support a conviction.” 2 Defence counsel makes an application to the judge (in the absence of the jury) at the end of the prosecution case that, whilst the prosecution has technically satisfied the evidential burden, the evidence is so weak, tenuous, vague or inconsistent that (even taken at its highest) a trier of fact or jury could not properly convict upon it. If the Court grants the application, the trial judge will give a Prasad direction to the jury. This usually results in the jury handing down an acquittal shortly thereafter. The High Court makes it clear that a “no case to answer” application is still valid and available in all matters. Defence can make this application at the close of the prosecution case. If the trial judge agrees that there is no evidence to prove an element of the offence then the trial judge will direct the jury to return a “Not Guilty” verdict. THE JUDGMENT Background The defendant was charged with the murder of her de-facto partner. At 20 THE BULLETIN September 2019 the close of the prosecution case in the Supreme Court of Victoria, defence counsel sought the Prasad application on the grounds that the prosecutor was unable to negate the defendant was acting in self-defence. The Court agreed over the prosecutor’s objection and issued the Prasad direction. The jury advised they wished to hear more evidence. At the close of the defence case (but prior to addresses) the trial judge again reminded the jury of the continuing operation of the Prasad direction. At this time, the jury returned with “Not Guilty” verdicts of both murder and manslaughter. The Director of Public Prosecutions (Vic) appealed on the question of law as to whether the Prasad direction was contrary to law and should not be administered. The Director acknowledged Chief Justice King’s obiter dictum comments in R v Prasad that “[i]t is within the discretion of the judge to inform the jury of this right”, challenging only the discretion rather than the existence of the right itself. 3 The majority of the Court of Appeal held that it was not contrary to law, rhetorically asking “why would it be unlawful for a judge to inform the jury of a right which it was conceded they could legitimately exercise?” 4 Issue in the Appeal Special leave to appeal to the High Court was granted to the Director of Public Prosecutions on the grounds that the Prasad direction was contrary to law. The Director also successfully withdrew her concession as to the existence of the right. The High Court accepted that the practice of giving such a direction when a trial judge considered the evidence was tenuous had existed “since at least the middle of the last century”. 5 However, the Court also held that the “recognition of the practice does not carry with it the acceptance that the jury in a criminal trial possess a “long-standing right under common law” to return a verdict of not guilty of their own motion at any time following the close of the prosecution case.” 6 After considering the authorities, the Court held that “the origin of the right, as distinct from the development of the practice, is obscure”. 7 It considered the recognition of the practice by the Courts in Australia and England demonstrated that the right was only exercisable at the invitation of the trial judge and the jury had no right to return a “not guilty” verdict of their own motion after the close of the prosecution case. As such, the Court stated the Prasad direction was an invitation only rather than a long standing common law right possessed by the jury. 8 The High Court cited the dangers of giving a jury a Prasad direction, including risks the jury will react adversely to the perceived pressure to acquit or influenced by the perception that the trial judge considers the verdict should be an acquittal. 9 Rationale for the Decision The High Court held that:- 1. “The exercise of the discretion to give a Prasad direction based upon the trial judge’s estimate of the cogency of the evidence to support conviction is inconsistent with the division of functions between judge and jury and, when given over objection, with the essential features of an adversarial trial.” 10 2. “The prosecution is entitled to have a full opportunity to explain the way its case is put, and to have a verdict from the jury that is based on the application of the law as explained by the judge to their factual determinations.” 11
CRIMINAL LAW 3. Inviting a jury to stop a trial without hearing final addresses “and without the understanding of the law and its application to the facts that only the judge’s summing-up at the end of the trial can give them, is to invite the jury to decide the matter from a basis of 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. A jury is not fully equipped to make that decision until and unless they have heard all of the evidence, counsel’s addresses and the judge’s summing-up. Anything less falls short of the trial according to law to which both the accused and the Crown are entitled.” 12 CONCLUSION Defence counsel can still make a “no case to answer” application if prosecution fail to provide any evidence for all the required elements. However, defence will no longer be able to make a Prasad application at the end of the prosecution case if the evidence raised is tenuous, weak or vague. The High Court has made it clear that if there is any evidence “capable of supporting a verdict of guilty, the matter must be left to the jury.” 13 Juries must not be invited to return a “Not Guilty” verdict without hearing the entirety of the case. B Endnotes 1 Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9 (20 March 2019) at [58]. 2 Ibid, at [1]. 3 (1979) 23 SASR 161 at 163. 4 Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9 (20 March 2019) at [15]. 5 Ibid, at [16]. 6 Ibid, at [17]. 7 Ibid, at [18]. 8 Ibid, at [32]. 9 Ibid, at [52]. 10 Ibid, at [56]. 11 Ibid, at [53]. 12 Ibid, at [57]. 13 Ibid, at [56].
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