CRIMINAL LAW - Trial - Prasad direction or invitation - Right of jury to acquit after close of Crown case - Power of judge to inform jury of right to acquit - Judge required to assess cogency of Crown case - Reference of point of law by Director of Public Prosecutions - Whether Prasad direction contrary to law - Whether direction constitutes invitation to acquit - Whether interference with division of function between judge and jury - Direction not contrary to law - R v Prasad

1 The Director of Public Prosecutions has referred a point of law to this Court under s 308 of the Criminal Procedure Act 2009. The Director invites the Court to declare 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.

The referral of the point of law followed the acquittal of a person on a charge of murder, the judge having given the jury a 'Prasad direction'.

2 The 'Prasad direction' owes its origin to the eponymous case of R v Prasad,[1] in which King CJ said:

It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more.[2]

It was within the trial judge's discretion, his Honour said, to 'inform the jury of this right'. Subsequently, in R v Pahuja,[3] King CJ said that this course should only be taken when

the judge is of [the] opinion that the evidence for the prosecution, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty.[4]

3 The Prasad direction has become an entrenched part of Australian law. Both at first instance and on appeal, the validity of the procedure has been assumed, without question or criticism. This is, as far as I am aware, the first occasion on which the legal foundation for the practice has been challenged.

4 There is no statutory provision, and no High Court authority, which would justify a conclusion that the practice is contrary to law. For reasons which follow, however, I consider that the practice should be 'comprehensively disapproved', as it has been on a number of occasions by the English Court of Criminal Appeal.[5]

5 What is described in Prasad as the jury's 'right to acquit', seemingly exercisable of the jury's own motion, depends in practice on the judge exercising a power to invite the jury to consider an acquittal. It is the judge who assesses the prosecution evidence and decides whether it is 'sufficiently cogent' to justify a verdict of guilty. If the evidence is assessed as 'insufficiently cogent', the judge then invites (or directs) the jury to consider acquitting the accused without hearing more.

6 In practice, as the English decisions observe, it is difficult for the judge to avoid giving the impression of inviting the jury to acquit. The very fact that the judge is directing the jury to consider a peremptory acquittal necessarily conveys the judge's view that the state of the evidence is such as to warrant consideration of that (exceptional) course. Anything said by the judge about what has prompted the giving of the direction only reinforces that impression in the jury's mind.

7 Thus understood, the Prasad direction constitutes 'an interference with the traditional division of functions between judge and jury in a criminal trial'.[6] That division is expressed through the strict limits which Australian law imposes on the judge's power to uphold a no case submission and direct an acquittal. A Prasad direction is only given in circumstances where there is a case to answer, such that the judge cannot direct an acquittal. Yet the giving of the direction will be seen by the jury as an invitation to do precisely that.

8 In some Victorian cases, as will appear, the decision to give a Prasad direction has rested on the judge's adverse assessment of the credibility and reliability of prosecution witnesses. In at least one instance, the judge proceeded to inform the jury - in the course of giving the Prasad direction - of what he considered to be the deficiencies in the evidence of the key witness.[7] It is wholly anomalous for a judge to proceed in this way. As counsel for the Director pointed out on this reference, the High Court in recent years has underlined the role of the jury as 'the constitutional tribunal for deciding issues of fact'[8] and has emphasised that questions of reliability and credibility are for the jury, not the judge.[9]

9 The Prasad practice is anomalous in other important respects. Its founding assumption is that the jury can exercise the 'right to acquit' with little or no assistance from the trial judge, and without hearing from either prosecution or defence. Yet the system of jury trial depends upon the jury having the assistance of the judge, in explaining 'so much of the law' and identifying 'so much of the evidence' as is necessary to enable the jury to determine the issues in the trial.[10]

10 In practice, of course, judges recognise that juries need assistance of this kind. It is for this reason that applications for Prasad directions are often refused.[11] In other cases, what is intended to be 'minimal' assistance can lead the jury into error, precisely because it falls short of what is needed.[12] In still other cases, as illustrated by the present case, the direction becomes quite lengthy and becomes a 'mini summing up'.

11 In my opinion, this practice should cease. Its disappearance would in no way diminish the right of an accused person to a fair trial. If anything, the right to a fair trial would be enhanced because - as the English cases point out - there is a real risk that the jury will react adversely to a judge's 'invitation to acquit', and form a view adverse to the accused without having heard the judge's summing-up or the final address of defence counsel. There is, separately, the importance of ensuring a fair trial for the prosecution who, likewise, have no opportunity under this procedure to address the jury about the evidence they have heard.

12 The justification for retaining the procedure is said to be that it can save time and expense. How much time is actually saved is difficult to assess, depending as it does on whether (but for the acquittal) the defence would have gone into evidence, and on how long counsel's addresses and the judge's summing-up would have been.

13 Importantly, of course, an early acquittal will ordinarily mean that the accused person is released from custody sooner. But, that apart, senior counsel for the acquitted person (who appeared to assist the Court as a contradictor) expressly disavowed any submission that the Prasad procedure was a protection against injustice.[13]

14 I referred earlier to the strict limits on the trial judge's power to direct an acquittal. Axiomatically, there cannot be a directed acquittal if there is evidence which if accepted would sustain a verdict of guilty.[14] The evidence must be assessed 'at its highest'. It is not for the judge considering a no case submission to form a view about the reliability of the evidence. That is a matter for the jury. Nor is the judge to consider whether a conviction would be unsafe. That question arises, if at all, only on an appeal against conviction.

15 As King CJ made clear, a Prasad direction may be given even though there is evidence 'capable in law of supporting a conviction'.[15] Indeed, that is the only circumstance in which a Prasad direction is sought. But in order to decide whether to give the direction, the judge must do the very thing which he/she cannot do in considering a no case submission, that is, assess the 'cogency' of the prosecution case. Not only does the judge thus intrude into the jury's exclusive function of evaluating the evidence but, if a Prasad direction is then given, the giving of the direction inevitably conveys - or is perceived by the jury to convey - the judge's view that the state of the evidence is such as to justify consideration of immediate acquittal.[16]

16 The Prasad direction distorts the jury's assessment of the evidence in two significant respects. First, the jury are inevitably influenced by the (express or implied) indication from the judge that he/she has doubts about the prosecution case. Secondly, the jury will be expected to review the evidence having had, at best, a partial summing-up. They will not have heard submissions from the prosecution about how the evidence should be viewed, nor will they have had the conventional directions from the judge about how to assess witnesses or draw inferences.

17 Although this is said to be the 'right' of a jury to acquit, in reality everything depends on the judge's exercise of discretion to inform the jury of that right. It is for the judge to decide, typically on application by defence counsel, whether the direction should be given. What routinely occurs (as in the present case) is that counsel seeks to persuade the judge - not the jury - of the weaknesses in the Crown case.

18 In the present case, defence counsel relied on Pahuja in submitting that the judge should conclude that the evidence for the prosecution was 'not sufficiently cogent to justify a verdict of guilty'. Counsel relied for this purpose on an earlier decision of the same judge, in which his Honour had given a Prasad direction.[17] There the judge himself cited Pahuja in ruling that he would give the direction:

In Pahuja, King CJ notes that in his opinion the decision whether to inform the jury of its power to bring back a verdict of not guilty must be made by the trial judge in light of his assessment of the case. It is my opinion that the evidence may not be sufficiently cogent to justify a verdict of guilty. I note that that is a test different from the test which would apply had a submission been made on behalf of the accused that there was not a case for him to answer.[18]

19 I turn first to examine the limits on the power of a trial judge to direct an acquittal. As will appear, the decision of the Full Court of the South Australian Supreme Court in Prasad was the first in a series of Australian decisions, culminating in the High Court decision in Doney, which held that a trial judge had no power to direct an acquittal on the basis that, in the judge's view, it would be unsafe for the jury to convict.

20 In Australia, a trial judge has no power to direct an acquittal on the basis that it would be unsafe for the jury to convict. In England, at least for a time, the position was different. In 1977, in R v Mansfield,[19] the English Court of Criminal Appeal noted that a practice had developed in that jurisdiction during the 1960s of defence counsel:

inviting the judge at the end of the Crown's case, to say that on the Crown's evidence it would be unsafe for the jury to convict and accordingly the judge ought to withdraw the case from the jury.[20]

The Court observed that the making of such submissions appeared to have commenced following a change in the criminal appeal provisions.[21]

21 The Court in Mansfield affirmed that defence counsel was entitled to make - and the judge was obliged to consider - a submission that:

some of the evidence was so conflicting as to be unreliable and therefore if the jury did rely upon it the verdict could be unsafe.[22]

If that submission were upheld, the judge should direct an acquittal. At the same time, the Court said, the judge was not entitled to direct an acquittal merely because the judge thought 'that the main witnesses for the prosecution [were] not telling the truth'.[23] To do so would be 'to usurp the function of the jury'.[24]

22 In Prasad, the majority of the South Australian Full Court (King CJ and White J) rejected a submission, based on the English practice described in Mansfield, that the trial judge had a discretion:

to stop the case and direct a verdict of not guilty if he considers the evidence for the prosecution is so unsatisfactory that it would be unsafe to convict upon it.[25]

It seems to me that to say that a judge can direct a jury to bring in a verdict of not guilty when there is evidence capable in law of supporting a conviction is to infringe one of the basic principles of trial by jury. It is fundamental to trial by jury that the law is for the judge and the facts for the jury. If there is no evidence which would justify a conviction then, as a matter of law, there must be an acquittal. That decision is for the judge and the jury must accept and act on his direction on that question of law. If, however, there is evidence which is capable in law of supporting a conviction, a direction to the jury to acquit would be an attempt to take from them part of their function to adjudicate upon the facts. That, as it seems to me, would be contrary to law.[26]

I think that the reliability of the evidence rests with the jury, whether the supposed unreliability of the evidence arises from the supposed lies or supposed conflicts.

In this way, the time-honoured separate functions of judge and jury will be preserved. There still remains the duty to direct the jury to acquit, on a submission of no case, if there is no evidence on a particular element of the charge. But once there is some evidence on each element, its weight is for the jury.[27]

23 In 1981, in Ling v The Queen,[28] the Tasmanian Court of Criminal Appeal unanimously rejected a contention, likewise based on Mansfield, that a trial judge had power to withdraw a case from the jury on the ground that the evidence before the jury was 'so unreliable that a verdict based upon it would be unsafe'. Green CJ expressed agreement with what King CJ had said in Prasad, and added the following:

In my view, if a judge in the course of determining a submission that there is no case to answer, makes value judgments or embarks upon an assessment of the weight of the evidence, he is performing functions which by law should be performed by a jury and he is thus unlawfully altering the basic character of a criminal trial. ... In a criminal trial the issue which is joined by a plea of not guilty is whether the accused is guilty or not guilty. The determination of that issue involves finding facts, applying the trial judge's directions as to the law and sometimes, making value judgments. If a verdict is arrived at as the result of a judge instead of a jury performing those functions, it cannot be said that the issues joined have been tried by a jury.[29]

24 In Attorney-General's Reference (No 1 of 1983),[30] the Full Court of the Victorian Supreme Court came to the same conclusion. The Court (Young CJ, Anderson and Gobbo JJ) said:

When a trial judge is considering at the close of the Crown case whether there is a case to answer, he should not be concerned whether a verdict of guilty based upon such evidence might be set aside by an appellate court as unsafe. He should only consider whether there is evidence upon which the accused could lawfully be convicted. If there is not, he should then 'take the case away from the jury' or more accurately, direct the jury that there is no evidence upon which they could convict and that accordingly it is their duty to acquit. Where, however, there is evidence upon which the accused could lawfully be convicted, the trial judge should so rule notwithstanding that he may think that a verdict based upon such evidence would be unsafe.[31]

25 In 1989, in R v R,[32] the New South Wales Court of Criminal Appeal addressed the following question of law, referred to it by the Director of Public Prosecutions:

Does a trial judge have the power to direct a verdict of acquittal when the trial judge assesses the evidence is such that a verdict of guilty based upon it would be unsafe and unsatisfactory?[33]

The Court concluded that the question was to be answered in the negative. Gleeson CJ (with whom Maxwell and Wood JJ agreed) distinguished the 'broader view' (exemplified by Mansfield) from the 'narrower view', which holds that:

a judge should only direct an acquittal if he concludes that there is no evidence upon which a jury properly directed could properly convict.[34]

26 Another way of expressing the broader view, Gleeson CJ said, would be

to say that the trial judge's powers extend to enabling the judge to prevent the occurrence of what, in the judge's view, a Court of Criminal Appeal would regard as a miscarriage of justice and which, by hypothesis, the judge would regard as a miscarriage of justice.

There are attractions in the notion that a trial judge should have such a power. However, if it were so, it is not easy to see why it should, in logic, be confined to directing an acquittal in a case where the verdict would be regarded as unsafe.[35]

27 His Honour concluded that the narrower view was correct:

As Dawson J observed [in Whitehorn[36]] there are aspects of the trial procedure by which our criminal justice is administered which operate to circumscribe the extent to which a trial judge may intervene in the interests of preventing injustice. To the aspects mentioned by Dawson J I would add the role of the jury as the tribunal of fact. It is that consideration, rather than any point of legal technicality, which underlies the decisions in cases such as R v Galbraith, R v Prasad, Attorney-General's Reference (No 1 of 1983) and Mezzo. The legal principles which underpin the narrower view in turn flow from, or are particular manifestations of, that basic aspect of criminal justice. It is one thing to recognise in Courts of Criminal Appeal a power to review a jury's determination of fact. It is another thing altogether to permit a trial judge to pre-empt such a determination.[37]

28 In 1990, this question came before the High Court in Doney. The trial judge had rejected a submission by the defence that he should direct a verdict of not guilty on the ground that, although there was evidence sufficient to sustain a conviction, a verdict of guilty would be unsafe and unsatisfactory.[38] The Court of Criminal Appeal held that the conviction was not unsafe or unsatisfactory. The central argument on appeal to the High Court was that the applicant had been

denied the right to have the trial judge who heard and observed the [accomplice] witness, determine whether, in his view, a guilty verdict would be unsafe or unsatisfactory.[39]

29 The Court (Deane, Dawson, Toohey, Gaudron and McHugh JJ) unanimously rejected the argument. Their Honours noted that the English practice as described in Mansfield was said to rest on the applicable criminal appeal provisions, and that the appellate courts of South Australia, Victoria and New South Wales had rejected the proposition that 'a similar power in the trial judge derives from the common criminal appeal provisions in Australia'. The Court pointed out that the power of a court of criminal appeal to set aside a verdict as unsafe did not provide:

any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial.[40]

[T]he purpose and genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.

...

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.[41]

31 Against that background, I turn to examine what was said in Prasad itself about what has come to be known as the 'Prasad direction' or 'Prasad invitation'. It should be noted that what was said on that subject was entirely obiter. The Court in Prasad was not concerned with any question of the jury's 'right' to acquit. Rather, the issue was whether the judge had power to direct an acquittal on the ground that a guilty verdict would be unsafe.

32 When King CJ in Prasad identified the 'right' of the jury to acquit, he drew explicitly on English practice.[42] It would seem that the practice of the judge informing the jury of that right developed in England in the early 20th century. It was not, however, until 1977 that the English Court of Criminal Appeal described its emergence in those terms.[43]

33 The key passage from the judgment of King CJ in Prasad begins as follows:

It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings: Archbold, Criminal Pleading and Practice 39th ed. (1976) p 332.[44]

34 The two sentences in this passage were quoted almost verbatim from paragraph 577 of the 39th edition of Archbold. The remainder of the paragraph, however, was not quoted. It read as follows:

However, in R v Young [1964] 1 WLR 717; 48 Cr App R 292, C.C.A., the court expressed the view that maybe the time had come, though the court did not desire to rule on it, when this practice should be only rarely, if ever, used, and that judges should more often take the responsibility themselves of saying to the jury that there is not satisfactory evidence upon which they could convict, and accordingly direct an acquittal. When a submission is made that a case should not be left to the jury it is a judge's duty not only to consider whether there is some scintilla of evidence which in law could go to the jury but also whether it would be safe for a jury to convict on the evidence as it then stands: R v Hipson [1969] Crim L R 85, C.A. see post, 1356. These principles were re-affirmed in R v Falconer-Atlee (1974) 58 Cr App R 348, C.A. - 'If the judge is not prepared to stop the case on his own responsibility, it is wrong for him to try and cast the responsibility of stopping it on to the jury'.

