WorkCover Corporation of South Australia v Trask - [2007] SASC 339

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WORKCOVER CORPORATION OF SOUTH AUSTRALIA v TRASK
[2007] SASC 339
Judgment of The Honourable Justice David
20 September 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - PRACTICE AND PROCEDURE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF
Magistrates appeal – prosecution appeal - criminal law - the respondent was charged with 85 dishonesty offences contrary to the Workers Rehabilitation and Compensation Act 1986 (SA) and the Criminal Law Consolidation Act 1935 (SA) – at the close of the prosecution case the defence submitted that there was no case to answer – the magistrate found that there was a case to answer but dismissed the complaint pursuant to a Prasad direction – consideration of whether prosecution had proved its case beyond a reasonable doubt – whether defendant must elect not to call evidence before Prasad direction can be considered – whether delay relevant to Prasad direction.
Held: Appeal dismissed – the prosecution evidence failed to prove the charges beyond a reasonable doubt – a defendant is not required to elect not to call evidence before a Prasad direction can be made – delay is not relevant to consideration of a Prasad direction in the criminal jurisdiction.
Criminal Law Consolidation Act 1935 (SA) s 270A; Magistrates Court Act 1991 (SA) s 42; Workers Rehabilitation and Compensation Act 1986 (SA) s 120(1), referred to.
Peters v R (1998) 192 CLR 493; R v Prasad (1979) 23 SASR 161; Tazroo v Police [2002] SASC 155; Tepper v Di Francesco (1984) 38 SASR 256, applied.
Muller v Ebbw Vale Steel Iron & Coal Co Ltd [1936] 2 All ER 1363, not followed.
BCW (2006) 160 A Crim R 278; The Queen v Bilick and Starke (1984) 36 SASR 321; Dean v The Queen (1995) 65 SASR 234; R v Pahuja (1987) 49 SASR 191, discussed.

WORKCOVER CORPORATION OF SOUTH AUSTRALIA v TRASK
[2007] SASC 339
Magistrates Appeal: Civil
DAVID J.
Introduction

This is an appeal by WorkCover Corporation of South Australia (“WorkCover”) against a magistrate’s dismissal of a complaint.
The respondent was charged with:
·32 counts of dishonestly making a statement about a claim under the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Act”) knowing that the statement was false or misleading, contrary to s 120(1)(c) of the Act;
·51 counts of dishonestly obtaining a payment under the Act, namely 45 weekly payments and six payments for home help, contrary to s 120(1)(a) of the Act; and
·two counts of attempting to dishonestly obtain a payment under the Act, namely a lump sum payment under s 43 of the Act, contrary to s 120(1)(a) of the Act and s 270A of the Criminal Law Consolidation Act 1935 (SA).
After the close of the prosecution case, the respondent made a submission to the magistrate that there was no case to answer. The magistrate found that there was a case to answer, but that a Prasad[1] ruling was appropriate. The magistrate then dismissed the complaint.
[1] R v Prasad (1979) 23 SASR 161.
There are 14 grounds of appeal, but in essence, the appeal is against the magistrate’s assessment of the evidence and the decision to dismiss the complaint without requiring the respondent to elect not to call evidence.
Facts
On 2 July 1996 the respondent commenced employment as a cleaner at Le Cavalier Motel in Mount Gambier. After four days she developed a dull aching pain in her right arm and shoulder, and some similar, but less severe, symptoms in her left arm. She continued to work, but her symptoms worsened and she started to experience lower-back pain, increased pain in the right arm and severe, continuous headaches. The respondent reported her injuries to her employer and, on 20 July 1996, her employment was terminated.
On 28 July 1996 the respondent consulted a general practitioner, who diagnosed right lateral epicondylitis (commonly known as tennis elbow). The respondent submitted a claim for compensation to the appellant. In November 1996 the claim was accepted, on the basis that the respondent was suffering from epicondylitis. The respondent thereafter received weekly compensation payments. Apart from a short period of employment in August 1999, the respondent has not worked since that time.
