The High Court of Australia in Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9 has found that 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.
‘Prasad direction’
A ‘Prasad direction’ is a direction by a judge to 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 (at [1]).
Background
The case involved a murder trial in Victoria. After the close of the prosecution case, defence counsel applied to have the jury given a ‘Prasad direction’ on the basis that the prosecution could not negative that the act causing death was done in self-defence. The trial judge acceded to the application and gave a ‘Prasad direction’ over the prosecutor’s objection. The jury withdrew to consider their response to the direction and then returned to the court and advised that they wished to hear more and so the trial continued. After the close of the defence case, but before addresses, the trial judge reminded the jury of the continuing operation of the ‘Prasad direction’ and allowed the jury a further opportunity to consider whether they wished to hear more. The jury withdrew to consider their response to the renewed ‘Prasad direction’. Subsequently, the jury returned to the court and delivered verdicts of not guilty of murder and not guilty of manslaughter.
The Director of Public Prosecutions (Vic) referred a point of law to the Victorian Court of Appeal, namely, whether a ‘Prasad direction’ was contrary to law and should not be administered to a jury determining a criminal trial between the Crown and an accused person. The reference of the point of law did not affect the murder trial or the acquittal. The majority of the Court of Appeal answered the point of law to the effect that a ‘Prasad direction’, “in appropriate circumstances”, was not contrary to law. By special leave, the Director appealed to the High Court of Australia.
Court’s decision
After considering, amongst other things, the origins and development of the long-standing practice and the English and Australian authorities, the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ), in a joint judgment of all seven justices, concluded that a trial judge was precluded from giving a ‘Prasad direction’ by the common law of Australia (at [13]).
Key points made by the Court included the following (at [50]-[57]). References to the cases have been omitted.
- The saving of time and costs and the restoring of the accused to his or her liberty at the earliest opportunity were the considerations which informed the conclusion of the majority in the Court of Appeal. However, given that a ‘Prasad direction’ was unsuited to a trial which involved legal or factual complexity or to a trial of more than one accused person, these considerations lost much of their force. The saving of time and costs was likely to be relatively modest in the case of an uncomplicated trial of a single accused person.
- In the case of an uncomplicated trial of a single accused person, the capacity to relieve the accused person of the strain of the continuation of the trial was to be weighed against the acknowledged dangers of the practice. Those dangers included that the jury would react adversely to the perceived pressure to acquit or that they would be influenced by the perception that the judge regarded the proper verdict to be not guilty. A direction after the close of the prosecution case that it was open to the jury to return a verdict of not guilty without hearing more might be considered inevitably to carry with it that the judge regarded acquittal to be the appropriate verdict.
- Even if a ‘Prasad direction’ could be framed to avoid such a perception, there remained the problem that such a direction trenched on the adversarial nature of the trial. The judge’s duty was to preside impartially, ensuring that the trial was fair to both parties. Thus, the prosecution was entitled to have a full opportunity to explain the way its case was presented, and to have a verdict from the jury that was based on the application of the law as explained by the judge to their findings of fact.
- The practice wrongly enlarged the powers of a trial judge at the expense of the traditional jury function. If there was evidence (even if tenuous or inherently weak or vague) that could sustain a verdict of guilty, the matter was to be left to the jury for its decision. 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 was, therefore, inconsistent with the division of functions between judge and jury and, when given over objection, with the essential features of an adversarial trial.
- Moreover, the practice amounted to an invitation to the jury to determine the matter from a basis of ignorance which could be profound. A jury was not fully equipped to decide whether evidence established guilt beyond reasonable doubt unless they had heard all of the evidence, counsel’s addresses and the judge’s summing-up. Anything less fell short of the trial to which both the accused and the Crown were entitled according to law.
Accordingly, the Court answered the point of law to the effect that a ‘Prasad direction’ was contrary to law and should not be administered to a jury determining a criminal trial between the Crown and an accused person.
