R v ST (No 1)

[2014] ACTSC 55

R v ST (NO 1)
[2014] ACTSC 55 (4 March 2014)

CRIMINAL LAW – Matters relating to Proof – Warnings and directions – Not a proper case where a Prasad direction should be given – Warning under s 165A(2) of the Evidence Act 2011 (ACT) required

Evidence Act 2011 (ACT), s 165A(2)

R v Prasad (1979) 23 SASR 161

EX TEMPORE JUDGMENT

No. SCC 85 of 2013

Judge:             Refshauge J
Supreme Court of the ACT

Date:              4 March 2014

IN THE SUPREME COURT OF THE     )
  )          No. SCC 85 of 2013
AUSTRALIAN CAPITAL TERRITORY           )          

THE QUEEN

V

ST

ORDER

Judge:  Refshauge J
Date:  4 March 2014
Place:  Canberra

THE COURT ORDERS THAT:

1. The application for a Prasad direction be dismissed.

1. A direction under s 165A(2) of the Evidence Act 2011 (ACT) be given to the jury in summing up.

1. In this trial, the prosecution has closed its case against the accused, ST, who is charged with six offences, one of incest and five of committing an act of indecency on a person under ten years of age.

1. Mr Lawton invited me to give the jury a direction that they could acquit ST without the trial proceeding.  This is known as a Prasad direction, the name coming from the decision of the Full Court of the South Australian Supreme Court in R v Prasad (1979) 23 SASR 161. In that case King CJ 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 [or she] decides to do so he [or she] 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. 

1. In order for me to exercise my discretion as requested I would have to be satisfied that the evidence against ST is such that a jury ought to be instructed that it could, if it wishes, return a verdict of not guilty in respect of him, without hearing further evidence. 

1. I have had the opportunity of reviewing the evidence against ST. I accept that there are important issues as to the reliability of the complainant, AT and, indeed, I am persuaded that a direction under s 165A(2) of the Evidence Act 2011 (ACT) should be given.

1. I am satisfied that this is not a proper case in which to give a Prasad direction and I decline to do so.

   I certify that the preceding five (5) numbered paragraphs are a true copy of the Ex Tempore Judgment herein of his Honour, Justice Refshauge.

   Associate:

   Date: 1 April 2014

Counsel for the Crown:  Mr J Lundy
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the defendant:  Mr J Lawton
Solicitor for the defendant:  Ben Aulich and Associates
Date of hearing:  4 March 2014
Date of judgment:  4 March 2014