The respondent’s symptoms spread and she was later diagnosed as suffering fibromyalgia, which is a widespread, chronic, musculoskeletal pain syndrome. In December 1998 a medical report was provided to the appellant which stated that if the respondent was still unable to work, this inability was no longer due to her epicondylitis. The appellant therefore advised the respondent that it intended to cease her compensation payments. As a result, the respondent sought a judicial determination that she was incapacitated for work as a result of a work related injury.
In October 2002, Judge Cawthorne, sitting as the Deputy President of the Workers Compensation Tribunal of South Australia, made the following remarks in the course of his determination:
In my respectful view in light of all of the evidence the probabilities are that a number of factors played a role in the development of the applicant’s fibromyalgia. In particular, in my view, it is hard to ignore as a factor the primary injury and the symptoms therefrom which have continued to trouble the applicant at all material times and have caused her frustration and worry including concerns about her ability to cope when she learned she was about to have another baby. Moreover, the evidence of Dr Cullum suggests the starting point of the relentless deterioration in the applicant’s condition of which he spoke was the occurrence of the primary injury.
As to the other factors I think it likely that the many treatments and investigations involved in attempting to alleviate the primary injury, depression, life circumstances and complications with her pregnancy, all played a part, inter alia, in the development of the applicant’s condition.
In the result, on a weighing of all relevant considerations, I am satisfied that the primary injury features in the fibromyalgia disability such that it can be truly said that “the employment was significant enough still to be able to say that the … [applicant’s fibromyalgia] … ‘arises from’ the applicant’s employment with the employer;” Sherrif [sic] (supra). [WorkCover Corporation v Sheriff (Unreported, Supreme Court of South Australia, Full Court, Lander, Bollen and Nyland JJ, 1 October 1996) 12‑13 (Lander J).]
As I see it the above finding leads inevitably to the conclusion that the applicant is and has been at all material times totally incapacitated for work as a result of her fibromyalgia condition and thus [WorkCover] is not entitled to discontinue weekly payments being made to the worker …
WorkCover did not appeal this decision. However, in January 2003 it commenced surveillance of the respondent. This surveillance continued intermittently until August 2004. As a result of this surveillance, the appellant commenced these criminal proceedings in the Magistrates Court in March 2005.
The trial commenced on 20 November 2006. After the prosecution had presented its case, the magistrate ruled that the prosecution should be stayed until it had called two further witnesses. Those two witnesses were medical practitioners who had previously examined the respondent, namely Dr Richards and Dr Woodruff. After a delay of some months, the prosecution called those two witnesses and then closed its case.
At the close of the prosecution case, the respondent made a submission that there was no case to answer. The respondent did not elect not to call evidence. The magistrate did not make any ruling about whether or not there was a case to answer on counts 1‑32, but found that there was a case to answer with respect to counts 33‑85. The magistrate then proceeded to consider whether or not it was appropriate to make a Prasad ruling and dismiss any or all of the charges on the complaint.
The magistrate found that this was the appropriate course of action and provided the following reasons:
For a number of reasons, it seems to me that a Prasad ruling and disposition is appropriate in this case.
These include the considerable delays that have taken place from institution of prosecution in early 2005 to this point. (Part of that delay is caused by the prosecution’s initial and wrongful refusal to call two witnesses who should have been called).
The length of the trial is another factor. The trial has proceeded over thirteen days.
The next factor is the cost should the trial proceed further (and perhaps the expense of the trial to date).
The defendant resides in Warnambool in Victoria and should the matter proceed further, she would be inconvenienced at the least by having to travel here and remain here for the duration of the rest of the trial. It is likely that any witnesses likely to be required by the defendant will be obliged to come from Victoria. Five more days have been allocated to continue the trial (from 25/6/07 to 29/6/07).
In order to convict the defendant, the court would have to rely upon one part of the medical evidence, along with the non-medical evidence, and in so doing, to reject the other medical evidence. In particular, it would be required to reject the evidence of Dr Richards, who saw the defendant more than all the other practitioners put together. It would also have to reject the evidence of Dr Woodruffe [sic].
