Director of Public Prosecutions Reference No. 1 of 2017

[2018] HCATrans 227

[2018] HCATrans 227

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M129 of 2018

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO. 1 OF 2017

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 NOVEMBER 2018, AT 10.01 AM

Copyright in the High Court of Australia

MS K.E. JUDD, QC:   If the Court pleases, I appear with my learned friend, MS D.I. PIEKUSIS, for the appellant.  (instructed by Office of Public Prosecutions Victoria)

MR O.P. HOLDENSON, QC:   May it please the Court, I appear with my learned friend, MR J.P. O’CONNOR, for the acquitted person.(instructed by James Dowsley & Associates)

KIEFEL CJ:   Yes, Ms Judd.

MS JUDD:   If the Court pleases, I would like to start by taking you to the joint book of authorities at tab 15, if I may.  What has become known as the “Prasad direction” derives from the obiter judgment of the Chief Justice in the South Australian decision of R v Prasad.  That case did not specifically concern what has become known as a “Prasad direction”. 

It was a case that was being decided on whether or not, when there was a case to answer, there was nevertheless a discretion in the trial judge to stop the case and direct a verdict of not guilty if the judge considered that the evidence for the prosecution was so unsatisfactory that it would be unsafe to convict.

In dealing with that point, the Chief Justice went on at page 305 of the joint book of authorities and said this:

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.

So at the beginning of that passage there is a recognition of the right of a jury to bring in a verdict of not guilty without hearing more.  The Chief Justice went on to recognise that it was within the discretion of the judge to inform the jury of this right.  So that is the second point.  The next point is this.  He said: 

He may undoubtedly, if he sees fit, advise them to stop the case and bring in a verdict of not guilty. 

He distinguishes that from a verdict by direction.  Certainly in other cases it is well recognised that a judge ought not give any intimation of the judge’s views of the evidence because that would indeed be a usurpation of the role of the jury.

KIEFEL CJ:   Ms Judd, do you accept that Chief Justice King correctly stated the position at common law?  Whether it should be changed is a different question.

MS JUDD:   Chief Justice King – I am not sure about this comment.  It depends what that comment means in terms of advising them to stop the case and bring in a verdict of not guilty, but subject to that ‑ ‑ ‑

KIEFEL CJ:   Whether the jury has a right to bring in a verdict of not guilty after the prosecution case.

MS JUDD:   Certainly that was the law of England upon which this was based and so, certainly to that extent the Chief Justice did correctly state the law of England.

EDELMAN J:   That had been the law of England for a very long time.

MS JUDD:   It had been but even at this point in time the – I called it “Prasad direction”; obviously in England it was not being called a “Prasad direction” – but in England, even at that point in time, there had been criticisms of the use and really a suggestion that the appropriateness of using it ought be wound back and used sparingly.  But I do not for a moment suggest that in England it ever has been the case and even now in England it has not been said that it is contrary to law.  It has just been criticised in many respects and even at that early stage it had been criticised.

BELL J:   But the Chief Justice referred to Archbold, to the 39th edition in relation to the ‑ ‑ ‑

MS JUDD:   Where it came from.

BELL J:   ‑ ‑ ‑ right of the jury to bring in a verdict of acquittal at the close of the Crown case.  If one looks at the 39th edition of Archbold, the reference is to the decision, I think it was of the Court of Appeal in Young, which was decided in [1964] 1 WLR 717. Are you able to assist us with when, earlier than Young, one sees recognition of the right of a jury to return ‑ ‑ ‑

MS JUDD:   No, I have not – I am not able to identify precisely when it was.

EDELMAN J:   I think President Maxwell refers to an article in 1939 which talks about it as well.

MS JUDD:   Yes, and I was just trying to find what was said by the President in the Court of Appeal decision because the President also goes on and quotes the next paragraph of Archbold, which does not find its way into Prasad.  I will just see if I can find that page.

GORDON J:   Page 94 of the core appeal book is the reference to the 1939 article that Justice Edelman talked about, if that helps.

MS JUDD:   Yes, I will have to come back to it but the judge also did quote the next part of Archbold which talked about the dangers and the limitations of using it and, in fact, I suppose picked up, in terms of the speaking notes, what is articulated in our point 3 where we say the reason that Chief Justice King gave for recognising that it may be appropriate to give a Prasad direction was a conclusion that the jury as judges of the facts had a power to bring in a verdict of not guilty at any time after the close of the prosecution case. 

However, as recognised in Speechley, such a right could only ever be exercised upon the invitation of the trial judge.  Now, I will come to that but then going on in the early criticisms, in R v Falconer‑Atlee, the Prasad direction was criticised on the basis that where a judge determined that a case should not continue, the judge should take responsibility for stopping the case rather than leaving that responsibility to the jury.

Now, at that point, that is where the law in Australia differs from the English position.  That was one of the points that was recognised, not the difference between England and Australia, of course, but this fact that there was a much broader power in England, certainly at that time – there have been some developments in England but there are still some differences as recognised in Doney – but, certainly, at that point in time, in England, there was much more scope for a judge to direct a not guilty verdict when the evidence was insufficient or such that it may lead to an unsafe and unsatisfactory verdict. 

So, even in England at that time there was a real, I suppose – a number of comments of caution in terms of ever using what we call the Prasad direction because of that difference.  That in some part leads to, perhaps, a suggestion that in Australia because of Doney there may be more scope for a Prasad direction than there would have been and continues to be in England because even with the English law of Galbraith, there still is that greater restriction in Australia on directing a not guilty verdict after a no‑case submission.

In Victoria, it is actually not so much any more a direction to the jury to acquit after a no‑case submission.  The Criminal Procedure Act gives that power to the judge so the judge discharges the jury and then directs that the not guilty verdict be entered into the record.  But effectively it is the same point.  However, what I say to that is that although that was the early criticism of Prasad at the time that Prasad was introduced, there are many other criticisms of the Prasad direction.

If I could move then to R v Pahuja, it is tab 14 starting at the joint book of authorities at page 269 and at 279 Chief Justice King again made some comments about the use of the Prasad direction, and going to the first full paragraph it says:

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.

Now, what the Chief Justice there again refers to is the undoubted right 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 to the prosecution, but went on to make these other comments:  it should be used sparingly; it should only be used where the evidence was insufficiently cogent to justify a verdict of guilty; the judge should bear in mind that the evidence called by the defence might strengthen the prosecution case; the judge should not interrupt the trial for detailed argument; and indeed there ought not be anything in the nature of a pre‑trial summing‑up because a partial summing‑up at that stage of the trial is a serious departure from the due course of the trial and is to be avoided.

Over the years, certainly in Victoria, when a Prasad direction has been given, it has been given with accompanying directions as to some of the evidence and as to quite often the law, and in the current case that this appeal has come from you will see that the trial judge did indeed give many directions about the law and did engage in a summing‑up, and certainly in Victoria what the trial judge did was – or is the normal course of events when a Prasad direction is given.  You will note that the majority judgment of the Court of Appeal referred to the Prasad direction as being impeccable.  So certainly in Victoria we have moved away from there being the avoidance of a partial summing‑up.

The current criticisms of the Prasad direction include what I have just read out from Pahuja, in particular the problem about there being no real recognition that the evidence called by the defence might strengthen the prosecution case.  That always has to remain a possibility.

In Baden‑Clay, which I will come to in more detail at a later point, it provides a good example of the evidence of an accused possibly supporting the Crown case.  So I ask you to look at what was said in Baden‑Clay in the context of that particular criticism. If I take you to page 175 – I am jumping around a bit but it does really answer this point – at paragraph 52 of R v Baden‑Clay, it is noted that:

The present case is stronger for the prosecution than the Crown case in Weissensteiner because here the respondent gave evidence, which not only did not support the scenario hypothesised by the Court of Appeal, but was inconsistent with that scenario.  The respondent’s evidence was that he had nothing to do with the circumstances in which his wife was killed.  On his evidence he simply was not present when her death occurred:  and he could not have been the unintentional cause of her death.

That is a perfect example.  Certainly Baden‑Clay has nothing to do with the Prasad direction but it is a perfect example of the prosecution case possibly getting stronger once the defence evidence has been given.  If the jury are invited to assess the cogency and the strength of the Crown case at that early stage they may never get to see what the defence evidence is.  It may well be that the defence do not call evidence, but in some instances where the defence do call evidence it is appropriate that the jury see that evidence and have that opportunity to assess the prosecution evidence as against the defence evidence.

Now, in the more recent English case of R v Collins, if I could take you to the joint book of authorities at page 196, tab 8.

KIEFEL CJ:   It might be as well for the record, Ms Judd, to give the citations.

MS JUDD:   I do beg your pardon.

KIEFEL CJ:   Just for the record.

MS JUDD:   Yes.  Did you want me to, for the record, give you the citations for the previous cases that I have referred to?

KIEFEL CJ:   I think we will catch those up.  I should have drawn it to your attention earlier.

MS JUDD:  Thank you. I am now at [2007] EWCA Crim 854, referred to at paragraph 6.25 of our submissions. Moving to paragraph 49 at page 196, there are eight dangers spelt out in that case and they are over and above the dangers that I have already referred to in Pahuja:

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, maybe very difficult to displace.

That particular danger highlights that it is not just a danger to the prosecution case; it can also be a danger to the defence case:

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 ‑

Now, this is particularly so in the modern jury trial where the prosecutor in the opening, in most cases, says to the jury, “I will address you on the evidence at the close of the case, at the end of the trial”.  Defence counsel usually makes a similar comment.  The judge, in the preliminary comments, usually tells the jury, “Keep an open mind.  Wait until you have heard all of the evidence.  Wait until you have heard the closing addresses.  I am going to help you with your task.  I am going to give you a detailed charge to help you go through all of the elements”.

So for a jury to be told, before all of that happens, “You can actually come back and you can indicate not guilty at this point,” it just goes against everything they have been told up until that point.  So it does lend itself to the jury thinking, “Why is the judge telling me that this trial is now proceeding in a different way than what we were told at the beginning of the trial?”  The fifth danger recognised was that the practice was:

inherently more dangerous when a number of defendants are involved and the factual evidence is complex.  Sixthly, it is unfair to the prosecution . . . to address either the judge or the jury and correct a mistaken impression of its case.

BELL J:   Just identifying that consideration, in this case senior counsel for the prosecution objected to the giving of the Prasad direction.  Would it make any difference if the prosecutor took a neutral stance or indeed if the prosecutor supported the giving of a Prasad direction?

MS JUDD:   Obviously, it could make a difference.  It does not make a difference in the sense that our submission is that a Prasad direction is contrary to law.  So, if it is contrary to law, it ought not be given at all but from a practical sense it certainly makes a difference and it makes a difference in terms of the danger identified in that respect.  But remember, in those early stages, in those early cases, it was said that if you need to address on the evidence and if you need a partial summing‑up, then it was not the case to give a Prasad direction.