35 As can be seen, the omitted section sheds a very different light on the status of this 'practice' in England as at 1979. First, it reveals that the Court of Criminal Appeal had declared some 15 years earlier, in Young, that 'this practice should be only rarely, if ever used'.[45] As will appear, that Court had expressed similar sentiments on two other occasions - R v Falconer-Atlee[46] in 1973 and Mansfield in 1977 - in the years before Prasad was decided. In Mansfield, the Court of Appeal had said:

There grew up in the two or three decades before the early sixties, and probably for a short time after the early sixties, a practice of inviting the jury to stop the case. This court, in R v Young, ruled that the practice was bad and should stop.[47]

36 Secondly, the omitted passage reveals that, in the period 1964-77, the English Court of Criminal Appeal was proceeding on the basis that the trial judge did have power to uphold a no case submission on the basis that, although there was evidence to sustain a conviction, the judge considered that a guilty verdict would be unsafe. One of the stated reasons for the Court's deprecation of the practice of inviting the jury to stop the case was that it amounted to an abdication by the judge of his/her responsibility to direct an acquittal on that very basis. As Archbold notes, the Court in Falconer-Atlee had said:

If the judge is not prepared to stop the case on his own responsibility, it is wrong for him to try and cast the responsibility of stopping it on to the jury.[48]

[The judge] may undoubtedly, if he sees fit, advise [the jury] to stop the case and bring in a verdict of not guilty. But a verdict by direction is quite another matter. Where there is evidence which, if accepted, is capable in law of proving the charge, a direction to bring in a verdict of not guilty would be, in my view, a usurpation of the rights and the function of the jury. I think that there is a clear distinction for this purpose between a trial before a magistrate or other court which is the judge of both law and facts and a trial by judge and jury. I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This power is analogous to the power of the jury, as judges of the facts, to bring in a verdict of not guilty at any time after the close of the prosecution's case. It is part of the tribunal's function as judge of the facts. It cannot, consistently with principle, exist in a judge whose function does not include adjudication upon the facts.[49]

38 As can be seen, King CJ viewed as 'undoubted' the power of the judge to advise the jury 'to stop the case and bring in a verdict of not guilty'. Directing an acquittal, on the other hand, was 'quite another matter'. If there was evidence capable in law of proving the charge, there could be no directed acquittal. Plainly enough, for a judge to advise (though not direct) the jury to acquit goes well beyond merely informing the jury of its 'right' to acquit.

39 The Chief Justice returned to this issue in 1987, in Pahuja. In that case, a Prasad direction had been sought and given at the conclusion of the prosecution case. Although no question about the direction was raised by the grounds of appeal, both the Chief Justice and Cox J took the opportunity to express their disapproval of what had occurred.

At the conclusion of the case for the prosecution, the learned trial judge, at the request of counsel for the defence, informed the jury of their right to stop the case and to bring in a verdict of not guilty. He addressed the jury at considerable length by way of explanation of the relevant law and during the course of his remarks conveyed quite clearly that he thought that they should stop the case. The jury decided that the case should proceed. I think that the procedure adopted calls for comment. The undoubted right of a trial judge to inform the jury of its power to bring in a verdict of not guilty at any time after the conclusion of the case for the prosecution, should be used sparingly and only when the judge is of opinion that the evidence for the prosecution, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty. Even in such a case, the judge should bear in mind that the evidence called by the defence might strengthen the prosecution's case. The decision as to whether to inform the jury of its power must be made by the trial judge in the light of his assessment of the case and it would not be helpful to offer general advice as to the circumstances in which it would be proper to adopt that course. These observations, however, can be made. The fact that apparently credible evidence given by an alleged victim in a sexual case is uncorroborated is not of itself sufficient reason for taking that course of action. The judge should not interrupt the trial for detailed argument as to whether he should do so. He should do so as a matter of course or not at all. There should be nothing in the nature of a pre-trial summing up. If the jury cannot properly reach a decision at that stage on the law as explained in the opening, perhaps clarified by a concise correction or explanation if necessary, it is better not to embark upon the course of action at all. A partial summing up at that stage of the trial is a serious departure from the due course of trial and is to be avoided.[50]

41 Three points may be noted about this passage. First, King CJ again described as undoubted the 'right' of the trial judge to inform the jury of its 'power' to acquit. Secondly, his Honour made plain that it was the judge's assessment of the 'cogency' of the prosecution evidence which must determine whether the judge exercised that 'right'. Thirdly, his Honour emphasised that it would be a 'serious departure from the due course of a trial' for the judge to give any 'summing up' at that stage. As will appear, the Prasad procedure as adopted in the present case involved just such a 'partial summing up'.

The direction, including an addendum that was occasioned by a juror's question, occupied seventeen pages of the transcript. His Honour explained what his and the jury's powers were, described briefly the elements of the charge, said something about reasonable doubt and the danger of convicting on the uncorroborated evidence of an alleged victim, and then dealt at considerable length with the Crown evidence and the nature of the case generally. He spoke of 'conflicts here clearly on the evidence' but that was to anticipate the defence evidence because there were certainly no critical conflicts between the Crown witnesses themselves. He gave the jury the choice of stopping the trial or having it proceed, but the general tenor of the direction clearly favoured a verdict of not guilty without waiting to hear the defence case.

...

[A] Prasad direction should be put to the jury quite simply and shortly. It is not the occasion for any more than a passing glance at the law and a brief reference to whatever feature of the evidence it is that has led the trial judge to give the direction - usually some serious weakness in the Crown case that has emerged during its presentation. I think, with respect, that this direction was far too long.

...

This is not intended to discourage the use of the Prasad procedure where the circumstances call for it. However, it is no small thing, where there is a case for the accused to answer, to encourage the jury to pre-empt their normal function.[51]

43 In 1995, in Dean v The Queen,[52] Cox J returned to the issue of the giving of a Prasad direction. His Honour said:

This Court has previously expressed its concern about too free a use of the Prasad direction to bring a trial to a stop: see R v Pahuja ... In the present case the learned judge found that there was a case for the appellant to answer. There was no suggestion of the police witnesses being patently unsatisfactory or of the appellant being put to a lengthy but inevitably successful defence. Practically everything turned on the appellant's state of mind and that was a subject on which the jury was likely in the circumstances to be very interested in hearing from the appellant himself, as indeed they showed by their answer. All the indicators, in short, pointed to a continuation of the trial in the normal way. A Prasad direction should not be given merely because the trial judge considers that the Crown case is not a very strong one. That would be to usurp the function of the jury.[53]

44 The power of a trial judge to 'invite' the jury to acquit was considered by the English Court of Criminal Appeal on at least eight occasions between 1964 and 2010. As foreshadowed earlier, a review of those decisions reveals increasingly strong disapproval of the practice, but no suggestion that it is bad in law. On the contrary, as Weinberg and Beach JJA point out, the successive decisions appear to accept the 'right' of the jury at common law to acquit after the close of the Crown case.

45 The first in the series of decisions was Young, decided in 1964. In that case, the trial judge at the conclusion of the evidence had

invited the jury, if they so desired, to return a verdict of not guilty without proceeding any further; in other words to say that they were not satisfied that the prosecution had proved their case.[54]

In the event, the foreman told the judge that the jury were not all of that view, and the case proceeded. The judge summarised the prosecution evidence and then adjourned, without having summed up the defence case. Although, on the resumption, the judge finished his summing up, the jury foreman confirmed - in answer to a question from the judge - that the jury had made up their mind before coming into court and hearing the remainder of the summing up. The judge said to the jury:

You see, members of the jury, it is obvious you have decided ... without hearing what I had to say about the [defence] case and after hearing what I said about the prosecution's case.[55]

46 The Court of Appeal quashed the guilty verdict. Delivering the judgment of the Court, Lord Parker CJ said:

It is quite clear that, although the jury had heard all the evidence, had heard speeches for the prosecution and particularly for the defence, yet, unless they were going to find him not guilty, it was their duty before returning a verdict of guilty to listen to what the judge had to say about the defence.[56]

Relevantly for present purposes, his Lordship added the following:

Before leaving the case, the court would like to say that this appears to be yet another case where difficulties have arisen through a practice whereby judges invite juries to stop a case if they feel that the prosecution case has not been proved. It is quite clear to this court that all the difficulties arose from that ... It may be that the time has come - the court does not desire to rule on it - when this practice should be only rarely if ever used, and that judges should more often take the responsibility themselves of saying to the jury that it is not satisfactory evidence on which they could convict, and accordingly, direct an acquittal.[57]

47 The second occasion was Falconer-Atlee, in 1973. There, the defence had submitted at the close of the prosecution case that there was no case to answer. The judge refused the no case submission. Then, as the Court of Appeal noted, the judge

turned to the jury who were still there, having listened to all this. He told them in an address extending over four pages of transcript why it was that he was leaving the case against the [accused] to them. With great respect, that was unwise, to say the least, in the circumstances, because it involved expressing, however tentatively, a view on the facts which it would have been very much better not to do. If he was going to leave the case to the jury, he should have left it saying no more than that there was evidence to go to the jury and it was for them to say whether or not the appellant should be convicted.[58]

48 Delivering the judgment of the Court, Roskill LJ said:

Not content with this address to the jury, the learned judge, having ruled that there was evidence to go to the jury, went on almost to invite the jury to stop the case. This Court has repeatedly said in recent years that this practice should not be followed. If a judge thinks that the case is tenuous, then, even though there is some evidence against the accused person, the judge, if he thinks it would be unsafe or unsatisfactory to allow the case to go to the jury even with a proper direction, should take upon himself the responsibility of stopping it there and then. If the judge is not prepared to stop the case on his own responsibility, it is wrong for him to try and cast the responsibility of stopping it on to the jury.[59]

49 As noted earlier, the Court was emphatic that the 'invitation' practice should not be followed. Instead, the judge should assume the 'responsibility' of stopping the case if he/she considered that a guilty verdict would be 'unsafe or unsatisfactory'. That is, of course, precisely what a judge in Australia cannot do.

50 The third decision was Mansfield, to which reference has already been made. The Court there noted that the 'invitation' practice had 'grown up' in the 1930s or 1940s,[60] and that the Court in Young had said it should stop. In short, by the time Prasad was decided, three differently-constituted benches of the Court of Criminal Appeal had said - in increasingly strong terms - that the practice of inviting the jury to stop the case was bad and should cease.

51 The next decision was in 1995 in R v Kemp.[61] In that case, the judge intervened during the presentation of defence evidence to ask the prosecutor whether, in the light of the evidence given, there was 'any point in the prosecution trying to achieve a conviction'.[62] The prosecutor, having taken instructions, informed the judge that the prosecution wanted to continue.

52 The judge then brought the jury back into court and said:

Of course you have heard a good deal of evidence in the case now. In particular, you have heard from the last witness, who you may think was an independent witness in that public house that evening, who gave you an account which, again, you may think was entirely inconsistent with the account that you heard from the three young women.

Members of the jury, it is always open to you in a criminal case to say that you have heard enough of the case at any stage. (In certain cases the judge takes it upon himself to say that the prosecution have not called sufficient or adequate evidence to put before a jury, and a judge will direct an acquittal). That is not one of those cases and, indeed, Mr Farley never suggested it was, and he has called evidence before you, and it would be a case for you to decide.

Members of the jury, what concerns me is that because of the situation that has arisen, we would have to adjourn today and come back tomorrow to hear the rest of the evidence and counsel's submissions to you and my summing-up, and if it be the case, and of course I do not know and may be you do not know, but you can have a brief discussion amongst yourselves, if it be the case that you have already formed the view that the prosecution are not going to be able to make you sure of what happened and you, of course, have been told and know that you have to be sure before you can convict. If that was the position you had already reached, you would be entitled to say that now. Of course, if you want to hear the further evidence and the rest of the case, then you shall do so, but I do not want unnecessarily to waste time if it be that you have come to that conclusion already.[63]

53 In the event, the jury informed the judge that there were other matters they wanted to consider and that they wanted the case to proceed. The defence case was completed, and then there were final addresses and the judge's charge. The jury deliberated and returned a verdict of guilty.

54 On appeal, counsel for the appellant referred to the statement in Falconer-Atlee that the 'invitation' practice should not be followed.[64] Delivering the judgment of the Court, McCowan LJ said:

We were of the impression that this practice criticised by Roskill LJ, once quite prevalent, had died out, but it appears that it is still very occasionally done. The danger, as [counsel for the appellant] pointed out, is that if the jury do not accept the judge's invitation, something may go wrong with the verdict. He submits that juries are often keen to register their independence and do not like to feel that they are being pushed about by the judge. Indeed if they feel leant upon by a judge in favour of the defence, the result may be positively counter to what the judge intended. He submits that that is what may have occurred here.[65]

We have no doubt that the judge's intentions were of the best. He clearly thought that an acquittal was inevitable and wanted to save time and money. However, he was wrong. An acquittal was not inevitable. Plainly the jury must have taken another view of the witnesses ... than he himself took.[66]

The Court was not persuaded, however, that the verdict was unsafe. The judge's intervention had not prevented the jury from discharging their function of deciding the case on the evidence before them.

56 As had occurred 30 years earlier in Young, the Court in Kemp went on to make 'a few general remarks on the problem that has arisen'.[67] They then set out an extract from the 1993 edition of Archbold which said, amongst other things, that the statement of Roskill LJ in Falconer-Atlee 'should be ignored'. The Court in Kemp said:

We, for our part, do not agree with the suggestion that what Roskill LJ had to say in Falconer-Atlee should perhaps be ignored. We do not think it will always be very easy to distinguish between an invitation to acquit and a mere intimation of a right to stop the case. In this particular case we have no difficulty in concluding on the words used by the judge that it was an invitation to acquit, but it may not always be so easy to differentiate between the two.

Moreover, a jury may well use their common sense and read a mere intimation that they have a right to stop a case as an invitation to acquit, on the basis that a judge is not likely to be giving them the intimation unless he thinks that they should acquit. If a judge is going to do anything of this sort, and we do not encourage it, he should clearly, in our judgment, not go beyond a mere intimation of the right to stop, for fear that if he goes further and utters a clear invitation to acquit, the result may be as in the present case, leaving a convicted defendant with a grievance, however unjustified.[68]

57 In 2000, the Court of Criminal Appeal had to consider the following question, referred to it by the Attorney-General following an acquittal:

Whether, in a prosecution which has otherwise been properly brought and where there is evidence to go before a jury, a trial judge has power to prevent the prosecution from calling evidence and direct the jury to acquit on the basis that he thinks a conviction is unlikely.[69]

58 The Court held that the question should be answered in the negative. Delivering the judgment, Kennedy LJ said:

Clearly, as it seems to us, the effect of the authorities is that other than in cases which are oppressive or vexatious or an abuse of the process of the court, the prosecution has a right to present its case. At the close of the prosecution case the defence may submit that the evidence does not disclose a case to answer, in respect of any or all of the counts on the indictment. If the submission succeeds the judge will direct the jury to acquit the accused. The test a trial judge should apply in determining whether there is a case to answer is set out in Galbraith. A trial judge is not precluded from entertaining and ruling on a submission of no case to answer, at the close of the defence case, but of course that is at a much later stage in the trial. At common law a jury is entitled to decide, at any stage after the prosecution has closed its case, that it wishes to acquit. The judge may remind the jury that this course is open to them. But he should not go further and issue an invitation to them to acquit (see Kemp and Falconer-Atlee).[70]

59 In R v Speechley,[71] one of the grounds of appeal was that the trial judge had prevented defence counsel from reminding the jury of 'their common law right to return a verdict of not guilty at any time after the close of the prosecution case'. The Court of Appeal concluded that the judge's ruling was correct. Delivering the judgment of the Court, Kennedy LJ said:

It appears to be accepted that a jury does have a right to acquit after the conclusion of the prosecution case, but we know of no case in which that right has ever been exercised other than at the invitation of the trial judge, and we are satisfied that it can only be exercised if the trial judge invites the jury to consider exercising it. That is because it is the duty of the judge to ensure that the trial is fair, both to the defence and to the prosecution, and he must therefore be in a position to decide when the time has come for the jury to be permitted to reach a decision. In almost every case in order to do justice the jury needs to listen to all of the evidence, the submissions of counsel, and the directions in law of the judge. Otherwise, for example in a case of murder, the jury might acquit without ever realising that a verdict of manslaughter was a possible alternative. So if a jury is invited by counsel, or seeks of its own motion, to return a verdict before being asked by the judge to do so the judge should in our judgment direct the jury that it is his duty to ensure that justice is done, and that it is not open to them to return a verdict until he invites them to do so.[72]

60 The Court went on to endorse the statement by Roskill LJ in Falconer-Atlee 'that in practice a judge should not invite a jury to stop the case'.[73] The Court also repeated what had been said in Kemp about the difficulty of distinguishing 'between an invitation to acquit and a mere intimation of a right to stop the case'.[74] The judgment continued:

Plainly, as the facts of [Kemp] demonstrated, a prudent judge will say nothing at all.