In order to do so, the court would have to perceive some failing in their observations or reasoning or some lesser qualification than possessed by the other medical practitioners. There is no way that any court could do that in a case which requires satisfaction beyond reasonable doubt. Dr Richards was extremely experienced and the only witness currently working in the field of pain management. Dr Woodruffe [sic] was a Fellow of the Royal Australian College of Physicians and rheumatology was his specialty. Their opinions cannot be lightly discarded. There would have to be a compelling reason to discard such evidence. No such reasons emerged.
It is true that there was a variation in the way the defendant sometimes presented herself during the relevant period, and the depiction of her in the video at times. But the variation was one to be expected according to those two doctors. It is not, for example, as if the video depicts the defendant doing anything strenuous. She is merely a person moving slowly.
All this must be viewed against the background of the defendant’s co-operation with all WorkCover’s demands upon her. She has willingly submitted herself to many thorough and minute examinations. She has heeded all the advice given to her by medical practitioners over the eleven years. She has undergone all medical procedures and operations advised by practitioners who were not called in this case, procedures and operations which have been ineffective. It is very difficult to conclude anything other than that she is genuine.
In my view on the evidence as it stands (and is likely to remain), no court could be satisfied beyond reasonable doubt as to the guilt of the defendant on any of the charges. (Emphasis in original)
The magistrate therefore found the defendant not guilty and dismissed the complaint. WorkCover appeals against that decision.
Arguments on Appeal
At the outset it is important to remember that this Court is reluctant to interfere with a magistrate’s decision to dismiss a complaint where the charge requires proof beyond a reasonable doubt. The reasons for this were recently set out in BCW[2] where White J said:
There are two considerations which cause this Court to adopt that approach. The first is that a finding of reasonable doubt often rests on the magistrate’s appraisal of the witnesses. The second is that a prosecution appeal places the respondent in a situation of double jeopardy. Where there is an error of law, the court may be more willing to interfere. (Footnotes omitted)[3]
[2] (2006) 160 A Crim R 278.
[3] BCW (2006) 160 A Crim R 278, 282.
An appeal from a magistrate’s decision under s 42 of the Magistrates Court Act 1991 (SA) is by way of re-hearing. In Tazroo v Police[4] Lander J said:
Because it is a re-hearing and because it is an appeal from the Magistrates Court the Court has an obligation to re-hear the case in the sense that it must reconsider all of the evidence before the magistrate together with such other evidence as it might admit.
It is the duty of this Court to make up its own mind, after giving due weight to the magistrate’s advantage in seeing and hearing the witnesses, and of course after giving weight to any findings on credibility which depend largely or on [sic] part on demeanour.[5]
I am therefore required to review the evidence which was presented at trial and determine whether there is any reason to interfere with the magistrate’s findings.
[4] [2002] SASC 155.
[5] Tazroo v Police [2002] SASC 155, [18]-[19].
Before I address the appellant’s grounds of appeal, it is important to give some consideration to the offences with which the respondent was charged. Counts 1‑32 alleged dishonestly making statements about a claim, knowing the statements were false or misleading (contrary to s 120(1)(c) of the Act). The statements were allegedly made by the respondent to various medical specialists and therapists about her physical (in)capabilities, such as needing to use crutches and a wheelchair, being unable to perform housework, only being able to walk for 10 minutes, being unable to lift items of weight, etc. In order for the respondent to have been convicted, the prosecution would have had to prove beyond reasonable doubt that the respondent made the statements detailed in each charge, that the statements were false or misleading (ie that the respondent’s physical capabilities were greater than her statements indicated), and that the respondent knew that the statements were false or misleading. As the magistrate correctly identified, there would be no need to also prove dishonesty as a separate element, proof that the respondent knowingly made a false or misleading statement would be sufficient to show dishonesty.[6] Counts 33‑83 related to obtaining payments by dishonest means (contrary to s 120(1)(a) of the Act). These counts related to 45 weekly payments and six payments for home help. Counts 84‑85 alleged attempting to obtain a payment by dishonest means (contrary to s 120(1)(a) of the Act and s 270A of the Criminal Law Consolidation Act). These counts related to lump sum payments to be assessed under s 43 of the Act. There does not appear to have been any dispute that the respondent obtained the payments, or attempted to obtain the payments, alleged in counts 33‑85. However, the basis for the dishonesty alleged in those offences was the dishonest conduct alleged in counts 1‑32. In order to prove counts 33‑85, the prosecution therefore needed to prove at the very least counts 1‑32.
