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What is a ‘No Case’ Submission?

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

A submission that there is ‘no case to answer’ by the defendant can be made in a contested criminal matter after the close of the prosecution case. A no case submission is made when the defence considers that the prosecution case does not support a finding of guilt and that the court should dismiss the charge without the defence having to present a case.  A ‘no case to answer’ submission will be successful where the prosecution case, taken at its highest, is insufficient to support a finding of guilt. A no case submission can be made in a contested hearing in a summary matter or in a trial in an indictable matter. The test to be applied is the same in both jurisdictions.

The test for a no case submission

The test for a no case submission is whether the evidence, taken at its highest, can support a verdict of guilty.

How does the court decide a no case submission?

A judge or magistrate assesses a no case submission by asking whether the prosecution evidence, when viewed in the most favourable light that is reasonably open to the court, could support a finding of guilty.

For the purpose of a ‘no case to answer’ submission, the prosecution evidence is assessed based on whether it supports a finding of guilt if accepted and:

  • Taken at its highest and strongest;
  • Even if it is tenuous, inherently weak or vague;
  • Unless it is inherently incredible, or
  • Unless it is manifestly self-contradictory or the product of a disorderly mind.

The judge or magistrate need not consider whether the accused ought to be found guilty but only whether the court could lawfully find the accused guilty.

What must the court consider?

When deciding a no case submission, the court must consider all the evidence called by the prosecution, including prosecution witnesses’ answers to cross-examination questions. The court does not have to consider evidence that contradicts or explains the prosecution case or evidence that supports the defence case. However, where expert evidence has already been called by the defence, it may be taken into account by the court. This may occur where the court has ordered that expert evidence be heard concurrently or consecutively.

When is a no case submission made?

A ‘no case to answer’ submission is made after the close of the prosecution case.

In a jury trial, a no case’submission is made when the jury is not in the courtroom. If the ‘no case’ submission succeeds, the jury is brought back into the courtroom and the judge directs the jury to find the accused not guilty. If the ‘no case’ submission fails, the defence then presents its case to the jury.

What if there is an appeal?

If a decision is appealed, the court of appeal will not consider whether the decision made on a ‘no case to answer’ submission was correct.  It will consider the evidence in its entirety, including the defence case and consider whether the evidence supported the verdict.

The test in an appeal against conviction is whether the verdict is ‘unsafe or unsatisfactory’,  which is different to the test in a no case submission.  A ‘no case’ submission will not succeed merely because a finding of guilt on the evidence adduced by the prosecution may be unsafe or unsatisfactory and may be overturned on appeal. A ‘no case’ submission should only succeed if the evidence could not reasonably support a finding of guilt.

If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Go To Court Lawyers.

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