QUESTION of LAW RESERVED on ACQUITTAL (NO 1 of 1994) No. SCCRM 94/244 Judgment No. 4755 Number of Pages - 5 Criminal Law and Procedure - Jurisdiction, Practice and Procedure - Verdict - Power of Judge to Direct Verdict

[1994] SASC 4755

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL PRIOR(1), OLSSON(1) and PERRY(1) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - verdict - power of judge to direct verdict - Trial judge directed jury to return verdict of not guilty - jury returned verdict of not guilty - trial judge cited serious inconsistencies in the evidence of Crown witnesses, to the degree that no reasonable jury could properly convict and that a conviction based on such evidence would inevitably, on appeal, be found to be unsafe, as warranting his finding that there was no case to answer - such grounds not justifying a conclusion of no case to answer, but would have justified a Prasad invitation - a trial judge should not base a direction on a consideration of whether a guilty verdict might be set aside on appeal. The Queen v Prasad (1979) 23 SASR 161 and Question of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, applied.

HRNG ADELAIDE, 17 August 1994 #DATE 6:9:1994 #ADD 13:3:1995

Counsel for applicant DPP: Ms W J Abraham

Counsel for respondent:     Mr W F Braithwaite

Solicitors for respondent: Aboriginal Legal Rights Movement

ORDER
Question of law answered.

JUDGE1 PRIOR, OLSSON AND PERRY JJ On 18 April 1994 one S was presented for trial before a jury on an information charging him with a single count of Robbery with Violence, contrary to section 158 of the Criminal Law Consolidation Act. The offence was said to have been committed at Osborne on 24 December 1991.

2. The accused pleaded not guilty to the charge and oral evidence was adduced by the Crown on 18 and 19 April 1994.

3. Upon closure of the Crown case the learned trial judge directed the jury in these terms.
    "Ladies and gentlemen, I now face the task of doing what I
    think is probably one of the more difficult and in a sense
    illogical things which a judge is called on to do in a
    criminal trial. The Crown case is now closed and you have
    heard the evidence of the witnesses and the accused has been
    placed in your charge. It is generally, in fact, almost
    universally your task to decide whether you are satisfied,
    beyond reasonable doubt, that each of the elements of the
    charge which have been described to you in his fair and
    proper opening by Mr Powell for the Crown are made out and
    that you are satisfied of them, beyond reasonable doubt.
    There is an exception, however, to that general rule which
    has probably not been discussed with you before, but it is
    my task and my duty to direct you as to the law. I like you
    have listened to the evidence. You will recall what it was.
    It has been so recently before you. You will recall that
    the interview between the police officer who has just
    completed his evidence and Mr S... is effectively one of
    denial and that there is no extrinsic evidence which would
    link the accused, really, with the elements, all the
    elements of the crime which are alleged against him. I have
    taken the view, and I suspect you may have, also, but I have
    taken the view that there is so much inconsistency between
    the evidence of the two civilian witnesses who have given
    evidence before you that no reasonable jury, properly
    directed, could come to a conclusion that each of the
    elements of the offence could be proved to them, beyond
    reasonable doubt. You will recall what Mr Powell said to
    you. It has to be proved to you, firstly, that the property
    was stolen from W .... And, secondly, that it was stolen
    from his person, or from his custody. And, in this case,
    you might be satisfied that something was taken from his
    house. You would have to be satisfied that, at the time of
    that theft, he was subjected to some form of violence and
    that you would have to be satisfied that the violence was
    carried out for the purpose of effecting the theft and the
    taking away of the property.

Beyond that and overriding it you would have to be satisfied
    that the accused was a member of a joint enterprise to
    effect that end. That is, the taking away of the property
    with the use of violence.

Now, my view is that it would be unreasonable to come to
    that conclusion on the state of the evidence, because, there
    is so much conflict between what the two civilian witnesses
    said, that I don't think that any reasonable jury could
    properly come to a conclusion that the Crown had proved each
    of those elements of the offence, beyond reasonable doubt.