BELL J:   Just looking at the contention that it is contrary to law to give such a direction, and looking at the adversarial nature of a criminal trial, if the defence and the prosecution were agreed that it would be appropriate for the judge to inform the jury of the asserted right to return a verdict at the conclusion of the prosecution case, would you say it was not open to give the direction?

MS JUDD:   I had not thought about that question, so I do not have a simple answer.  I would feel much more comfortable about it if the prosecutor agreed.  The justification for giving a Prasad direction has been to save time and expense.

BELL J:   Yes.

MS JUDD:   So, certainly if the prosecution agreed, it is a bit like a case of the prosecutor coming along and indicating that they will call no evidence.  So, I would be less comfortable with that.  To some extent it goes against my main submission but my main submission is that the prosecution is given an entitlement to give a closing address.

EDELMAN J:   If that is right, then do you submit that there is no power for the jury of its own accord, independently of any direction, to indicate that it wishes to return a verdict of not guilty after the close of the prosecution case?

MS JUDD:   I say it is inextricably linked to the question of whether or not a Prasad direction should be given.  So, if the Prasad direction is contrary to law, as is my submission, then it has to be tied to that because it is just not possible for a jury to know about that right if they are not give the direction.

EDELMAN J:   So, you say a judge has a power to accept a no‑case submission?

MS JUDD:   Yes.

EDELMAN J:   But a jury has no right independently to effectively return the equivalent of a no‑case submission.

MS JUDD:   I say that is what the law should be now.

NETTLE J:   Do you have to go that far or is it just sufficient for you to say that it is inappropriate for a judge to invite them to do so?

MS JUDD:   The President did not go that far.  The President said that we have reached the stage where it is now inappropriate for them to ever do that.  But we get to the same point.  My primary submission is that we do go so far but I am certainly content with the second proposition so that the decision of the President is in fact the one that prevails.

KIEFEL CJ:   Why do you say the direction is contrary to law?

MS JUDD:   I say the direction is contrary to law for two reasons, and they are alternate reasons.  It is contrary to law because we have a number of High Court authorities that, although the High Court has never considered the Prasad direction itself, it has made a number of comments about the division between the jury and the judge and that this cuts across that division.  I will just take you to them.  We start off with Doney v The Queen (1990) 171 CLR 207. I will just find the joint appeal book for you. It is tab 9, starting at page 205. At 212, the bottom of that page, the High Court says this:

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.

Now, although the High Court in Doney approved Prasad, the decision of Prasad itself, at page 210, it is interesting that it only approved Prasad to the extent that it was authority for a judge directing a verdict of not guilty where there was no evidence to stop the case. So, at page 212, halfway down:

There is no doubt that it is a trial judge’s duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict –

The decisions of Plomp and Prasad are there quoted.  It is interesting that the Court does not in any other way go on and deal with Prasad.  So it does not endorse the obiter comments of Prasad or this practice in any way.  Now, I do not say that of itself ‑ ‑ ‑

KIEFEL CJ:   We cannot really draw any inference from that.

MS JUDD:   No, but I just put that in context.  So we start with that.  What it does do is very much recognise the difference between the role of a jury and the role of a judge.

BELL J:   But if the Prasad direction is correctly given no question really arises of usurping the function of the jury.  It remains for the jury to determine the facts.  But what it might be thought to do, particularly in a case in which the prosecutor objects to the giving of the direction, is to trench on the adversarial nature of the trial, if one considers that amongst other things the prosecution has been deprived of the opportunity to put its case as it seeks to do, including in closing submissions.

MS JUDD:   That is true.  In terms of the usurpation of the role of the jury, the judge does in fact have to form his or her own assessment though of the cogency of the evidence as a whole.  It is not assessing a particular piece of evidence to determine whether or not a warning should be given about the unreliability.  Before that direction can be given the judge is obliged to perform their own assessment, and it is not the judge’s role to be forming their own assessment as to the entirety of the Crown case, except to the extent of a no‑case submission.  But once you get out of the no‑case submission scenario it is the jury’s domain.

BELL J:   But on this, your stronger point is really that it is very likely to be taken by the jury as a hint from the judge?

MS JUDD:   Indeed, and it flows over to that, particularly, as I said, in circumstances where the jury are told at the outset, “Keep an open mind; this is how the trial is going to unfold.”  There is such a radical departure from what they are being told that, in my submission, it inevitably carries with it that type of suggestion.  In the current case it might be even more so, because there was not just one Prasad direction given, there were two Prasad directions given.

GORDON J:   …..being overly generous.  I think I have more - up to four.

MS JUDD:   Yes, there were a number of other references to the jury just reminding them to keep in mind that they had that opportunity.  To the extent that that constitutes a Prasad direction, there were certainly more than the two.  There were two in which the judge balloted off the thirteenth juror and specifically asked them effectively to consider their verdict.  I was going to come to that at the end, but ‑ ‑ ‑

EDELMAN J:   Is the Prasad direction that you are talking about only the two instances where the trial judge directed the jury and instructed the jury to go out and consider, rather than an instance where the trial judge just mentions to the jury that they have the right to acquit at any time?

MS JUDD:   The trial judge in this case directed them that it was their right and actually set about a situation where they were go to and deliberate in respect of whether they wanted to return an early verdict of not guilty, but, as Justice Gordon indicated, there were also other references by the trial judge saying, “Remember you always have that right”.

EDELMAN J:   That is what I am asking you.  Do you say that the reminders are also the Prasad directions that you say are contrary to law?

MS JUDD:   Yes.  They all are tied in together.

EDELMAN J:   If, hypothetically, a judge were to remind the jury or to mention to the jury that right in opening remarks to the jury, you would say that that would still be contrary to law?

MS JUDD:   Yes, I would.  I say that the taking away from the jury at an early stage and giving them a direction that they can bring in an early verdict of not guilty, whether it is telling them of their power or elaborating on it, is contrary to law.  Or, my fallback position is, as Justice Nettle indicated, that there should be a very strong indication from this Court that it should stop because of all the dangers, all the problems – the interference with what we say is the division between the judge and the jury.  The point about there being a number of ‑ ‑ ‑

KIEFEL CJ:   Just on your first – I think it is really your sole basis for why the direction is contrary to law because, as you say, your fall‑back position is it is a practice which should not be followed.

MS JUDD:   Yes.

KIEFEL CJ:   As I understand your proposition though about why it is contrary to law, it is to take from Doney that if a judge is not in a position to direct the jury to bring in a verdict of acquittal, it must go to the jury.  That is your position, is it not?

MS JUDD:   Yes.

GORDON J:   Can I just be clear, Ms Judd, you said that there were two bases for it being contrary to law.  One was a division between the jury and judge on these questions of fact and not usurping, as I understood your submission, the jury’s function.  Is the second aspect that which you have just talked about and that is in a sense this procedural question; that is, depriving the jury of – or changing the way in which they have been told the trial is going to be run?

MS JUDD:   Yes, and it feeds into the first point in that it does have a real tendency to convey to the jury that the judge thinks that it should ‑ ‑ ‑

GORDON J:   It goes from directed acquittal to suggested acquittal?

MS JUDD:   Yes.  It may not be specifically phrased like that.  It may be very cleverly articulated.  But there remains that risk in the jury that that is what the judge thinks ought happen.

BELL J:   If it be the case that at common law the jury is entitled to return a verdict of not guilty at the close of the prosecution case or at any time thereafter, then it is difficult to see that it would be wrong for the judge to inform the jury of that right if asked by the jury to do so, and that is as distinct from a practice of acceding to a defence request to inform the jury of the right when the jury has given no such indication.

MS JUDD:   Yes.

BELL J:   That would, if you like, a middle course.  It does not quite embrace your broader proposition.

MS JUDD:   No, it does not, and we have not come to the legislative regime in Victoria yet which is a separate and distinct ground.  But if a jury are told at the outset that they need to keep an independent mind and that this is the way the trial is going to proceed, it is difficult to see of any situation in which they could ask that question unless the judge initiated that type of procedure.  The other two High Court cases, just to finish this point, again nothing definitive in either of them, but in the decision of IMM v The Queen (2016) 257 CLR 300, we deal with this initially at paragraph 6.39 of our submissions.

KIEFEL CJ:   Sorry, what page was IMM, Ms Judd, or what tab number?

MS JUDD:   IMM is tab 6.

KIEFEL CJ:   Thank you.

MS JUDD:   Now, at 639 of our submissions, we note that this Court stated that, in determining the issue of relevance of evidence, a trial judge does not take into consideration issues of credibility and reliability of evidence and very much reinforces that that is the role of the jury.  And, in a sense ‑ I think I have already really made this point – in IMM, there is a recognition that in some instances, for example, in terms of giving a warning about evidence, the judge might assess the reliability of certain aspects of the evidence but it is not the judge’s role to look at the evidence as a whole in terms of determining the cogency of it and the safeness of that evidence.  It might, ultimately, fall to a Court of Appeal at a later point in time, but at this early point, it is the role of the jury.

The other case that I have touched on briefly is R v Baden‑Clay (2016) 258 CLR 308, and that is at tab 7. Again, it is just a recognition by the High Court that the jury is to be properly regarded as the constitutional tribunal for deciding issues of fact. Now, the reason I rely on these cases is that insofar as the High Court has made comments about the role of the jury compared to the role of the judge, those comments are more consistent with the Prasad direction being unlawful.  I say that, because the High Court has never had the opportunity to consider a Prasad direction, as it has become known. 

I will not read out all of the other criticisms from the case of Collins – that is where I had left off before I was asked a number of questions – but I did want to draw the Court’s attention to one further case which is particularly relevant in the modern age.  That is the case of R v H(S) [2011] 1 Cr App R 14. I will just get you that tab number – it is 11. This is at paragraphs 49 and 50 – rather 50, at page 246 of the joint book of authorities. If I could just read paragraph 50:

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. 

Whether that point goes to my main argument that it is contrary to law, or whether it goes to the secondary argument that the practice should cease, it is very relevant in today’s age.

GAGELER J:   At paragraph 49 there is a reference to the common law right of a jury that is expressed in the past tense.  What is the position in England now?  Is the so‑called right of the jury to terminate the case early a recognised right or is it seen as something in the past?

MS JUDD:   I have not found anything that says that it is contrary to law.  I have seen many judgments where it is criticised and it does not seem to be used anymore but I cannot put it as high as what seems to be noted in paragraph 49.

EDELMAN J:   It is now bound up in the United Kingdom with Article 6 of the European Convention, is it not?

MS JUDD:   That is true, and I was not going to rely in my position on any charter of rights here.  I do note that the way it works in Australia is that it is the defence that ordinarily ‑ well, it seems to always be the defence that ask for it or the judge initiating it, rather than the prosecution.

KIEFEL CJ:   Well, if the prosecution had that view, you would expect the prosecution not to be proceeding on the indictment and asking for it back.