[6] Peters v R (1998) 192 CLR 493.
The appellant appeals against the magistrate’s ruling on the following grounds:
1.The Learned Magistrate failed to properly assess the weight to place on the evidence of the medical witnesses, who supported the contentions of the complainant as to the video evidence;
1.1     Dr Cullum (occupational physician);
1.2     Dr Champion (rheumatologist);
1.3     Dr Muirden (rheumatologist);
1.4     Dr Ormandy (general surgeon);
1.5     Dr Meegan (occupational physician);
1.6     Dr Kostos (rheumatologist);
1.7     Dr Duke (psychiatrist).
2.The Learned Magistrate erred in failing to have sufficient regard to the fact that the above medical specialists did not resile from their opinions during cross‑examination, and were not discredited during cross‑examination.
3.The Learned Magistrate erred in failing to have sufficient regard to the evidence of Dr Kostos, an eminent rheumatologist, apparently on the ground that Dr Kostos gave an opinion on medical issues and the video evidence, without having examined the defendant.
4.The Learned Magistrate failed to place sufficient weight on the evidence and submissions of the complainant to the effect that when the defendant was near medical rooms or at an attendance with a rehabilitation consultant, her displayed disabilities were consistently worse than when she was covertly videoed in circumstances where she would not expect to have been observed.
5.The Learned Magistrate failed to have sufficient regard to the extreme nature of the disability displayed by the defendant, including presenting to medical examinations in a wheelchair.
6.The Learned Magistrate erred in failing to have regard to the consistency of the description of the symptoms to doctors and rehabilitation consultants, and the evidence that the defendant failed to report significant variations in her disabilities and her practical restrictions in movement to most doctors.
7.The Learned Magistrate failed to have sufficient regard to the lack of a medical explanation for the disabilities displayed by the defendant.
8.The Learned Magistrate erred in failing to require the defendant to elect not to call evidence before giving consideration to dismissing the complaint.
9.The Learned Magistrate erred in finding at page 13.5 of his reasons,
“But it is impossible to say on a mere viewing of the video whether the defendant has any capacity for employment, and if she does, what that capacity might be”.
Such statement was inconsistent with the weight of the medical evidence, and also was not the correct test for the purposes of any of the charges.
10.The Learned Magistrate erred in finding at page 22.0 of his reasons,
“The video shows no more than the defendant doing not much in a pretty slow fashion”.
Such finding failed to address the point of the video, namely the inconsistency between the movements depicted in the video away from medical rooms on the one hand, and the presentation to doctors and rehabilitation consultants on the other hand.
11.The Learned Magistrate erred in stating at page 22.9 of his reasons
“… not one medical expert in possession of all the facts expressed the opinion that the defendant was malingering, fraudulent or dishonest”.
Notwithstanding the Learned Magistrate’s qualification following such statement, the statement indicates an erroneous view of the boundaries of admissible evidence or alternatively required evidence for a conviction.
12.The Learned Magistrate erred in referring at page 29.0 of his reasons to “considerable delays … from institution of prosecution in early 2005” without seeking an explanation from counsel for such delays, or alternatively, without finding that the delays resulted almost wholly from actions by or on behalf of the defendant.
13.The Learned Magistrate erred in finding at pages 29 to 30 (in effect) that in order to convict the defendant, the court would have to rely upon part of the medical evidence and reject the other medical evidence (Dr Richards and Dr Woodruff), and that there is no way that a court could do that in a case which requires satisfaction beyond reasonable doubt. The Learned Magistrate should have decided the issues taking account of the medical evidence, and also the extensive factual evidence from numerous witnesses (which evidence was largely not available to the doctors), and should have found that it could convict the defendant notwithstanding the opinions of the two medical witnesses, Dr Woodruff and Dr Richards.
14.The Learned Magistrate erred in failing to have sufficient regard to the possibility that the defendant dishonestly exaggerated her symptoms to some doctors, but not necessarily all doctors.

