The Director of Public Prosecutions (NSW) v Richard Christopher Mikhael & Ors

1. [1]

   The Director for Public Prosecutions (NSW) (hereinafter, “DPP”) appeals against the judgment delivered by Magistrate Viney in the Local Court on 18 August 2014. In those summary proceedings, following a Prasad direction, the Magistrate issued a verdict of not guilty and dismissed the charges against the first defendant.

2. [2]

   The appeal is brought under s 56(1)(c) of the Crimes (Appeal and Review) Act 2001. That provision gives a prosecutor the right to appeal against an order dismissing a matter that is the subject of summary proceedings. As a consequence, leave to appeal is not required.

3. [3]

   On 14 May 2015, the Court issued orders, the effect of which granted the appeal sought by the DPP, set aside the orders of the Local Court of 18 August 2014 and remitted the proceedings to the Local Court to be heard before a different Magistrate.

4. [4]

   The Court reserved its reasons for judgment. These are those reasons.

Facts

1. [5]

   On 11 February 2014, the first defendant (hereinafter, the defendant) was charged with two offences of intentionally causing fire and being reckless as to its spread, contrary to s 203E(1) of the Crimes Act 1900. The defendant pleaded not guilty to those offences.

2. [6]

   The Crown alleges that the defendant intentionally lit two fires on the western side of the Old Pacific Highway in Cowan. In order to prove the offences, the Crown relies upon the following evidence: statements of witnesses who observed the defendant in the vicinity of the fires and acting suspiciously by attempting to conceal himself in a ditch; a report by an expert fire investigator that the fires were deliberately lit by a cigarette lighter or a similar device; two cigarette lighters found in the possession of the defendant; and the defendant’s acceptance of the proposition, during his interview with police, that he may have lit the fires. The Crown accepts that this evidence is circumstantial.

Proceedings in the Local Court

1. [7]

   On 18 August 2014, the matter was heard by Magistrate Viney at the Local Court in North Sydney.

2. [8]

   During an initial exchange with the Magistrate, the legal representative for the defendant, Mr Gooley, stated that the only issue in dispute in the proceedings was whether the defendant was capable of forming the requisite intention to cause the fire, as he was “highly affected” by drugs.

3. [9]

   The Crown case proceeded by way of a hand-up brief, that is, the police prosecutor adduced the police brief of evidence, including all witness statements and a transcript of the record of interview. The police brief of evidence was admitted without objection and no witnesses were called to give oral evidence for the Crown.

4. [10]

   The Magistrate retired to read the police brief of evidence. When she returned to the bench, the following exchange occurred between her Honour and Mr Gooley:

5. [11]

   Mr Gooley submitted in relation to a prima facie case (also known as no case to answer) that the evidence, particularly the transcript of the record of interview, did not establish that the defendant intended to cause the fire.

6. [12]

   The police prosecutor submitted that the evidence, taken at its highest, proved that the defendant was the only person in the vicinity of the fires and that he had the means to light a fire. The police prosecutor further submitted that the fact that the defendant was hiding from the Fire Brigade suggested he had a guilty mind.

7. [13]

   The Magistrate proceeded to deliver an ex tempore judgment on the issue of whether there was a prima facie case. Her Honour concluded the judgment by stating:

8. [14]

   Following the Magistrate’s judgment on the Crown’s establishment of prima facie case, Mr Gooley thanked her Honour. The Magistrate then immediately continued:

Prasad Directions

1. [15]

   A Prasad direction is a direction to the jury that at any time, after the close of the Crown case, they may find the evidence is insufficiently cogent to justify a conviction and may return a verdict of not guilty: R v Prasad (1979) 23 SASR 16; (1979) 2 A Crim R 45 at 47; R v Pahuja (1987) 49 SASR 191; (1987) 30 Crim R 118 at 128. In essence, a Prasad direction informs the jury of their power to acquit without hearing the evidence of the defence.

2. [16]

   It is entirely within a judge’s discretion whether to give a Prasad direction: R v Reardon [2002] NSWCCA 203; (2002) 186 FLR 1 at 32-33. Nevertheless, such a direction must be used sparingly and only when the judge considers that the evidence, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty: R v Pahuja at 128. A Prasad direction must not be given merely because a judge considers that the Crown case against an accused is not very strong, as a direction upon such a consideration would usurp the role of the jury as the finder of fact: Dean v R (1995) 65 SASR 234 at 239.