MS JUDD:   Absolutely. 

GORDON J:   Well, is not that the practical answer to, in a sense, the Prasad direction, is that if it is true in that position and the Crown wants to do it, they could nolle.

MS JUDD:   They can discontinue.  The power is now in the Criminal Procedure Act, and I will come to that, but the practical reality is, the prosecution are always asking for the case to go on.  So, it is not a case of the prosecution agreeing that this direction should be given.  It seems to always be that the defence ask for it or the judge initiates it.  It is not a case of the prosecution agreeing.  Now, it may well be if the prosecution did agree ‑ ‑ ‑

GORDON J:   My point is, it would never arise if the prosecution agreed, would it ‑ ‑ ‑

MS JUDD:   Well, that is right.

GORDON J:   ‑ ‑ ‑ because it would have other avenues.

BELL J:   One might conceive of is arising in a circumstance where the prosecution accepts that the case that it has run has not had the strength for which it anticipated and considers as a matter of efficiency and cost that it would be appropriate for the jury to be advised of the right, that being a rather different position to the prosecution seeking to enter a nolle having running its whole case.

MS JUDD:   The Criminal Procedure Act (Vic) at tab 3, page 31 ‑ ‑ ‑

BELL J:   What section?

MS JUDD:   Section 241 provides ‑ so it is slightly different now but if during a trial ‑ and it is subsection (2) that I want to take you to:

the prosecution informs the trial judge that the prosecution proposes not to lead evidence on a charge on the indictment;

or

(b)at the close of the case for the prosecution, the trial judge decides that there is no case for the accused to answer in respect of a charge on the indictment –

the trial judge may discharge the jury from delivering a verdict on the charge and instead direct that an entry of not guilty be made on the record in respect of that charge.

So, they are the scenarios that play out in the trial that the Criminal Procedure Act has dealt with.  It does not specifically give the judge an equivalent power where the prosecution give an indication that they agree that the case is not strong.  I do not think that I can enter a discontinuance, once it is in the hands of the jury.

GORDON J:   Sorry, can you just say that gain?

MS JUDD:   I do not think I can enter, as the Director, a discontinuance once the case is in the hands of the jury.

BELL J:   Once the matter is in the jury’s charge, you contend, having regard to the provisions of 241, that the accused is entitled to have the verdict of the jury as distinct from a discontinuance which leaves open the bringing of the charge in the event further evidence were to come to light.

MS JUDD:  Yes, and specifically on the discontinuance – I do not know that you have it – but section 177 of the Criminal Procedure Act sets out the circumstances in which the DPP may discontinue a prosecution without adjudication.  Subsection (2) indicates that:

A prosecution may be discontinued—

(a)at any time except during trial -

That is not necessarily going to answer the question.  If this Court determined that there was still a limited opportunity for there to be an early verdict, which is not what I am urging, the prejudice to the prosecution case and the consequential unfairness and a lot of the dangers would be alleviated if the prosecution agreed.  Our submission is that the prosecution are entitled to give a closing address.  If the prosecution waived that right, that might be a different thing.

EDELMAN J:   The prosecution would not be entitled to give a closing address if one were in the territory of section 241(2)(b).

MS JUDD:   Yes, correct; I agree.

EDELMAN J:   So why then, if one were in that territory, would not an accused person be entitled to say to the judge “It’s common ground” or “Your Honour accepts that this is a no-case situation but we would like the jury to return the verdict rather than to have it entered by the judge after having discharged the jury”?

MS JUDD:   If it is a no-case situation, if the judge accedes to a submission that there is no case to answer on a particular ‑ ‑ ‑

EDELMAN J:   The judge would otherwise have acceded to that situation but the accused person is asking that the jury return the verdict, taking obviously the risk that the jury might not return a verdict of not guilty.

MS JUDD:   No, it would not play out that way and it constitutes a verdict or an entry of not guilty.  So it is not as though the jury is not coming to a conclusion.  The Criminal Procedure Act I think has recognised that it is artificial to have a jury sitting there when the judge has determined that a no‑case submission should be upheld.  The Criminal Procedure Act has recognised the judge then ought take whatever steps need to be taken to put effect to that.

BELL J:   But that is because as a matter of law the evidence is incapable of sustaining a conviction.

MS JUDD:   Exactly.

BELL J:   So there is no question of any factual determination; it is a question of law.

MS JUDD:   That is exactly right, yes.  I may have misunderstood the question but if there is a no‑case submission and it is upheld there is just simply no evidence to make out, or insufficient evidence to make out a particular charge.

EDELMAN J:   The question was really directed at why an accused person would not really have the opportunity, essentially, of making that election rather than making a no‑case submission if one is in that territory of saying to the judge, “Well, I want this matter to be determined now by the jury”.  And it may be that the prosecution in the circumstances, like Justice Bell was outlining, might not object to that procedure.

MS JUDD:   If a no‑case submission was upheld, the prosecution would be saying the proper course is to proceed pursuant to 241.  In the past, before this section, the jury were given a direction that they ought acquit.  So, again, it was not left to them to weigh up.  They were told, “Your only option is to actually bring back a verdict of not guilty”.  So all this does is, rather than have that artificial situation of the judge telling the jury, “You must bring back a verdict of not guilty,” it is saying, “Well, the judge effectively does that”.

KEANE J:   Where there is no case, where the evidence as a matter of law is incapable of sustaining a verdict of guilty, the case does not get beyond the province of the judge as the arbiter of law.

MS JUDD:   That is correct, and that is what this section recognises.

KEANE J:   This provision reflects that.

MS JUDD:   Yes.  While we are on the legislation, perhaps if I could move to the second way in which we put our submission, that the Prasad direction is contrary to law.  Now, we start with the Criminal Procedure Act at tab 3 and we refer in particular at page 28 to section 234:

(1)The prosecution is entitled to address the jury for the purpose of summing up the evidence –

(a)     after the close of all evidence; and

(b)     before the closing address of the accused, if any –

A similar entitlement is given to the accused in section 235.  In 238 it refers to the judge giving directions:

to the jury so as to enable the jury to properly consider its verdict.

It uses the word “must” – a very strong word.  Just as with “entitlement” it uses the word “must”, not “may”.  It is not a discretion.

Now, clearly, it talks about “At the conclusion of the closing address of the prosecution” and “the closing address of the accused and any supplementary prosecution address”.  And I suppose it could be put against me that the Prasad direction may be given prior to the closing addresses but we submit that the effect of 234, 235 and 238 in combination really do set up a legislative regime that gives an entitlement to the prosecution to give that closing address and does require the judge to assist the jury in their task by giving the charge.

Now, it is said against us that section 213(2) does give the – let me start again. Section 213(2) of the Criminal Procedure Act says:

Nothing in this Act removes or limits any powers of a trial judge that existed immediately before the commencement of this Act.

It is said against us that therefore the Prasad direction survives.  Now, in my submission, at most that was a power of the jury.  It is not a power of the judge.  The power of the judge is a no case which has found its way into the Criminal Procedure Act. The judge still has powers in respect of abuse of process and so forth. But the power of a jury to bring back an early verdict of not guilty is just that; power of the jury, not a power of the judge. So, in our submission, section 213(2) ought not be used against us in that way.

GORDON J: What about section 222(c) which is the assisting the jury provisions? Do they fall into the same category?

MS JUDD:   I am sorry, I missed that, I do beg your pardon.

GORDON J: That is all right. Section 222(c), which deals with the power of the trial judge at any time throughout the trial to address the jury and assist the jury, does that fall into the same category? Does the submission you just made in relation to 213 apply equally?

MS JUDD: Yes. I can see that section 222(c) could be used to rely on the judge having that ability to give the directions, but I submit that when you look at the entirety of the Criminal Procedure Act as a whole it is has to be read – so section 222(c) has to be read with the other provisions referring to the prosecution being entitled to address the jury and the judge being required to give a charge. So certainly the better way to read that section 222 as a whole is that as the trial progresses the judge can give the jury directions that are required, but it does not take away that requirement in 238 to give a full charge.

I will not take you specifically to the Jury Directions Act other than to say that there is nothing in that particular Act that deals with this question.  The other Act that I do want to take you to, though, is the Juries Act, which became very relevant in the context of this particular trial, and that is at tab 4.  Essentially what I want to do is to take you to page 40 of the joint book of authorities and section 48.  In the modern criminal trial, particularly a longer trial, and quite often, almost always, in a Supreme Court murder trial in Victoria there are more than 12 jurors initially put on to the jury.  Section 48(1) says:

If‑

(a)in a criminal trial, more than 12 jurors . . .

have been empanelled and remain at the time at which the jury is required to retire to consider its verdict, a ballot must be conducted by selecting the number of jurors necessary to reduce the jury to 12 –

Subsection (5) is also of relevance:

Subject to subsections (2) and (3), the jurors who are selected in the ballot must be discharged but remain liable for further jury service, unless the court otherwise orders.

What happened in this case was that there were 13 jurors.  One was balloted off after the first Prasad direction was given.  The jury said it wanted to hear more evidence.  Probably contrary to subsection (5), the juror that had been balloted off was returned to the panel.  Even more significantly, the judge said, when they all came back, “You have this right to return a verdict of not guilty at any point in time now, because the prosecution case is at its highest, but remember you can only do that if there are 12 of you.  So if you want to do that I will have to ballot another one of you off”. 

The giving of the Prasad direction and the right of a jury to return an early verdict of not guilty just does not sit when you have the possibility of 13 or 14 jurors being on that jury panel.  It just cannot work.

BELL J:   Can I inquire about the way section 48 operates?  Subsection (3) is concerned with a case where the jury may return a verdict but not either in respect of all accused or in respect of all charges.  Is that right? 

MS JUDD:   Yes, it is a very messy section.

BELL J:   Is the way this scheme works that in such a case before the jury returns the verdict referred to in subsection (3), surplus jurors are balloted off so that 12 determine the verdict and then, are those who are only the jurors selected as the 12 to then continue to determine the remaining charges under subsection (3)?

MS JUDD:   Your Honour, I am not trying to avoid the question – and I am going to get there a little bit slowly.  The way it works, in practice in Victoria is that we do not use subsection (3) and subsection (4).  What happens is ‑ ‑ ‑

GORDON J:   Sorry, when you mean you do not use them ‑ ‑ ‑

MS JUDD:   What happens – subsection (3) seems to arise in a situation where the jury say we are ready to reach a verdict in relation to charge 2, 3 and 4 but we still want to deliberate in respect of more.  In practice, it has no application.  I have spoken to quite a number of the Crown Prosecutors to see whether or not they have had that situation.  What happens in reality is that you have your jury of 13 or 14, the evidence is given, the closing addresses are given and the charge is given.  At that point, the judge ballots a juror or two off to take it down to 12.  The juror then leaves.  The juror then is effectively discharged and never returns to the jury.  The jury is then instructed to go about and consider its verdict. 

