Citation: R v Kuol Ngong Majok ADUP [2008] NSWDC 382
Court: District Court of New South Wales
Date: 27 November 2008
Judge(s): Cogswell SC DCJ
Background
The accused faced trial in the District Court on a charge of sexual assault. The complainant gave evidence and was cross-examined by defence counsel.
At the close of the Crown case, and in the absence of the jury, defence counsel applied for a Prasad direction. This is a direction by the trial judge inviting the jury to return a verdict of not guilty without hearing further evidence or submissions, based on perceived weakness in the Crown case.
The application rested on the submission that cross-examination had exposed significant inconsistencies between the complainant's evidence at trial and her earlier statements to police. Defence counsel argued that these inconsistencies, and potentially some contradictions with other Crown witnesses, rendered the Crown case insufficiently cogent to proceed.
Legal Issues
- Whether the trial judge should exercise discretion to give a Prasad direction following the close of the Crown case.
- Whether the inconsistencies exposed in cross-examination of the complainant were sufficient to justify such a direction.
Decision
Cogswell SC DCJ confirmed that the power to give a Prasad direction is entirely discretionary. Drawing on R v Pahuja (1987), the court noted that the typical occasion for giving such a direction in a sexual assault case is the genuine discrediting of the complainant, such as admitted lies, plain contradictions, or vacillations in the witness box.
The court also drew on R v Reardon [2002] NSWCCA 203, in which Simpson J (with Hodgson JA and Barr J agreeing) observed that giving a Prasad direction can carry an indirect suggestion to the jury that admissible evidence should be given little or no weight. A trial judge must tread a very fine line to avoid trespassing upon the jury's function in assessing evidence.
Cogswell SC DCJ declined to give the direction. His Honour accepted that inconsistencies existed, but considered them to be matters properly within the jury's province to weigh. He noted that the jury might reasonably conclude the inconsistencies arose from the difference between giving a police statement shortly after traumatic events and giving oral evidence approximately ten months later. In his Honour's view, there were legitimate arguments available on both sides as to whether the complainant's evidence should be accepted.
The court concluded it would be inappropriate to give a direction that might indirectly signal to the jury that the complainant's evidence deserved little or no weight, when that assessment remained a live question for the jury to resolve.
Orders Made
No orders were made in this decision.
Key Takeaways
- The power to give a Prasad direction is entirely a matter of judicial discretion, informed by the trial judge's assessment of the weight of the evidence against the particular accused.
- In sexual assault cases, the direction typically arises where the complainant has been genuinely discredited, for example by admitted lies, plain contradictions, or significant vacillations in the witness box.
- A Prasad direction carries the risk of indirectly suggesting to the jury that admissible evidence deserves little or no weight, placing the trial judge in a difficult position at the boundary of the jury's function.
- Where competing explanations for inconsistencies remain open, and the assessment of a complainant's credibility is genuinely live, the District Court here found those questions properly belong to the jury rather than being resolved by judicial direction.
- Inconsistencies between a witness's trial evidence and prior police statements do not automatically warrant a Prasad direction; the overall cogency of the Crown case and the reasons for any inconsistencies remain relevant considerations.
Legislation and Cases Referenced
Cases:
- Narendra Prasad (1979) 2 A Crim R 45 (the foundational authority for the direction)
- R v Pahuja (1987) 30 A Crim R 118
- R v Reardon [2002] NSWCCA 203
Legislation: No legislation was cited in this decision.