Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO 1 OF 2017

Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9 20 March 2019 M129/2018

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Victoria made on 23 March 2018 answering the point of law raised for consideration pursuant to s 308 of the Criminal Procedure Act 2009 (Vic), and in lieu thereof answer the point of law as follows:

"The direction commonly referred to as the 'Prasad direction' is contrary to law and should not be administered to a jury determining a criminal trial between the Crown and an accused person."

3. The Director of Public Prosecutions (Vic) is to pay the reasonable costs of the acquitted person.

On appeal from the Supreme Court of Victoria

Representation

K E Judd QC with D I Piekusis for the appellant (instructed by Office of Public Prosecutions Victoria)

O P Holdenson QC with J P O'Connor for the acquitted person (instructed by James Dowsley & Associates)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Director of Public Prosecutions Reference No 1 of 2017

Criminal practice – Trial – Jury directions – Prasad direction – Where accused charged with murder – Where Prasad direction given over objection at close of Crown case – Where another Prasad direction given at close of defence case – Whether Prasad direction contrary to law and should not be administered to jury determining criminal trial.

Criminal practice – Jury – Reserve jurors – Where one of 13 jurors balloted off to consider response to Prasad direction – Where jury wished to hear more – Where juror balloted off re‑joined jury – Where second ballot conducted to reduce jury to 12 jurors again – Where jury delivered verdicts of not guilty of murder and not guilty of manslaughter after second ballot – Whether ballot conducted at time at which "jury required to retire to consider its verdict".