Grounds 1, 2, 4‑7, 9‑11, and 14 all relate to the magistrate’s assessment of the evidence. I will therefore deal with these grounds together. In essence, the appellant argues that, on a proper construction of the evidence, the prosecution proved its case beyond a reasonable doubt.
The prosecution led two main categories of evidence. The first was from a number of medical specialists who had examined the respondent. The second was evidence of surveillance of the respondent, primarily in the form of video footage, but also from surveillance officers. It was intended that this evidence would show that the respondent had
·stated that she was physically incapable of performing everyday tasks, and
·presented as physically incapable when attending medical appointments
in order to be diagnosed as totally incapacitated for work, when in fact she was
·capable of performing everyday tasks, and
·more physically able than she pretended to be.
The magistrate found that there was evidence to support the prosecution’s contention. In particular, the magistrate found that:
·    Dr Champion was of the opinion that the respondent had no physical complaint and was not disabled from work;
·    Dr Cullum could not explain the discrepancy between the way the respondent had presented to him and the way she presented in the video footage;
·    Dr Meegan thought there was a large discrepancy between the way the respondent had presented at the time of examination and her presentation in the video footage;
·    Dr Ormondy thought that the respondent may be faking her physical complaints; and
·    Dr Muirden was of the opinion that the respondent was capable of performing light work duties.
The magistrate also made a number of findings with respect to the video footage which were supportive of the prosecution case. These include the following:
Video footage during the relevant period shows, contrary to some of the claims she has made, that she can walk freely albeit slowly, can and does shop, can and does squat and can stand for longer periods.
…
Mr Schroeder for the complainant correctly pointed out that there were times when more video might have revealed more capacity on the part of the defendant than she claimed to possess. For example, on one occasion there was some video obtained of her perambulating in a shopping aisle. More video might have been obtained then but for the obvious difficulties of video without detection in such a situation. No doubt there were those occasions when video would have been appropriate, but difficult to achieve.
…
What the video does depict can be summarised as follows.
On occasions she would drive a manual van motor vehicle, get into it unaided and walk unaided but slowly. At times she bends and squats. On other occasions she used a single walking stick when walking. She sometimes used a pair of elbow crutches. She sometimes was pushed by somebody else while in a wheelchair. There were occasions when she carried objects eg rubbish bin, shopping bags and a luggage bag while walking unaided.
One must concede that there is a considerable difference between eg the occasions when the defendant is seen walking freely, albeit slowly, and those occasions when she is being wheeled in a wheelchair.
However, there was also evidence which created doubt about whether the respondent had knowingly made false or misleading statements. The fact that 18 months of surveillance produced only 22 minutes of video footage of the respondent during which she performed insubstantial activities, is perhaps in itself telling of her limited physical capability. As the magistrate pointed out:
It tends to establish that the defendant is a very inactive person. She rarely emerges from her house.
Evidence suggesting that the respondent’s symptoms fluctuate also created doubt about her guilt, because this evidence allowed an inference to be drawn that the activities captured on video occurred on days where there was an easing of her symptoms, rather than being evidence of sustained physical capability. Dr Meegan said that the respondent advised that the severity of her pain fluctuated, from 4/10 at best to 10/10 at worst. Dr Ormondy said that the respondent’s presentation in the video footage was the same as when he examined her in 2000, but better than when he examined her in 2004. Dr Richards said that the respondent’s pain fluctuates and she is unable to work. He maintained this opinion despite viewing the video footage. Dr Woodruff gave evidence that symptom variability is consistent with a diagnosis of fibromyalgia.
Having reviewed all of the evidence, I can see no reason to depart from the magistrate’s findings of fact.
