In Director of Public Prosecutions Reference No 1 of 2017  HCA 9 (20 March 2019) the High Court of Australia has unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria (see DPP Reference No 1 of 2017  VSCA 69 (23 March 2018)). In allowing the appeal the High Court has found that a direction to a jury determining a criminal trial that it may bring in a verdict of not guilty at any time after the close of the Crown case, procedure known as a "Prasad direction", is contrary to law and should not be administered.
The accused was charged on 18 July 2015, with the murder of her de facto partner resulting from a "heated argument" during which she struck the deceased on the back of the head with a wooden footstool and killed him. The trial of the accused began in the Supreme Court of Victoria on 15 November 2016, before Justice Lasry and a jury. The accused pleaded not guilty, on the basis that she was acting in self-defence and relied on the deceased’s record of more than 25 years of extreme violence towards her by the deceased.
The prosecutor closed the Crown case on 22 November 2016, at which point Counsel for the accused immediately requested the judge give the jury a Prasad direction. Following on submissions from the prosecutor, opposing the giving of a Prasad direction, Justice Larsy ruled that the case, in his opinion, was ". . . so tenuous" as to warrant informing the jury of their right to acquit, without hearing further evidence. He then informed the jury that as they had heard the whole of the Crown case, they now had three choices:
Following on Justice Larsy's ruling and instructions, the jury deliberated for approximately half an hour and then informed his honour that they wished to hear more evidence in respect of both charges. The trial then continued with the accused giving sworn evidence, and being cross-examined, and closed on 24 November 2016, with the defence Counsel closing its case. Immediately after and prior to the closing addresses, Justice Larsy reminded the jury of the continuing operation of the Prasad direction given them two days earlier and the jury was provided with the opportunity to revisit their earlier decision. A short deliberation followed, and then the jury acquitted the accused of both murder and manslaughter.
[Note: the name Prasad comes from the Queen v Prasad 23 SASR 161 and is the name of the accused in that case - where the judge made the ruling for the first time. The case is a South Australian case, but it has been adopted in NSW and in Victoria.]
The Director of Public Prosecutions (DPP) brought a reference to the Victorian Court of Appeal (see DPP Reference No 1 of 2017  VSCA 69 (23 March 2018)) which contended that pursuant to section 308 of the Criminal Procedure Act 2009 (Vic), a "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. The DPP relied primarily upon English authorities, which, it was submitted, had not merely deprecated the continued use of the practice, but had effectively determined that it was now contrary to law (see R v Collins  EWCA Crim 854). The DPP further argued that even if it was to be assumed that "Prasad" had been correctly decided, legislative provisions in the Criminal Procedure Act 2009 (Vic) and/or the Jury Directions Act 2015 (Vic) had the effect of abrogating its continuing validity.
Following on a consideration of the various authorities, the majority of the Victorian Court of Appeal (namely, Beach and Weinberg JJA) concluded that they did not support the DPP’s submissions. Instead they preferred the submission of the acquitted person that the authorities should be seen in context, and against the background of the very different approach to directed acquittals applicable in those cases. The majority concluded that "there was no reason, in principle, why trial judges should not continue to give appropriately worded Prasad directions, provided that it was understood that they are to be given only rarely, and where the circumstances made it proper to do so". In giving a Prasad direction, a trial judge must form the view that the prosecution case, when considered as a whole, though sufficient to be left to the jury, was particularly weak. It must be a case where the jury would be able, without the benefit of closing addresses or a full judicial charge, to make a sensible assessment of whether, without hearing further evidence, an acquittal was the just and appropriate verdict.
Further, the majority found that the DPP’s submission relating to the provisions of the Criminal Procedure Act 2009 (Vic) and/or the Jury Directions Act 2015 (Vic) were inconsistent with the continued use of a Prasad direction, was ". . . strained and unconvincing".
The dissenting justice, Maxwell P held that the reasons given by the English Court of Criminal Appeal in Collins and R v Speechley  EWCA Crim 3067 for disapproving Prasad directions were cogent and compelling, and further a survey of Australian cases showed that those criticisms Prasad directions applied with equal force in Australia. Justice Maxwell indicated he would have answered the point of law raised in the reference as follows:
On 15 August 2018 special leave to appeal to the High Court was granted (see Director of Public Prosecutions Reference No 1 of 2017  HCATrans 145 (15 August 2018)).
The grounds for appeal were:
That the Supreme Court of Victoria (Court of Appeal) erred in determining on the reference:
(a) that the giving of a Prasad direction is not contrary to law; and/or
(b) that the giving of a Prasad direction may continue to be administered to a jury determining a criminal trial between the Crown and an accused person.
The High Court unanimously allowed the DPP's appeal, finding that a jury does not have a common law right to return a verdict of not guilty at any time after the close of the Crown case. The exercise of the discretion to give a Prasad direction, based on the trial judge's assessment of the cogency of the evidence to support a conviction, was held to be inconsistent with the division of functions between judge and jury. The High Court held that, if the evidence at its highest is capable of sustaining a conviction, it is for the jury as the constitutional tribunal of fact to decide whether guilt has been proved beyond reasonable doubt. The High Court answered the point of law to the effect that a 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. At paragraph  of the judgment, the Court said:
In its Orders at Order 2 the High Court said
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Director of Public Prosecutions Reference No 1 of 2017  HCA 9 (20 March 2019) and High Court Transcript and Summary.
Director of Public Prosecutions Reference No 1 of 2017  HCATrans 145 (15 August 2018)
DPP Reference No 1 of 2017  VSCA 69 (23 March 2018) & summary
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