The Director of Public Prosecutions (NSW) v Richard Christopher Mikhael & Ors

Proceedings in the Local Court

1. On 18 August 2014, the matter was heard by Magistrate Viney at the Local Court in North Sydney.
2. During an initial exchange with the Magistrate, the legal representative for the defendant, Mr Gooley, stated that the only issue in dispute in the proceedings was whether the defendant was capable of forming the requisite intention to cause the fire, as he was "highly affected" by drugs.
3. The Crown case proceeded by way of a hand-up brief, that is, the police prosecutor adduced the police brief of evidence, including all witness statements and a transcript of the record of interview. The police brief of evidence was admitted without objection and no witnesses were called to give oral evidence for the Crown.
4. The Magistrate retired to read the police brief of evidence. When she returned to the bench, the following exchange occurred between her Honour and Mr Gooley: "Her Honour: Mr Gooley do you want to be heard in respect of prima facie case? Mr Gooley: Very briefly only your Honour if you think that's necessary? Her Honour: Well yes I do. I am saying, you're not conceding prima facie is that right? Mr Gooley: That's correct your Honour yes." (Transcript, 18 August 2014, page 4).
5. Mr Gooley submitted in relation to a prima facie case (also known as no case to answer) that the evidence, particularly the transcript of the record of interview, did not establish that the defendant intended to cause the fire.
6. The police prosecutor submitted that the evidence, taken at its highest, proved that the defendant was the only person in the vicinity of the fires and that he had the means to light a fire. The police prosecutor further submitted that the fact that the defendant was hiding from the Fire Brigade suggested he had a guilty mind.
7. The Magistrate proceeded to deliver an ex tempore judgment on the issue of whether there was a prima facie case. Her Honour concluded the judgment by stating: "I will say this, it is by no means a strong case but I would think that given the circumstances, that is the time of day, the identification of the defendant at the relevant time. The fact that I don't accept the two fires could be unintentionally lit so close together or accidentally started so close together. That the defendant clearly was also acting under some sort of substance. I accept that one minute he is free and open and around and available and clearly being viewed by witnesses and the next he is hiding in a ditch. His behaviour was, I would think, highly suspicious.In my view, taking the prosecution evidence at its highest, considering the number of circumstances of this particular incident, I AM SATISFIED AT PRIMA FACIE THERE IS EVIDENCE OF EACH ELEMENT OF THE OFFENCE." (Transcript, 18 August 2014, pages 6-7).
8. Following the Magistrate's judgment on the Crown's establishment of prima facie case, Mr Gooley thanked her Honour. The Magistrate then immediately continued: "I don't want to hear any more because I am prepared to direct myself that there is ultimately so many unanswered questions. Can I say this, the biggest unanswered question I have in respect of this matter is that there must clearly have been other people around because there at least two. I mean I accept the witness ultimately rings into the police but she is one person. We are talking about an open stretch of road, there's at least another bike rider. Whilst I, yes, accept the description of the defendant's behaviour as highly suspicious, my view, based on the evidence regardless of what the defence says, could not get to a position where I would be satisfied beyond a reasonable doubt. THERE IS JUST NOT ENOUGH IN MY VIEW TO REACH THAT FINDING. ON THAT BASIS I DIRECT MYSELF PURSUANT TO A PRASAD DIRECTION AND THE SEQUENCES 1 AND 3 ARE DISMISSED." (Transcript, 18 August 2014, page 7).

Prasad Directions

1. A Prasad direction is a direction to the jury that at any time, after the close of the Crown case, they may find the evidence is insufficiently cogent to justify a conviction and may return a verdict of not guilty: R v Prasad (1979) 23 SASR 16; (1979) 2 A Crim R 45 at 47; R v Pahuja (1987) 49 SASR 191; (1987) 30 Crim R 118 at 128. In essence, a Prasad direction informs the jury of their power to acquit without hearing the evidence of the defence.
2. It is entirely within a judge's discretion whether to give a Prasad direction: R v Reardon [2002] NSWCCA 203; (2002) 186 FLR 1 at 32-33. Nevertheless, such a direction must be used sparingly and only when the judge considers that the evidence, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty: R v Pahuja at 128. A Prasad direction must not be given merely because a judge considers that the Crown case against an accused is not very strong, as a direction upon such a consideration would usurp the role of the jury as the finder of fact: Dean v R (1995) 65 SASR 234 at 239.
3. A Prasad direction must be distinguished from other directions which an accused may seek at the close of the Crown's case, particularly a direction that there is no case to answer, or no prima facie case, as it was referred to in the current proceedings. A no case to answer direction is a direction to the jury to acquit the accused as the Crown evidence, taken at its highest, is incapable of supporting a guilty verdict at law: R v Doney [1990] HCA 51; (1990) 171 CLR 207 at 214-215. Clearly, a no case to answer direction is more advantageous to an accused as it compels the jury to acquit.
4. A Prasad direction may be given during a summary proceeding. As King CJ held in R v Prasad at 47-48: "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 upon it."
5. In such a situation, the Magistrate must provide adequate reasons for the decision on whether to dismiss the case against the accused. In particular, a Magistrate must refer to the proper principles on Prasad directions, most importantly that a Prasad direction should only be given sparingly: Director of Public Prosecutions (Cth) v Alexandra Acevedo [2009] NSWSC 653 at [43]; Director of Public Prosecutions (NSW) v Ali Elskaf [2012] NSWSC 21 at [48].