We accept that in some cases judicial silence may mean that a trial lasts longer than it need because, for example, the strengths or weaknesses of the prosecution evidence may depend upon the view to be taken of a witness's reliability, and the judge cannot therefore accede to a submission of no case to answer simply because he regards the key prosecution witness as unreliable (see R v Galbraith (1981) 73 Cr App R 124), but it is worth remembering that in an exceptional case a judge can consider a submission of no case to answer, or decide of his own motion that there is no case to answer, as late as the close of the defence case, as was pointed out in R v Brown [2010] EWCA Crim 1756; [2002] 1 Cr App R 46. We therefore find it difficult to envisage any circumstance where in reality it will be appropriate in the interests of justice for a judge to invite the jury to acquit. Experience shows that when such invitations have been issued in the past they have all too often led to difficulties.[75]

61 Once again, the Court here treated as established the existence of the jury's 'right to acquit after the conclusion of the prosecution case'. It is striking, nevertheless, that the judgment concluded with the statement that it was

difficult to envisage any circumstance where in reality it will be appropriate in the interests of justice for a judge to invite the jury to acquit.[76]

62 The next decision, in 2007, was to very similar effect. In Collins, the appellant submitted that 'the common law right' of a judge to inform a jury that it could stop a trial at the close of the prosecution case could not survive the coming into force of the Human Rights Act 1998 (UK).[77] After referring to Falconer-Atlee, Kemp and Speechley, the Court said:

On the basis of these authorities we find it difficult to hold that the common law right of a jury to stop a case after the close of the prosecution case no longer exists. We think it strongly arguable that it cannot survive Article 6 but it is possible to envisage circumstances in which the jury could be reminded of this right in such a way as not to breach Article 6. However, in our judgment it is clear from the authorities that the practice of inviting a jury to exercise such a right has been comprehensively disapproved. At the very least it could only be exercised in the most exceptional circumstances and certainly not in a multi-handed case of some complexity.[78]

63 Noting that the earlier decisions did not 'spell out all the specific dangers involved in a judge telling a jury that it has a right to stop a case'[79], the Court in Collins proceeded to identify eight 'specific dangers', which may be summarised as follows:

1. The jury will be making a decision without the benefit of final addresses or any legal directions from the judge.
2. Just as the jury may provisionally conclude that the prosecution witnesses are not capable of belief, so they may provisionally conclude that the witnesses 'are not just capable of belief but they are indeed telling the truth', a conclusion which may be very difficult to displace.
3. Juries are often keen to register their independence and may react against 'what might be perceived to be pressure from the judge to acquit.'
4. It may be very difficult for the judge to avoid giving the impression of inviting the jury to acquit, rather than merely informing the jury of its right to acquit.
5. The practice is 'inherently more dangerous' when there is more than one defendant and the evidence is complex.
6. The practice is unfair to the prosecution when it is given no opportunity to address either the judge or the jury and 'correct a mistaken impression of its case.'
7. There may be particular dangers if the defence are contemplating not calling any evidence.
8. The prosecution have no right of appeal against an acquittal following the judge informing the jury that they have a right to stop the case.[80]

We wish to emphasise the disapproval expressed by this court in Speechley of the practice of informing a jury of its right to stop the case. We find it very difficult now to envisage any circumstances when it would be appropriate for this practice to be adopted.[81]

65 The last decision in the series is R v H(S), decided in 2010.[82] In that case, after the alleged victim of the criminal conduct had given evidence, the judge told the jury that, if they wished to do so, they could acquit without hearing more. In the course of the case, the judge had expressed strong views to the effect that the case was a 'waste [of a] judge and jury's time'.[83]

66 Delivering the judgment of the Court, Leveson LJ referred to the disapproval of the 'invitation' practice in Falconer-Atlee, Kemp, Speechley and Collins. The catalogue of 'specific dangers' set out in Collins was repeated, in full. Leveson LJ added:

There is also another reason which bites if the jury should stop the case. Although arguments have always been articulated as on the basis that fairness must be visited both on the defence and the prosecution, fairness to the prosecution is now well recognised as requiring a proper focus upon the legitimate rights and interests of victims and witnesses. Once there is a case to answer, they are entitled to know that the jury has heard the case through to its conclusion culminating in a fair analysis of the issues from the judge. The few words offering the jury the opportunity to stop the case do not provide this and can only be approached by the jury on the basis of the broadest of broad brushes.[84]

67 As can be seen, the view expressed by the Court of Criminal Appeal in the decades before Prasad - that the 'invitation' practice should stop - has been reinforced emphatically in the decades since. So powerfully, and so often, has the practice been disapproved in the United Kingdom that it must now be regarded as existing in name only in that jurisdiction. Not once but twice, the Court of Criminal Appeal has declared that it would be 'difficult to envisage any circumstance' in which it would be appropriate to take this step.[85]

68 In Australia, by contrast, there has been no such disapproval. On the contrary, although appellate concern has been expressed about 'too free a use' of the Prasad direction,[86] the legitimacy and utility of the procedure appear never to have been questioned. I turn to examine the Australian experience.

69 In R v Williams,[87] the Full Court of the Victorian Supreme Court was considering 'the duty of the trial judge to direct an acquittal in identification cases.' Relevantly for present purposes, the Court (Gobbo J, with whom Young CJ and Anderson J agreed) said:

Where there is some evidence sufficient to meet a no case submission, a judge may nonetheless have a discretion to invite the jury to acquit the accused.[88]

There was, however, no reference to Prasad, and the question of the 'precise power' of the judge to give the 'invitation' was left for future consideration.[89]

The question whether there is evidence capable of supporting a verdict at a civil or criminal trial by jury is a question of law. As was explained in Doney, this is a different question from whether a jury ought to be warned about the probative value of evidence. It is different from the question whether a trial judge might properly inform a jury, at any time after the close of the prosecution case, of its power to acquit. And it is different from the question which confronts an appellate court when it has to decide whether a conviction is unreasonable. There is no advantage to be gained by blurring these differences. Keeping them in mind helps to avoid confusion.[90]

71 In R v Reardon,[91] the New South Wales Court of Criminal Appeal rejected a ground of appeal which complained that the trial judge had failed to give a Prasad direction at the conclusion of the Crown case. Simpson J (with whom Hodgson JA and Barr J agreed) set out what King CJ had said in Prasad and continued:

In my experience, it has long been recognised in NSW that a judge may, in a suitable case, and in the exercise of his or her discretion, take the course outlined by King CJ. There is no rule that in any particular set of circumstances a judge is obliged to take that course or ought to take that course. The decision to do so or not to do so lies entirely within the discretion of the judge. I can think of no circumstances in which a refusal to give such a direction could result in a miscarriage of justice.[92]

72 In that case, it was said for the appellant that the judge's failure to give the direction had had the consequence that he was

disentitled to the exercise by the jury of its right to consider whether there was sufficient evidence to justify a conviction - a right which is an incident of a fair trial.[93]

Firstly, as I have noted above, the power to give a direction is entirely discretionary. It depends, inter alia, upon the assessment of the trial judge of the weight of the evidence against the particular accused. As was pointed out in Prasad, a direction by the judge to the jury as to the weight it should attribute to admissible evidence intrudes upon the jury function. The Prasad direction, in the terms stated in Prasad and as ordinarily given, carefully avoids trespassing upon that function. Nevertheless, to give such a direction can carry with it a suggestion to the jury that admissible evidence should be given little or no weight. A judge giving a Prasad direction has to tread a very fine line to avoid trespassing upon the jury function. A decision on an application for such a direction requires an assessment of the evidence in the Crown case but avoidance of conveying the results of that assessment.[94]

73 In Seymour, two accused were charged on the basis of joint criminal enterprise with offences against a female.[95] At the conclusion of the Crown case, counsel for both accused made application for a Prasad direction. Over the Crown's objection, the judge gave the direction. The jury returned a verdict of not guilty for one accused but indicated that they would like the case against the other to continue.[96] He was subsequently convicted, and appealed.

74 Hunt AJA (with whom Simpson and Rothman JJ agreed) said that the judge had been persuaded to give the Prasad direction because of his

strong view that [the complainant's] evidence lacked cogency because of its inconsistencies in relation to a number of matters, that she had made assumptions rather than seen matters to which she had referred, and that this showed that her evidence was unreliable rather than dishonest'.[97]

75 Consistently what had been said in Prasad and Pahuja, there were no addresses, and only short legal directions, before the Prasad direction was given.[98] In his Honour's view, the cause of the 'seemingly inconsistent results' of the Prasad direction was that the jury had been given no sufficient explanation of the nature of joint criminal enterprise.[99] It was clear, his Honour said, that the jury

acquitted the co-accused because it had not been explained to them how the part he played in the various events which took place in the apartment made him criminally responsible for the actions of the appellant.[100]

This case demonstrates the danger of giving a Prasad direction in circumstances where there may be a problem for the jury in understanding the real nature of the Crown case. In some cases, it may be possible for the direction to be expanded to make it clear how the Crown put its case, but it seems to me that to do so really negates the whole purpose of this procedure, which is premised on the jury being able, without the assistance of the trial judge or counsel, to judge the cogency of the evidence on which the Crown relies - without addresses and without a summing up.[101]

76 I turn now to consider a series of first instance rulings by trial judges, in response to defence applications for a Prasad direction. The first is Smart, to which reference was made earlier.[102] In that case, Lasry J referred to Prasad and Pahuja and noted, in particular, the statements by Cox J in Pahuja that:

• a Prasad direction should be put to the jury 'simply and shortly';
• the giving of the direction was not the occasion 'for any more than a passing glance at the law and a brief reference to whatever feature of the evidence it is that has led the trial judge to give the direction'.[103]

Finally, as noted before, his Honour relied on what was said by King CJ in Pahuja, in stating that he would give the Prasad direction because he had formed

the view that the evidence was not sufficiently cogent to justify a conviction.[104]

77 In 2012, in Gillespie, Kaye J upheld a no case submission with respect to two charges but declined to give a Prasad direction on the remaining two charges. Referring again to what Cox J said in Pahuja, his Honour said:

Generally, for those reasons, trial judges are cautious in reaching the conclusion that a case is appropriate to give a Prasad direction.[105]

His Honour concluded that such a direction was not appropriate because the evidence of self-defence in relation to one charge was

not so convincing or straightforward as to make the case an appropriate one for a Prasad direction.[106]

In relation to the other charge, his Honour considered that

the jury would derive some benefit from a short summary of the various witnesses' evidence in relation to that aspect of the case.[107]

78 In Kocoglu, Kyrou J also declined to give a Prasad direction. Noting that there had been an 'extensive and effective cross-examination' of the eyewitness to the alleged murder, his Honour said:

It would be open to the jury to conclude that he was not a witness of truth and to thereby reject all his evidence that implicated the accused.[108]

79 After setting out what Lasry J had said in Smar_t,_ however, his Honour referred to a particular piece of evidence which rendered the giving of a Prasad direction inappropriate. His Honour said:

This is because it would be necessary for me to give the jury reasonably detailed directions about, among other matters, admissions, the difference between evidence relevant to credit and evidence relevant to facts in issue, the drawing of inferences and how the jury is to deal with any finding that there was a reasonable possibility that [the eyewitness] was involved in the death of the Deceased. In the absence of such directions, the jury would not have a proper understanding of the legal parameters within which to consider whether to return a verdict of 'not guilty' at this stage of the trial.

In other words, I do not believe that I could sensibly give to the jury a short and simple direction that makes only a passing reference to the law and a brief reference to the issue of [the eyewitness's] credit.[109]

80 In White,[110] R A Hulme J was presiding over the trial of three co-accused. Counsel for one of the accused sought a Prasad direction on the basis that the case against her was

a weak one and it would be appropriate to inform the jury of their right to return a verdict of not guilty at any stage from now.[111]

A Prasad invitation is most appropriate in cases where little or no explanation of the law is required; the issues are straightforward; and there is no need for there to be any detailed review of the evidence. Such an invitation to the jury may most commonly be found in cases involving alleged personal or sexual violence, where the only evidence upon which the prosecution relies is that of the alleged victim and where there is a real issue as to whether the victim can be believed.[112]

81 Refusing the application, his Honour noted that a considerable body of evidence had been adduced by the prosecution, which had 'some complexity'. In his Honour's view:

[I]t would be very difficult for the jury to fully understand, amongst that volume of evidence, what aspects of it are relied upon by the Crown on the one hand and by [the accused] on the other in the case that concerns her. That is to say, it would be difficult for the jury to have that understanding, absent the assistance they would be given by hearing closing addresses by counsel and a summing-up by me.

82 In Butler, Croucher J rejected a no case submission. Citing Doney, his Honour said:

Whilst it was, in my view, a very weak case, it was a case that passed the 'no case' test.[113]

His Honour did, however, accede to the defence request for a Prasad direction. In his published reasons for giving the Prasad invitation, his Honour said that he had formed the view that the deficiencies in the evidence of the key Crown witness

were so compelling that it would not be open to properly instruct a jury to be satisfied beyond reasonable doubt 'of [her] evidence of the events ...[114]

83 Noting the references in Smart and Kocoglu to the requirement that the Prasad 'invitation' be given only if it could be put 'simply and shortly', his Honour said he had formed the view that he could give the jury 'a relatively short and simple explanation' of the relevant aspects of the law and of 'the potential defects in the evidence.'[115] His Honour continued:

1. that the prosecution case was now closed and at its highest point;
2. on the difference between my function as trial judge and theirs as jurors; on the onus and standard of proof; that any verdict must be unanimous; and on the elements of manslaughter (all of which I had explained in preliminary directions at the commencement of the trial);

1. that they could not find the accused guilty of manslaughter unless satisfied beyond reasonable doubt of the truth and reliability of the essential aspects of the account of Ms Harris;

1. that, even if satisfied beyond reasonable doubt of Ms Harris's account, the accused could not be found guilty unless the jury were prepared to go on and draw certain inferences or conclusions from her evidence and other evidence so as to make out all of the elements of manslaughter;
2. that, because of the ten matters mentioned above (which I set out for the jury), it would be dangerous or unsafe to act on Ms Harris's evidence;
3. that, as a result, they were entitled to return a verdict of not guilty now rather than continue with this trial;
4. that that was an unusual course but was nevertheless a course that sometimes occurs in trials;
5. that, if they wished to hear more of the case, they may do so
6. i) that, if the matter went on, I would be explaining these concepts - and many others - to them in more detail ...[116]

84 In Dickson, Beech-Jones J rejected both a no case submission and an application for a Prasad direction. Citing Seymour, his Honour noted that such directions were

usually reserved for simple cases in which the critical evidence against an accused appears to lack credibility or reliability.[117]

85 In the case at hand, his Honour said, the giving of such a direction 'would occasion a serious injustice to the Crown'.[118] The principal evidence against the accused was documentary and the Crown had not yet had the opportunity to fully put its case about what the documents showed as to the accused's involvement. His Honour said:

Thus the only possible fair manner in which a Prasad direction could be given in that respect at this point would be to effectively stop the trial and provide a relatively detailed mini summing up. Such a process is implicitly disapproved of in the authorities to which I have referred.[119]

86 In R v Rapovski [Ruling No 3],[120] the accused was charged with attempted murder. Just prior to the close of the prosecution case, Beale J informed the parties that he was considering giving the jury a Prasad direction once the evidence in the case had closed. After inviting submissions as to whether it was appropriate for him to do so, his Honour ruled in favour of giving a Prasad direction

essentially because of issues concerning the credibility and reliability of the key prosecution witnesses.[121]

87 In his published reasons, his Honour set out at some length the evidence on which the prosecution had relied, noting the prosecutor's submission that the case

had not descended to a point where the evidence lacked cogency or consistency so great as to warrant a Prasad direction.[122]

His Honour then set out a detailed analysis of the evidence which supported the defence case that someone other than the accused had fired the fatal shot. His Honour also set out five 'significant issues' in respect of the credibility and reliability of the key prosecution witnesses.[123]

88 Taking those matters into account, his Honour said, it was clear that

the threshold articulated by King CJ in R v Pahuja, namely that the evidence 'although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty', has been met.[124]

His Honour rejected, however, a defence submission that the Prasad direction should include 'an itemisation of the unsatisfactory aspects of the evidence'.[125] His Honour said:

In formulating the direction, I am mindful not to usurp the jury's role as judge of the facts. Were I to itemise the problems with the credibility and reliability of the witnesses, it would not be a short direction and there is a real risk that the jury may be unduly influenced by 'what the judge thinks'.[126]

89 In R v Castaneda [No 3],[127] Wilson J upheld a no case submission on a charge of murder but declined to give a Prasad direction with respect to the alternative charge of manslaughter. On the murder charge, the judge concluded that, even taking the Crown case at its highest, there was no evidence capable of negativing self-defence.[128] On the manslaughter charge, however, the judge said:

I do not consider the Crown case to be a compelling one in any sense, but nor is it as frail and lacking in cogency as would militate in favour of the direction (or invitation, as it is sometimes termed) being given.

Additionally, concepts of self-defence and the reasonableness of the degree of force employed in response and the like are, in my opinion, not straightforward or, perhaps more properly, they are made complex by the way in which the law defines and applies them. The jury will in my view benefit from the addresses and summing up, even if there is no further evidence.[129]

90 R v Gant[130] concerned charges of art fraud with respect to three paintings. At the close of the prosecution case, Croucher J refused no case submissions on behalf of both accused but then took what his Honour described as 'the rather exceptional course' of giving the jury a Prasad direction.[131] His Honour explained the decision in his subsequent sentencing reasons as follows:

This option may be given to a jury in circumstances where a criminal case is thought to be so weak that the jury is concerned that a guilty verdict would be unsafe. Having heard all of the evidence to that point in the trial, I formed the view that it was not open to a properly instructed jury to exclude the reasonable possibility that the three paintings the subject of the charges were created by Mr Whiteley in 1988. If that was right, verdicts of not guilty had to follow.[132]

As his Honour noted, however, the jury took a different view and ultimately convicted the two accused. Those convictions were later quashed on appeal.[133]

91 In R v Johnson [No 3],[134] Button J rejected an application that he give the jury a Prasad invitation. His Honour said:

An essential practical precondition of me adopting that course would be my own personal assessment that the Crown case is in some way weak.[135]

His Honour said that he was 'far from being' of that opinion, regarding the case of murder as strong.[136]

92 In R v Maitland [No 5],[137] Adamson J rejected a no case submission and refused to give a Prasad invitation. Citing Seymour and Dickson, his Honour said:

In the present case, the evidence is complex and detailed. The Crown case is a circumstantial one which depends on an assessment of the evidence as a whole. The jury has not been taken to all of the documentary evidence and can be taken not to have read it in its entirety or appreciated its significance to the Crown case.[138]

93 In my respectful opinion, the reasons given in Smart, Butler, Rapovski and Gant - all Victorian cases - expose the fundamental flaw in the Prasad procedure. In each of those cases, the judge ruled - or the defence had conceded - that there was a case to answer. On the authority of Doney, therefore, it was not within the power of the judge to stop the case by directing an acquittal. But, as the reasons reveal, in each of those cases the judge had come to the view - on the basis of his own assessment of the evidence - that the case should stop. The Prasad procedure enabled the judge to invite the jury to acquit, notwithstanding that he could not direct them to do so.