It is a rare occurrence, but it seems to me that this is one
    of those cases and I will have to bear the responsibility of
    what I am now about to tell you. And that is that, whilst
    the accused is in your charge, I direct you, as a matter of
    law, that there is insufficient evidence upon which you
    could come to, properly come to a conclusion that the
    accused was guilty of the offence with which he is charged.
    And, in those circumstances, I must direct you that he
    should be acquitted. I don't need to go into the procedures
    in detail, but that is my direction to you and I will ask my
    Clerk of Arraigns to request from you a verdict. I have to
    request a verdict, because the accused is in your charge and
    it is only you who can discharge him, but the question which
    I will direct my Clerk of Arraigns to ask you is 'Do you
    find the accused not guilty?' and to ask you whether that is
    the verdict of you all. This might seem strange, but it is
    the way the law works. And, as I say, I must bear the
    responsibility in the circumstances of this case of making
    that direction to you - strange though it seems - in the
    light of all that has been said to you. But, if you have
    any questions about that, I would ask you to rise and ask me
    so that I can explain the position better if I possibly can.
    If you have no questions, then I will ask my Clerk of
    Arraigns to speak to you.

I have given you a direction that is effectively a direction
    to acquit, ladies and gentlemen. So, whilst you may have
    reservations, as a matter of law, I direct that you must
    acquit, so, I will simply ask for the verdict."

4. The jury thereupon returned a verdict of not guilty and the accused was discharged.

5. Such a situation led to a request by the Crown Prosecutor to the learned trial judge that, pursuant to section 350(1a) of the Criminal LawConsolidation Act, he reserve the following question of law for the consideration and determination of this Court, namely -
    "Was it an error of law to direct the jury to acquit S?"

6. When this matter came before the Court counsel for S conceded that the question posed had to be answered in the affirmative and therefore sought and was granted leave to withdraw. In our opinion the concession made was both proper and inevitable in the relevant circumstances.

7. It is our view that, whilst, having regard to the then state of the evidence, the learned trial judge may well have been justified in giving a so called Prasad invitation to the jury, the course which he actually adopted was plainly in conflict with well settled authority.

8. A perusal of the transcript renders it clear that he arrived at a conclusion that there was no case to answer because:
    - there were serious inconsistencies as between the evidence
    of Crown witnesses, to the degree that, in his opinion, no
    reasonable jury could properly have convicted the accused
    and
    - any conviction based upon the evidence would, inevitably,
    have been found, on appeal, to be unsafe and unsatisfactory.

9. It is stating the obvious to say that such considerations, taken either separately or in concert, do not justify a conclusion that, as a matter of law, there was no case to answer. So much was rendered clear in The Queen v Prasad (1979) 23 SASR 161 and reiterated in Question of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1.

10. In the latter case King CJ stressed that it was the function of the jury and not the trial judge to evaluate the evidence submitted to it, in light of proper directions given, and to draw such conclusions as to its probative value as it sees fit. The learned Chief Justice restated the principles in the these terms (at p5):-
    "I would restate the principles, in summary form, as
    follows. If there is direct evidence which is capable of
    proving the charge, there is a case to answer no matter how
    weak or tenuous the judge might consider such evidence to
    be. If the case depends upon circumstantial evidence, and
    that evidence, if accepted, is capable of producing in a
    reasonable mind a conclusion of guilt beyond reasonable
    doubt and thus is capable of causing a reasonable mind to
    exclude any competing hypotheses as unreasonable, there is a
    case to answer. There is no case to answer only if the
    evidence is not capable in law of supporting a conviction.
    In a circumstantial case that implies that even if all the
    evidence for the prosecution were accepted and all
    inferences most favourable to the prosecution which are
    reasonably open were drawn, a reasonable mind could not
    reach a conclusion of guilt beyond reasonable doubt, or to
    put it another way, could not exclude all hypotheses
    consistent with innocence, as not reasonably open on the
    evidence."

11. Earlier in the same judgment, the learned Chief Justice observed, with respect to the role of the trial judge:-
    "It is not his concern that any verdict of guilty might
    be set aside by the Court of Criminal Appeal as unsafe."

12. Although the primary focus in that case was in fact on circumstantial evidence, nevertheless, what fell from the learned Chief Justice was of general application.

13. This was not the approach adopted by the learned trial judge in the instant case.

14. Accordingly, we formally answer the question reserved for our consideration in these terms:-
    "Yes, the learned trial judge did not apply the proper test
    to determine whether, at the conclusion of the Crown Case,
    there was, in law, a case to answer. It is not for a trial
    judge to anticipate the possible attitude of a Court of
    Criminal Appeal as to whether a potential verdict would be
    unsafe and unsatisfactory as a basis for a direction to
    acquit."