In What Circumstances Can a Judge Direct a Jury to Acquit the Defendant?

A judge who was presiding over the jury trial of a Victorian police officer this week has taken the decision regarding guilt or innocence away from the jurors, directing them to return an acquittal on all assault charges and thereby allowing the officer to avoid a criminal conviction.

Directed acquittal

Senior Constable David MacPhail of Victoria Police was on trial for recklessly causing injury and unlawful assault in relation to events that allegedly occurred in 2020.

But after all of the prosecution evidence had been presented in Victoria’s County Court, Judge John Smallwood came to the view that “no jury, properly instructed” could find the police officer guilty, and directed the jury panel to acquit the defendant.

Evidence before the court

The court heard that Senior Constable MacPhail and First Constable Mounsey attended the home of Kurwin Clarke in response to an emergency call, after the man had found his mother in her bedroom with self-inflicted stab wounds to her arm.

The officers were warned as they approached the home that the residence, in which Mr Clarke also resided, had been “flagged” with warnings for weapons, violence and self-harm.

Upon arrival, Senior Constable MacPhail was instructed by his sergeant to put Mr Clarke in handcuffs as he was “potentially witness to a serious, indictable offence”.

Mr Clarke struggled with police, resisting arrest because, in his words, “he had done nothing wrong.”

The officers then deployed pepper spray on the man, but it had no effect.

Officer McPhail then tried to kick Mr Clarke in the legs and thereby trip him and, while holding handcuffs in his right hand, the officer struck the man to the head.

While the senior constable’s fist did not appear to connect with Mr Clarke’s head, the handcuffs struck him causing two lacerations.

The prosecution submitted that Senior Constable MacPhail foresaw the probability that striking Mr Clarke to the head while holding handcuffs could cause injury, but he went ahead with his actions regardless, indifferent to the outcome.

After the close of the prosecution case, Judge Smallwood found there was “no dispute” the arrest of Mr Clarke was “lawful”, stating that the officers “carried out their duties impeccably in that scenario. That’s my personal view of it.”

He then directed the jury foreperson to return a verdict of acquittal.

In what circumstances can a judge direct an acquittal in a New South Wales jury trial?

 A judge presiding over a jury trial must direct the jurors to acquit the defendant if at the conclusion of the prosecution evidence the charge or any charges that are available has or have not been proved by the evidence.

To put this in the context of a jury trial, the prosecution is the first to present its case – which normally involves its witnesses taking the stand to give their ‘evidence in chief’ (whereby they are questioned by the prosecutor), followed by ‘cross-examination’ (whereby they are questioned by the defence) and may also involve ‘re-examination’ (whereby they are requestioned by the prosecutor regarding matters raised during cross examination).

Normally, the defence will then be given the opportunity to call any of its witnesses – including the defendant – and this will be followed by closing submissions by each party, the judge’s summing up of the case and legal directions to the jury regarding the law, and jury deliberations.

However, if after all prosecution witnesses have testified and the prosecutor closes his or her case, “there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty” the judge is required to direct the jury to acquit the defendant, meaning the defendant will not be convicted and will remain presumed innocent.

The prescribed form of a directed verdict in New South Wales is as follows:

‘Members of the jury, in your absence I have heard submissions concerning whether sufficient evidence had been led by the Crown that would entitle you to return a verdict of “guilty”. As a matter of law, I have concluded that the evidence given could not establish the essential ingredients of the offence.

The verdict must come from you, but you have no choice in the matter because of my ruling in law. You will not need to retire. I will simply say to the [foreman/forewoman]: “Do you, in accordance with my direction, find the accused ‘not guilty’ of [offence]?” and the [foreman/forewoman] will necessarily say “Yes”.’

What’s the difference between an acquittal and a verdict of ‘not guilty’.

As an alternative, a judge can order a verdict of ‘not guilty’.

While the practicalities for the defendant are the same (he or she walks free), the nuance between the two is that ‘not guilty’ means a defendant is not legally answerable for the criminal charge filed against him or her.

An acquittal is a finding by a judge or jury that a defendant is not guilty of the offence charged.

 Can an acquittal be appealed?

In New South Wales, there are a number of guidelines which outline the various considerations before an appeal against acquittal will be made.

If the appeal against acquittal is on the basis of a question of law alone, the Director of Public Prosecutions will only lodge an appeal if satisfied:

• The acquittal arose from an error involving a question of law alone;
• The Court would exercise its discretion in favour of ordering a retrial.

If the appeal against acquittal could give rise to a retrial, the Director of Public Prosecutions will only lodge an appeal seeking a retrial if satisfied:

• There is fresh and compelling evidence, in the case of an offence with a maximum penalty of life imprisonment.
• The acquittal is tainted, in the case of an offence with a maximum penalty of 15 years or more.
• The DPP will only make an application if a retrial would be in the interests of justice.