BELL J:   I can understand why that practice is adopted but, on the face of it, subsections (3) and (4) seem to contemplate a scheme where one has a fresh ballot each time.  So, the scheme seems to have in mind that at a trial either of one accused on multiple charges or perhaps of multiple accused, the jury may return verdicts sequentially and there may be separate ballots.

MS JUDD:   It does seem to contemplate that.  In practice it has never happened.  But just remember this.  It does not deal with the Prasad situation because subsection (3) only talks about:

If a criminal trial is not concluded after the verdict is given –

In the Prasad scenario, no verdict is given.  All the jury says is we want to hear more evidence.  So it cannot possibly apply to the case that this High Court is currently considering. 

BELL J:   The practical difficulty you identify is that you have a juror balloted off, as happened here, in order to consider whether or not the jury wished to hear more.  That debate took place in the presence of 12 jurors and after it the 13th juror returned and took part in further deliberations or discussion and then there was a fresh ballot.  Do we know whether the same juror was excluded?

MS JUDD:   I believe it was a fresh ballot.  It is not on the transcript.

BELL J:   Yes.

MS JUDD:   So I am hesitant to say too much.

BELL J:   But certainly it is ‑ ‑ ‑

MS JUDD:   A ballot was conducted which, by inference, suggests that it could have been anyone other than the foreperson.  It did not have to be the same one.

BELL J:   So that in relation to the verdict on this single count - put subsections (3) and (4) to one side, the practical difficulty you identify is that of necessity one has to ballot off a juror before they retire to consider the Prasad direction and then if the course is followed that was followed here you have had a jury other than the 12 who ultimately determine the verdict deliberate upon the merits of the matter and then a differently composed jury return a verdict?

MS JUDD:   Yes, that is one problem.  That problem could have been solved by simply discharging the juror, but the ‑ ‑ ‑

BELL J:   Yes.

EDELMAN J:   Well, would it have been solved under section 50 or are you saying that ‑ ‑ ‑

MS JUDD:   No, that is more the - they get given a separation oath now, so they are allowed to separate from each other.  That does not have application to what we are talking about.

EDELMAN J:   But here, unless you permanently discharged the extra juror, if the extra juror is coming back in then the jury has in fact separated prior to considering their final verdict.

MS JUDD:   But it is not just separating; it is separating while the other 12 go on to talk about it in the absence of that person.

EDELMAN J:   Yes.

MS JUDD:   So it is not the normal separation where jurors can go home, they give their separation oath.  It is separating into 12 then consider the verdict.  Now, it could have been solved in this case by doing what is required in subsection (5) and then you are left with the 12 jurors.  But it does not solve this problem.  The jury are told that they can bring back that early verdict at any point in time so they do not have to be specifically told “Now is the time to go and consider what I’ve said about the Prasad direction”. 

GORDON J:   I think that is why I raised this idea that here in this case the trial judge mentioned it two or three times absent what I will call the specific direction to go out and think about it.  So here he is giving the suggestion to a juror comprised of 13 people.

MS JUDD:   That is right and for it to work in the modern age it just conflicts with there being more than 12 jurors.

GAGELER J:   Can I just go back a step?  The language of section 48(1) is the jury being required to retire to consider its verdict.  In the case of a straightforward Prasad direction, is it correct to describe the position of the jury as being required to retire to consider its verdict, or is it simply told it can do that if it wishes?

MS JUDD:   If you look at the early cases it seems to be that they are not told to specifically go out and consider their verdict.  It seems to be they are informed of their right and told that they can bring back an early verdict at any point in time.  In practice the judge gives a Prasad direction - in Victoria anyway; I cannot talk about other States – the judge gives a Prasad direction and gives them as much as what the judge thinks they need to know of the law, so does in almost every instance give some kind of charge about the elements that need to be considered and does send them out and asks the jury to come back in and tell the judge whether they wish to hear more evidence or not.

Maybe the practice has developed in a different way than what was initially intended, but it seems to always be the case – and when they come back in, as you will see in the current case, the judge says, “Do you want to hear more evidence?”

GAGELER J:   So in your submission, that scenario is captured by section 48(1).

MS JUDD:   What I am saying is that either scenario is captured by 48(1) – sorry, no, arguably it could be captured by 48(1) because they are balloted off.

GAGELER J:   I know it is arguable.  I am really asking what your submission is.

MS JUDD:   Yes.  The trouble is that, if the jury are told and, as Justice Gordon said, reminded of their right to bring back an early verdict of not guilty at any point in time, arguably you still have the 13 or 14 jurors sitting there.  If you do not ask them to go out and ballot one off and specifically get them to consider it at that point in time, you are telling them you can bring back an early verdict any time from now but remember only 12 of you can do that.

So if you want to do that, then you are going to have to tell me so I can ballot someone off, but by that stage you have had 13 reach that decision because the judge is not going to be told that they want to do that unless you have all of the jurors of that mindset.  It is a very messy procedure and our submission is that when you look at the Juries Act, in combination with the Criminal Procedure Act, there just is no scope left for the continuing operation of a Prasad direction and an early not guilty verdict.  That is on top of all of the other dangers.

We put the legislative regime as appointing itself.  We put the common law as a separate point but, obviously, when you consider them together, the legislative regime point in some respects becomes even stronger.

The only other part of my oral submissions that I was going to move to is what happened in this particular case and to a large extent I ‑ ‑ ‑

KIEFEL CJ:   That might be a convenient time for us to take a short break.  The Court will adjourn.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

KIEFEL CJ:   Yes, Ms Judd.

MS JUDD:   I could not find a passage earlier in my submissions and, for completeness, I would just like to take the Court to it.

KIEFEL CJ:   Is this from the President’s judgment?

MS JUDD:   Yes, it is.  The paragraph is from Archbold.  So if you look at the President’s judgment at page 87 of the court book, at paragraph 33 there is the key passage from the judgment of Chief Justice King in Prasad.  Over the page to paragraph 34, the President says:

The two sentences in this passage were quoted almost verbatim from paragraph 577 of the 39^th edition of Archbold.  The remainder of the paragraph, however, was not quoted.

He sets it out.  And then in 35 and 36 go on to elaborate on why the next paragraph sheds a different light on the status of the practice in England.  And I have already addressed you on that in general terms, but I just wanted to direct you to the part of the judgment that I was referring to.

I move now to the particular difficulties with administering the Prasad direction in the current case.  I have already addressed the Court on the need for a ballot but there are other problems.  This was a case that a detailed charge was required.  In order to understand this case the jury did need to be directed about the elements of murder, in particular intention and self‑defence.

They did need to be directed about the elements of manslaughter, in particular self‑defence, and because self‑defence was there for murder possibly and for manslaughter possibly they had to be directed about the different way in which self‑defence applied on a charge of murder versus manslaughter.  They also, given the history of family violence, needed to be charged on the relevance of the family violence provisions in the Crimes Act which have an impact on the way in which self‑defence can be considered. 

In respect of “intention”, if I could take you to page 21 of the court book at the ruling, the trial judge ruled from line 11.  This is part of the ruling, and from line 11 said:

There is no question that the accused caused the death of the deceased and in all likelihood had murderous intent –

At that point the judge is recognising that the prosecution case on intent was a pretty strong one.  The weakness that the judge saw with the prosecution case was in respect of self‑defence.  The judge then at page 28, as part of the Prasad direction, from line 14 said to the jury:

If, however, you are not satisfied that the prosecution have proved the accused woman intended to kill John Reed or cause him really serious injury when she struck him with the stool, then your verdict on the charge of murder would be not guilty –

So even though it was a strong prosecution case on intention, the judge is leaving open the possibility of the jury returning an early verdict of not guilty simply on the element of intention.  That played out further at page 47, line 7, where the foreman asked the judge:

Can I ask, can we find not guilty on the charge of murder but the charge of manslaughter may still be open to be proven?

So the jury are really considering this question of intention because if they were only considering the question of self‑defence, which is where the judge thought the prosecution case was weak, it seems extraordinary that they would ask a question like that.  The judge went on at page 51 to address this:

If you’re in the position where you thought now that the prosecution could not prove a charge of murder because it could not prove that the accused was not acting in self‑defence, it would be hard to see how those considerations wouldn’t equally apply in the case of manslaughter.  I mean it is entirely a matter for you but bearing in mind the nature of the test in manslaughter it seems to me that if that were your view it would apply equally to the charge of manslaughter.

But it still does not accommodate the very real scenario that the jury in this case may have come back with, in their mind, not guilty for only murder which had to be – or would have had to have been because they were not satisfied on intention.  So it just shows, even if the Crown case might be weak on one element, there are real dangers in the Prasad direction being given because it invites the jury to consider all of the elements, some of which might actually be quite strong.

The other point I wanted to make in respect of the difficulties with the Prasad direction in this case ties in with the issue of self‑defence.  Apart from the necessity for quite a complicated charge, the judge left open a verdict of not guilty following a Prasad direction on self‑defence, notwithstanding there was no account of what happened on that night.  There had been no account in the record of interview and we had not reached the stage obviously of there being any defence evidence on that point, and I am talking about the first time the judge gave them the direction.

The highest self‑defence got was that there had been an assertion by defence counsel at the beginning of the trial that the accused had acted in self‑defence and the evidentiary burden on self‑defence had been met by inferences – effectively arising from the history of family violence.  You see that at court book page 13.  From line 12, the judge asked defence counsel:

In order to decide whether to act on a Prasad direction how does the jury know what your client says happened that night?

The answer is:

We would say the evidentiary burden has been met by the inferences which are raised not only by the previous conduct –

and then talks about some of the other evidence but, essentially, talks about the history of family violence.  So to give a Prasad direction on the basis that self‑defence was weak in circumstances where the highest it could be said that the evidentiary burden had been met, of itself leads to some concerns.

GAGELER J:   How do you use this just as an illustration of what is wrong with a Prasad direction?

MS JUDD:   An illustration, yes.  Yes, no more than that because the greater submission and the primary submission is that the Prasad direction ought not be given at all any more.  It is either contrary to law or it, as Justice Nettle said, should not be given in the future.  But given that we are here with this case it is a good illustration of what can go wrong in relation to the administration of a Prasad direction – no higher than that.  Unless there are any further questions, they are our submissions.

KIEFEL CJ:   Thank you, Ms Judd.  Yes, Mr Holdenson.

MR HOLDENSON:   I understand that the Court was provided a little earlier today with our outline of oral submissions or perhaps they are only being provided now.

KIEFEL CJ:   I am sure we can pick it up as you speak.  Thank you.

MR HOLDENSON:   In paragraphs 2 and 3 on the first page of the outline of oral submissions, we have drawn attention to what we have described, in accordance with the authorities, as the common law right of the jury to return a verdict of not guilty after the close of the prosecution case.  You will there see in paragraph 2, for example, a list of Australian cases, the third, R v Reardon & Ors (2002) 186 FLR 32.