The burden of proof in this case is the criminal onus. While there is evidence which suggests that at times the respondent may be more physically capable than she stated, there is a real doubt that she knowingly made false statements about her capabilities. This is because there is little evidence to suggest that the respondent is more physically able than indicated in her statements. Indeed, the fact that over an 18 month period only 22 minutes of video footage was obtained of the respondent performing physical activities suggests that she may have been as physically incapable as she stated. In addition, the fact that there is evidence which suggests that she may sometimes be more physically capable than she stated does not indicate that this is the case most of the time, or even often. It is therefore a possibility that the respondent described her symptoms to doctors at their worst and was unaware that by failing to indicate that her symptom severity varied she was being misleading. This is supported by Dr Meegan’s evidence that the respondent advised him that her symptoms fluctuated. There was no evidence to suggest that other medical specialists had questioned the variability of her symptoms and been misled. The evidence is therefore incapable of proving beyond a reasonable doubt that, at the time the statements were made, they were false or misleading and the respondent knew this. There was no error in the magistrate’s consideration of the evidence and this ground of appeal must therefore fail.
Ground three of the appeal argues that the magistrate should have given greater weight to the evidence of Dr Kostos. Dr Kostos is a rheumatologist. He had not examined the respondent, but was called to give evidence about fibromyalgia generally and provide his opinion about the respondent’s presentation in the video footage. The magistrate’s ruling suggests that he gave little or no weight to Dr Kostos’ evidence because he had not examined the respondent.
Dr Kostos’ general evidence about fibromyalgia was inconsistent. He initially gave evidence that fibromyalgia sufferers can experience fluctuating pain levels, but not fluctuating function. He later said that sufferers can experience fluctuating function. His evidence on this issue is therefore unhelpful. Dr Kostos’ evidence about the video footage was that it showed variability in the respondent’s physical capabilities. This adds nothing to the evidence presented by the prosecution, as this was stated by a number of other witnesses who also viewed the footage and it can also be observed by simply viewing the footage. As such, there was no error in the magistrate failing to use Dr Kostos’ evidence to determine whether or not the prosecution had proved its case, and this ground must fail.
WorkCover also appeals against the magistrate’s failure to request that the defendant elect not to call evidence before he considered whether to dismiss the complaint (appeal ground eight). The magistrate found that there was a case to answer, but dismissed the complaint pursuant to a Prasad ruling. The question is therefore whether or not a defendant must elect not to call evidence before a magistrate can dismiss a complaint pursuant to a Prasad ruling.
In R v Prasad,[7] 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 decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings … I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This power is analogous to the power of the jury, as judges of the facts, to bring in a verdict of not guilty at any time after the close of the prosecution’s case. It is part of the tribunal’s function as judge of the facts.[8]
[7] (1979) 23 SASR 161.
[8] R v Prasad (1979) 23 SASR 161, 163.
In Tepper v Di Francesco,[9] when considering whether a defendant needs to elect when making a Prasad submission, King CJ said:
A submission that there is no evidence to support the charge, or, put another way, that the evidence adduced is legally incapable of proving the charge, is, of course, a submission on a matter of law. It is a true submission that there is no case to answer. The decision to be made by the magistrate on such a submission is whether “on the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?” (The Queen v Bilick and Starke).[10] A defendant is not required to elect before making such a submission. A submission as to the weight of the evidence is of quite a different character. It is not a submission that the evidence is not in law capable of supporting a conviction. It is in reality an invitation to the magistrate as the tribunal of fact to say that he finds the evidence for the prosecution to be so unsatisfactory that, although it is legally capable of supporting a conviction, he is not prepared to accept it as possessing sufficient weight to justify proceeding further. He is invited to dismiss the charge without calling on the defence. The power to take that course is possessed by the magistrate as the decider of the facts, at any time after the close of the case for the prosecution. The Queen v Prasad;[11] The Queen v Bilick and Starke.[12] Although a magistrate probably has a discretion to entertain such a submission without requiring the defendant to elect … it is good practice to require a defendant to elect before entertaining a submission on the facts.[13]
[9] (1984) 38 SASR 256.
[10] (1984) 36 SASR 321, 337.
[11] (1979) 23 SASR 161, 163.
[12] (1984) 36 SASR 321, 336.
[13] Tepper v Di Francesco (1984) 38 SASR 256, 267-268.
