Domestic Violence

High Court overturns long-standing Prasad direction

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A recent decision in the High Court of Australia has overturned what is known as a Prasad direction, a principle which has been applied in criminal cases since 1972. The principle is named after the case of R v Prasad (1979) 23 SASR 161, a South Australian decision which has been adopted by New South Wales Courts.

What is a Prasad direction?

In a criminal matter, at the conclusion of the Prosecution’s evidence in chief, the Judge may give a direction to the jury that if they believe that the evidence they have heard is not sufficient to support a conviction, it is open to them to stop the trial and enter a verdict of not guilty. If there is direct evidence which is capable of proving the charge, it is not open to the Judge to give a Prasad direction, regardless of the Judge’s perception of the strength of the evidence.

If the Judge chooses to give a Prasad direction, the Judge should tell the jury that it is open to them to bring in a verdict of not guilty at the conclusion of the Prosecution’s evidence or at any time during the trial, however they must be unanimously convinced that the evidence is insufficient.

Is a Prasad direction still available?

Following the decision of the High Court on 20 March 2019, Prasad directions are no longer available. The unanimous decision in the matter of Director of Public Prosecutions (DPP) Reference No 1 of 2017, Re [2019] HCA 9 held that a Prasad direction is contrary to the law and should not be given to a jury during a criminal trial. The Court held that for a judge to invite a jury to stop a trial without hearing the totality of the evidence and without understanding the application of the law to the facts was not only inconsistent with the division of the roles of judge and jury, it was akin to inviting the jury to decide a matter from a position of ignorance. A jury no longer has a common law right to return a verdict of not guilty at or after the close of the Prosecution’s case.

If you have any questions or for further information contact:

Luisa Gaetani
Senior Lawyer
luisa@couttslegal.com.au
02 4607 2112

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

The New Strangulation Laws in NSW

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According to the Australian Bureau of Statistics, between 80 to 100 Australian women die each year at the hands of their male partners. In domestic violence situations, strangulation is considered as a red flag for serious future violence and can even be an indicator for a future fatal incident. NSW’s homicide statistics show that a quarter of all murder victims had previously been a victim of strangulation prior to their death. Research has shown that women who have previously been strangled by their partner are 8 times more likely to be killed by that partner.

Strangulation is currently an offence under section 37 of the Crimes Act NSW 1900. However, the current offence requires that the victim be strangled to the point of losing consciousness, or until they are rendered incapable of resisting and that the perpetrator is reckless as to rendering the victim unconscious or unable to resist. Not only does this create an impossible burden of proof on the Prosecution, it does not capture the majority of strangulation offences that occur in domestic violence situations. When strangulation occurs in domestic violence situations, it is not necessarily done with the intention of rendering the victim unconscious, and therefore an offence under this section is unlikely to be proven. In instances where an offence of strangulation cannot be proven, a lesser charge of assault is pursued by the Prosecution, which carries a maximum penalty of 2 years imprisonment.

In an increased focus on domestic violence, the NSW Government has introduced the Crimes Legislation Amendment Bill 2018 to Parliament to create a new offence of intentionally choking, suffocating or strangling a person without consent. The offence will be punishable by a maximum term of 5 years imprisonment. It is intended that the removal of the requirement that the victim be rendered unconscious or unable to resist and captures domestic violence situations whereby the victim is strangled in an attempt to control, coerce or intimidate the victim. It also more accurately reflects the severity of the crime. 

If you have been charged with a Domestic Violence offence, contact our Criminal Law Team on (02) 4647 7577 or alternatively, on our 24 hour hotline, (02) 8324 7527. If you have any questions or for further information contact:

Luisa Gaetani
Senior Lawyer
luisa@couttslegal.com.au
02 4607 2112

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.