KIEFEL CJ:   Have you researched the origins of this common law right?

MR HOLDENSON:   I have conducted research and I was about to expressly deal with that.  We confess that our conscientious researchers have failed to identify any authorities in Australia which recognise, refer to, describe this common law right before Prasad.

KIEFEL CJ:   What about English authority?

MR HOLDENSON:   As to English authority, if regard is had, just as a matter of convenience, to page 88 of the core appeal book, your Honours will see there set out at the head of the page, page 88 of the core appeal book at paragraph 34 in the judgment of the learned President, Justice Maxwell, the passage from Archbold and indeed in the first line, the case of Young is cited and the ‑ ‑ ‑

KIEFEL CJ:   But all of these cases give the hint that it is a very, very old right.

MR HOLDENSON:   Well, they talk in terms 20 or 30 years.  You will pick that up in Mansfield the quote of which is set out in paragraph 35 on that page, speaks in terms of:

two or three decades before the early sixties –

R v Mansfield [1978] 1 All ER 134, behind tab 12 in the book of authorities. Unfortunately, however, in neither Young nor Mansfield does one see any cases cited.

KIEFEL CJ:   But this is referring - the passage at paragraph 35 is talking about the “practice”, some might say the power of the judge to invite the jury to stop the case.  A distinction might be drawn between that and what we were just discussing which is the common law right which inheres in the jury to do it with or without the invitation of the judge.

MR HOLDENSON:   Yes.

KIEFEL CJ:   It is the existence of the common law right and where it comes from that I was directing my questions at.

MR HOLDENSON:   Yes, I understand that.  We cannot find a case which identifies, explains, refers to that common law right, save and except the cases we have in paragraphs 2 and 3, and of course in Young and Mansfield.  That is as good as they get in describing the right of the jury or the power of the judge to direct with respect to that right.  We have found nothing further than those cases.

GAGELER J:   That is the 39th edition of Archbold.

MR HOLDENSON:   Yes.  I cannot remember what year it is.

GAGELER J:   Did you look in earlier editions at all?

MR HOLDENSON:   Yes.  I was fortunate enough to have purchased some editions from Justice Ormiston when he retired.  I have been through them and they are silent.

EDELMAN J:   It was Young that prompted the supplementary edition in Archbold.  It was the decision in Young.

MR HOLDENSON:   Which was 1964.

EDELMAN J:   Which prompted the amendment to Archbold.

MR HOLDENSON:   Yes.

EDELMAN J:   President Maxwell refers to, I think, at least one article in 1939 when the right was considered by the author to exist.

MR HOLDENSON:   Yes.  Well, there are no cases that go with it, unfortunately.  So our researchers have disclosed nothing and if the researchers of someone else discloses something, I will be embarrassed but that can happen.

BELL J:   Perhaps it should be added that in the 1939 article, which appears in volume 83 of the solicitor’s journal at 951, reference is made, as it were, to the power of the right of the jury to indicate they do not wish to hear more but the author of the article, who appears to be anonymous, observes that whether or not they should be deprived of the benefit of the summing‑up is entirely a matter for the judge’s discretion.

MR HOLDENSON:   Yes.

BELL J:   So that rather tells against the independent right of the jury. 

MR HOLDENSON:   One of the submissions I will be making referrable to passages further on in the outline of submissions and, of course, dealt with in our written submissions in any event is that the cases speak in terms of it being a rarity, the power is to be exercised sparingly.

When one looks at the rare cases in which it is appropriate to express or extend a Prasad invitation or those cases where it is appropriate for that power which can only be exercised sparingly to be exercised, it is cases where it is all a bit obvious, it is readily apparent.  Addresses will not be required, albeit keeping in mind things are a little different now than what they were two or three decades before the 1960s.

In Victoria now, by reference to statute – namely, the Criminal Procedure Act but, in any event, its equivalent in other States – we have, apart from the documents which precede the trial ‑ which of course the jury do not get to see ‑ we have a clear prosecution opening address to the jury in which the prosecutor is obliged to explain the scope of the prosecution case and how it is that criminal liability is sought to be imposed upon the accused.

We then have a clear prosecution opening address to the jury in which the prosecutor is obliged to explain the scope of the prosecution case and how it is that criminal liability is sought to be imposed upon the accused.  We then have in response what is called the defence response and at that point in time there has been identified for the jury that which is in issue.  When I say that which is in issue, elements or element, singular, of the offence or offences charged is identified, as is the evidence or the topics of evidence or the areas of evidence, the subject of dispute.

It is then that the trial judge within his or her preliminary directions to the jury by way of giving assistance to the jury to ensure that the jury can exercise its functions and its role in accordance with law in an efficient and in an effective manner explains the jury’s functions, obvious things like burden of proof, standard of proof, element or elements in issue, areas of fact to keep an eye on and to look at, and how it will all come together at the end of the trial.

So when the jury in a case where it is appropriate for the extension of the Prasad invitation to be done by the judge, it is in a situation where the jury is already informed, as distinct from what it may well have been, and indeed was, 30 years ago when I came into the profession, or almost came into the profession, but as we read as to the way in which trials were conducted years and years ago.

So the jury is informed and so in any event the sorts of cases in which it is appropriate for this right to be exercised by the jury is where it will be apparent as to how it is that the Crown case is weak or insufficiently cogent, whatever the expression be, and it does not need explaining. 

We are not talking about – I do not know that they have these cases anymore; we do not seem to in Victoria – the multi‑headed conspiracies, the drug conspiracies where - I am talking about the aftermath of the decision of this Court years ago in Ahern where there are multiple heads, extensive evidence, trials go six, eight, 10, 12 weeks, and there really needs to be at the end of the Crown case or at the end of the case a bringing together of all the strands of the Crown case, all those bits of circumstantial evidence and how they can be used by the jury, which of course needs in turn to be the subject of direction because some of the evidence can only be used for one purpose as distinct from multiple purposes. 

That is not the situation in which a Prasad invitation would ever be extended.  Perhaps the best example – and this comes from one of the cases; it might be Pahuja – the best example might be the armed robbery or the assault case.  There is no issue whatsoever that a person was the subject of a knife‑wielding perpetrator who ran away with the complainant’s bag.  No issue as to the commission of the offence. 

The only issue is as to the identity of the offender.  During the Crown case the evidence changes from that which was anticipated would be the Crown case and all of a sudden the complainant or the eyewitness says, “Well, it’s not a case of recognition.  The offender was fleeing.  I only caught a glimpse and it was dark and now on reflection I only say that it looked like him, the accused, and yes, I was drug‑affected at the time”.

Now, that is an extreme example, I know, but the case is then – it is readily apparent to all the only issue in the case, identity of the offender, and it is a real case where the jury can very quickly identify to themselves, without any assistance – but the jury does get a little bit of assistance – we say that a proper Prasad invitation has the essential features for the key ingredients set out in paragraph 7. 

The first one is important because it indicates to the jury in no uncertain terms that “there is nothing special about this case, no tip here” – to use a word that is appropriate for today – “no hint here, I’m not telling you what to do, I’m not giving you the tip as to what to do” and that is how this judge proceeded – it is on the transcript.  Every jury has this right. 

Now, a question was asked earlier about – and this really is a comment to make by reference to paragraph 4 in our oral submissions where it reads and I quote “It necessarily follows that at common law the trial judge is empowered, in an appropriate case, to inform (or remind) the jury”.

Now, it may well be the case that there will be some cases where everybody is alive from the start of a trial as to the issue and the scope of the issue.  The evidence falls away.  The evidence in any event was in small compass and so there may well be a situation in practice where a jury does not need to be informed of anything, does not need to be reminded of this right, but they are fully aware. 

Perhaps if I could just make one further point about that.  The jury well understands that before they can convict they must accept the certain evidence given by a certain witness.  They know that before they can convict and return a verdict to the criminal standard they must accept beyond reasonable doubt a certain piece of evidence.  They cannot convict otherwise.

A jury in such a situation, as knowledgeable and as aware of things as they are, albeit not that they have ever read Prasad or any of the subsequent cases, might not need to be informed or reminded but might say, “Your Honour, if that’s all there is and the Crown case has just closed we don’t need to hear any more.  Can we now consider?”  In any event, going back to the outline of oral propositions ‑ ‑ ‑

KEANE J:   Can they do that on the footing that they will not be obliged to listen to an address from the Crown?

MR HOLDENSON:   In an appropriate case, yes, absolutely - a good example being my extreme example of the armed robbery with the knife‑wielding perpetrator and the evidence falls out as I have just described, obviously different from what everybody anticipated at the start of the trial because there would not have been a trial if everybody knew that the evidence was going to come out in that way, but sometimes it does. 

I tried to read the background to this Court’s decision in Pitkin v The Queen [1995] where the evidence at the end of the day was “The person who did it to me” or “The person who committed the offence looked like, similar to”.  This Court, a Court of three, held convictions to the criminal standard cannot depend upon verbal ambiguities of that nature – common ground that there had been an armed robbery, clearly been an offender, clearly been a victim, looks like.  Not good enough.

As to the English cases, repeating myself, we have identified there the more modern cases, one of them being an Attorney‑General’s reference.  It is correct to say, as the Director said by way of submission in this Court, that if one reads closely these English cases one sees the word “disapprove” in a number of the cases.  If one reads the cases carefully and appropriately what is there being referred to as the court drawing attention to the very many situations in which it is not appropriate to inform or remind the jury of this common law right, in other words, drawing attention to the very limited circumstances in which it is appropriate to extend what we call the Prasad invitation. 

Also, those cases make it clear, as it must be clear, that this invitation, the Prasad invitation as we call it here, must not be expressed in terms of “I, the judge, am inviting you, the jury, to return a verdict of acquittal”.  We accept that it is unfair for the judge to give the hint, it is unfair for the judge to tell the jury what the verdict should be, it is unfair for the judge to tell the jury any such thing.  Each side deserves a fair go.  Fairness is a two‑way street.

GAGELER J:   Mr Holdenson, do I also understand your submission to be that it is no part of the Prasad direction to require the jury to consider its verdict?

MR HOLDENSON:   It depends on what is meant by the phrase “require to consider its verdict”.

GAGELER J:   You know where it comes from.

MR HOLDENSON:   I think it might come from section 48 of the Juries Act. 

GAGELER J:   Yes.

MR HOLDENSON:   What we say about section 48 of the Juries Act is this – perhaps there is an antecedent point.  I think I understand the purpose for which the Director has given a lot of attention to what occurred in this case.  But what occurred in this case, with respect, goes a long way away from the grounds of appeal on the notice of appeal in this Court, which asks two crystal‑clear questions of law of this Court which, with respect, have nothing to do with the facts of this case or the precise manner in which this judge expressed or extended the Prasad invitation.

