Prasad v R [1994] HCA 2; (1994) 119 ALR 399; (1994) 68 ALJR 194 (10 February 1994)

HIGH COURT OF AUSTRALIA

NITENDRA PRASAD v. THE QUEEN
F.C. 94/003
Number of pages - 3

[1994] HCA 2; (1994) 68 ALJR 194

HIGH COURT OF AUSTRALIA
MASON CJ, BRENNAN, DEANE, DAWSON AND McHUGH JJ

CATCHWORDS

HEARING

CANBERRA, 10 February 1994
10:2:1994

ORDER

Application for special leave to appeal granted.

Appeal allowed.

Set aside the order of the Court of Criminal Appeal of the Supreme Court of Victoria refusing leave to appeal against conviction. In lieu thereof, order that leave to appeal to that Court be granted, the appeal to that Court be allowed, the applicant's conviction be quashed, and a new trial be held.

DECISION

MASON CJ, BRENNAN, DEANE, DAWSON AND McHUGH JJ The applicant was
presented before the Supreme Court of Victoria on a charge of murder
of Harmohan Singh who was fatally stabbed in Ascot Vale on 15 July
1990. He was convicted. He appealed to the Court of Criminal Appeal.
The Court of Criminal Appeal held that the learned trial judge had
failed to give the jury an adequate direction as to the effect of
the evidence of three boys who had been in the vicinity of the murder
at the approximate time when the deceased was fatally stabbed.
Despite the failure to give that direction, the Court dismissed the
application for leave to appeal by applying the proviso in s.568(1) of
the Crimes Act 1958 (Vic.).

2. Two of the boys saw two men in the vicinity together. The other boy, presumably at a different time, saw one man in the vicinity.
None specifically identified either the deceased or the applicant,
though the jury might have found that the descriptions given by the
boys were consistent with the two men being the applicant and
deceased. The Crown tendered the boys' evidence, together with
evidence of motive, movement, flight and false denial, to establish
that the applicant stabbed the deceased. On the basis of the boys'
evidence alone, it was open to the jury to find that the deceased was
one of the two men seen in the street and that he was in the company
of a person who, like the applicant, was known to him. However, the
boys' evidence alone was insufficient to establish that the applicant
was one of the men. Yet, in some parts of his charge to the jury,
the learned trial judge appears to have given a direction that the
applicant's presence in the street with the deceased could be found as
a fact on the evidence of the boys alone.

3. This direction appears from one of the ways in which his Honour described the Crown case to the jury ("it rests upon the boys'
evidence about the men seen going down Francis Street on the night in
question") coupled with his Honour's direction that the first step in
approaching this aspect of the Crown case was to find whether it was
the applicant and deceased who were together in the street. His
Honour, stressing the importance of this step, told the jury that it
"rests on the somewhat conflicting and uncertain evidence of the three
boys". If the jury found on that evidence that the applicant and the
deceased were together on the street then, the jury was directed, it
was open to them to infer guilt from that finding in the context of
the evidence of motive, opportunity and false denial - which his
Honour brought to the jury's attention.

4. In other parts of the charge his Honour seems to have accepted that the boys' evidence was extremely tenuous and was but one of the
pieces of evidence from which it was open to the jury to draw an
inference that the applicant and the deceased were together in the
street and also the ultimate inference of guilt. Nevertheless, the
earlier misdirection might have led the jury into an entirely false
line of reasoning. It is impossible to be satisfied that the jury
did not convict in reliance upon the direction that the fact of the
presence in the street together of the applicant and the deceased
could be found on the evidence of the boys alone. If the jury so
found and the finding was used as a foundation for the drawing of the
ultimate inference of guilt, there was a miscarriage of justice.

5. Although the Court of Criminal Appeal appreciated the applicant's complaint about the charge, their Honours did not correctly perceive
the significance of the error made. The Court of Criminal Appeal
perceived the error of the learned trial judge as being a mere
failure "to give a direction that no helpful inference as to guilt
could be drawn from the evidence" of two of the boys. The error
was in truth a positive misdirection. Once the misdirection is
identified, the possibility that the jury was led into a false line
of reasoning cannot be excluded. It is impossible to be satisfied
that the accused did not lose a reasonable opportunity of acquittal:
Mraz v. The Queen ((1) [1955] HCA 59; [1955] HCA 59; (1955) 93 CLR 493.).

6. The Court of Criminal Appeal was therefore in error in applying the proviso. Special leave must be granted, the appeal allowed and a
new trial ordered.