By Jack Pappas
In March 2019, the High Court of Australia, by a piece of impeccable circular reasoning, reversed a practice which has existed in Australian criminal trials for over half a century.
The High Court has declared that the giving of a “Prasad Direction” is contrary to law and should not be administered to a jury determining a criminal trial.
A Prasad Direction, until the ruling, had been given by a judge if he or she decided that the jury might consider the evidence for the prosecution so weak or unsatisfactory that they could not convict on it to the high criminal standard of “beyond a reasonable doubt”.
The direction was and could only be given at the conclusion of the prosecution or Crown case, or any time in the trial after that.
In response to a Prasad Direction a jury could only acquit: they could not convict. If they did not decide to acquit then the trial would continue to its end.
Reminding the jury of its right
The direction was a reminder to the jury of their common law right at any time after the end of the prosecution case to return a verdict of not guilty if they regarded the evidence is so unsatisfactory as to be dangerous to act upon having regard to the solemn duty they were impaneled to carry out.
Juries were always told that the issue was one entirely for them if a Prasad Direction was given. In my considerable experience no judge ever indicated his or her personal view of the quality of the evidence when giving such a direction.
The High Court has now found that there is – and never was – any such common law right because, as their reasoning goes, the supposed right was based on the practice and not vice versa.
To my mind that distinction is entirely artificial because by the very nature of common law rights they spring from practice.
Common Law is the unwritten, non-statute law made by judges and courts to deal with practical problems and issues as they arise. Other courts then have regard to those practices in formulating their own practices and so the common law is established and evolves.
Whatever may be the intellectual underpinning of the High Court’s decision in Director Of Public Prosecutions Reference No 01 of 2017  HCA,9. (20 March 2019). The decision of all seven justices will be absolutely binding and unlikely to be reviewed. “Prasad” is dead.
The trouble with the decision is that a Prasad Direction played a very important role in our criminal justice system.
Police evidence/claims are unfiltered
The evidence presented at trial these days is almost universally the evidence gathered by police and compressed by police into witness statements. Before that evidence is adduced at trial it has been through no filtration or testing process.
Long gone are the days of a full committal hearing in which evidence was tested and refined by cross-examination.
Before committal hearings were effectively abolished by legislation, to save the government the expense constituted by costs orders in favour of accused persons acquitted at the committal stage, a Director of Public Prosecutions had a fair chance to assess the quality of the evidence following cross-examination and to weigh up the submissions of defence counsel before making a decision whether or not to place someone on trial.
Police, even well-meaning and well-trained police, are not lawyers. Police statements bristle with inadmissible material; irrelevant observations; opinion and argument…almost all of which can be excluded by cross-examination or objection at trial.
The result is, in the absence of committal hearings, that a prosecution case at the end of its presentation at trial almost never looks like nor reads like the prosecution case on paper at the start of the trial.
It is against that background that Prasad Directions when they were given played a very valuable part in the dispensing of criminal justice in this country.
Criminal trials are very stressful for accused persons and very expensive for both the accused and the community. Criminal trials represent a considerable civil burden and responsibility placed upon members of our community who are selected to act as jurors.
If evidence is shown to be fundamentally flawed then a jury, as representatives of the community and the body charged with assessing such matters, should be entitled to say so. It should not have to suffer through evidence for the defence; addresses from prosecuting and defence counsel, and a summary of the evidence and directions as to the law from the trial judge, to reach the point at which they are entitled to say: “enough is enough I wouldn’t convict anyone on the strength of this evidence – it is just so bad!”.
If you go to the fruit market and you see a rotten apple you don’t need to eat it before you know it is rotten. You don’t need the fruiterer to point out to you that it is rotten and no amount of argument from the fruiterer will convince you that it is not rotten.
Prasad Directions were only rarely given because judges maintained control over the circumstances in which it was considered appropriate to inform a jury of their common law right.
In my experience juries in a fair percentage of cases did not acquit but would indicate instead that they wished to hear all the evidence particularly in word-versus-word type cases.
I have, however, been involved in many cases over 35 years where a jury has been only too ready and too happy to indicate its disapproval of a case which turned out to be bad to the core.
No-one gets a costs award
Accused persons in this country cannot recover any costs from the Crown if, at the end of the case, they are acquitted. That situation does not change whether they are exonerated following a Prasad Direction or at the conclusion of a full trial.
It is fundamentally unfair to an accused person, and not in the community’s best interests, for jurors to be required to sit through sometimes two or three days of additional evidence; argument; submissions and directions from a judge to reach the conclusion which would have been reached days before following a properly administered Prasad Direction.
The High Court has said there are dangers in the Prasad Direction
- That a jury will be deprived of the benefit of addresses by
- That the jury will be deprived of the benefit of a judge’s summing
- That a jury may react against perceived pressure from a judge to acquit an accused person and at a later stage perversely
- That a jury might form a provisional view about the acceptance of a witnesses’ evidence and although they choose not to acquit at that stage that view may be hard to
- Counsel may have no opportunity to correct a jury’s mistaken understanding of the
- Defence counsel who is contemplating leading or not leading evidence may derive some perceived advantage by knowing if, in fact, the jury want to hear more
The answer to those concerns is, in part, found in the rotten apple analogy and, in part, comes back to the care with which Prasad Direction were traditionally given and the limited circumstances in which they were given.
The High Court has said that from now on, if there is evidence (even if tenuous or inherently weak or vague) that is capable of supporting a verdict of guilty, the matter must be left to the jury.
Admittedly there is still a very limited class of case which may be terminated early by a “no case” ruling by the judge but a judge in this country cannot, without infringing the function of a jury, take the case away from the jury and order an acquittal even if he or she in assessing the evidence concludes that a conviction would amount to an unsafe and unsatisfactory verdict.
If the public is to be deprived of the safety valve of Prasad Directions, and it has been, the judges must be given the power to take a case away from a jury if they perceive that an outcome will be either unsafe or unsatisfactory resulting in injustice or an inevitably successful appeal.
The solution to the lacuna created by the High Court decision is either to reinstate the Prasad Direction as a part of criminal practice by statutory amendment or to give trial judges greater power at any stage of proceedings to bring them to a conclusion.
Both solutions lie in the hands of the Attorney-General and the government and deserve earnest and urgent consideration.
– Jack Pappas, Barrister-at-Law, a member of Civil Liberties Australia