Acquittal — directed

[2-050] Introduction

Last reviewed: June 2023

The trial judge has a duty to direct an acquittal if at the conclusion of the prosecution evidence the charge or any available charge has not been proved by the evidence. The trial judge has no power to direct a verdict merely because he or she has formed the view that a guilty verdict would be unsafe or unsatisfactory: R v R (1989) 18 NSWLR 74. A verdict of not guilty may be directed only if “there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty”: Doney v R (1990) 171 CLR 207 at 214–215; LK v The Queen (2010) 241 CLR 177 at [29].

If a directed acquittal is being ordered in relation to only some accused persons or counts and the jury consists of more than 12 jurors immediately before the delivery of the directed acquittal(s), a ballot must be conducted in accordance with s 55G Jury Act 1977 to select a verdict jury to deliver the directed acquittal(s) (with the excluded jurors remaining in court but sitting out of the jury box). An order must then be made that the excluded jurors re-join the jury (and return to the jury box) for the continuation of the trial in respect of the accused person(s) or counts (as the case may be) that have not yet been the subject of a verdict in accordance with s 55G(5)(a) Jury Act.

As to the power of the judge to direct a verdict: see generally Criminal Practice and Procedure NSW at [7-525].

It had been customary for the trial judge to give the jury some explanation for requiring the foreperson to give a verdict at the trial judge’s direction. But as there is now an appeal available to the Crown against a directed verdict of acquittal on a ground that “involves a question of law” pursuant to s 107 Crimes (Appeal and Review) Act 2001, full reasons should be given by the judge for the decision to direct an acquittal so that the decision can be subject to consideration by the Court of Criminal Appeal. For an example of an appeal against a directed verdict: see R v PL [2009] NSWCCA 256.

[2-060] Suggested direction — directed acquittal

Last reviewed: June 2023

Note The suggested direction does not require that full reasons be given to the jury at the time of requiring the directed verdict be given. But as explained above, such reasons must be given at the time of directing the verdict or shortly thereafter as the Crown has 28 days following the verdict in which to lodge an appeal against the decision.

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”.