Going back to your Honour Justice Gageler’s question, there will always be, or often be, procedural difficulties to be overcome if there be a jury of 13 at the time of the extension of the invitation.  We accept that at the end of the day any verdict returned by the jury ‑ and in the context of Prasad invitation, it can only be a verdict of not guilty – must be the verdict of a jury constituted by no more than 12 persons; in other words, not 13. 

So the way in which, in our submission, section 48 should be read is it does require the jury to consider its verdict – or whatever the language is.  It is required to retire to consider its verdict, because the jury will consider whether or not it will return a verdict, albeit a verdict confined to a verdict of not guilty.

So, if one reads section 48(1) in that manner, then the rest of the section follows.  If, for example, this jury had come back and said we will acquit on the murder but we want to hear more on the manslaughter, then that fits nicely within what is contemplated by the terms of section 48(3).

EDELMAN J:   I suppose another way of approaching the point would be to say that if one did not construe section 48(1) that way, then it would have the effect that if you had a jury of 12, on your submission, a Prasad direction would be possible in the right circumstances.  Yet, if you had a jury of 13, section 48(1) would, by a side wind, have excluded the right or the possibility of the direction.

MR HOLDENSON:   That is right and when one reads section 48(3) – start again – that side wind to which your Honour refers is most unlikely because, of course, section 48(1) is to be read together with section 48(3).  Section 48(3) contemplates, or permits a contemplation of that which happens in a Prasad invitation case where there is more than one charge to be considered by the jury and there was here – murder, alternatively, manslaughter.  The jury could have come back and said we wish to acquit on the charge of murder but hear more on the manslaughter – a not unlikely event.  Go back to the armed robbery – query as to whether or not the offender was armed.

GORDON J:   Is that submission premised on the acceptance that, contrary to the facts here, once the ballot has taken place that person does not return to the jury?

MR HOLDENSON:   But the person can return, under 48(3).

NETTLE J:   That is extraordinary.

MR HOLDENSON:   The jurors selected in ‑ ‑ ‑

NETTLE J:   The problem is beyond contemplation.

MR HOLDENSON:   I am sorry?

NETTLE J:   I said the problems are beyond contemplation.

MR HOLDENSON:   Are or are not?

NETTLE J:   Are.

GORDON J:   Are.

NETTLE J:   You have got taking a juror out, putting him back in, perhaps taking out another one later on, putting him back in which means the verdict has been influenced by persons who were not party to the final jury.

MR HOLDENSON:   Not the final verdicts, no.

GORDON J:   But the process is a process which is a continuum.  You must accept that.

MR HOLDENSON:   Yes.

GORDON J:   So, here you have a jury of 13, one is balloted off, comes back – having been put back into the jury room after not being present during some of the debate and argument.  Second ballot – someone else comes out.

MR HOLDENSON:   The debate and argument is not the traditional debate and argument of deliberating because the jury only has two choices at that time – acquittal or let us hear more.

NETTLE J:   It cannot be right, can it, Mr Holdenson, that when a jury is, as it were, alerted to their so‑called common right to return a verdict of acquittal, that they are required to retire to consider their verdict?  The judge is not, on your case, requiring them to do anything.  All he is doing is reminding them of the supposed common law right to return a verdict.

MR HOLDENSON:   Yes.  Your Honour says “supposed common law right” ‑ ‑ ‑

NETTLE J:   Well, I was taking up from where you were in the beginning of your submissions with the lack of authority to substantiate its existence.

MR HOLDENSON:   Well, I have got 40 years of Australian authority which is not a bad start, in my submission, as to – now, it may be that the ‑ ‑ ‑

NETTLE J:   In any event, it surely cannot be required to retire to consider its verdict, can it?

MR HOLDENSON:   Well, in my submission, the way in which to read that is it is required to retire to consider its verdict.

NETTLE J:   Is the judge requiring them to go out now to consider their verdict?

MR HOLDENSON:   Well, the judge – could I take your Honour to paragraph 7 of our outline of oral submissions where we have identified the key ingredients or elements of the Prasad invitation.

NETTLE J:   Yes.

MR HOLDENSON:   It makes reference to the right of the jury in every criminal trial to bring in the verdict there described, draws attention to the fact, as did the judge by the way in the instant case, that it is the jury which is the sole decider as to the facts, the obvious directions concerning burden and standard of proof, the identification and the directions concerning the element or elements of the offence charged in issue, brief outline or summary of the evidence, not a complete – if it needs a complete detailed as in an hour and a half identifying all the evidence, then it probably falls outside an appropriate case for such a direction.  Then the direction that is set out in (vi) that what is there described, perhaps particularly in (i) and (vi) does constitute a jury being required to retire to consider its verdict, albeit it is a verdict which will only be a verdict of not guilty or not at all which will be, “We wish to hear more in relation to the charge as per the wording of (vi) there”.

NETTLE J:   Surely when a Prasad is issued, it should be upon the basis of an invitation that if you like you have the right to return a verdict of acquittal.

MR HOLDENSON:   Yes.

NETTLE J:   It is not as it is at the end of a trial when the trial judge in fact requires the jury to retire to consider their verdict.

MR HOLDENSON:   Well, if the construction placed upon section 48 by the Court is that, whether or not by a side wind, section 48 has the effect of precluding the exercise of the common law right by a jury in circumstances where there is more than 12 jurors at the relevant time, then all that means is insofar as the grounds of appeal that have been identified on the notice of appeal, specified on the notice of appeal, all that means is that this right cannot be exercised by a jury in those limited circumstances but otherwise it can, if that is the construction placed on section 48 by this Court.

NETTLE J:   It is very difficult to place any other construction on it, is it not, given that your – the thrust of your submission is that the judge is not requiring the jury to do anything, but rather simply reminding them of a right which they may exercise if they wish to.

MR HOLDENSON:   It is requiring the judge to exercise a choice and to make a decision with respect to that choice.  “We, the jury, will acquit” or “We, the jury, wish to hear more”.  In any event, section 48 should be construed against – and when I say section 48 I mean the terms set out within section 48 including the phrase “required to retire to consider its verdict” ‑ is to be construed against the relevant common law backdrop which includes, in our submission, what is in Prasad.

NETTLE J:   I was laughing because I used to think that about the Evidence Act but I have learnt otherwise on the job.

MR HOLDENSON:   The problem with the Evidence Act is it is cryptic.  That is the problem with the Evidence Act and, in any event, there has been plenty of criticism of its drafting by this Court in cases like, as I recall, Dhanhoa and plenty of other courts before and after, but in any event my recollection is there are provisions within the Evidence Act which draw attention to the contrast between the Evidence Act and the common law, in any event.  So, your Honour used the phrase “supposed right”.  What we have here is, in paragraphs 2 and 3, 40 years or 39 years of Australian cases, in paragraph 2 and plenty of others.  They are all set out within the two judgments of the court below. 

I have set out there, what I have described as the modern English authorities but we know we can go back to 1964 and 1977, Young and Mansfield which speak in terms of the 20 or 30 years before the 1960s.  In any event, a practice can most certainly harden into a proposition of law or a principle of law.  We see that in the criminal law with respect to what used to be called corroboration warnings with respect to accomplices.  What in the 1940s and 50s was described as a practice, most certainly by the 1970s, was a hard principle of law, practice hardened into law, and that is something we see consistently in the criminal law.

KEANE J:   Mr Holdenson, when one speaks of the right of the jury, is one speaking of a personal right, as it were, for example, that the jury could just say, well, we are sick of this and we want it to stop for our own personal reasons.

MR HOLDENSON:   Well, it would be wrong for a jury to return a perverse verdict.  It would be wrong to say, we are sick of being here, we prefer to go to the football.

KEANE J:   So, what I am really trying to get to is, that the use of the word “right” in this context may be loose, may not cause a problem most of the time, but is not what is really being spoken of a power or a function of the jury as part of the apparatus of the administration of criminal justice?

MR HOLDENSON:   Well, without wanting to sit on the fence that might be a better way to describe what it is that the jury may do.  They may exercise their power as part of their function where it be readily apparent and obvious that the issue is simple.

KEANE J:   Well, readily apparent and obvious to whom?  One answer to that might be, apparent and obvious to the trial judge as the apparatus, the machinery concerned with running the course of the trial and making determinations about matters of law so that, as a condition of the exercise of any power or function of the jury in this regard, the direction or the invitation by the judge is a necessary condition of the jury’s function.

MR HOLDENSON:   It may be, as I said before in my submissions, that a jury is already aware of how it is that the jury, in order to convict, must accept a certain piece of evidence beyond reasonable doubt or make a finding about something beyond reasonable doubt.  The jury have been directed as to issue in the case – I am sorry, “informed”, I mean to say – and dealt with in the preliminary directions by the judge of these matters, and it may be that the jury – I know your Honour was just using a loose expression, “we are sick of this” – are sufficiently conscientious in their following the course of the trial and their concentration on the evidence that they are able to say, “We could not possibly convict to the criminal standard of beyond reasonable doubt in these circumstances because we are not prepared to accept that witness’s evidence on that topic beyond reasonable doubt.  So it may be that the jury need not be informed or reminded of the power because it is obvious to them how bad the evidence is. 

It may, however, be a situation where – I am picking up the language in some of the cases:  The Queen v Prasad (1979) 23 SASR 161. At 163 Chief Justice King speaks in terms of “the evidence is so lacking in weight and reliability”. In R v Pahuja (1987) 49 SASR 191, at page 201 Chief Justice King speaks in terms of the evidence being “insufficiently cogent”. At page 218 in the judgment of his Honour Justice Cox, “some serious weakness in the Crown case”, and it goes on from that.

KEANE J:   They are all descriptions of what the judge needs to determine before issuing the invitation.

MR HOLDENSON:   Correct.

KEANE J:   Are they not therefore examples of a judge coming to a view, albeit perhaps provisional, if you like, but definitely coming to a view about the facts of the case and the prospects of a verdict one way or the other?

MR HOLDENSON:   Yes, but it may well be that the jury have already formed that view, perhaps not using those terms like “insufficiently cogent” or “lacking in weight”, but they might form the view that the evidence is hopeless or “We could not accept that evidence.  We are not prepared to convict on that.  We are not prepared to find it was Bloggs, the accused man, who did it on that evidence”.

Sometimes the function or power – I am going back to your Honour’s expression.  Your Honour asked me words to the effect of “Is it correct to describe this as the common law right of the jury?”  It may be that, in performing its function as a jury, the jury works out, determines for itself, that the evidence cannot sustain a finding and says so itself.  On occasions it might need to be – almost all occasions – informed, that we are nice and kind and use the word “remind” in one of the authorities – inform or remind the jury of this right.  The judge will do so, himself or herself, having determined that the evidence is – the judge will use different terms – lacking in cogency, lacking in reliability. 

But the judge, in presiding over the trial, will certainly be in a position to breach that determination if that is the state of the evidence and then, in an appropriate case – and it is getting close to being an appropriate case if that is the state of the evidence, close to, and I will flesh that out in a moment ‑ to informing or reminding the jury of the right.