Consideration

1. In these proceedings, the DPP contended that the Magistrate erred by giving herself a Prasad direction and then dismissing the case against the defendant. In their written submissions, the DPP put forward three separate errors in relation to her Honour's Prasad direction and dismissal of the case: "(1) The Magistrate erred in law in denying procedural fairness to the prosecutor by dismissing the case, based on a 'Prasad' direction, without having notified the prosecutor that she was considering making a 'Prasad' direction and providing the opportunity for submissions on whether the direction ought be made; (2) The Magistrate erred in law in failing to provide adequate reasons for granting the 'Prasad' direction and dismissing the charges; (3) The Magistrate erred in law in that (i) nothing in her reasons indicated that she understood that, consistent with authority, a 'Prasad' direction should be done sparingly; and (ii) properly viewed, the prosecution case was sufficiently strong that her Honour's discretion to dismiss the charges miscarried."
2. In relation to the first ground of appeal, namely that the Magistrate denied the prosecutor procedural fairness, it is axiomatic that before a Prasad direction is given the Crown should be afforded an opportunity to make submissions opposing that direction. The opportunity to make submissions lies at the heart of natural justice, particularly in circumstances, such as a Prasad direction, that may result in the case against the accused being dismissed.
3. The usual procedure for a Prasad direction is that the accused requests the direction. If the accused were being tried by a jury, he or she will make the request in the absence of the jury. The Crown is thereby put on notice that the accused is seeking a Prasad direction and it may make submissions as to why the evidence is sufficient for a conviction. The judge will hear these submissions before considering whether to give the direction.
4. However, in all trials (whether or not involving a jury) the judge may consider a Prasad direction if they form a preliminary view that the evidence is insufficiently cogent for a conviction. In such situations, it is fundamental to the precepts of procedural fairness that the judge notifies the parties that the judge is considering giving himself or herself a Prasad direction and invites the parties, particularly the Crown, to make submissions.
5. In the current proceedings, at the close of the prosecution case the Magistrate asked Mr Gooley if he wanted to make submissions in relation to whether the accused had a case to answer. Following Mr Gooley's submissions, the police prosecutor made submissions in reply. The Magistrate then delivered an ex tempore judgment, ruling that "prima facie there is evidence of each element of the offence". Her Honour proceeded, almost without interruption, to "direct [her]self pursuant to a Prasad direction" and ruled that the evidence was "not enough" to convict the defendant.
6. The fact that the Magistrate ruled successively on whether there was no case to answer and on whether to give a Prasad direction demonstrates that her Honour conflated two distinct concepts. As stated earlier in these reasons for judgment, a Prasad direction is different from a direction that an accused has no case to answer. The latter arises in the situation where the judge determines that the evidence is incapable of supporting a conviction at law and, in a summary trial, acquits, or otherwise directs the jury to return a verdict of not guilty. The former arises in the situation where the judge forms the opinion that the Crown evidence is insufficiently cogent and informs the jury of their right to acquit the accused at any time after the close of the Crown case. As Gleeson CJ held in Antoun v R [2006] HCA 2; (2006) 159 A Crim R 513 at [16]: "The question of 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 trial judge might properly inform a jury, at any time after the close of the prosecution case, of its power to acquit…. There is no advantage to be gained by blurring these differences. Keeping them in mind helps to avoid confusion".
7. By ruling successively on the no case to answer and Prasad directions, the Magistrate failed to afford the Crown procedural fairness and therefore I allow this ground of appeal.
8. As the first ground of appeal has been made out, it is unnecessary to deal with the other grounds. However, I note that a judge is required to provide adequate reasons for his or her decision to give a Prasad direction and dismiss a case. A failure to provide adequate reasons constitutes an error of law: see Fullerton J's summary of the relevant principles surrounding the adequacy of reasons in Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28 at [44]. I further note that, as King CJ stated in R v Pahuja at 128, Prasad directions should be used "sparingly" and only when the evidence is insufficiently cogent to justify a conviction.
9. For foregoing reasons, I made the orders on 14 May 2015 in the following terms: 1. Appeal allowed; 2. The orders of LCM Viney made on 18 August 2014 at North Sydney Local Court dismissing proceedings against the first defendant are set aside; 3. The proceedings are remitted to the Local Court to be heard by a different Magistrate.

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