94 In Smart, the judge considered that the evidence 'may not be sufficiently cogent to justify a verdict of guilty'.[139] In Butler and again in Gant & Siddique, the judge concluded that it would not be reasonably open to the jury to convict the accused - in other words, that a conviction would be unsafe. And in Rapovski, the judge's consideration of factors adversely affecting 'the credibility and reliability' of the key witness had led him to conclude that the evidence was 'insufficiently cogent to justify a verdict of guilty'.[140] In that case, his Honour declined to itemise the problems going to credibility and reliability, whereas in Butler the judge set out for the jury all of the matters said to affect the credibility and reliability of the key witness.[141]

95 I turn finally to what occurred in the present case, which further illustrates these difficulties. In this instance, the Court has the transcript of the direction as given to the jury. In the other cases, only the reasons for giving the direction have been published.

96 The accused was charged with the murder of her husband. It was alleged that she had caused his death by striking him on the head. At the close of the Crown case, defence counsel asked the judge to give the jury what counsel referred to as the 'Prasad invitation'.

[L]et me just step through it and tell you, as I go, what I think the difficulties are and you can address them. The jury would have to be informed that at this stage they would be entitled to, if they wish to, bring in a verdict of not guilty in relation to the charge of murder. I would have to, I assume, if I was going to do that, give them enough direction to understand that they would have to work their way through the elements of murder. When they got to element 3 they would have to consider whether they were satisfied that there was enough evidence to support proof of intention.

If they were of the opinion that there was enough evidence to establish murderous intent, they'd go on to consider the fourth element, and then decide whether they would acquit all together on the basis that the prosecution would not be able to prove that your client was not acting in self-defence. Alternatively, if they were [of] the view that the prosecution had not proved intent, then they would have to then consider manslaughter. I'd have to give them an instruction about manslaughter and the law in relation to self-defence on manslaughter. So that would all have to be in the Prasad invitation, they'd have to know what the steps were. There is nothing before the jury at this stage, beyond the history, for the jury to know what your client says happened on the night of the 18th of July. On one view self-defence might be arguably not open at this stage because self-defence won't arise only on the history.

98 Defence counsel submitted that the evidentiary burden on the defence to raise self-defence had been met, referring to portions of the evidence which had been led as part of the Crown case. For her part, senior counsel for the Crown submitted that a Prasad direction should not be given, because there was nothing before the jury about what had happened on the night of the fatal blow. His Honour indicated that he would reflect overnight and rule the following morning.

99 On the resumption, his Honour ruled (in the absence of the jury) that he would give the Prasad direction as requested. He said he was satisfied that the relevant parts of the evidence did sufficiently raise the issue of self-defence and it could properly be left to the jury for their consideration. His Honour then proceeded to give the jury a lengthy direction, which extends over more than 20 pages of the trial transcript.

100 There are two notable features of the direction, in my view. First, as he had foreshadowed with counsel, his Honour gave full and detailed directions on the elements of the offences of murder and manslaughter respectively, and on the questions which the jury would have to decide in connection with the issue of self-defence. His Honour also set out the specific considerations which need to be taken into account when self-defence is raised in reliance on a background of domestic violence.[142]

101 Secondly, his Honour set out at some length the evidence - led by the prosecution but relied on by the defence - said to bear on the history of family violence. His Honour reminded the jury of evidence given by eleven different Crown witnesses, adding his own comments on the evidence at various points. Thus his Honour said:

It's a matter for you to determine, but you might well think that on the evidence of those two witnesses [the daughter and sister of the accused] over a very long period of time the accused suffered numerous violent attacks.

102 His Honour referred to the evidence of a police officer about an incident of domestic violence some eight years earlier

which included a description of [the deceased] as being abusive and 'shaping up' to the police, as he described it.

103 His Honour then set out a long extract from the evidence in chief of a paramedic who had come to the accused's house 17 days before the fatal incident. According to the paramedic, the accused told her on that occasion that 'her partner had pushed her and she'd hit her head on the coffee table in the apartment'. The accused had also told the paramedic that

she was afraid of him, that he'd done it before multiple times, and ... she was worried he was going to kill her.

His Honour also quoted the evidence of the accused's sister, who had said in evidence that, on the night of the death, the accused had told her that:

the ambulance and police had attended and that '[he's] bleeding from the head' and then she said, 'I can't take it anymore, nobody knows what I've been through'.

104 A little later, his Honour directed the jury that they would need to look at

the history of the relationship between the accused and [the deceased], including the violence by him towards her.

As I said, the evidence you've heard suggests that there was a long history of violence by [the deceased] towards the accused for a very long period of time, including significant assault, loss of consciousness, wounding and things of that kind.

105 Concluding his directions on self-defence, his Honour said:

So the question for you to consider in this context is whether on the charge of murder you are now convinced that you could not be satisfied beyond reasonable doubt of the guilt of the accused because the prosecution will not be able to prove that she was not acting in self-defence.

106 After deliberating for approximately one hour, the jury returned to the Court and informed his Honour that they would 'like to hear more evidence'. The trial then proceeded, with the defence going into evidence. The judge advised the jury the option would remain open to them at any stage before the conclusion of the trial. After the accused had given evidence, the judge reminded the jury that they still had the option to acquit her without hearing more. The jury then requested time to consider the matter. Shortly afterwards, and without hearing addresses or a full charge, the jury returned a verdict of acquittal.

107 In my respectful opinion, this example of the 'Prasad procedure' exposes its inherent problems. First, in order to equip the jury to decide whether to acquit, his Honour was constrained to give them full and detailed directions of law about what was required to prove the offences. Directions on the differences between murder and manslaughter, and on self-defence, and on the different application of self-defence in murder or a manslaughter, are notoriously complicated. The very fact that such complex directions had to be given undermines the notion that the 'Prasad procedure' enables a jury to stop a case which is 'obviously weak'. Self-evidently, an assessment of the prosecution case in circumstances such as these could only be undertaken once the framework of legal principle had been fully described. In short, the jury was given what amounts to an incomplete charge, the very thing which King CJ in Pahuja described as 'a serious departure from the due course of trial'.[143]

108 Secondly, although the judge told the jury that he was not 'explaining any view of [his] about the evidence', the comments which his Honour made conveyed his own view of what the evidence showed about the history of violence by the deceased against the accused. What view should be taken of that evidence was, of course, a matter for the jury and the jury alone. And, before reaching any final conclusion on the evidence, the jury would ordinarily have had the benefit of

submissions from the prosecution about how the evidence was to be assessed and interpreted. Here, the jury had only the judge's view.

109 In my respectful opinion, the reasons given by the English Court of Criminal Appeal in Collins and Speechley for disapproving this practice are cogent and compelling.[144] The survey of Australian decisions demonstrates that those criticisms apply with equal force here.

110 For the reasons I have given, I would answer the point of law as follows:

Although the direction commonly referred to as the 'Prasad direction' is not contrary to law, such a direction should no longer be administered to a jury determining a criminal trial between the Crown and an accused person.

111 Pursuant to s 308 of the Criminal Procedure Act 2009, the Director of Public Prosecutions ('the Director') has referred to this Court a question on a point of law said to have arisen from a criminal trial resulting in an acquittal by the jury.

112 On 18 July 2015, the acquitted person, (hereafter for convenience 'the respondent') was charged with the murder of her de facto partner. The Crown case was that the pair had engaged in a heated argument during which she struck the deceased to the back of the head with a wooden footstool, thereby bringing about his death. She then called 000 and reported having found the deceased on the floor,

bleeding, after he had sustained a fall. That was a lie, which she repeated on several further occasions.

113 The respondent was given certain instructions during the 000 call. These included the administration of cardiopulmonary resuscitation. She could be heard, on the recording of that call, saying certain things which the Crown proposed to rely on as implied admissions of guilt.

114 On 15 November 2016 the respondent was arraigned in the Trial Division, charged with murder. She pleaded not guilty, and a jury was empanelled.

115 By the time of the trial, the respondent agreed that she had struck the deceased with the footstool, although she disputed the number of blows allegedly inflicted. She also disputed the precise location and time at which these multiple blows were struck. She asserted, through her counsel's defence response to the Crown opening, that at the time she struck the deceased she was acting in self-defence.

116 There was no issue in the trial as to causation. Nor was there an issue, in any practical sense, as to whether the respondent intended to cause really serious injury, though that was not conceded by the defence.

117 Given the deceased's record of more than 25 years of extreme violence towards the respondent, self-defence was always going to be a key issue in this trial, and seemingly a viable answer to the charge.

118 On 22 November 2016 the prosecutor closed the Crown case. Counsel for the respondent immediately asked the judge to give the jury what is generally described, in this country, as a 'Prasad direction'.[145] After hearing submissions from the prosecutor, who opposed the giving of such a direction, his Honour 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.

119 On the following morning, the judge informed the jury that as they had, by that stage, heard the whole of the Crown case, they now had three choices. They could:

(a) deliver verdicts of 'not guilty' to both murder and manslaughter,

(b) deliver a verdict of 'not guilty' to murder and hear more evidence in respect of the charge of manslaughter, or

(c) indicate that they wished to hear more evidence in respect of both charges.

120 In a case such as the present, the Crown had to overcome significant obstacles in rebutting self-defence. There was a substantial body of evidence, led through the prosecution witnesses (including, it should be said, several police to whom complaints had been made) regarding the extraordinary violence regularly inflicted upon the respondent by the deceased. That violence rose to the level of 'glassing', as well as numerous threats to kill. In effect, the respondent met the profile of what some, in the past, would have described as a 'battered woman'. That meant that the family violence provisions of the Crimes Act 1958 would be relevant, thereby significantly enhancing the respondent's prospects of an acquittal.[146]

121 The judge, who has a considerable amount of experience in conducting trials of this nature, characterised the Crown case as 'not a particularly strong one'.

122 In opposing the giving of a Prasad direction, the prosecutor complained that the defence had not yet given an account of the killing which directly raised the issue of self-defence. The judge rejected that contention. He determined that not only was self-defence a live issue, based on the evidence led to that stage, but also that there was no need for the jury to have repeated to them, by the respondent, what the evidence had already made abundantly clear.

123 The judge then prepared the form of a Prasad direction that he had in mind. He provided copies of what he proposed to say, when directing the jury, to both the prosecution and defence. The direction itself was some 20 pages in length, significantly longer and more detailed, it must be said, than is typical of most directions of that kind.

That you, as the jury, now having heard the whole of the Crown case, at this stage have the right, if you choose to exercise it, to bring in verdicts of not guilty in relation to the offence of murder and also the alternative charge of manslaughter. You can do that now, in effect now, after I've explained to you this process, or at any later stage in the trial. It is important that you understand that the choice that is open to you at present is this choice: you can deliver two verdicts; not guilty of murder, not guilty of manslaughter, or you can indicate, alternatively, that you wish to hear more. You cannot at this stage, of course, it would be obvious to you perhaps why, deliver a verdict of guilty on either charge until all the processes of the trial are complete: the rest of the evidence, whatever that is, counsel's addresses and my directions.

Now, depending on the decision you make now, if the trial continues, as I said, that may involve hearing further evidence as part of the defence case, the final addresses of counsel, and then my directions to you which would contain directions of law, a brief reference to the evidence and the arguments for both sides. So to be clear, I'm sorry to be repeating it but it's very important you understand the choice that's open to you at the moment, I am informing you of your right now, if you wish to exercise it, to bring back verdicts of not guilty on the charges of murder or manslaughter or, alternatively, to indicate to me that you wish to hear more in relation to those matters.

I also emphasise to you this: I am not explaining any view of mine about the evidence. The facts are a matter for you, as I said to you at the start of the trial, the facts are a matter for you to determine. In all criminal trials a jury has the right that I'm now explaining to you that you have.

126 The judge then gave the jury detailed directions as to the elements of murder and manslaughter. He did so in terms that closely approximate those that would be expected to find their way into a final charge. He reminded the jury of what they had already been told a number of times, namely that the prosecution bore the onus of proof. He reminded them also of the standard of proof; beyond reasonable doubt. He directed the jury as to the requisite intent for murder. He gave them a careful direction regarding self-defence, which extended over several pages of transcript. He referred to, and summarised, the evidence of an ongoing history of family violence, noting that all of that evidence had, as a matter of fairness, been led by the prosecution.

127 In relation to the issue of family violence, the judge said:

So, members of the jury, the law says that where an accused has killed in circumstances where family violence is alleged, an accused may believe that her conduct was necessary to defend herself and the conduct may be a reasonable response in circumstances even if, first, she is responding to harm that is not immediate or, secondly, her response involves the use of force in excess of the force involved in the harm or threatened harm.

Now it doesn't mean that a person who has suffered family violence may use any level of force in the circumstances. A person who has suffered family violence will still be guilty of the crime of murder if she did not believe it was necessary to act in the way that she did to avoid the infliction of death or really serious injury, or her conduct was not a reasonable response in the circumstances as she perceived them.

However, the law recognises that in determining whether a person was defending herself from family violence, it is not a simple matter of determining whether an attack was in progress at the time the accused acted or the accused's response was proportionate to the threatened harm.

128 The judge then directed them as to the elements of manslaughter, as an alternative, should the jury find the respondent not guilty of murder.

129 His Honour next summarised the way in which the prosecution put its case on both murder and manslaughter. He concluded the Prasad direction as follows:

Now, members of the jury, that's all at this stage that I'm - almost all that I'm going to say to you, because I'm shortly going to invite you to retire and take some time to consider the decision that I'm inviting you to make. I suggest you take such time as you need to decide how you wish to exercise your choice. Whether you wish to return with verdicts of not guilty of murder and manslaughter at this stage, or whether you wish to hear more. They're the only choices available to you. Guilty verdicts are not open to you at this stage because the procedures of the trial are not completed.

130 It should be noted that the judge also provided the jury with a typed script of the complete Prasad direction that he had just given them orally. He told them that he had done this in order to assist them in deciding whether they wished to hear more evidence, or whether they were prepared to acquit at that stage.

131 The jury retired to consider their decision. They deliberated for about half an hour before returning to Court. They informed the judge that they wished to hear more evidence, and in respect of both charges. The trial then continued with the respondent giving sworn evidence, and being cross-examined.

132 On 24 November 2016, counsel closed the defence case on behalf of the respondent. Immediately thereafter, and prior to closing addresses, the judge reminded the jury of the continuing operation of the Prasad direction that he had given them two days earlier. He then provided the jury with the opportunity to revisit their earlier decision, should they wish to do so.

133 The jury took up his Honour's invitation. After a short deliberation, and without having heard any closing addresses, they acquitted the respondent of both murder and manslaughter. It was as a result of these verdicts, in response to the Prasad direction, that the Director brought this reference to this Court.

134 Section 308 of the Criminal Procedure Act 2009 provides for the reference by the Director to this Court of a point of law that has arisen during the course of a trial. The section relevantly provides:

308 DPP may refer point of law to Court of Appeal

(1) If a person is acquitted in respect of all or any charges -

(a) in a trial on indictment before the Supreme Court or the County Court; or

...

the DPP may refer to the Court of Appeal any point of law that has arisen in the proceeding.

(2) The Court of Appeal is to consider a point of law referred to it under subsection (1) and give its opinion on it.

...

(4) A reference under this section does not affect the trial or hearing in relation to which the reference is made or an acquittal in that trial or hearing.

135 The Director has identified the point of law that is the subject of this reference in the following terms:

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 [acquitted] person.[147]

136 Section 308 replicates its predecessor, s 450A of the Crimes Act 1958. With regard to that particular provision, this Court has held that 'a point of law has arisen in a proceeding' within the meaning of that expression if the issue has been determined by the judge, whether or not it was ever actually in contest, in the trial.[148]

137 It was common ground before this Court that a point of law had 'arisen' in this proceeding, namely whether the Prasad direction is 'contrary to law'. There was no debate surrounding that issue before the judge, merely a discussion as to whether it was appropriate, in the exercise of discretion, for a Prasad direction to be given.

138 In his written submission, the Director states:

For avoidance of doubt, this reference is not concerned with the correctness or otherwise of giving a Prasad direction in this trial but rather the correctness of the practice itself.[149]

139 The Prasad direction is the term given to a direction that a trial judge can give to a jury at any stage after the close of the case for the prosecution. It enables the jury to acquit without hearing further evidence, should they wish to do so.

140 As will be seen, courts in England have, for many years now, recognised the right of trial judges to give such a direction. The English practice, which is described as 'inviting the jury to stop the case', goes back some decades before the case of Prasad endorsed it as part of the common law in this country.

141 In Prasad, the point taken on appeal was that the trial judge, having concluded that the prosecution case was extremely weak, should have directed the jury to acquit, in the exercise of his discretion. That contention was rejected.

It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings, Archbold, Criminal Pleading and Practice (39th ed, 1976) p 332. He may undoubtedly, if he sees fit, advise them to stop the case and bring in a verdict of not guilty. But a verdict by direction is quite another matter. Where there is evidence which, if accepted, is capable in law of proving the charge, a direction to bring in a verdict of not guilty would be, in my view, a usurpation of the rights and the function of the jury. I think that there is a clear distinction for this purpose between a trial before a magistrate or other court which is the judge of both law and facts and a trial by judge and jury. I have no doubt that a tribunal, which is the judge of both law and fact, may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This power is analogous to the power of the jury, as judges of the facts, to bring in a verdict of not guilty at any time after the close of the prosecution's case. It is part of the tribunal's function as judge of the facts. It cannot, consistently with principle, exist in a judge whose function does not include adjudication upon the facts.[150]

143 As will be seen, King CJ's dictum has been cited with approval, and applied, on numerous occasions throughout this country. In that sense, it is a bold submission for the Director to contend that all of those who have applied the dictum, including many experienced and accomplished trial judges, have fallen into error by giving directions that were contrary to law.

