R v Hall
[2015] ACTSC 408
•1 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hall |
Citation: | [2015] ACTSC 408 |
Hearing Date: | 30 November 2015 |
DecisionDate: | 1 December 2015 |
Before: | Penfold J |
Decision: | The Court declines to give a Prasad direction. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Miscellaneous Powers of Courts and Judges – application for Prasad direction at end of Crown case in which self-defence an issue – undesirability of giving jury extended directions about dealing with evidence, how self-defence is excluded, and nature of issues – disorganised state of evidence – undesirability of giving jury transcript early – Prasad direction refused. |
Cases Cited: | Pahuja v The Queen [1987] 30 A Crim R 118 R v Prasad (1979) 23 SASR 161; 2 A Crim R 45 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 |
Parties: | The Queen (Crown) Brendan Allan Hall (Accused) |
Representation: | Counsel Ms S Gul (Crown) Mr J Pappas (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Accused) | |
File Number: | SCC 222 of 2014 |
Introduction
[Brendan Hall is on trial for an offence of recklessly inflicting grievous bodily harm. the Crown has closed its case. The Crown evidence has raised the possibility that Mr Hall’s actions were taken in self-defence.]
Defence counsel has asked me to give the jury what is known as a Prasad direction, that is, a direction advising the jury of its capacity to acquit the accused at any time after the close of the Crown case.
The name comes from the case of R v Prasad (1979) 23 SASR 161; 2 A Crim R 45 in which King CJ of South Australia said:
It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may exercise the right then or at any later stage of the proceedings.
The application
Counsel’s application relates to the evidence now before the jury relating to self-defence. Counsel points to the fact that several of the Crown witnesses have testified that, on the night of the incident giving rise to the charges, the complainant and one of his companions were behaving in a very aggressive fashion, at least from the point when they encountered the accused Mr Hall and his friends near the Alinga Street taxi rank shortly before 2.00 am. and that this contrasts with the opening of the Crown case which suggested that the young men were behaving offensively but not aggressively.
Furthermore, counsel says, the jury have now heard not only the exculpatory evidence of the accused’s two companions but also the accused’s taped record of interview with police, in which he identified (almost exactly by reference to the common law test for self-defence set out in the case of Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645), his concern at the situation in which he found himself and his assessment of his options at the time.
These factors, counsel says, mean that the jury should be given the opportunity now to consider whether, having regard to the evidence they have heard, there is any possibility that they can be satisfied beyond reasonable doubt that Mr Hall did not act in self-defence. The prosecutor disputes that any serious weakness has emerged in the Crown case, and notes in particular that the giving of an exculpatory account by an accused is not such a weakness.
Decision
Having considered this application overnight, I have come to the conclusion that this is not an appropriate case in which to give a Prasad direction. There are several reasons for that conclusion.
Reasons
The evidence
First, the evidence going to self-defence in this case does not go only one way. While defence counsel noted that several of the Crown witnesses had identified the complainant as having been aggressive, the prosecutor pointed out that the evidence relied on by defence counsel was not as strong as he had suggested. She said that one of the four witnesses had conceded the use of aggressive words only in cross-examination, that two of the four had said that both parties had used aggressive tones, and that the fourth witness had said that anger and aggression on the part of the complainant could have been possible but he couldn’t recall.
On the other hand, the prosecutor pointed out, two apparently independent observers of the incident, being an off-duty security guard and another young man not known to the parties, both of whom happened to be standing nearby the location of the incident, had identified the accused as the aggressor. This collection of inconsistent evidence is not equivalent to, for instance, the serious discrediting of a largely uncorroborated complainant in a sexual offence trial; see Pahuja v The Queen [1987] 30 A Crim R 118 (Pahuja). Rather, it seems to me, forming a view about the significance of self-defence in this matter will require careful assessment by the jury of all the evidence about the conduct of the various parties to the incident, including the evidence contained in the accused’s taped record of interview given three weeks after the incident.
The jury may well take the view, having regard to what they heard in the accused’s taped record of interview, that they cannot be satisfied beyond reasonable doubt that he did not act in self-defence. But it is also possible that they might reject his exculpatory account of the incident.