These authorities make it clear that a magistrate sitting alone, as the judge of both law and fact, has a discretion to dismiss a complaint at any stage after the close of the prosecution case. The reason for this discretion is that the magistrate is in the position of the jury, and the jury has the power to dismiss a complaint at any stage after the close of the prosecution case if it is of the opinion that the prosecution has failed to prove its case beyond a reasonable doubt. While King CJ suggested that it may be good practice for a magistrate to require an accused to elect before considering a Prasad submission, I can see no reason why this should be required in law.
Counsel for the appellant argued that if an accused is not required to elect not to give evidence, the discretion to dismiss a complaint pursuant to a Prasad submission should be limited to those situations where “the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it”.[14] In support of this proposition the appellant referred the Court to Dean v The Queen[15] where, at the close of the prosecution case, the defence made a submission that there was no case to answer. The judge determined that there was a case to answer but gave a Prasad direction to the jury. The jury chose not to return a verdict at that stage. In obiter, Cox J said:
Before leaving this topic I should refer to the learned judge’s Prasad direction (R v Prasad (1979) 23 SASR 161). There was nothing wrong with the way his Honour gave it; the question is whether it should have been given at all. This Court has previously expressed its concern about too free a use of the Prasad direction to bring a trial to a stop: see R v Pahuja (1987) 49 SASR 191 at 201, 217‑219 and 224. In the present case the learned judge found that there was a case for the appellant to answer. There was no suggestion of the police witnesses being patently unsatisfactory or of the appellant being put to a lengthy but inevitably successful defence. Practically everything turned on the appellant’s state of mind and that was a subject on which the jury was likely in the circumstances to be very interested in hearing from the appellant himself, as indeed they showed by their answer. All the indicators, in short, pointed to a continuation of the trial in the normal way. A Prasad direction should not be given merely because the trial judge considers that the Crown case is not a very strong one. That would be to usurp the function of the jury. With all respect to the learned judge, the direction should not have been given in this case.
[14] R v Prasad (1979) 23 SASR 161, 163.
[15] (1995) 65 SASR 234.
In R v Pahuja,[16] the use of a Prasad direction was considered by Cox J, who said:
… 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. So far as I can see, there was no foundation at all for the direction here. There was nothing to suggest that the witnesses, including V, did not conform substantially to their witness statements, for instance, and nothing else, certainly on the face of the transcript, that would lead one to type the witnesses as unsatisfactory. If the girl’s demeanour was unimpressive – and that can be an important factor – the learned judge did not suggest as much to the jury. What he did emphasise was that they were likely to end up with two sharply conflicting stories, the girl’s (which, I point out, was not entirely unsupported) and the accused’s. His Honour appears to have thought that that circumstance was a sufficient justification for stopping the trial. In my opinion, it was not. The law in this State does not demand corroboration in sexual cases, and convictions on uncorroborated evidence are not uncommon. I do not think it right that Parliament’s policy on the matter (cf s 34i(5) of the Evidence Act) should be undermined by the giving of a Prasad direction for no other reason than a normal and expected conflict between the Crown and defence witnesses respectively. That would be to usurp or compromise the function of the jury …
I have said that the learned judge gave the Prasad direction at the request of defence counsel. The submission is recorded in the transcript. It shows that the reason for the direction, that the learned judge gave to the jury, simply reflected the ground upon which it was sought, namely, that the only Crown witness with whom the accused would be taking issue was the girl. That, as I have sought to show, was a quite inadequate basis for the direction.
This is not intended to discourage the use of the Prasad procedure where the circumstances call for it. However, it is no small thing, where there is a case for the accused to answer, to encourage the jury to pre-empt their normal function. Certainly the direction should not be given, in my judgment, virtually as a matter of course, or because the case by its very nature falls into a certain type.[17]
[16] (1987) 49 SASR 191.
[17] R v Pahuja 49 SASR 191, 218-219.