Now, one of the cases, which is an important case in this context because it deals with when it is appropriate for the judge to inform the jury of the right and when it is not appropriate and makes reference to the very purpose – my word would be “rationale” – of the exercise of this power as it is within the judge – and it is the case of Seymour – Seymour v The Queen (2006) 162 A Crim R 576. It is behind tab 19 in the folder.

If I could take the Court to page 415 of that book of authorities and your Honours will there see on the page in the judgment of his Honour Justice Hunt, paragraph 60.  Paragraph 60 is to be read a little carefully because the page contains a misprint.  Paragraph 60 sets out, in the first couple of lines, a reference to the case of Prasad and there are then two paragraphs indented and single‑spaced, the first paragraph comes, of course, from Chief Justice King’s judgment at page 163 of Prasad.  The next indented paragraph is not from Prasad.  That is from the judgment of Justice Hunt.  He said:

The context makes it clear that the situation in which the Chief Justice –

That is Chief Justice King:

thought it was appropriate to give such a directions –

singular it should read:

was where, although there was evidence to support a conviction, the quality of the evidence was such that they jury would be likely to reject it.

Moving on, over the page to paragraph 64 – and if I could read the entirety of the paragraph – but not all of the paragraph is directly relevant for present purposes.  Jumping a sentence:

In my opinion, the cause of the seemingly inconsistent results –

multiple accused – verdict of conviction for one, verdict of acquittal for the other:

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.

Just pausing there, if joint criminal enterprise is what this Court has called “extended common purpose”, then one could well understand how it is that the jury, if the prosecutor had not opened it and if there had not been any preliminary directions given by the judge at the start of the trial, really did need for the jury to be informed as to that basis upon which criminal liability might be imposed.

It is a bit unfair to the Crown if that is the basis upon which they seek to impose criminal liability upon the non‑actor or non‑perpetrator to have the jury get an opportunity to return a verdict of not guilty having not been directed as to that.  Also, as to the notion – I will call it “notion” – perhaps, “concept”, “doctrine” – acting in company – what falls within – that being the other phrase within paragraph 64.  Moving on, however, to paragraph 66:

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.

Interrupting my reading at that point, we would say therefore this is not one of those rare cases where a Prasad invitation should be extended to the jury.  That is not a proposition we are just articulating here for the first time.  It is also to be found within the joint judgment of the majority below.

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. 

We would join issue with the phrase “without a summing‑up” if what is meant by “without any summing‑up” because there should be something of a summing‑up, albeit the summing‑up charge, partial charge, in the instant case is certainly a little longer than one ordinarily sees.  But that may be nothing other than a function of two charges - murder, manslaughter – different elements.

BELL J:   Mr Holdenson, in point of principle, given that ours is an adversarial system, in a circumstance in which even if the trial judge assesses that the evidence is inherently fragile and unsatisfactory but the prosecution submits that a Prasad direction should not be given, why, consistent with the concept of the proper role of the prosecution and the judge in a system of adversarial criminal justice, in law would the judge have the power to invite the jury to acquit without hearing the prosecution’s submissions?

MR HOLDENSON:   Can I take the Court to paragraphs 10 and 11 of our oral submissions, which is where we say in pretty clear language it will rarely, however, be appropriate for the trial judge to exercise his or her discretion to extend a Prasad invitation.  It will generally only be appropriate to do so.  Paragraph 11:  a trial judge would not extend a Prasad invitation in a long‑running case or in a case which was complex.  I have explained that in paragraph 11 there.  Going back to your Honour Justice Bell’s question, it depends upon what sort of case we are talking about.  Is it a case that fits within paragraph 10 or is it a case which fits within paragraph 11?

BELL J:   Let us assume a relatively simple case:  A contends that he was assaulted by B and A is, in some respects, a witness whose memory is uncertain about matters that might be thought significant.  Now, at the end of the Crown case, the judge considers that the evidence is tenuous in support of a conviction and the defence makes an application for a Prasad direction but the prosecution wishes the case to proceed in the usual way and to seek to put submissions before the jury about why, notwithstanding the deficiencies, the jury would be satisfied.  Why, in those circumstances, in an adversarial system is the prosecution denied that opportunity?

MR HOLDENSON:   If, for example, that case was a two‑day case, it had gone two days at the point in time when the Crown closes their case, in circumstances where they have opened the case – the prosecutor has opened the case, there has been a defence response in which presumably the issue of, “You, the jury, will not be able to find beyond reasonable doubt that it was my client, the accused man”, and then the judge gives the jury some preliminary directions and the evidence comes out over the space of a day and a half to two days and the evidence is as described by your Honour, it would be well open to the judge to reject the contention put by the prosecutor because the prosecution case would in no way be prejudiced or disadvantaged by not being permitted to present a final address to the jury.

The jury has been fully and properly informed of the issue – I will throw in one extra ingredient.  I assume compliance by the defence counsel with the rule in Browne v Dunn.  There is no disadvantage to the Crown.  They can make their submissions to the judge as to whether or not, on your Honour’s example, your Honour ought not extend the Prasad invitation.

GORDON J:   This is disadvantage?  The disadvantage is this, is that there is obviously sufficient evidence for it to go to the jury in circumstances where there has been no application for a no‑case submission on that scenario.  So one must assume that in the sense that if there was a no‑case submission because there was nothing upon which the jury could convict, we would be in a different land.  So one assumes we have got something that is at least capable of going to the jury.  Why is not Justice Bell’s question right?

MR HOLDENSON:   Well, Justice Bell’s question assumed that it was appropriate to go to the jury because the judge has ruled or said that the evidence was so tenuous, which is the ‑ ‑ ‑

BELL J:   What I am positing, Mr Holdenson, is a case not where a no‑case submission would succeed because if there was – if the evidence was incapable in law of supporting a conviction, that is the end of the matter.

MR HOLDENSON:   That is right.

BELL J:   I am positing a case in which the defence submits the only evidence upon which the jury might convict is very unsatisfactory, it is a very tenuous basis, and almost certainly the intermediate court would set the conviction aside were the jury to convict and I invite you to give a Prasad direction and the prosecution opposes that.  That is the circumstance.

MR HOLDENSON:   There is no unfairness, no disadvantage, no prejudice to the Crown in such a case in denying the prosecutor the so‑called entitlement to present a final address to the jury on the assumption that the Prasad invitation is what is set out in paragraph 7 of the outline of submissions.

BELL J:   I take it, Mr Holdenson, you have the view that, contrary to some extravagant estimates made by counsel, advocacy has no power to persuade?

MR HOLDENSON:   I do subscribe to the theory that some advocates can persuade.  Some advocates in fact can be described as being truly seductive.  I do understand that and I do accept that but when one has regard to paragraph 7 and paragraph 8 of the outline – and your Honour’s example to me is really a paragraph 10, a simple case, a simple issue – all of that, the Crown not disadvantaged, not prejudiced at all.

This has worked pretty well.  There is not one statement in any of the judgments, if it is done in that way that says the Crown have been disadvantaged or prejudiced – not one.

BELL J:   I think there is the passage in the case to which the Director took us, the English authority, which notes the interests, recognised perhaps more frequently these days than 40 years ago, that criminal justice has regard to the interests of the victims as well as the accused.

MR HOLDENSON:   Yes.  None of this cuts across any of that and insofar as the English cases are referred to – and I will take the Court through them if your Honour would be assisted by it – each of those cases, every one of them, we have them all in our outline of submissions, every one of them, if read carefully, simply draws attention to limited circumstances in which it is appropriate to so express the invitation and how it is that the invitation is not to be understood and must not be expressed as an invitation or a direction to return a verdict of not guilty.

In each one of them the Court does not go so far as to say this common law right, whether it be an incident of the function or role of a jury in a criminal trial, not one of those cases says it must be abrogated or we now declare that the common law is not that expressed in the cases.

Indeed, it would be very difficult, in my submission, for this Court to reach such a conclusion, keeping in mind that the authorities are such that each member of the Court below accepted that the extension of such an invitation is not contrary to law, each member of the Court below accepted that this is what the common law now is and each member ‑ ‑ ‑

KIEFEL CJ:   The question is then now for us, though, is it not?

MR HOLDENSON:   Yes.  The first question might be whether or not the statute has done something to it.  Then the question would be if the statute is not abrogated or interfered with, negated, whatever be the expression, this common law, right function or power in both the judge and the jury, then should this Court do something about it.  Our submission in that regard is this.

KIEFEL CJ:   Are we at paragraph 13 of your outline then, Mr Holdenson?

MR HOLDENSON:   We are getting pretty close to paragraph 13.

NETTLE J:   Could I cut across that before you get to it because it is relevant by way of precursor, I think.  You took us to paragraph 66 in the judgment of Mr Justice Hunt in Seymour v The Queen ‑ ‑ ‑

MR HOLDENSON:   Yes, your Honour.

NETTLE J:   ‑ ‑ ‑ in which his Honour spoke of the sorts of cases in which it would be wholly inappropriate to issue a Prasad invitation.

MR HOLDENSON:   Yes.

NETTLE J:   If there is or is to continue to be a common law par or right in a jury to return an early verdict, what is a judge to do in a case of the kind referred to by Mr Justice Hunt in paragraph 66 if the jury asks the judge whether they can return an early verdict?  Is he to say no or is she to ‑ ‑ ‑

MR HOLDENSON:   I am sorry, paragraph 66 – I am just looking for the “asking” in 66, your Honour, sorry.

NETTLE J:   Why I am picking 66 for is the sort of case in which his Honour said it would be wholly inappropriate to issue a Prasad invitation.

MR HOLDENSON:   Yes.

NETTLE J:   Now, one can well see the wisdom of that, with great respect.

MR HOLDENSON:   Yes, yes and some of that paragraph is the source of a part of our paragraph 11 in our oral submissions.

NETTLE J:   I am with you, but assuming for argument’s sake that there is or is to continue to be within the jury a common law right or common law power to return an early verdict, what is a judge to do in a case of the kind referred to in 66, if without invitation the jury asks the judge whether they may return early verdict?

MR HOLDENSON:   If, as I understand your Honour’s question, the case is an inappropriate case for the extension of the Prasad invitation but we have the jury returning, there is absolutely no doubt that as a matter of common law a judge has the power to require the jury to reconsider their verdict.

NETTLE J:   To refuse to accept the verdict.

MR HOLDENSON:   To require the jury to reconsider.  It only goes that far.  Now, there is authority for that.

NETTLE J:   Certainly, there is authority but it is a power very seldom exercised.

MR HOLDENSON:   Correct, but, of course, we are talking about something that is seldom done, in any event.

NETTLE J:   That would be the answer then.

MR HOLDENSON:   Well, the answer to your Honour’s question is, if it be a case where it is wholly inappropriate, the judge would require the jury to reconsider their verdict and in ‑ ‑ ‑

NETTLE J:   Would the judge do that there and then or say, wait until you have heard the rest of this and the address?