144 Before concluding whether the Director's submission has been made good, it is useful to consider the origins of the practice of giving such a direction, in England. As will be seen, this involves something of a tortuous route through a wilderness of conflicting cases.

R v Young [1964] 2 All ER 480

145 The starting point so far as any mention of the impugned practice in the English authorities is R v Young. [151] The appellant was charged with having driven a motor vehicle whilst intoxicated. At the conclusion of the prosecution case, the trial judge invited the jury, if they so wished, to return a verdict of not guilty without proceeding any further.

146 The foreman intimated that they were not unanimously of that view. The case therefore continued. Both prosecution and defence counsel addressed the jury, and the judge commenced his charge. He had summarised the prosecution case, but not yet dealt with the defence case, when he adjourned the trial for the weekend. On the Monday morning he completed his summing up. He then invited the jury to consider their verdict. At that point, the foreman immediately rose to his feet and without consulting any other member of the jury announced that they had reached a verdict, that of guilt.

147 Lord Parker CJ, in delivering the judgment of the Court of Criminal Appeal and setting aside the verdict, had this to say:

Before leaving the case, the court would like to say that this appears to be yet another case where difficulties have arisen through a practice whereby judges invite juries to stop a case if they feel that the case for the prosecution has not been proved. It is quite clear to this court that all the difficulties arose from that, because, notwithstanding the instruction not to discuss it themselves, they must have met either on the Friday night or on the Monday morning, no doubt to discuss whether the foreman had been right in saying that they wanted the case to continue, and in that discussion they came to the conclusion that the appellant was guilty. It might, I suppose, be said that they came to some provisional agreement whereby they found him guilty unless they intimated to the foreman at the end of the summing-up that they had changed their mind. That, however, is pure speculation; the fact remains that they did arrive at their verdict without considering the summing-up of the judge on the defence. It may be that the time has come - the court does not desire to rule on it - when this practice should be only rarely, if ever, used, and that judges should more often take the responsibility themselves of saying to the jury that there is not satisfactory evidence upon which they could convict, and accordingly direct an acquittal.[152]

148 Lord Parker's criticism of the 'practice' that had developed of inviting the jury to acquit, should they wish to do so after the close of the prosecution case, was in one sense ironic. To the extent that it came to be suggested in later cases that this practice involved a usurpation by the judge of the jury's function, his Lordship plainly did not view it in that light. In fact, he urged trial judges to take more responsibility themselves by directing juries to acquit in circumstances where they did not regard the evidence as satisfactory.

R v Falconer-Atlee (1973) 58 Cr App R 348

149 The next stage in the development of this practice arose in R v Falconer-Atlee.[153] The case raised a number of important issues, including the approach to be taken by a trial judge in response to a submission of no case to answer. At that stage, the law in England regarding that question was in a somewhat unformed state, and there were widely divergent views expressed regarding the approach that should be adopted in dealing with such a submission.

150 Roskill LJ (as his Lordship then was), delivered the judgment of the Court of Appeal. He commented upon the approach taken by the trial judge who, having ruled that there was evidence sufficient to allow the case to go to the jury, 'went on almost to invite the jury to stop the case'. His Lordship said:

This Court has repeatedly said in recent years that this practice should not be followed. If a judge thinks that the case is tenuous, then, even though there is some evidence against the accused person, the judge, if he thinks it would be unsafe or unsatisfactory to allow the case to go to the jury even with a proper direction, should take upon himself the responsibility of stopping it there and then. If the judge is not prepared to stop the case on his own responsibility, it is wrong for him to try and cast the responsibility of stopping it on to the jury. In this case the jury declined to take the hint the judge offered. The case went on, and a good deal of evidence was called for the defence. [154]

151 In summarising the various errors that the trial judge had made, Roskill LJ, said:

... at the end of the argument, the learned judge not only at that stage addressed the jury upon the facts, but having refused to stop the case himself, invited the jury to do so. The jury very understandably, in the view of this Court, declined to do so.[155]

152 It can be seen that the Court of Appeal in Falconer-Atlee, as the Court of Criminal Appeal had earlier done in Young, deprecated the use of the practice in England, but not on the basis that it involved a usurpation of the jury's role. Rather, it achieved indirectly what should be done directly, by way of jury direction to acquit, and not by way of invitation to consider stopping the case.

R v Mansfield (1977) 65 Cr App R 267

153 The right of a judge to indicate to the jury that, having heard the prosecution evidence, they could intimate that they were prepared to deliver an acquittal there and then, or ask to hear more evidence, next arose in R v Mansfield.[156] Defence counsel had made a no case submission, which had been rejected. The issue on appeal was whether the trial judge, having concluded that the evidence adduced by the Crown was unreliable to the extent that any conviction would be likely to be set aside on appeal as unsafe, should direct an acquittal.

The rules applied in the criminal courts about submissions of no case and the speeches of counsel are partly statutory and partly practice. The Criminal Evidence Act 1865, as amended by the Criminal Evidence Act 1898 and the Criminal Procedure (Right of Reply) Act 1964, regulates the final speeches of counsel. Those statutes have no bearing upon the problem whether counsel can make a submission of no case. It has long been the practice of the courts to allow counsel to do so. Up till the early sixties the practice seems to have been that counsel submitted on the basis that there was no evidence upon which, if uncontradicted, a reasonable jury could convict. It is understandable why the submissions of counsel up to the early sixties took that form because, under the Criminal Appeal Act 1907, if there was evidence upon which a reasonable jury could convict, the Court of Criminal Appeal would not interfere to quash the conviction.

There grew up in the two or three decades before the early sixties, and probably for a short time after the early sixties, a practice of inviting the jury to stop the case. This Court, in Young, ruled that that practice was bad and should stop. In 1966 the old Criminal Appeal Act of 1907 was repealed and a new one came into existence in which the basis for allowing an appeal in a criminal case was changed. The Court was no longer to be concerned with the problem whether there was evidence upon which a reasonable jury could convict but with the question whether the verdict was unsafe or unsatisfactory. That change now finds its place in section 2 of the Criminal Appeal Act 1968.

Mr. Mathew's recollection is that about the time when the change came into existence, namely 1966, the practice began at the Bar of inviting the judge at the end of the prosecution's case, to say that on the prosecution's evidence it would be unsafe for the jury to convict and accordingly the judge ought to withdraw the case from the jury. Mr. Cockburn submitted that that is now a well-established practice. That accords with the trial experience of the three members of this Court.

Unfortunately since this practice started in the criminal courts there has, it seems, been a tendency for some judges to take the view that if they think that the main witnesses for the prosecution are not telling the truth then that by itself justifies them in withdrawing the case from the jury. The Lord Chief Justice in his judgment in Barker pointed out that this was wrong and he did so in the following passage: 'It cannot be too clearly stated that the judge's obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the judge's job to weigh the evidence, decide who is telling the truth, and to stop the case merely because he thinks the witness is lying. To do that is to usurp the function of the jury and would have been quite wrong in the present case.'[157]

155 It seems from this passage that the practice of inviting the jury to stop the case had emerged, in the years before the repeal of the Criminal Appeal Act 1907 (UK) in 1966 because of the unduly narrow test that had applied up until then for directing a jury to acquit. Once that test had been widened to encompass directed acquittals in cases where convictions were thought to be likely to be unsafe or unsatisfactory, there was no longer any particular need for the practice to continue.

156 It might be noted, in passing, that Lawton LJ's observation that the practice of inviting the jury to stop the case had been ruled to be 'bad', and one that should stop, seems to have been something of an overstatement. The court in Young spoke of the practice being rarely, if ever, used, but made it clear that it did not desire to rule upon the matter.

157 In R v Kemp,[158] the appellant had been convicted of assault occasioning actual bodily harm. There had been a fight at a pub and various witnesses gave evidence on behalf of the Crown. The defence called a prison officer who happened to be at the pub that night, and who, unlike the prosecution witnesses, was entirely independent. Her evidence supported the defence case, and obviously impressed the judge.

158 There were still a number of defence witnesses to be called when the judge decided that he would inform the jury of their common law right to stop the case if they wished to do so at that stage. He added some comments of his own which made it entirely clear that he considered the prosecution witnesses to be wholly unreliable, and the independent witness to be unimpeachable.

159 Sadly, from the accused's point of view, as is sometimes the case, the jury did not take the judicial hint. They indicated that they wanted to hear more evidence. There then followed speeches from counsel and the trial judge's summing-up.

160 The sole ground of appeal was that the verdict was unsafe and unsatisfactory. McCowan LJ, delivering the judgment of the Court of Appeal, referred to the observations of Roskill LJ in Falconer-Atlee regarding the practice of inviting the jury to stop the case. His Lordship said:

We were of the impression that this practice criticised by Roskill L J, once quite prevalent, had died out, but it appears that it is still very occasionally done. The danger, as Mr Farley pointed out, is that if the jury do not accept the judge's invitation, something may go wrong with the verdict. He submits that juries are often keen to register their independence and do not like to feel that they are being pushed about by the judge. Indeed, if they feel leant upon by a judge in favour of the defence, the result may be positively counter to what the judge intended. He submits that that is what may have occurred here.

It might be said, although the Crown do not agree with the suggestion, that the verdict was a surprising one in the circumstances of the conflict of evidence and the fact that one of the witnesses called by the defence, who completely supported their version, was a very respectable lady who was, in fact, a prison officer. Nonetheless, it was certainly a case fit to go to the jury as the defence themselves conceded at the time.

We have no doubt that the judge's intentions were of the best. He clearly thought that an acquittal was inevitable and wanted to save time and money. However, he was wrong. An acquittal was not inevitable. Plainly the jury must have taken another view of the witnesses, and in particular of Denise Wade, than he himself took. The question is posed by Mr Farley, may his intervention, however well intentioned, have led to a wrong result?

Plainly, had he not intervened and the jury had convicted, the verdict could not have been impugned. But he did intervene. What then should this Court do? Mr Farley has put the matter most attractively. He says, first, that the verdict is unsafe because an experienced judge felt, having seen the witnesses, that the Crown could not satisfy the jury so that they were sure of guilt. Secondly, he says that the verdict is unsatisfactory because the judge stated that view publicly before the jury's verdict. The answer to those points, however, is really this: it does not matter what this judge, however experienced, felt about the witnesses. The decision about the witnesses was a matter for the jury, and it is not for this Court to tell the jury what they ought to have felt about the witnesses any more than it was a matter for the judge.

After the jury had rejected the judge's invitation, as we have said, there followed speeches which we have no doubt, having heard the two advocates concerned, were equally cogent. There followed a very careful and utterly fair summing-up. This jury was clearly very careful in their consideration of the case. We have already pointed out how long they were out considering their verdict. That verdict, when it came, was a unanimous one.

We have given this case very anxious consideration because we are not happy about the judge's well intentioned intervention. However, in the end we have come to the conclusion that it is not for us to decide upon the evidence. It was for the jury. They did decide, and we are not persuaded that the verdict is unsafe or unsatisfactory. Accordingly, it is necessary for us to dismiss the appeal.[159]

Attorney-General's Reference (No 2 of 2000) [2001] 1 Cr App R 503

161 In Attorney-General's Reference (No 2 of 2000),[160] the defendant had been charged with possession of an offensive weapon. The object, a rice flail,[161] was said on behalf of the defence to have been intended to be used for legitimate purposes, and therefore not to be a weapon in the relevant sense.

162 The trial judge was singularly unimpressed by the prosecution case. He expressed firm views as to its lack of merit, right from the outset of the trial. He strongly encouraged the prosecution to offer no evidence, but his suggestion to that effect was rebuffed.

163 As soon as the case had been opened by the prosecutor, and before any witnesses were called, the judge invited the jury to find the defendant not guilty. On this occasion the jury accepted that invitation. The Attorney-General referred the case to the Court of Appeal posing the following point of law:

Whether, in a prosecution which has otherwise been properly brought and where there is evidence to go before a jury, a trial judge has power to prevent the prosecution from calling evidence and direct the jury to acquit on the basis that he thinks a conviction is unlikely.[162]

164 Not surprisingly, that question was answered in the negative. Kennedy LJ explained:

Clearly, as it seems to us, the effect of the authorities is that other than in cases which are oppressive or vexatious or an abuse of the process of the court, the prosecution has a right to present its case. At the close of the prosecution case the defence may submit that the evidence does not disclose a case to answer, in respect of any or all of the counts on the indictment. If the submission succeeds the judge will direct the jury to acquit the accused. The test a trial judge should apply in determining whether there is a case to answer is set out in Galbraith. A trial judge is not precluded from entertaining and ruling on a submission of no case to answer, at the close of the defence case, but of course that is at a much later stage in the trial. At common law a jury is entitled to decide, at any stage after the prosecution has closed its case, that it wishes to acquit. The judge may remind the jury that this course is open to them. But he should not go further and issue an invitation to them to acquit (see Kemp and Falconer-Atlee).[163]

165 The passage cited above in Attorney-General's Reference (No 2 of 2000) is of considerable significance given that the Court was well aware of the criticisms that had been levelled, in cases such as Kemp and Falconer-Atlee, at the practice of informing the jury of their right to stop the case. That did not dissuade the Court from stating unequivocally that this practice derived from the common law, and was linked to the right of the jury itself to stop the case after the prosecution evidence had been presented.

R v Speechley [2004] EWCA Crim 3067

166 In R v Speechley,[164] the appellant had been convicted of misconduct in public office arising out of a failure to disclose a conflict of interest. He complained that the trial judge had been wrong to rule that defence counsel at his trial could not, when opening the defence case, remind the jury of its common law right to acquit the accused at any time after the close of the prosecution case.

167 Regrettably, the report of the case in the Criminal Appeal Reports,[165] though it deals with other grounds of appeal, omits the part of the judgment which deals with that very ground. However, the Official Transcript of the Court's judgment records the following:

In our judgment the judge was right to rule as he did. It appears to be accepted that a jury does have a right to acquit after the conclusion of the prosecution case, but we know of no case in which that right has ever been exercised other than at the invitation of the trial judge, and we are satisfied that it can only be exercised if the trial judge invites the jury to consider exercising it. That is because it is the duty of the judge to ensure that the trial is fair, both to the defence and to the prosecution, and he must therefore be in a position to decide when the time has come for the jury to be permitted to reach a decision. In almost every case in order to do justice the jury needs to listen to all of the evidence, the submissions of counsel, and the directions in law of the judge ... So if a jury is invited by counsel, or seeks of its own motion, to return a verdict before being asked by the judge to do so the judge should in our judgment direct the jury that it is his duty to ensure that justice is done, and that it is not open to them to return a verdict until he invites them to do so.

Furthermore, we re-iterate what was said by Roskill LJ in R v Falconer-Atlee, that in practice a judge should not invite a jury to stop the case.

...

That was underlined by McCowan LJ in R v Kemp.

...

We accept that in some cases judicial silence may mean that a trial lasts longer than it need because, for example, the strengths or weaknesses of the prosecution evidence may depend upon the view to be taken of a witness's reliability, and the judge cannot therefore accede to a submission of no case to answer simply because he regards the key prosecution witness as unreliable (see R v Galbraith), but it is worth remembering that in an exceptional case a judge can consider a submission of no case to answer, or decide of his own motion that there is no case to answer, as late as the close of the defence case, as was pointed out in R v Brown. We therefore find it difficult to envisage any circumstance where in reality it will be appropriate in the interests of justice for a judge to invite the jury to acquit. Experience shows that when such invitations have been issued in the past they have all too often led to difficulties.[166]

R v Collins [2007] EWCA Crim 854

168 In R v Collins,[167] the Court of Appeal provided a particularly helpful exposition of the origins of the now impugned practice, as well as a considered appraisal of its continued utility.

169 The case concerned a number of appellants who had been convicted of conspiracy to kidnap, and conspiracy to blackmail. The judge who had presided over the trial had indicated at the conclusion of the prosecution case that he proposed to inform the jury of their 'common law right to end the case' there and then. Prosecuting counsel objected to what he described as an 'extraordinary step'. The judge replied that there was nothing extraordinary about it, and declined to discuss the matter further. He then, in a short direction to the jury, told them that they could exercise their 'common law right' to stop the case at that stage should they wish to do so. After a brief deliberation, the foreman informed the Court, 'we wish to hear more'.

170 Among a number of grounds of appeal, there was a challenge to the judge's invitation to the jury to stop the case. Although the defendants had not raised any objection to the judge's direction at the time, it was said on their behalf before the Court of Appeal that this amounted to a material irregularity, rendering the verdicts unsafe.

171 Lord Justice Gage delivered the judgment of the Court of Appeal. His Lordship set out in some detail the directions that the trial judge had given the jury when he informed them of their common law right. He had made it clear to the jury that he was not inviting them to do one thing or another, but leaving the choice as to whether they had heard enough entirely up to them.

172 It was submitted on behalf of the appellants that the judge ought to have taken the responsibility himself to stop the case on what were known, in England, as the 'Galbraith principles',[168] to which we shall shortly turn. It was further submitted that the common law right of a jury to stop a trial had not survived the coming into force, in England, of the Human Rights Act 1998 (UK) ('the 1998 Act'). More particularly, it was submitted that the appellants' Article 6 rights had been infringed because the course taken by the trial judge had not allowed for any speeches by defence or prosecuting counsel, or the giving of appropriate directions by the judge.