In my view, phrases in these authorities such as “evidence … so lacking in weight and reliability” or “witnesses being patently unsatisfactory” should not be used out of context as criteria which must be satisfied before a Prasad direction can be given. These cases do little more than identify that a Prasad direction should not normally be given, that there needs to be something about the prosecution case which creates in the judge’s mind a real doubt about whether the evidence is capable of proving the charge(s) beyond a reasonable doubt. This may come about because of the discrediting of a particular prosecution witness (or witnesses), or it may come about because of contradictions between prosecution witnesses. In this case, there were contradictions between the evidence given by various prosecution witnesses which created significant doubt about the respondent’s guilt. These contradictions, and the doubt they created about the respondent’s guilt, were highly unlikely to be remedied by any evidence which would have been presented on behalf of the respondent. It was therefore an appropriate case in which to give a Prasad direction. For these reasons, this ground of appeal must also fail.
Ground 12 of the appeal appears to contend that the magistrate should have made enquiries about the reasons for any delay in the proceedings and, in particular, should have determined that any delay was caused almost wholly by the respondent. However, I think a more relevant consideration is whether the magistrate was correct in having regard to delay when considering whether to make a Prasad ruling.
In considering whether to make a Prasad ruling, the magistrate referred to the following passage in Muller v Ebbw Vale Steel Iron & Coal Co Ltd,[18] where Branson J said:
It seems to me that it must be a matter for the judge who is to try the case to decide for himself whether, in the particular case before him, and having regard to all the circumstances of it, it is likely to save the litigants before him expense and time and trouble to deal with the case by way of ruling upon the submission without putting any terms upon counsel upon either side, or whether it is better to say: “In this case I think it would be desirable that before I rule I should hear the whole of the evidence”.[19]
The magistrate appears to have thought that this authority allowed (or required) him to consider “expense and time and trouble” to the parties when determining whether or not to make a Prasad ruling. In my view, this authority is unhelpful in the circumstances of this case because it was in the civil jurisdiction and is limited to consideration of whether or not a party should be required to elect not to call evidence before a submission that there is no case to answer can be entertained, rather than indicating what should be taken into account when considering whether to dismiss the case pursuant to a Prasad ruling.
[18] [1936] 2 All ER 1363.
[19] Muller v Ebbw Vale Steel Iron & Coal Co Ltd [1936] 2 All ER 1363, 1365-1366.
In my view, the only appropriate consideration when determining whether to make a Prasad ruling in the criminal jurisdiction is whether or not the evidence presented has proved the case beyond a reasonable doubt. For this reason, it appears that the magistrate has erred in taking into account delay (and also the length of the trial and the possible future expense). However, as there was insufficient evidence to prove the charges beyond a reasonable doubt, the decision to make a Prasad ruling was in fact correct. This appeal ground is therefore of no consequence.

The final ground of appeal is that the magistrate erred in finding that in order to convict the defendant, the court would have to rely upon part of the medical evidence and reject the other medical evidence. The magistrate said:
In order to convict the defendant, the court would have to rely upon one part of the medical evidence, along with the non-medical evidence, and in so doing, to reject the other medical evidence. In particular, it would be required to reject the evidence of Dr Richards, who saw the defendant more than all the other practitioners put together. It would also have to reject the evidence of Dr Woodruffe [sic].
In order to do so, the court would have to perceive some failing in their observations or reasoning or some lesser qualification than possessed by the other medical practitioners. There is no way that any court could do that in a case which requires satisfaction beyond reasonable doubt. Dr Richards was extremely experienced and the only witness currently working in the field of pain management. Dr Woodruffe [sic] was a Fellow of the Royal Australian College of Physicians and rheumatology was his specialty. Their opinions cannot be lightly discarded. There would have to be a compelling reason to discard such evidence. No such reasons emerge.
In my view, the magistrate was simply expressing his reasons for finding that the burden of proof had not been met. As already discussed, the evidence of Dr Woodruff and Dr Richards created doubt about the respondent’s guilt. In order to convict the respondent, there would need to be some reason to reject the evidence of these two doctors (as well as any other evidence which created doubt about the respondent’s guilt). The magistrate correctly found that there was no reason to reject the evidence of these two experts. As such, their evidence created doubt about the respondent’s guilt and, therefore, the prosecution failed to prove its case beyond a reasonable doubt. In my view there was no error in the magistrate’s reasoning or his remarks. Therefore, this ground of appeal must also fail.
Conclusion
For the above reasons, I dismiss the appeal.