3. [17]

   A Prasad direction must be distinguished from other directions which an accused may seek at the close of the Crown’s case, particularly a direction that there is no case to answer, or no prima facie case, as it was referred to in the current proceedings. A no case to answer direction is a direction to the jury to acquit the accused as the Crown evidence, taken at its highest, is incapable of supporting a guilty verdict at law: R v Doney [1990] HCA 51; (1990) 171 CLR 207 at 214-215. Clearly, a no case to answer direction is more advantageous to an accused as it compels the jury to acquit.

4. [18]

   A Prasad direction may be given during a summary proceeding. As King CJ held in R v Prasad at 47-48:

5. [19]

   In such a situation, the Magistrate must provide adequate reasons for the decision on whether to dismiss the case against the accused. In particular, a Magistrate must refer to the proper principles on Prasad directions, most importantly that a Prasad direction should only be given sparingly: Director of Public Prosecutions (Cth) v Alexandra Acevedo [2009] NSWSC 653 at [43]; Director of Public Prosecutions (NSW) v Ali Elskaf [2012] NSWSC 21 at [48].

Consideration

1. [20]

   In these proceedings, the DPP contended that the Magistrate erred by giving herself a Prasad direction and then dismissing the case against the defendant. In their written submissions, the DPP put forward three separate errors in relation to her Honour’s Prasad direction and dismissal of the case:

2. [21]

   In relation to the first ground of appeal, namely that the Magistrate denied the prosecutor procedural fairness, it is axiomatic that before a Prasad direction is given the Crown should be afforded an opportunity to make submissions opposing that direction. The opportunity to make submissions lies at the heart of natural justice, particularly in circumstances, such as a Prasad direction, that may result in the case against the accused being dismissed.

3. [22]

   The usual procedure for a Prasad direction is that the accused requests the direction. If the accused were being tried by a jury, he or she will make the request in the absence of the jury. The Crown is thereby put on notice that the accused is seeking a Prasad direction and it may make submissions as to why the evidence is sufficient for a conviction. The judge will hear these submissions before considering whether to give the direction.

4. [23]

   However, in all trials (whether or not involving a jury) the judge may consider a Prasad direction if they form a preliminary view that the evidence is insufficiently cogent for a conviction. In such situations, it is fundamental to the precepts of procedural fairness that the judge notifies the parties that the judge is considering giving himself or herself a Prasad direction and invites the parties, particularly the Crown, to make submissions.

5. [24]

   In the current proceedings, at the close of the prosecution case the Magistrate asked Mr Gooley if he wanted to make submissions in relation to whether the accused had a case to answer. Following Mr Gooley’s submissions, the police prosecutor made submissions in reply. The Magistrate then delivered an ex tempore judgment, ruling that “prima facie there is evidence of each element of the offence”. Her Honour proceeded, almost without interruption, to “direct [her]self pursuant to a Prasad direction” and ruled that the evidence was “not enough” to convict the defendant.

6. [25]

   The fact that the Magistrate ruled successively on whether there was no case to answer and on whether to give a Prasad direction demonstrates that her Honour conflated two distinct concepts. As stated earlier in these reasons for judgment, a Prasad direction is different from a direction that an accused has no case to answer. The latter arises in the situation where the judge determines that the evidence is incapable of supporting a conviction at law and, in a summary trial, acquits, or otherwise directs the jury to return a verdict of not guilty. The former arises in the situation where the judge forms the opinion that the Crown evidence is insufficiently cogent and informs the jury of their right to acquit the accused at any time after the close of the Crown case. As Gleeson CJ held in Antoun v R [2006] HCA 2; (2006) 159 A Crim R 513 at [16]:

7. [26]

   By ruling successively on the no case to answer and Prasad directions, the Magistrate failed to afford the Crown procedural fairness and therefore I allow this ground of appeal.

8. [27]

   As the first ground of appeal has been made out, it is unnecessary to deal with the other grounds. However, I note that a judge is required to provide adequate reasons for his or her decision to give a Prasad direction and dismiss a case. A failure to provide adequate reasons constitutes an error of law: see Fullerton J’s summary of the relevant principles surrounding the adequacy of reasons in Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28 at [44]. I further note that, as King CJ stated in R v Pahuja at 128, Prasad directions should be used “sparingly” and only when the evidence is insufficiently cogent to justify a conviction.

9. [28]

   For foregoing reasons, I made the orders on 14 May 2015 in the following terms:

   1. (1)

      Appeal allowed;

   2. (2)

      The orders of LCM Viney made on 18 August 2014 at North Sydney Local Court dismissing proceedings against the first defendant are set aside;

   3. (3)

      The proceedings are remitted to the Local Court to be heard by a different Magistrate.