The law
Furthermore, the test for when a person has acted in self defence may appear, as put by defence counsel to the jury in his opening, to be a reasonably commonsense approach. However, this does not mean that the jury's consideration of whether they could possibly be satisfied that the accused did not act in self-defence will be a straightforward exercise. The test has two limbs, as follows:
(a)whether the accused believed that it was necessary in self-defence to do what he did; and
(b)whether there were reasonable grounds in the circumstances as the accused perceived them for the accused to believe that it was necessary in self-defence to do what he did.
The jury is not required to be satisfied that each of those two limbs is made out. The accused is not required to establish that he acted in self-defence. Rather, the jury must acquit if they are satisfied that the Crown has not excluded at least one of those two limbs beyond reasonable doubt. That in turn would require the jury at the end of the trial to consider whether:
(a)it was satisfied beyond reasonable doubt that the accused did not believe that it was necessary in self-defence to do what he did; or
(b)it was satisfied beyond reasonable doubt that there were no reasonable grounds in the circumstances as the accused perceived them for the accused to believe that it was necessary in self defence to do what he did.
Unless the jury was satisfied of one of those facts, then the charge would fail on the Crown's failure to exclude self-defence.
In the circumstances of this case and depending on the evidence they accept, the jury might also need to consider the scope for the accused to have retreated from any aggression of the complainant, and the question whether the degree of force used by the accused in responding to any such aggression was proportionate to the perceived threat.
Also, as I have already noted in discussions, the proper approach to self defence requires the jury to work through a series of double negatives and other relatively complex methods of thinking.
As already mentioned, in considering the elements of the offences at the end of the trial, the jury would be required to consider whether the Crown has satisfied them beyond reasonable doubt either:
(a)that the accused did not believe that it was necessary in self-defence to do what he did; or
(b)that there were no reasonable grounds in the circumstances as the accused perceived them for the accused to have that belief.
If the Crown satisfies the jury of one of those negative propositions then the offence may be made out, having regard obviously to whether the other elements are established. This is conceptually quite difficult enough.
If a Prasad direction is to be given by reference to whether the accused acted in self defence, the jury will have an even more complex task. The question that the jury would be invited to answer is whether, having heard only the Crown case, they are satisfied to an unspecified standard that, having regard to the evidence they have heard and irrespective of what might emerge from the defence case:
(a)they could never be satisfied beyond reasonable doubt that the accused did not believe that it was necessary in self-defence to do what he did; and
(b)they could never be satisfied beyond reasonable doubt that there were no reasonable grounds in the circumstances as the accused perceived them for the accused to have that belief.
I do not consider that these are questions that a jury can be expected, or indeed allowed, to consider without receiving proper advice about how they may deal with the evidence before them, and proper directions about the various legal questions that arise in relation to self-defence.
This is not a criticism of the comments made to the jury by counsel in their respective openings, both of which correctly identified the law about self-defence as far as they went. However, neither counsel provided the jury with the more detailed advice about how to work through the self-defence question that I would see as appropriate to be given as part of my explanation to the jury of the law applicable to the matters they have to decide; nor should counsel have done so. On the other hand, on several occasions throughout this trial, I have told the jury, sometimes in response to jury questions that have raised matters of law, that they will be given detailed instructions about the law that is applicable and how it is to be applied after they have heard all the evidence.
Need for detailed directions to jury
In summary, I do not consider that I could give the jury a Prasad direction without giving them at least:
(a)the standard directions about dealing with the evidence of the various witnesses;
(b)detailed directions about the law of self defence in a form in which they would appropriately be given in summing up to the jury at the end of the trial; and
(c)a further set of directions about the conceptually different process they are being invited to undertake before the trial has been completed.
In Pahuja, the South Australian Court of Criminal Appeal criticised a Prasad direction that occupied 17 pages of transcript and that Cox J described as follows at 144:
His Honour explained what his and the jury's powers were, described briefly the elements of the charge, said something about reasonable doubt and the danger of convicting on the uncorroborated evidence of an alleged victim, and then dealt at considerable length with the Crown evidence and the nature of the case generally.
