Criminal Law

By Zoe Jones


No option for an early ‘not guilty verdict’: Prasad directions taken off the table

In a disquieting decision for criminal lawyers (and their clients), on 20 March 2019 the 7 judges of the High Court of Australia unanimously concluded the long-accepted practise of a trial judge giving a jury a “Prasad” direction is precluded by the common law of Australia and should no longer form part of a judge’s discretion in an Australian jury trial.[1]

A Prasad direction is where a Judge, at the end of the prosecution case informs the jury they have the option to find the accused person not guilty without hearing any further evidence, Counsels’ addresses and the Judge’s summing up.  Judges would sometimes give these directions in criminal trials, upon application of the accused person’s Counsel, when there has been insufficient evidence proffered by the prosecution to prove the charge. The term arises from the case which held such a discretion exists, R v Prasad (1979) 23 SASR 161.

The existence of a Prasad direction is based upon preserving the rights of an accused person, and the fundamental tenets of a criminal proceeding. The accused person is innocent until proven guilty of every element of the charge by the prosecution case. In a criminal trial, the prosecution must prove the accused person is guilty beyond a reasonable doubt. The prosecution bears this burden entirely, and if all elements are not proven by the prosecution to the satisfaction of the jury, the jury are able (only at the invitation of the trial judge) to terminate the trial at the close of the prosecution case on the basis the evidence which they have already heard is insufficient to justify a conviction, and record a verdict of not guilty.

It is worth noting that the jury only has the option of returning a verdict of not guilty at this stage of the proceedings and they cannot convict.  If the jury is not able to return a verdict of not guilty, the trial simply continues, as normal, with the defence case and addresses.

Prasad directions are used sparingly and are not given in every trial. However, where an accused person is subject to a criminal charge that has no little prospect of success or the prosecution witnesses are so lacking in credit, it makes sense the jury as the triers of fact have the option to stop the trial after hearing the (lack of) prosecution case. The availability of this option, when the direction is given, and the jury acquit, saves the Court’s precious judicial and administrative resources for other matters and saves the accused person and the State tens of thousands of dollars in bringing the trial to an end expeditiously. It also serves to cut short a juror’s time spent away from their normal life and employment.

In their joint judgment, the Court discusses the development of the Prasad direction over the past 40 years in Australia. Whilst the High Court acknowledged these cost-saving implications of a Prasad direction in their judgment,[2] their Honours held the practise of issuing a Prasad direction is inconsistent with both English and Australian common law (the law made by judges.) Ultimately, the Court held it is the traditional function of the jury to make the decision whether an accused person is guilty or not.[3] The judge is only present to assist the jury in explaining the law and determining any questions of law that may arise during the trial. However, in the circumstance of a Prasad direction, the judge is the person making the preliminary decision as to whether the prosecution case was so unconvincing as not to provide a safe foundation for conviction.

The Court held if there is evidence “(even if tenuous or inherently weak or vague)” capable of supporting a verdict of guilty, the matter must be left to the jury.[4] This is because if a trial judge gives a Prasad direction, the jury may be influenced by what the judge said to them about the quality of the evidence, and might take the judge’s invitation to stop the trial as an indication there should be a verdict of not guilty.

The High Court’s judgement is well-reasoned and supported by extensive discussion of legal principle, much of the subtleties of which cannot be communicated in a brief article. However, it does not betray any confidence in a jury to make a sound decision. Juries have been proven time and time again to be smart decision-makers who take their responsibilities very seriously, particularly in the ACT.

If the jury find the charge has not been proven beyond a reasonable doubt, and that is blatantly obvious at the conclusion of the prosecution case, there should be a mechanism for a jury to say so. Without the Prasad direction, juries are forced to bide their time until the end of a trial before delivering their verdict.

There is room in the Court’s decision for the Federal Parliament and/or the ACT Legislative Assembly to consider legislating the availability of the Prasad-type direction. This legislation should be tabled if only for the considerable cost savings mechanism it represents for the tax payer.  Whilst the Court held the cost-saving exercise is not a relevant factor, as Prasad directions are used so infrequently and only in less complicated trials,[5] the Court does not have the same obligations to the taxpayer as Parliament does. We would think ending the trial at the half-way point often saves 2 days of Court time, and often more than that. This time could more usefully be used on other matters.

This decision represents an opportunity for lawmakers to stem the significant outlay of public and private resources spent on charges without merit, and to emphasise the obligation on prosecutors to only proceed with charges capable of being proven. The Prasad direction is one of the last bastions that emphasises an accused person right to be innocent until proven guilty. To remove it falls short of the trial according to law to which both the accused, the public, and the taxpayer are entitled.

[1] Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9.

[2] Ibid [50].

[3] Ibid [56].

[4] Ibid [56].

[5] Ibid [51].