15 / 9 / 2022

No Case Submissions

In some criminal hearings or trials charges are dismissed even before any defence evidence is called. For the prosecution to prove an offence has been committed after a not guilty plea they must present evidence which they say satisfies the ingredients of what makes up the charge.

At the end of that evidence, the judge or magistrate must determine whether there is ‘a case to answer’; that is, whether they think there is enough evidence for the alleged offence to be made out. The question that they have to ask themselves is ‘is there evidence for each element of the charge?’.

At this stage it is not a question of whether the evidence is enough to prove the offence beyond reasonable doubt, but a legal question as to whether the evidence is capable of supporting a finding of guilt which would allow for the prosecution to continue.

When there is not enough evidence (or the evidence is significantly weak) to prove an ingredient, the defence can make a submission that there is no case for the defendant to answer. Usually, the defence can make a no case submission in two scenarios (As outlined in R v Galbraith (1981) 73 Cr App R 124 (CA)):

  1. Where there is no evidence that the defendant is the person who committed the offence; and/or
  2. Where the evidence at its highest (i.e. at its best or before any problems in that evidence have been considered) is not enough to convict.

If the judge or magistrate agrees there is no case to answer, the charges will be dismissed and the defendant may be awarded costs. It is possible to have all or only some of the charges dismissed this way. If they find that there is a case to answer the hearing or trial will continue, allowing the defence to call a case and submissions to be made about the strength of the evidence before there is a decision made about whether the charges can be proved beyond reasonable doubt.

It is important to remember that the presence of only circumstantial evidence (i.e. evidence that does not directly link a defendant to a charge) is not enough to support a submission that there is no case to answer. What is crucial in a no case submission is whether the evidence is capable of supporting a guilty verdict, not whether it does support a guilty verdict. It is possible to be found guilty on a circumstantial case, however if the only evidence is circumstantial it will be more difficult for the prosecution prove the defendant’s guilt beyond reasonable doubt.

Priyanka Koci, Senior Lawyer