Prasad v The Queen

[1994] HCA 2

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON AND McHUGH JJ

NITENDRA PRASAD v. THE QUEEN

(1994) 119 ALR 399

10 February 1994

Orders

Application for special leave to appeal granted.

Appeal allowed.

Set aside the order of the Court of Criminal Appeal of the Supreme Court of Victoria refusing leave to appeal against conviction. In lieu thereof, order that leave to appeal to that Court be granted, the appeal to that Court be allowed, the applicant's conviction be quashed, and a new trial be held.

Decision

MASON CJ, BRENNAN, DEANE, DAWSON AND McHUGH JJ The applicant was presented before the Supreme Court of Victoria on a charge of murder of Harmohan Singh who was fatally stabbed in Ascot Vale on 15 July 1990. He was convicted. He appealed to the Court of Criminal Appeal. The Court of Criminal Appeal held that the learned trial judge had failed to give the jury an adequate direction as to the effect of the evidence of three boys who had been in the vicinity of the murder at the approximate time when the deceased was fatally stabbed. Despite the failure to give that direction, the Court dismissed the application for leave to appeal by applying the proviso in s.568(1) of the Crimes Act 1958 (Vic.).

2. Two of the boys saw two men in the vicinity together. The other boy, presumably at a different time, saw one man in the vicinity. None specifically identified either the deceased or the applicant, though the jury might have found that the descriptions given by the boys were consistent with the two men being the applicant and deceased. The Crown tendered the boys' evidence, together with evidence of motive, movement, flight and false denial, to establish that the applicant stabbed the deceased. On the basis of the boys' evidence alone, it was open to the jury to find that the deceased was one of the two men seen in the street and that he was in the company of a person who, like the applicant, was known to him. However, the boys' evidence alone was insufficient to establish that the applicant was one of the men. Yet, in some parts of his charge to the jury, the learned trial judge appears to have given a direction that the applicant's presence in the street with the deceased could be found as a fact on the evidence of the boys alone.

3. This direction appears from one of the ways in which his Honour described the Crown case to the jury ("it rests upon the boys' evidence about the men seen going down Francis Street on the night in question") coupled with his Honour's direction that the first step in approaching this aspect of the Crown case was to find whether it was the applicant and deceased who were together in the street. His Honour, stressing the importance of this step, told the jury that it "rests on the somewhat conflicting and uncertain evidence of the three boys". If the jury found on that evidence that the applicant and the deceased were together on the street then, the jury was directed, it was open to them to infer guilt from that finding in the context of the evidence of motive, opportunity and false denial - which his Honour brought to the jury's attention.

4. In other parts of the charge his Honour seems to have accepted that the boys' evidence was extremely tenuous and was but one of the pieces of evidence from which it was open to the jury to draw an inference that the applicant and the deceased were together in the street and also the ultimate inference of guilt. Nevertheless, the earlier misdirection might have led the jury into an entirely false line of reasoning. It is impossible to be satisfied that the jury did not convict in reliance upon the direction that the fact of the presence in the street together of the applicant and the deceased could be found on the evidence of the boys alone. If the jury so found and the finding was used as a foundation for the drawing of the ultimate inference of guilt, there was a miscarriage of justice.

5. Although the Court of Criminal Appeal appreciated the applicant's complaint about the charge, their Honours did not correctly perceive the significance of the error made. The Court of Criminal Appeal perceived the error of the learned trial judge as being a mere failure "to give a direction that no helpful inference as to guilt could be drawn from the evidence" of two of the boys. The error was in truth a positive misdirection. Once the misdirection is identified, the possibility that the jury was led into a false line of reasoning cannot be excluded. It is impossible to be satisfied that the accused did not lose a reasonable opportunity of acquittal: Mraz v. The Queen ((1) (1955) 93 CLR 493.).

6. The Court of Criminal Appeal was therefore in error in applying the proviso. Special leave must be granted, the appeal allowed and a
new trial ordered.