173 In response, counsel for the Crown submitted that the right of a judge to inform a jury of its common law right to stop a case had survived the enactment of the 1998 Act. However, he accepted that the judge had erred in taking that step in this particular case. That was because of its sheer complexity, and the fact that there were some six separate defendants.

174 Of course, the Crown could hardly argue in support of the trial judge's decision, having regard to the strong opposition to that course voiced by the prosecutor during the trial.

175 No doubt, there is something peculiar about the defence complaining of a direction of this kind having been given to the jury when it was the prosecution alone that had opposed that course at the trial. The defence had, at the very least, acquiesced to the giving of such a direction.

176 What is of particular interest in the judgment of the Court of Appeal is the summary of the arguments against the continued use of the impugned practice.

177 Having referred to Falconer-Atlee, Kemp and Speechley, the judgment proceeds as follows:

On the basis of these authorities we find it difficult to hold that the common law right of a jury to stop a case after the close of the prosecution case no longer exists. We think it strongly arguable that it cannot survive Article 6 but it is possible to envisage circumstances in which the jury could be reminded of this right in such a way as not to breach Article 6. However, in our judgment it is clear from the authorities that the practice of inviting a jury to exercise such a right has been comprehensively disapproved. At the very least it could only be exercised in the most exceptional circumstances and certainly not in a multi-handed case of some complexity. We have no doubt that Mr Davey [counsel for the prosecution on the appeal] was right to concede that in this case the course taken by the judge was quite unjustified.

Although the three decisions, to which we have referred, do not spell out all the specific dangers involved in a judge telling a jury that it has a right to stop a case, it seems to us that they can be expressed as follows. First and foremost this practice involves the jury in making a decision which will affect the future conduct of the trial without, as happened in this case, the benefit of speeches from all counsel or any legal directions from the judge. Secondly, the nature of the decision which the jury is asked to make is to decide whether or not the prosecution witnesses may be capable of belief. In other words the jury must reach a provisional conclusion. However, there is a risk that they may go further and decide at that stage that the witnesses are not just capable of belief but they are indeed telling the truth. Such a provisional conclusion, once reached, may be very difficult to displace. Thirdly, as was explained in Kemp, juries are often keen to register independence and may react against what might be perceived to be pressure from judge to acquit a defendant. Fourthly, even though a judge may strive to avoid inviting a jury to acquit, a practice which has always met with disapproval, it may be very difficult to avoid giving that impression rather than simply informing a jury of its right to acquit, the latter conforming with the old practice before it also was disapproved. As the court said in Kemp 'It may not be always very easy to distinguish between an invitation to acquit and a mere intimation of a right to stop the case'. Fifthly, this practice is inherently more dangerous when a number of defendants are involved and the factual evidence is complex. Sixthly, it is unfair to the prosecution when it is given no opportunity to address either the judge or the jury and correct a mistaken impression of its case. The same applies to defendants, albeit in all such cases, the presumption will be that the judge has only adopted this procedure in order to obtain, more quickly, verdicts favourable to the defence. Seventhly, there may be particular dangers when as in this case the defence are contemplating not calling any evidence. Eighthly, since the coming into force of the provisions of s 58 of the Criminal Justice Act 2003 the prosecution has a right of appeal against a determinative ruling of a judge but will have no right of appeal against an acquittal by a jury following a judge informing them that they have a right to stop the case.

In our judgment these appeals demonstrate a number of these dangers ...[169]

178 Earlier in the Court's reasons, it was said that it would be difficult to envisage any circumstance where in reality it would be appropriate in the interests of justice for a judge to invite the jury to stop the trial and acquit. Experience had shown that when such invitations had been issued in the past, they had all too often led to difficulties. Even if, in exceptional circumstances, it might be permissible for a judge to take the step of informing the jury that they had a right to stop the case, it was wholly inappropriate for the judge to have done so in the particular circumstances of this trial.

179 Paradoxically therefore, and without finally deciding whether there was a common law right on the part of the jury to acquit at the end of the prosecution case, the Court of Appeal held that the trial judge had erred in informing them, in the particular circumstances of this case, that they might do so. This was said to constitute a material irregularity, and required that there be a new trial.

R v H(S) [2007] EWHC 1836; [2011] 1 Cr App R 14

180 This issue next came before the Court of Appeal in R v H(S).[170] The defendant had been charged with causing 'racially aggravated fear of violence'. The prosecution case was that he had visited a local 'jobcentre' and had angrily approached an employee of African background, swearing at him, and calling him a 'monkey'. The defendant elected to be tried on indictment in the Crown Court, which the trial judge regarded as a scandalous waste of time and money. Indeed, having failed to persuade the prosecutor to abandon the case entirely, the judge interceded part way through the prosecution evidence, and threatened to order the Crown to pay costs after the inevitable acquittal had been achieved.

181 As soon as the prosecution case had concluded, the judge directed the jury that, although there was some evidence that might entitle them to convict on the particular count, it was open to them to stop the case at that point, and acquit, should they wish to do so. The jury deliberated briefly and found the defendant not guilty. The trial judge then ordered the Crown to pay costs.

182 The Crown appealed, inter alia, against the judge's decision to inform the jury that they could, without hearing more, acquit the defendant. An appeal was available to the Crown in England under s 58 of the Criminal Justice Act 2003 (UK). The appeal was allowed. The judgment of the Court of Appeal was delivered by Leveson LJ, who was highly critical of the way in which the trial judge had dealt with the entire matter. His Lordship stated:

Although the common law recognised the right of a jury to acquit an accused at any time after the close of the prosecution case, modern authorities disapprove of the practice.[171]

183 The cases cited as 'modern authorities' that disapproved of the practice were Falconer-Atlee, Kemp, Speechley and Collins.

There is also another reason which bites if the jury should stop the case. Although arguments have always been articulated as on the basis that fairness must be visited both on the defence and the prosecution, fairness to the prosecution is now well recognised as requiring a proper focus upon the legitimate rights and interests of victims and witnesses. Once there is a case to answer, they are entitled to know that the jury has heard the case through to its conclusion culminating in a fair analysis of the issues from the judge. The few words offering the jury the opportunity to stop the case do not provide this and can only be approached by the jury on the basis of the broadest of broad brushes. In this case, the judge allowed the jury 'two or three minutes' with the clearest indication to acquit ('you may think ... that you are not going to ever be in a position where you could be sure of his guilt with regard to uttering threats that made the victim believe that he was likely to be the victim of violence'). In our judgment, he was wrong to do so...

This is not the case in which to go further than the authorities have hitherto decided although we do echo and endorse the views expressed by this court in the cases set out above. Without concluding that the judge so acted in this case, we add only that it would be to fall into serious error to invite the jury to take such a step because of a perception that the case was not worthy of the expense of jury trial notwithstanding that Parliament has legislated for just such a course. To do so would only serve to encourage those charged with the least serious either-way offences to elect trial in the hope of such a favourable outcome.[172]

185 The English authorities speak with one voice regarding the existence of a practice whereby the jury may be informed of their right to stop the case. It is true that a number of cases have deprecated the practice,[173] sometimes for reasons that cannot easily be reconciled. Other cases have been less critical, and have specifically recognised, as a long-standing right under common law, the ability of a jury to decide, at any stage after the prosecution has closed its case, that they wish to acquit.[174]

186 So far as we can tell, no court in England has ever held definitely that the practice itself is contrary to law. Even Collins, which represents the high-water mark of criticisms of the practice, asserts that 'it is difficult to hold that the common law right of a jury to stop a case after the close of the prosecution case no longer exists'.[175]

187 It is understood in England that the 'right' to do so (and its attendant right to be informed of the existence of that right), is to be exercised only sparingly, and only where otherwise appropriate. Nonetheless, the Director's submission that the right never existed, or that if it did, it has fallen into desuetude, is not supported by the English authorities. Rather, upon careful analysis, they point to the right having been closely circumscribed, and make it clear that it should only be rarely exercised.

188 Of course, the position in England must be approached with caution. The common law right, as it has been described, seems to have developed in the decades before the 1960s. The practice of informing the jury of this right appears to have been a response, on the part of the judiciary, to the frustrations felt by being unable to direct acquittals in cases where the trial judges themselves considered the evidence on behalf of the prosecution to be too weak to sustain a conviction, though just sufficient to get past a no case submission.

189 After 1966, when the English approach to directed acquittals was modified, and particularly after 1981 when Galbraith[176] was decided, it became increasingly apparent that there was less need than there had been in the past for the continued operation of the practice. Yet the criticisms levelled at it tended to focus upon matters other than the supposed usurpation by the judge of the role of the jury, the very matter upon which the Director primarily focusses in this reference.

R v Prasad (1979) 23 SASR 161

190 As previously indicated, the Prasad direction stems from the 1979 dictum of King CJ in R v Prasad.[177] His Honour's dictum has been followed many times throughout Australia. Its correctness or otherwise has never been the subject of consideration by the High Court.[178]

191 In Prasad, White J agreed with King CJ regarding the existence of the practice to which the Chief Justice had alluded. He referred to a direction to the jury that Walters J had given in R v Kalaitzidis[179] where his Honour had told them that they could stop the case, by acquitting the accused at the end of the evidence for the prosecution if they were minded to do so. Walters J had made it clear that a direction of that kind should only be given where the evidence brought forward by the Crown had been shown to be discredited to a very marked degree, such that no reasonable jury could safely act upon it. White J referred specifically to the remarks made by Roskill LJ in R v Falconer-Atlee,[180] warning of the difficulties that such a direction could occasion.

192 Having cited also the decision of the Court of Appeal in R v Mansfield,[181] White J described the position in England as 'confused'. He added that there still remained, on the one hand, the duty to direct the jury to acquit on a submission of no case if there was no evidence as to a particular element of the charge. Importantly, he said:

But once there some is evidence on each element, its weight is for the jury. This also leaves the trial judge the right to make suggestions to the jury or to ask the jury their views where the evidence appears to be so unreliable that it could not support a verdict of a jury properly directed. Such suggestions and advice should not, I think, ever take the form of directing the jury what to do within their own province.[182]

193 It can be seen, therefore, that the practice of inviting the jury to stop the case, that had been deprecated in England, was nevertheless considered by both King CJ and White J to be lawful, and one that could be invoked in appropriate circumstances.

194 The third member of the Court in Prasad, Mohr J, referred to the English authorities, and the criticisms levelled at the practice in the following terms:

That there is a practice, subject to some English criticism as will be seen, of inquiring a of jury whether they are prepared 'at this stage' to bring in a verdict of 'not guilty' is known to the Court. The correctness or otherwise of that practice is not here in question.[183]

R v Pahuja (1987) 49 SASR 191

195 In Pahuja,[184] King CJ elaborated upon what he had said, some nine years earlier in Prasad, regarding the practice of informing the jury of their right to stop the case.

196 The Chief Justice sounded a note of caution regarding that practice:

At the conclusion of the case for the prosecution, the learned trial judge, at the request of counsel for the defence, informed the jury of their right to stop the case and to bring in a verdict of not guilty. He addressed the jury at considerable length by way of explanation of the relevant law and during the course of his remarks conveyed quite clearly that he thought that they should stop the case. The jury decided that the case should proceed. I think that the procedure adopted calls for comment. The undoubted right of a trial judge to inform the jury of its power to bring in a verdict of not guilty at any time after the conclusion of the case for the prosecution, should be used sparingly and only when the judge is of opinion that the evidence for the prosecution, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty. Even in such a case, the judge should bear in mind that the evidence called by the defence might strengthen the prosecution's case. The decision as to whether to inform the jury of its power must be made by the trial judge in the light of his assessment of the case and it would not be helpful to offer general advice as to the circumstances in which it would be proper to adopt that course. These observations, however, can be made. The fact that apparently credible evidence given by an alleged victim in a sexual case is uncorroborated is not of itself sufficient reason for taking that course of action. The judge should not interrupt the trial for detailed argument as to whether he should do so. He should do so as a matter of course or not at all. There should be nothing in the nature of a pre-trial summing up. If the jury cannot properly reach a decision at that stage on the law as explained in the opening, perhaps clarified by a concise correction or explanation if necessary, it is better not to embark upon the course of action at all. A partial summing up at that stage of the trial is a serious departure from the due course of trial and is to be avoided.[185]

There are two things that I would say about the procedure that was followed in this case. First, any Prasad direction should be put to the jury quite simply and shortly. It is not the occasion for any more than a passing glance at the law and a brief reference to whatever feature of the evidence it is that has led the trial judge to give the direction - usually some serious weakness in the Crown case that has emerged during its presentation. I think, with respect, that this direction was far too long. Secondly, it seems to me that this was not a proper case for a Prasad direction at all. The typical occasion for it in a sexual case will be the discrediting of the complainant in the witness box - admitted lies or plain contradictions or vacillations - or important contradictions with other Crown witnesses. No doubt there may be other occasions for its use as well, but they are the obvious ones. So far as I can see, there was no foundation at all for the direction here. There was nothing to suggest that the witnesses, including V, did not conform substantially to their witness statements, for instance, and nothing else, certainly on the face of the transcript, that would lead one to type the witnesses as unsatisfactory. If the girl's demeanour was unimpressive - and that can be an important factor - the learned Judge did not suggest as much to the jury. What he did emphasize was that they were likely to end up with two sharply conflicting stories, the girl's (which, I point out, was not entirely unsupported) and the accused's. His Honour appears to have thought that that circumstance was a sufficient justification for stopping the trial. In my opinion, it was not. The law in this State does not demand corroboration in sexual cases, and convictions on uncorroborated evidence are not uncommon. I do not think it right that Parliament's policy on the matter - cf s 34i(5) of the Evidence Act - should be undermined by the giving of a Prasad direction for no other reason than a normal and expected conflict between the Crown and defence witnesses respectively. That would be to usurp or compromise the function of the jury. As the juror in this case pertinently observed, why embark on such a trial in the first place if, when it follows its predicted course, it is simply stopped in mid-stream? The learned Judge said more than once to the jury, Is it possible to say where the truth lies when you have only one witness on each side? That might well be an appropriate line to take in a summing up, when all the evidence is in, but, when asked at the end of the Crown case, the jury was entitled to respond - as, in effect, they did - by saying that they would have a better idea about that when they had heard what the appellant had to say.

I have said that the learned Judge gave the Prasad direction at the request of defence counsel. The submission is recorded in the transcript. It shows that the reason for the direction, that the learned judge gave to the jury, simply reflected the ground upon which it was sought, namely, that the only Crown witness with whom the accused would be taking issue was the girl. That, as I have sought to show, was a quite inadequate basis for the direction.

This is not intended to discourage the use of the Prasad procedure where the circumstances call for it. However, it is no small thing, where there is a case for the accused to answer, to encourage the jury to pre-empt their normal function. Certainly the direction should not be given, in my judgment, virtually as a matter of course, or because the case by its very nature falls into a certain type.[186]

198 Johnston J agreed with both the Chief Justice and Cox J.

Seymour v The Queen [2006] NSWCCA 206; (2006) 162 A Crim R 576

199 In Seymour v The Queen[187] the New South Wales Court of Criminal Appeal gave careful consideration to the Prasad direction, and the circumstances under which it might be appropriate for it to be given.

200 Hunt AJA (with whom Simpson and Rothman JJ agreed) said:

The judge followed closely what was said in [Prasad and Pahuja]. There were no addresses, and only short legal directions. As stated earlier ... the jury returned a verdict of not guilty for the co-accused on both charges, but they indicated that they would like the case against the appellant to continue.

...

In my opinion, the cause of the seemingly inconsistent results of the Prasad direction arose from the circumstances in which that direction was given. This was a case in which some explanation of the Crown case of a joint criminal enterprise, and of the two accused acting in company, was vital to the jury's understanding of the part played by the co-accused. The Crown prosecutor in his opening address did very briefly outline in conceptual terms how his case relied on a joint criminal enterprise ... That, however, happened a week before the Prasad direction was given. As suggested in Pahuja, the judge did not give any directions of law which explained the conceptual basis of the Crown case.

It is clear, in my opinion, that the jury acquitted the co-accused because it had not been explained to them how the part he played in the various events which took place in the apartment made him criminally responsible for the actions of the appellant. The very experienced counsel appearing for the appellant in this appeal very properly conceded that this was perhaps correct. If follows from my opinion that the seeming inconsistency in the results of the Prasad direction disappears.

This case demonstrates the danger of giving a Prasad direction in circumstances where there may be a problem for the jury in understanding the real nature of the Crown case. In some cases, it may be possible for the direction to be expanded to make it clear how the Crown put its case, but it seems to me that to do so really negates the whole purpose of this procedure, which is premised on the jury being able, without the assistance of the trial judge or counsel, to judge the cogency of the evidence on which the Crown relies - without addresses and without a summing-up.[188]

201 As we have said, King CJ's dictum in Prasad has been regularly applied on many occasions throughout the almost 40 years that have passed since his Honour first articulated it. The Prasad direction has been approved not just in South Australia,[189] but also in New South Wales,[190] the Australian Capital Territory,[191] Victoria,[192] and Tasmania.[193]

202 A LexisNexis database search regarding the decision in Prasad indicates that

the case has been cited, without disapproval, on no fewer than 45 occasions.[194] Importantly, intermediate appellate courts, and Trial Division superior courts have followed or applied Prasad on at least 27 occasions.