MR HOLDENSON:   Well, apart from hearing argument from counsel, both sides as to what the judge should do, the judge would exercise a discretion which would be either to then give what would be needed for the jury to return an informed verdict which would be confined to a verdict of not guilty because we have got the accused still wanting to or perhaps wanting to go into evidence, so it would be a Prasad invitation with a difference.  That is, it would be to the effect, you go out and reconsider and I may, if you want to hear more, we will hear more, but if you want to acquit, well so be it but the judge will have given some directions to explain the basis upon which the Crown has put their case to get over the hurdle identified by Justice Hunt in paragraph 66 of Seymour ‑ ‑ ‑

NETTLE J:   Yes.

MR HOLDENSON:   ‑ ‑ ‑ but at the end of the day, at the end of the day, the common law recognises, and those cases recognise, that if the jury persists with that verdict, the judge must accept it, and I was reading those cases on the weekend.  There is a case in 1915, I think it is, in this Court, it is one of the cases ‑ ‑ ‑

NETTLE J:   I think you may take it as read that if the jury insists on returning the verdict, ultimately the judge must accept it.

MR HOLDENSON:   Yes, there are a few Victorian cases in the 70s, 1972, Lovett was one such case.  Now, going ‑ ‑ ‑

NETTLE J:   I am sorry, I have deflected you from paragraph 13 of your outline.

MR HOLDENSON:   Now, paragraph 13, the backdrop to section 213 is that there has been at the time of section 213 coming into existence on 1 January 2010, there has been at that time, 30 years of Prasad or Prasad invitations in this country.  Many, many cases, I have only identified a few on the outline of submissions but, of course, the judgments in the court below make reference to numerous Australian cases where single judges consider whether or not it is appropriate to extend the invitation.  So, it is clearly the case that by the time that the Criminal Procedure Act 2009 commences, it is the case that judges have the power to extend a Prasad invitation.

KIEFEL CJ: That does not necessarily resolve the question whether the powers referred to in section 213(2) are inconsistent with the operation of a trial, the process of a trial, for which the Act provides.

MR HOLDENSON:   Well, that then takes us on to sections like 234 upon which the Director relied.  Section 234 in describing the entitlement to present a final address does not set out an unqualified entitlement because, of course, there is no entitlement to give a final address if we are in the territory of a directed acquittal.  There is no entitlement, of course, to give a final address if the jury has been discharged without verdict, whether completely or with respect to any given charge on the indictment.  So section 234 is to be read in context.

Section 213, or subsection (2), the powers contemplated by the legislature in section 213(2), fits in nicely with the powers in the trial judge listed in section 222, including 222(c). Section 222(c), which is the power to give directions, is not confined to what happens at the very start of the trial after the respective openings, or the Crown Prosecutor’s opening and the defence response, and what happens ordinarily at the end of the trial, namely, final address, both parties. Section 222(c) is a power which is enlivened throughout the trial when something triggers the exercise of the power in the trial judge to give a direction.

One such example is in the examples the subject of our submissions in this case, that is, the appropriate examples for the extension of a Prasad invitation as distinct from those where it is not appropriate to exercise such a power.  So it would be, in our respectful submission, a big step for this Court to hold that the Prasad invitation the subject of consideration in all those cases, not contrary to law anywhere, is now all of a sudden contrary to law in circumstances where the legislature has acted in such a manner as to preserve these common law powers.

Section 213(2) does not get to be, in our submission, read down or limited in any manner whatsoever as long as we are speaking about the rare case where it is appropriate to exercise this sparing discretion, however it is referred to in the cases.

KIEFEL CJ:   If we are considering consistency with the process of a criminal trial do we read the Criminal Procedure Act with the Juries Act?

MR HOLDENSON:   No.  There is nothing in either Act which operates in such a manner as to impair or limit that which is expressed in the other.  In any event, there has only been identified one area where there is a potential – my word – inconsistency between any legislation and the Criminal Procedure Act, because the Director said nothing in the Jury Directions Act and the only point in the Juries Act was referable to section 48.

I remind the Court of the grounds of appeal set out in the core appeal book at page 165, in the middle of the page, using the line numbers, line 24, the grounds of appeal:

The Supreme Court of Victoria (Court of Appeal) erred in determining on the reference:

(a)that the giving of a Prasad direction is not contrary to law; and/or

(b)that the giving of a Prasad direction may continue to be administered to a jury determining a criminal trial between the Crown and an accused person.

Nothing within those grounds impugns or challenges what was done in the instant trial, and nothing within those grounds descends into the requisite detail to deal with, if the Court ends up holding at the end of the day – rejects my submissions concerning the operation and effect of section 48 of the Juries Act.

KIEFEL CJ:   Mr Holdenson, do I take it from paragraph 17 of your outline that there is, in fact, an agreement in relation to costs?  I am just a bit confused whether you are saying we should order costs because there is an agreement or – it is paragraph 17 of your outline.

MR HOLDENSON:   Yes, I know, and I have not – the relevant passage in that regard is in the – to answer your Honour’s question – the source of the manner in which I have expressed paragraph 17 is, first, paragraph 4.1 of the application for special leave to appeal in this Court, dated 19 April this year, paragraph 4.1 reads, “The Victorian Director of Public Prosecutions agrees to pay the reasonable costs of the acquitted person ‑ ‑ ‑

KIEFEL CJ:   I see, yes.

MR HOLDENSON:   And, indeed, my recollection is that there was something repeated by the Director in their reply ‑ ‑ ‑

KIEFEL CJ:   I am sure Ms Judd will not recant.

MS JUDD:   There is no issue.

KIEFEL CJ:   In fact, Ms Judd is confirming that that is the case.

MR HOLDENSON:   I am indebted to my friend for that.

KIEFEL CJ:   Do you have any further submissions, Mr Holdenson?

MR HOLDENSON:   I will just, if I might, your Honour, check my notes.  If your Honour would excuse me just for a moment?  The only matter to which I have made reference in my notes is to respond to – but I, perhaps, need not.  Our friend made reference to the English case of R v Collins [2007] EWCA Crim 854, behind tab 8 of the book of authorities, and our friend worked through the criticisms in that case of this – I will use the word “practice” at this point. The question is: would your Honours be assisted by my working through the paragraphs of Collins ‑ ‑ ‑

KIEFEL CJ:   Well, is it important to your case is more the point?

MR HOLDENSON:   Well, I think the answer is it is important.  So if I could take the Court to Collins. It is behind tab 8. And the first passage of relevance is at paragraphs 44 and 45 in the judgment of Lord Justice Gage. Paragraphs 44 and 45 can be summarised as the reference to, perhaps, a dispute as to whether or not the common law right still exists and it is described in the opening line of paragraph 44, which is in the joint book of authorities at page 194, as:

the common law right of a judge to inform a jury –

Of course, in the case of Reardon that was described as a discretion.  Paragraph 45 makes reference to the right in the same terms.  At paragraph 48, at the foot of the next page, it is accepted that the right still exists, albeit in paragraph 48 reference is made at the head of the next page, this is at the end of 48:

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.

In our respectful submission, that overstates the effect of all the previous authorities.  It goes on, of course and reads:

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. 

KIEFEL CJ:   Well, you would agree with that.

MR HOLDENSON:   Absolutely.  And that case, as I recall, was a multi – we would call it a multi‑headed conspiracy case.  The conspiracy charges are identified in paragraph 1 of the judgment.

KIEFEL CJ:   So is it your submission that what appears, the eight points in paragraph 49, are to be read in the context of that case? 

MR HOLDENSON:   Yes, and working through paragraph 49, third line:

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.

Now, that is not precisely in accordance with what we have said is the appropriate way and the Australian way of expressing the Prasad invitation.

BELL J:   Mr Holdenson, before taking us through all eight points, I just wondered, is your response to point to your paragraphs 10 and 11 in your outline and to say you are not contending to the contrary of the various matters that are raised in those eight points?

MR HOLDENSON:   Well, the eight points go beyond what is in 10 and 11, but if you were to read 7 and 8 as well as 10 and 11, we deal with everything said in that paragraph 49 in our paragraphs of the oral submissions, 7, 8, 10 and 11, and so I can resume my seat.  If your Honour pleases.

KIEFEL CJ:   Thank you, Mr Holdenson.  Yes, Ms Judd.

MS JUDD:   Thank you.  Perhaps I could answer Justice Nettle’s question first and that is the question where if a jury seeks of its own motion to return a verdict, an early verdict, before being asked by the judge to do so, this was specifically addressed in the Speechley decision by the English Court of Appeal, tab 17, and if I could take you to paragraphs 50 and 51 at pages 388 and 389 of the book of authorities.  Paragraph 50 refers to defence counsel indicating:

that he proposed to remind the jury of their common law right to return a verdict of not guilty at any time after the close of the prosecution case, but the judge ruled that he was not entitled to do so.

Then 51 elaborates on that and this picks up a little bit of what Justice Bell was saying earlier as well, that it remains:

the duty of the judge to ensure that the trial is fair, both to the defence and to the prosecution –

and, therefore, it falls to the judge to decide when the time has come for the jury to be permitted to reach a decision.  The last sentence directly answers Justice Nettle’s point:

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.

So it has been considered in the authorities.  In terms of the question about the jury being required to retire to consider its verdict, I just want to take you to a couple of pages as to what happened in this case.  This is typical of what happens in Victoria.  If I could take you to the appeal book at 46, this is at the end of the giving of the first Prasad direction.  At line 14:

I’m shortly going to invite you to retire and take some time to consider the decision that I’m inviting you to make.

He then talks about the choices that are available.  At line 25:

I will send in shortly a typed script of what I’ve been saying to you.

Then we go over to the next page, lines 3 to 4:

I’m inviting you to embark on, to check through to make sure you understand what’s open to you.

Then at line 22:

When you come back into court from the jury room what will occur is that my associate will ask you whether you’ve reached a decision, and assuming that you have she will then ask you whether you’ve reached verdicts of not guilty on the charge of murder and manslaughter or whether you wish to hear more.  They’re the choices you have to make.  Mr Foreman, you’ll announce that decision.

So it is much more than simply informing them that they have that right.

Just very briefly in relation to some of the other points, I do not wish to elaborate on this in any great detail, but clearly an opening address from the prosecutor is very different to a closing address.  Similarly, the preliminary remarks by a trial judge are very different to the full charge at the end.

In terms of the simple case, the example that had been given, the justification for the giving of a Prasad direction has always been that it saves time and expense.  One would think in that simplest of cases that it would not take a great deal of time for there to be closing addresses and a charge.  It is just not going to add enormously to the time and expense.  I think that was all that I wished to address in reply.  If the Court pleases.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders and otherwise to 10.00 am.

AT 12.50 PM THE MATTER WAS ADJOURNED