Cox J went on at 145:
There are two things I would say about the procedure that was followed in this case. First, any Prasad direction should be put to the jury quite simply and shortly. It is not the occasion for any more than a passing glance at the law and a brief reference to whatever feature of the evidence it is that has led the trial judge to give the direction – usually some serious weakness in the Crown case that has emerged during its presentation. I think, with respect, that this direction was far too long. Secondly, it seems to me that this was not a proper case for a Prasad direction at all. The typical occasion for it in a sexual case will be the discrediting of the complainant in the witness box – admitted lies or plain contradictions or vacillations – or important contradictions with other Crown witnesses. No doubt there may be other occasions for its use as well, but they are the obvious ones.
His Honour's first point is directly relevant in this case. That is, it would be impossible to give a short and simple Prasad direction in this case. Like the direction given and criticised in Pahuja, the direction would, for the reasons I have already set out, need to canvass a significant part of the material, both general and specific, that would be dealt with in a summing up at the end of the trial.
This is of course not a sexual offence case, but it seems to me that Cox J's second point has wider application in terms of the kind of circumstances in which it would be appropriate for a judge to give a Prasad direction. That comment seems to reflect generally the need for an issue justifying the giving of a Prasad direction to be straightforward and obvious to the jury. In particular, it seems to me that the relevant issue should be straightforward and obvious to the jury without the need for the jury to consider in detail the particulars of the undoubtedly conflicting evidence given by a substantial number of Crown witnesses in this case.
Undesirability of giving jury transcript early
It is also worth noting that I cannot see how the jury could be satisfied about the chance of them being persuaded to reject self-defence solely on the basis of their memories of the evidence they have heard over the last five days, which have been interrupted by a weekend. That evidence has been given by a significant number of different Crown witnesses, several of whom, for reasons unrelated to the content of their evidence, gave evidence out of any obvious order, and a number of whom were distinctly inarticulate or conceded that their memories of the incident were partial at best. The totality of the evidence so far in my view could justifiably be described as “all over the place”.
The untidiness of the evidence has no particular significance to whether the jury is likely to conclude that the Crown has not excluded self-defence, but it is very significant to whether the jury could reach that conclusion without a careful consideration of quite a lot of the evidence that is currently before them only in a fairly untidy form. On the other hand, although I have already indicated to the jury that they will be given transcript at the end of the trial, it would seem inappropriate to give them that transcript at this point, when there is a possibility that the trial will continue.
Other matters
Of course, a jury does not have to accept the judge's invitation to acquit without hearing any defence evidence or closing remarks. On the other hand, extending that invitation in a situation in which it could not be properly addressed without a substantial consideration by the jury would seem to risk the jury misunderstanding the nature of the invitation and taking an inappropriately easy way out. I note also that as already mentioned, the questions that the jury would need to ask about self-defence in considering whether to acquit before the end of the trial require significantly different mental processing from the questions they would need to ask in considering their verdict. This could have significant dangers if the jury rejected the Prasad invitation and chose to hear the rest of the evidence, closing submissions and summing up and were then, when they retired to consider the whole of the evidence, required to consider the issue of self-defence from a conceptually different perspective.
Finally it is worth quoting the comments of King CJ in Pahuja. His Honour said:
The undoubted right of a trial judge to inform the jury of its power to bring in a verdict of not guilty at any time after the conclusion of the case for the prosecution, should be used sparingly and only when the judge is of opinion that the evidence for the prosecution, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty. Even in such a case, the judge should bear in mind that the evidence called by the defence might strengthen the prosecution’s case. ... There should be nothing in the nature of a pretrial summing up. If the jury cannot properly reach a decision at that stage on the law as explained in the opening, perhaps clarified by a concise correction or explanation if necessary, it is better not to embark upon the course of action at all. A partial summing up at that stage of the trial is a serious departure from the due course of trial and is to be avoided.
Conclusion
Accordingly, I decline to give a Prasad direction to the jury.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Acting Associate: K Duval-Stewart Date: 7 January 2016 |
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