In a NSW jury trial, the jury decides the facts. The judge decides whether there is enough evidence for the jury to consider at all. If there isn’t, the judge can take the case away from the jury and direct a verdict of not guilty.
When it happens
The Crown goes first. Its witnesses give evidence-in-chief, are cross-examined by the defence, and may be re-examined. Once the Crown closes its case, the defence can ask the judge to rule that there is no case to answer. The jury is sent out while this is argued.
The test
The judge looks at the Crown’s evidence at its highest. This means assuming the jury accepts everything favourable to the prosecution. The question is whether that evidence could support a guilty verdict. If a key element of the offence has no supporting evidence, or the evidence is too weak to prove it, the judge must direct an acquittal. Whether the witnesses are believable is generally a matter for the jury, so a judge can’t direct an acquittal just because they doubt the Crown’s case. The reverse doesn’t apply either. A judge can never direct a jury to convict.
What the jury is told
The jury is told that the judge has ruled the evidence cannot establish the offence. Formally, the verdict still comes from the jury. The foreperson is asked whether they find the accused not guilty in line with the direction, and the answer follows. The jury doesn’t need to retire.
Acquittal versus “not guilty”
These are effectively the same thing. A not guilty verdict, including a directed one, is an acquittal. The accused is free to go and cannot normally be tried again for the same offence.
Can an acquittal be appealed?
Rarely. NSW allows a retrial after an acquittal only in limited serious cases, and only if it is in the interests of justice:
- Fresh and compelling evidence for offences carrying a maximum of life imprisonment.
- A tainted acquittal for offences carrying a maximum of 15 years or more, for example where the result was affected by interference with the trial.
If you are facing a criminal charge, get legal advice early. This article is general information, not legal advice.