203 Despite its lengthy and respectable pedigree, the Director submitted that this Court should now hold that a Prasad direction is contrary to law, and that it should never again be administered in any criminal trial.

204 The Director relied in support of that submission primarily upon the English authorities to which reference has already been made. He submitted that these cases had not merely deprecated the continued use of the practice, but had effectively determined that it was now contrary to law. He relied, in particular, upon the forceful criticisms levelled at the practice in Collins.[195]

205 During the course of oral submissions, the Director raised a further argument that had not been addressed in his written submissions. He contended that even if it is to be assumed that Prasad had been correctly decided, and that the practice to which King CJ had adverted accurately reflected the common law, a combination of legislative provisions unique to this State had the effect of abrogating its continuing validity.

206 For example, reference was made to ss 66 and 234 of the Criminal Procedure Act 2009. That Act is said to have been intended to codify the law of criminal procedure in this State. Section 66 made it clear that after the close of the case for the prosecution, an accused was entitled to do various things. These included making a no case submission, or calling evidence, should the accused be minded to do so.

207 Similarly, s 234 conferred upon the prosecution the right to address the jury after the close of all evidence for the purpose of summing up its case, and before the closing address of the accused. The Director submitted that these statutory rights, now codified, were inconsistent with the continued existence of a practice which, if followed, would render them unable to be utilised.

208 The Director further submitted that the enactment of the Criminal Procedure Act 2009, with no mention whatever of the practice, suggested that by 2009, it was thought to be obsolete.

209 Similar submissions were directed towards the Jury Directions Act 2015, which despite its comprehensive nature, made no mention at all of the existence of the practice.

210 The Director submitted that the only rationale for the Prasad direction was to save time and cost. As such, it was not supported by any important point of principle, and had nothing to do with avoiding injustice.

211 Moreover, if there was a right to have the jury told that they could stop the trial by acquitting, after all the prosecution evidence had been led, that right was purely procedural in nature. For that reason, the Director found that there was no difficulty in treating the provisions of the Criminal Procedure Act 2009 and the Jury Directions Act 2015 as having abrogated the right, despite there being no mention of them having done so in either of those two Acts.

212 The Director acknowledged that even if this Court were to hold that the giving of a Prasad direction was unlawful, that would not necessarily prevent a jury, of its own volition, and without receiving any instructions from a judge, from returning a verdict of acquittal, once the prosecution case had been concluded. Although not the Director's preferred position, this was said to be 'the most comfortable half-way house'.

213 Senior counsel for the respondent submitted that the giving of a Prasad direction never had been, and was not, contrary to law. He submitted that the giving of such a direction, in an appropriate case, was consistent with a long line of authority. In addition, it furthered the important objective of ensuring the efficient disposition of criminal proceedings in the interests of justice.

214 He invited this Court to approve King CJ's observation in Pahuja that the direction was to be used sparingly. He referred to the key features of the trial judge's direction in the present case:

(a) a direction that the jury has the right, if they choose to exercise it, to bring in verdicts of not guilty at the conclusion of the prosecution case;

(b) a direction that the jury may indicate that they wish to hear more in relation to the charges;

(c) a direction (which the judge emphasised) that determination of the facts is a matter for the jury, together with an observation that the jury has the right to bring in a not guilty verdict at the close of the prosecution of the Crown case in all criminal trials;

(d) directions of law as to the elements of the offence charged, and any relevant alternative; and

(e) a brief summary of the main evidence relevant to the jury's consideration, together, in this case, with directions on self-defence.

215 It was noted that the judge's directions in the present case had extended over approximately 20 pages of transcript. His Honour had briefly, but adequately, summarised the evidence relevant to the jury's deliberations in the course of that direction. This was said to be consistent with Cox J's statement in Pahuja that a Prasad direction might be given 'quite simply and shortly'. Nothing that the judge said could conceivably be viewed as compelling the jury to decide this matter one way or another.

216 It was submitted that for that reason, the Prasad direction might better be described as a Prasad invitation, it being understood, of course, that it was not an invitation to bring in a particular verdict, but rather to consider the option of bringing in a not guilty verdict at an earlier stage, should the jury wish to do so.

217 It was submitted that contrary to the Director's submission, the Prasad direction did not cut across the quintessential fact-finding function of the jury.

218 Senior counsel for the respondent submitted that, as the Director had conceded, the High Court in Doney v The Queen,[196] despite having referred to Prasad, had said nothing about the correctness or otherwise of King CJ' dictum.

219 Senior counsel drew attention to R v Reardon,[197] a decision of the New South Wales Court of Criminal Appeal. He relied, in particular, upon a passage in the judgment of Simpson J where her Honour said, of a Prasad direction:

In my experience, it has long been recognised in NSW that a judge may, in a suitable case, and in the exercise of his or her discretion, take the course outlined by King CJ. There is no rule that in any particular set of circumstances a judge is obliged to take that course or ought to take that course. The decision to do so or not to do so lies entirely within the discretion of the judge. I can think of no circumstances in which a refusal to give such a direction could result in a miscarriage of justice.[198]

220 It was submitted that there was nothing in either of two recent High Court decisions, R v Baden-Clay[199] and IMM v The Queen,[200] that cast any doubt upon the lawfulness of the giving of a Prasad direction.

221 Turning to the English authorities upon which the Director relied, it was submitted that these cases should be approached with great care. Properly understood, they identified a number of reasons why, in many cases, it would be undesirable to give a Prasad direction. However, none of them stated categorically, or even by implication, that the practice was contrary to law, or that no such direction should ever be given.

222 It was submitted that the decision in Kemp, and the criticisms levelled by the Court of Appeal at the practice, were entirely justified having regard to the inappropriate terms in which the direction given in that case had been couched.

223 Plainly, the judge had entered into the arena by making his views of the credibility of the prosecution witnesses known, and by indicating that he personally preferred the evidence of a defence witness. The direction was so strongly worded that the Court of Appeal concluded that the jury would inevitably have considered that the judge considered the prosecution case to be worthless. What he said to the jury was not an invitation to consider whether they wished to hear more evidence, but a direct, and impermissibly blunt, incursion into the jury's own fact finding responsibilities.

224 It was submitted that Speechley[201] involved a quite different issue to that of whether the practice should be continued. The relevant ground of appeal raised the question of whether defence counsel (and not the judge) could inform the jury of their right to acquit the accused at any time after the close of the prosecution case. Not surprisingly, that ground of appeal had failed. The criticisms levelled at the practice, which largely reiterated what had been said in Kemp, were all dicta.

225 As for Collins,[202] it was submitted although the Court of Appeal spoke of the practice as having been 'comprehensively disapproved', it was noteworthy that it did not rule it out absolutely. It was acknowledged by Gage LJ that there might be circumstances in which such a direction would be appropriate when he said

[a]t the very least [the practice of giving the direction] could only be exercised in the most exceptional circumstances and certainly not in a multi-handed case of some complexity.[203]

226 It was submitted that this formulation differed only marginally, if at all, from that adopted in Pahuja which stipulated that a Prasad direction should only ever be given 'sparingly', and where otherwise appropriate.

227 As for the other dangers of giving such a direction mentioned in Collins, including the risk of a jury being 'keen to register independence', and the need to avoid being seen to be inviting the jury to acquit, these could easily be overcome by ensuring that any such direction was carefully worded.

228 It was submitted that the problem with R v H(S),[204] and its analysis of the dangers of giving such a direction was that, in that case the direction was couched in very poor terms. It made clear to the jury that, in the judge's view, they should acquit. Indeed, he told the jury to retire for 'two or three minutes' to consider whether they wanted to hear more evidence.

229 If there were any doubt as to the judge's opinion of the weakness of the prosecution case, it would have been dispelled by his comments after the jury had brought in a verdict of not guilty. The judge described the case as having been a 'scandalous waste of taxpayer's money'.

230 Importantly, the Court of Appeal did not have to consider the validity, or otherwise, of a properly worded direction inviting the jury to consider its position at the close of the prosecution case.

231 In summary, it was submitted by senior counsel for the respondent that the English cases upon which the Director relied merely expressed strong reservations as to the giving of the Prasad direction, but did not go so far as to say that it would be unlawful to administer it.

232 Turning then to the Director's alternative submission, based upon the supposed abrogation of the Prasad direction by recent Victorian legislation, senior counsel for the respondent submitted that this Court should reject that contention. He submitted that there was nothing in either the Criminal Procedure Act 2009 or the Jury Directions Act 2015 that was in any way inconsistent with the giving of a Prasad direction. He pointed to the fact that whenever the Jury Directions Act contemplated a departure from the common law of any kind, it said so specifically, and in terms. There was not the slightest indication in that Act that the legislature intended to abrogate the well-established practice of giving a Prasad direction, whether the power to do so stemmed from the common law, or merely from accepted rules of practice.

233 On a more positive note, senior counsel submitted that a properly worded Prasad direction could assist in the efficient administration of the criminal justice system by avoiding delay associated with unnecessarily prolonged trials. Moreover, it should not be assumed that there was no legitimate public interest, beyond that of saving time and expense, in bringing to an end at an earlier stage a prosecution that was almost certainly foredoomed to fail. At the very least, the accused should be entitled to have the strain of undergoing a highly stressful experience lifted from his or her shoulders once the jury determined that they did not wish to hear any more evidence. In addition, it should not be assumed that any defence case would necessarily be short, or that there would not be significant inconvenience to a number of witnesses, not to mention the jurors themselves, in allowing such a case to be drawn out.

234 It was submitted, in addition, that it was curious that the Director did not challenge the jury's right to return a verdict of not guilty once the prosecution case had been closed. He merely submitted that it would be contrary to law to inform the jury that they had a right to do so. The question was asked, rhetorically, why would it be unlawful for a judge to inform the jury of a right which it was conceded they could legitimately exercise?

235 For the best part of 40 years, judges in this country have, where considered appropriate, given Prasad directions. As a general observation, such directions are carefully expressed, given sparingly and only in cases where there is a proper basis for that to be done.

236 The issues in this trial, as in so many cases like it, were relatively straightforward. Given brief, but adequate instruction as to the law, the jury were perfectly capable of deciding whether they wished to acquit the respondent at the end of the prosecution case, or whether they wanted to hear more evidence. Initially they said they wished to hear more. However, after having seen and heard the respondent give evidence, they decided at once to acquit. That was hardly surprising.

237 The judge decided, in the particular circumstances of this case, to give the jury a rather more detailed Prasad direction than some of the authorities might suggest would be sufficient. In fact, his Honour's direction encompassed virtually everything that might be expected of a final summation. There is no suggestion that the verdicts of acquittal were anything other than entirely appropriate.

238 Nonetheless, the Director is aggrieved by the process that was adopted in giving the Prasad direction. He now seeks to have this Court determine that it was contrary to law to have done so.

239 When, after Galbraith,[205] the law changed in England making it possible for judges to direct acquittals in cases where they considered that any conviction would be likely to be set aside on appeal as being unsafe or unsatisfactory, the need for an equivalent of a Prasad direction was considerably diminished.

240 The Director contends that any practice of giving such a direction is contrary to law because it upsets the balance between the role of a trial judge, and the responsibility of the jury in determining questions of guilt or innocence. The Director's argument is put as a matter of high principle.

241 An important counter to the Director's argument is the need for this Court, in answering the question posed in the reference, to have regard to comity, and the need to respect the views of other intermediate appellate courts unless they are considered to be plainly incorrect. If there is but one common law of Australia, it cannot be that it can legitimately take one form in one State, and another in a different State.

242 It is interesting to note that in his classic work Trial by Jury,[206] Sir Patrick Devlin wrote of the control which judges properly exercised over juries, throughout the history of English criminal trials. In 1956, when the first edition of that text was published, nothing at all was said about the right of a jury to stop a trial, or to be told of their right to do so. Nor did that 'right' find its way into either the second or third editions of that work in 1960 and 1966 respectively.

243 Although each edition contains an extensive discussion of the vital importance of the summing up, as a key component of trial by jury, there is one particular aspect of the treatment of that subject that is of tangential relevance to the issue before this Court. The learned author pointed out that, in England, the tradition was that a judge was permitted to express his opinion on questions of fact freely, if he wished to do so. The only limitation was that the judge must not comment on any point unfairly,[207] and must make it clear to the jury that, on questions of fact, which were entirely for them to determine, they were free to give such weight as they chose to any comments he might make.[208]

244 Comments of an extreme nature of the kind that were sometimes made in favour of conviction would surely not pass muster today. To a lesser degree, the same is true of strong comments in favour of acquittal, though such comments are still sometimes made. It is rarely suggested that comments of this nature intrude impermissibly into the function of the jury, or that they constitute an impermissible usurpation of their role.

245 It is also interesting to note Professor John H Langbein's remarkable study of jury trials in England.[209] The author observes that there is ample evidence throughout history of judges having commented both for and against the accused, sometimes in the strongest of terms.

246 Professor Langbein points out that sometime in the second half of the 18th century, there was a change in attitude among judges regarding the appropriateness of judicial comment on the facts. They continued to direct verdicts of acquittal as matters of law, but became more circumspect regarding advising juries on the merits.

247 In the United States, where the judiciary had been tainted by its association with imperial administration in late colonial times, judges had from an early stage been stripped of their powers of judicial comment. Wigmore described the United States approach as a departure from the orthodox common law rule which permitted comment. He said that this departure had thereby done more than any other thing to impair the general efficiency of jury trial as an instrument of justice.

248 Professor Langbein identified a number of cases in which trial judges in England commented forcefully in favour of the accused, sometimes without success. For example, in one case, a judge struggled to force a jury to acquit an accused charged with theft. The judge told the jury at the end of the prosecution case, and before addresses or summing up, that there was, in his view 'a chasm in the evidence' such that 'I do not think it is material to call on the prisoner to make his defence, therefore, I think the prisoner must be acquitted'. Eventually, and after much cajoling, the jury did as the judge wished them to do.

249 When a jury returned a verdict, that the judge thought was against the weight of the evidence, or with which he otherwise disagreed, the judge could refuse to accept the verdict, question the jurors about it, and give them further instruction before requiring them to reconsider the matter. This could be done at any stage before the verdict was recorded, and irrespective of whether the verdict was one of guilty or not guilty.

250 From the late 18th century, as Langbein notes, a trial judge's authority over a jury verdict was gradually weakened. Judges moderated their use of the power to comment upon the evidence, and the practice of rejecting verdicts became contentious. Professor Langbein argues that this move away from judicial control to greater 'adversarialism' led to the development of a new system of jury control whose emphasis was on preventing jury error. This involved tightened control over the admissibility of evidence, resulting in a transformation of trial procedure.

251 Once again, for what it is worth, Professor Langbein's study makes no mention at all of the practice of informing jurors of their right to stop a trial after the conclusion of the prosecution case.

252 The Director would no doubt say that Professor Langbein's work supports his contention that the right to stop a trial never truly existed. Senior counsel for the respondent would say that the work proves nothing more than that rules of practice sometimes develop into rules of common law, and that the Prasad direction provides a perfect illustration of this.

253 Prior to Prasad, the position in this country regarding directed acquittals was, in some respects, the very antithesis of what had been taking place in England for some time. The practice in Victoria, for example, was that a verdict of not guilty might be directed if there were 'but a scintilla of evidence'.[210]

254 After 1966 a more 'robust' view developed in England to the effect that a trial judge should stop a trial if, in his or her opinion, a verdict of guilty would be 'unsafe or unsatisfactory'.[211]

255 It was thought for a time, in this country, that a similar power in the trial judge derived from the common criminal appeal provisions in Australia, though these were expressed in different terms to the 1966 United Kingdom legislation. That approach was expressly rejected in South Australia in Prasad, and in this State in Attorney-General's Reference (No 1 of 1983).[212]

256 In Galbraith[213] the English Court of Appeal made it clear that Mansfield at least had been wrongly decided, and should no longer be followed regarding directed acquittals. The Court stated:

(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.[214]

257 In Doney,[215] the High Court specifically endorsed proposition (2)(b) in the passage from Galbraith set out above. However, it rejected proposition (2)(a), as involving too great a usurpation of the role of the jury by a trial judge.

258 The High Court stated the relevant principles to be applied on a no case submission in the following terms:

The question whether, in the words used in Galbraith, evidence has a 'tenuous character' or an 'inherent weakness or vagueness' may raise, but is not restricted to, the question whether the evidence is truthful. Quite apart from any question of truthfulness, there may be something in the nature of the evidence that brings its probative value into question so that the trial judge must consider whether some warning should be given. And, as earlier noted, there may be rare cases in which it will be necessary to consider whether, although the evidence was not initially excluded as a matter of discretion, it should be withdrawn from the jury's consideration.

Evidence that attracts a warning is evidence that has been adjudged, either generally or in the particular case, as having probative value such that, subject to warning, it can be taken into account by the jury in its deliberations. Assuming an appropriate warning, the weight to be given to that evidence is as much a matter to be determined by inference based on the jury's collective experience of ordinary affairs as is the question whether evidence is truthful. And, of course, the same is necessarily true of evidence that does not require a warning.

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory (as to which see Whitehorn, Chamberlain v The Queen [No 2] and Morris v The Queen) nor the inherent power of a court to prevent an abuse of process (as to which see Jago v District Court (NSW)) provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial. Nor does the existence in a trial judge or a court of powers to stay process or delay proceedings where the circumstances are such that the trial would be an abuse of process.

