No More Prasad Direction

01 MAY 2019

 

What is a Prasad Direction?

Previously, at the close of the Crown Case, the Defence had the power to request a “Prasad Direction”. This is a direction that the Judge gives to the Jury that they can bring back verdicts of not guilty at any time without hearing any more evidence or the closing addresses.

The jury would be advised they cannot bring back verdicts of guilty without hearing all of the evidence, but that it was open to them to return verdicts of not guilty at this stage of the proceedings.

This direction was said to be used sparingly and at the discretion of the trial Judge when they are of the opinion that the evidence is “insufficiently cogent to justify a verdict of guilty”.

The Case

Following the acquittal of a woman who had been charged with murdering her de facto partner after the Jury was given a Prasad direction, the Victorian DPP brought an appeal in respect of the validity of the direction.

By way of background, the accused woman had struck her de facto partner in the back of the head with a footstool causing his death. The deceased had a 25 year history of extreme domestic violence towards the accused. At trial, it came down to whether the woman acted in self-defence.

At the close of the Crown case, the woman’s defence lawyer sought a Prasad direction. The trial Judge directed the Jury they could return a verdict of not guilty at any time. The Jury however, declined and indicated they wished to hear further evidence.

At the conclusion of the woman’s evidence and cross-examination, the Judge reminded the Jury once again, they were able to return not guilty verdict. After a short period of deliberation, the Jury returned and acquitted the woman.

Director of Public Prosecution Challenges the Prasad Direction

Following this case, the Victorian DPP challenged the validity of the direction to the Victorian Court of Appeal, who dismissed the appeal by majority, decided there was no reason a Judge should not give such a direction in the appropriate case.

The DPP appealed to the High Court of Australia, by way of a grant of special leave. The DPP did not challenge the woman’s acquittal, although the direction itself.

The High Court unanimously upheld the appeal, deciding that the Prasad direction is contrary to law and should not be administered to a Jury determining a criminal trial.

The Court reasoned that the discretion of a trial Judge, based on their assessment of cogency of the evidence was held to be inconsistent with the division of functions between the trial Judge and the Jury. The Court held that if the evidence is even slightly capable of sustaining a conviction, it is and should remain for the Jury as the tribunal of fact to decide whether guilt of an accused person has been proved beyond a reasonable doubt.

As a result of this decision, a trial Judge will not have the power to direct the Jury they are able to return verdicts of not guilty at the conclusion of the Crown case.

For more information contact Sharon Ramsden on (02) 4626 5077 or sramsden@marsdens.net.au

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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