The Court of Criminal Appeal was correct in upholding the trial judge's ruling that he had no power to direct the jury to enter a verdict of not guilty on the ground that, in his view, a verdict of guilty would be unsafe or unsatisfactory.[216]

259 Even after Galbraith had been decided, when the earlier more highly interventionist approach that had been favoured in Falconer-Atlee and Mansfield had been rejected, there was still ample scope, in England, for trial judges to direct acquittals in cases they regarded as particularly weak.

260 After Prasad in South Australia, and Attorney-General Reference [No 1 of 1983] in this State, a more rigorous approach to directed acquittals was adopted. Doney stamped the High Court's imprimatur on that process. Once it became apparent that judges could no longer direct acquittals in what were perceived to be weak cases, the basis for retaining the Prasad direction, as a residual power, might be thought to have become all the more compelling. Certainly, the criticisms levelled at the practice of giving such direction in England became less cogent, so far as this country was concerned.

261 For that reason senior counsel for the respondent argued that the English authorities upon which the Director relied should be seen in context, and against the background of the very different approach to directed acquittals currently applicable in that country.

262 In our opinion, senior counsel's submission should be accepted. There is no reason, in principle, why trial judges should not continue to give appropriately worded Prasad directions, provided that it is understood that they are to be given only rarely, and where the circumstances make it proper to do so.

263 Before giving such a direction, the trial judge must form the view that the prosecution case, considered as a whole, though sufficient to be left to the jury, is particularly weak. The case must be one where the jury will be able, without the assistance of closing addresses, still less a full judicial charge, to make a sensible assessment of whether, without hearing further evidence, an acquittal is the just and appropriate verdict.

264 A Prasad direction should not ordinarily be given in a case of any significant complexity. It should almost never be given in a case involving more than one accused. Any such direction should be accompanied by adequate instructions as to the relevant substantive law, and any appropriate and necessary warnings of an evidentiary kind.

265 If we may say so, the judge in the present case gave an impeccable Prasad direction. The jury were fully armed with all they needed to know in order to make sense of a simple allegation, and a simple response to that allegation. The prosecution was in no way disadvantaged by not having the opportunity to address when the direction was first given. By the time the jury actually came to consider their verdict, they had heard from the accused. And of course, they had been given a more than adequate charge by the judge as to the elements of the offence, the alternative charge, and all relevant matters of evidence.

266 We should say that we reject the Director's submission that even if the Prasad direction had been part of the common law for many years, that is now no longer the case. The Director's submission, that the provisions of the Criminal Procedure Act and/or the Jury Directions Act are inconsistent with the continued use of a Prasad direction, is strained and unconvincing.

267 The point of law raised by the Director on the reference should be answered as follows:

The giving of a Prasad direction, in appropriate circumstances, is not contrary to law.

[1] (1979) 23 SASR 161 ('Prasad').

[3] (1987) 49 SASR 191 ('Pahuja').

[5] See, eg, R v Collins [2007] EWCA Crim 854 ('Collins'); see [60] below.

[6] Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 215 ('Doney').

[7] R v Butler [Rulings 1-10] [2013] VSC 688 [165] ('Butler'): see [82]-[83] below.

[8] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, 329 [65].

[9] IMM v The Queen (2016) 257 CLR 300; see also DPP v Wearn (a pseudonym) [2018] VSCA 39.

[10] R v AJS [2005] VSCA 288; (2005) 12 VR 563, 577 [54]-[55]; Jury Directions Act 2015 s 65; Criminal Procedure Act 2009 ss 234-5, 238.

[11] DPP v Gillespie [Ruling No 2] [2012] VSC 533 [12] ('Gillespie'); DPP v Kocoglu [2012] VSC 184 [12]-[13] ('Kocoglu'); R v White [No 8] [2012] NSWSC 472 ('White'); R v Dickson; R v Issakidis [No. 10] [2014] NSWSC 1482 ('Dickson').

[12] See Seymour v The Queen [2006] NSWCCA 206; (2006) 162 A Crim R 576 ('Seymour').

[13] Cf Natalia Antolak-Saper, 'The role of directed verdicts in the criminal trial' (2012) 21 Journal of Judicial Administration 146, 165-6.

[14] Doney [1990] HCA 51; (1990) 171 CLR 207, 215.

[15] Prasad (1979) 23 SASR 161, 163.

[16] Cf Pahuja (1987) 49 SASR 191, 201.

[17] R v Smart [Ruling No 5] [2008] VSC 94 ('Smart').

[19] R v Mansfield [1978] 1 All ER 134 ('Mansfield').

[21] Ibid. Under the Criminal Appeal Act 1907, the Court of Criminal Appeal would not interfere to quash a conviction if there was 'evidence upon which a reasonable jury could convict'. Following the enactment of the Criminal Appeal Act 1968, however, the question for the Court of Criminal Appeal became whether the verdict was unsafe or unsatisfactory.

[24] Ibid, citing R v Barker (1975) 65 Cr App R 287, 288. See now R v Galbraith [1981] 1 WLR 1039.

[25] Prasad (1979) 23 SASR 161, 162.

[27] Ibid 171-172. For an analysis supporting the majority's conclusion, see H. H. Glass, 'The Insufficiency of Evidence to Raise a Case to Answer' (1981) 55 Australian Law Journal 842, 845ff. See also R v Towers (1984) 75 FLR 77, 80.

[28] [1981] TASRp 22; (1981) 6 A Crim R 429.

[29] Ibid 432 (emphasis added), see also 455-7 (Crawford J).

[30] [1983] VicRp 101; [1983] 2 VR 410.

[32] (1989) 18 NSWLR 74.

[36] [1983] HCA 42; (1983) 152 CLR 657, 675.

[37] R v R (1989) 18 NSWLR 74, 85 (emphasis added).

[38] Doney [1990] HCA 51; (1990) 171 CLR 207.

[40] Ibid 215. The then Chief Justice of the Supreme Court of the Northern Territory described this statement as 'rather casuistical': Keith J. Austin Asche, 'The Trial Judge, the Appeal Court and the Unsafe Verdict' (1991) 15 Criminal Law Journal 416, 421.

[42] Prasad (1979) 23 SASR 161, 163.

[43] See [35] below.

[44] (1979) 23 SASR 161, 163.

[45] Young [1964] 2 All ER 480, 482.

[46] (1974) 58 Cr App R 348 ('Falconer-Atlee').

[47] Mansfield [1978] 1 All ER 134, 140.

[48] Stephen Mitchell (ed), Archbold's Pleading, Evidence and Practice in Criminal Cases (Sweet & Maxwell, 39th ed, 1976) 332 [577].

[49] Prasad (1979) 23 SASR 161, 163 (emphasis added).

[50] Pahuja (1987) 49 SASR 191, 201 (emphasis added).

[52] (1995) 65 SASR 234 ('Dean').

[53] Ibid 239 (emphasis added) (citations omitted).

[54] Young [1964] 2 All ER 480, 481.

[58] Falconer-Atlee (1973) 58 Cr App R 348, 356 (emphasis added).

[60] As to which, see Comment, 'Request to Jury to Stop Case' (1939) 83 The Solicitors' Journal 951; and Carleton K Allen, 'The Layman and the Law in England' (1959) 2 Journal of the International Commission of Jurists 55, 62.

[64] See [48] above.

[65] Kemp [1995] 1 Cr App R 151, 154-5.

[69] Attorney-General's Reference (No 2 of 2000) [2001] 1 Cr App R 503.

[70] Ibid 507 (emphasis added)(citations omitted).

[71] [2004] EWCA Crim 3067 ('Speechley').

[73] See [48] above.

[74] See [56] above.

[75] Ibid [52]-[53] (emphasis added).

[77] Collins [2007] EWCA Crim 854 [44].

[82] [2007] EWHC 1836; [2011] 1 Cr App R 14.

[85] See [60] and [64] above.

[86] Dean (1995) 65 SASR 234, 239; see [43] above.

[87] [1983] VicRp 116; [1983] 2 VR 579.

[90] [2006] HCA 2; (2006) 80 ALJR 497, 501 (emphasis added).

[91] [2002] NSWCCA 203; (2002) 186 FLR 1.

[92] Ibid 32-3 [153]; see also R v Karounos [1995] SASC 4925; (1995) 63 SASR 451, 484.

[95] Seymour [2006] NSWCCA 206; (2006) 162 A Crim R 576.

[101] Ibid 595 [66] (emphasis added).

[102] See [18] above.

[103] Smart [2008] VSC 94 [4].

[105] Gillespie [2012] VSC 553 [11].

[108] Kocoglu [2012] VSC 184 [9].

[110] White [2012] NSWSC 472.

[113] Butler [2013] VSC 688 [159].

[117] Dickson [2014] NSWSC 1482 [5].

[120] [2015] VSC 356 ('Rapovski').

[127] [2015] NSWSC 1104.

[130] [2016] VSC 662 ('Gant').

[133] Gant v The Queen [2017] VSCA 104.

[134] [2017] NSWSC 572.

[137] [2017] NSWSC 167.

[139] Smart [2008] VSC 94 [13].

[140] See [88] above.

[141] See [83] and [88] above.

[142] See Crimes Act 1958 s 322M.

[143] Pahuja (1987) 49 SASR 191, 201; see [40] above.

[144] See [59]-[64] above.

[145] See R v Prasad (1979) 23 SASR 161 ('Prasad').

[146] See Crimes Act 1958 s 322M dealing with family violence and self-defence. The judge observed that the history of family violence upon which the respondent relied appeared not to be in dispute.

[147] The Director, 'Director's Submissions', Submission in Director of Public Prosecutions Reference No 1 of 2017, S APCR 2017 0027, 7 September 2017 [14].

[148] DPP Reference No 2 of 1996 [1998] 3 VR 241, 250-1.

[149] The Director, 'Director's Submissions', Submission in Director of Public Prosecutions Reference No 1 of 2017, S APCR 2017 0027, 7 September 2017 [22].

[150] Prasad (1979) 23 SASR 161, 163.

[151] [1964] 2 All ER 480 ('Young').

[153] (1973) 58 Cr App R 348 ('Falconer-Atlee').

[156] (1977) 65 Cr App R 267 ('Mansfield').

[157] Ibid 281 (citations omitted) (emphasis added).

[158] [1995] 1 Cr App R 151 ('Kemp').

[160] [2001] 1 Cr App R 503 ('Attorney-General's Reference (No 2 of 2000)').

[161] A rice flail is an implement typically used for threshing grain. It closely resembles a nunchaku which is a traditional Okinawan martial arts weapon.

[162] Attorney-General's Reference (No 2 of 2000) [2001] 1 Cr App R 503, 504 [3].

[163] Ibid 507 (citations omitted) (emphasis added).

[164] [2004] EWCA Crim 3067 ('Speechley').

[165] R v Speechley [2005] EWCA Crim 3404; [2005] 2 Cr App R (S) 15.

[166] R v Speechley [2004] EWCA Crim 3067 [51]-[53] (citations omitted) (emphasis added).

[167] [2007] EWCA Crim 854 ('Collins').

[168] R v Galbraith [1981] 1 WLR 1039 ('Galbraith').

[169] Collins [2007] EWCA Crim 854 [48]-[50].

[170] [2007] EWHC 1836; [2011] 1 Cr App R 14, 182 ('R v H(S)').

[172] R v H(S) [2007] EWHC 1836; [2011] 1 Cr App R 14, 197-8 [50]-[51].

[173] See Young [1964] 2 All ER 480, 481-2; Falconer-Atlee (1973) 58 Cr App R 348,357; Mansfield (1977) 65 Cr App R 267, 281 and Kemp [1995] 1 Cr App R 151,154-5.

[174] Attorney-General's Reference (No 2 of 2000) [2001] 1 Cr App R 503, 507; R v Speechley [2004] EWCA Crim 3067, [51]-[53] and R v H(S) [2011] 1 Cr App R 182, 196 [49].

[175] Collins [2007] EWCA Crim 854 [48].

[176] Galbraith [1981] 1 WLR 1039.

[177] (1979) 23 SASR 161.

[178] Although the High Court in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 213 (Deane, Dawson, Toohey, Gaudron and McHugh JJ) referred to a different aspect of Prasad, which dealt with the principles governing directed acquittals, it made no comment at all about the practice of inviting the jury to stop the case after the end of the prosecution evidence.

[179] (1978) 20 SASR 87, 91-93.

[180] (1973) 58 Cr App R 348.

[181] (1977) 65 Cr App R 267.

[182] Prasad (1979) 23 SASR 161, 172.

[184] (1987) 49 SASR 191 ('Pahuja').

[187] [2006] NSWCCA 206; (2006) 162 A Crim R 576 ('Seymour').

[188] Ibid 595 [62]-[66] (citation omitted) (emphasis added).

[189] In R v Karounos [1995] SASC 4925; (1995) 63 SASR 451, 484, Olsson J said: 'Some attempt was also made to criticise the refusal of the learned trial judge to give a 'Prasad' direction to the jury. All that need be said in the latter regard is that the decision as to whether or not to give such a direction is entirely a matter for the exercise of judicial discretion by the presiding judge ... It is virtually impossible to perceive how a refusal to give such a direction could ever constitute a proper ground of appeal.'

[190] See Seymour above. See also R v Reardon [2002] NSWCCA 203; (2002) 186 FLR 1, 32-3 [153] per Simpson J. See also Director of Public Prosecutions (NSW) v Mikhael [2015] NSWSC 819, where Rothman J, on judicial review from a Magistrate who had given himself a Prasad direction, set out in a carefully considered judgment, the principles governing procedural fairness in determining whether such a direction should be given. His Honour appeared to have no qualms as to the legitimacy of the Prasad practice.

[191] In R v Lee [2001] ACTSC 133 [188]-[189], Crispin J gave a Prasad direction after stating it was 'clear that a jury may acquit the accused at any time after the close of the Crown case... The Crown did not contend that Prasad had been wrongly decided, but submitted nonetheless that, whilst juries enjoyed such a right, judges in trials by judge alone did not.' His Honour rejected the Crown's submission in that regard. See also R v XH [2016] ACTSC 42, where Refshauge J, after considering Prasad and Pahuja, elected to give a Prasad direction, after rejecting a no-case submission.

[192] In R v Williams [1983] VicRp 116; [1983] 2 VR 579, 584 the Full Court adverted to the Prasad principle without citing that case by name. See also R v Lockwood and Avon (1994) Current Criminal Cases, 24 where Vincent J, who had had unparalleled experience at the criminal bar, gave a Prasad direction in relation to one of two accused in a trial for murder. His Honour appeared untroubled by what the English authorities had said about the suitability of such a direction in cases of that kind. See also R v Smart (Ruling No 5) [2008] VSC 94, where Lasry J gave a Prasad direction on a charge of murder. In R v Rapovski (Ruling No 3) [2015] VSC 356, Beale J gave a Prasad direction on a charge of attempted murder, having regard to the perceived weaknesses in the prosecution case. See also Gant & Anor v The Queen [2017] VSCA 104 where Croucher J, as trial judge, gave such a direction in an art forgery case.

[193] See Ling v The Queen [1981] TASRp 22; (1981) 6 A Crim R 429, 433 (Green CJ); 457 (Crawford J). The Tasmanian Court of Criminal Appeal rejected a submission that the trial judge, faced with a no case submission that he properly refused, was bound, without having been asked to do so, to give a Prasad direction. Had such a direction been sought, it is problematic as to whether a different result would have ensued.

[194] Though that figure must be considered, in context. As we have said Prasad had two limbs, one dealing with submissions of no case to answer, and the other with the practice currently under consideration by this Court.

[195] Collins [2007] EWCA Crim 854.

[196] [1990] HCA 51; (1990) 171 CLR 207 ('Doney').

[197] [2002] NSWCCA 203; (2002) 186 FLR 1.

[199] [2016] HCA 35; (2016) 334 ALR 234.

[200] (2016) 257 CLR 300.

[201] Speechley [2004] EWCA Crim 3067.

[202] Collins [2007] EWCA Crim 854.

[204] R v H(S) [2007] EWHC 1836; [2011] 1 Cr App R 14.

[205] Galbraith [1981] 1 WLR 1039.

[206] The Honourable Sir Patrick Devlin, Trial by Jury (Stevens & Sons Limited, first published 1956, 1966 ed).

[207] Sir Patrick referred to what he described as an 'extreme example'. In a case that was passed by the Court of Criminal Appeal in 1910, a judge's comment to the jury that '[the accused] practically stands convicted by the evidence of the prosecution. You must do your duty.'

[208] See R v Hepworth (1910) 4 Cr App R 128. See also the extraordinary case of Stephen Arrowsmith, accused of the rape of a young girl, tried in 1678 at the Old Bailey. Chief Justice Scroggs summed up strongly for conviction, but the jury were reluctant and ultimately proffered a verdict of acquittal. The Recorder of London who, for some reason, had taken over the conduct of the trial, questioned the jurors about their thinking, explained to them why they were mistaken and sent them out to deliberate again. Even then, the jury were unconvinced. The Recorder then recalled the key prosecution witnesses and had them repeat their testimony on oath. Eventually, the jury were worn down and convicted.

[209] John H Langbein, The Origins of Adversary Criminal Trial (Oxford University Press, 1st ed, 2003).

[210] Doney [1990] HCA 51; (1990) 171 CLR 207, 213.

[211] See, eg Falconer-Atlee (1973) 58 Crim App R 348 and Mansfield (1977) 65 Cr App R 267.

[212] [1983] VicRp 101; [1983] 2 VR 410.

[213] [1981] 1 WLR 1039.

[215] Doney [1990] HCA 51; (1990) 171 CLR 207, 214-5 (citations omitted).