SUBMISSIONS OF NO CASE Lady Justice Hallett DBE and Dame Linda Dobbs DBE

Galbraith WLR 1039 There is no evidence that the crime alleged has been committed by the defendant. e.g., essential evidence not called/witness not come up to proof The Queen v Jahnoy Walters ECSC Crim - CASE NO. 5 of 2009 Daley v R - [1993] 4 All ER 86 (UKPC JA) FIRST TEST

SECOND TEST There is some evidence but it is of a tenuous nature, e.g. because of inherent weakness or inconsistency with other evidence. This involves assessment of quality and reliability of evidence rather than legal sufficiency.

SECOND TEST (contd.) The Prosecution evidence, taken at its highest, such that jury properly directed could not properly convict; there is a duty to stop the case. R v Shippey & Ors (1988) Crim. L. R 767 Sangit Chaitlal v The State (1985) 39 WIR 295; Kernel Sealey v The State Cr. App. No. 2 of 2009

SECOND TEST (contd.) The strength or weakness of prosecution evidence depends on view of matters generally within province of jury (e.g. witness’s reliability) and on one possible view there is evidence upon which jury could properly come to conclusion D is guilty; there is a duty to leave to the jury.

ASSESSMENT Do not usurp function of jury. Resist temptation to take into account:  Defence evidence which has not yet been called and potential defences.  Your view of reliability of the witnesses.

ASSESSMENT (contd.) Whether the witness is lying is a question for the jury. But there may be exceptional cases where inconsistencies in a witness’s evidence are so great that any reasonable tribunal would be forced to conclude that the witness is untruthful.

ASSESSMENT (contd.) This may (rarely) arise from the sheer improbability of what the witness says, from internal inconsistencies or from being a type which the accumulated experience of the courts has shown to be of doubtful value (e.g. in identification cases and some confession cases)

AUTHORITIES Riley v Barran WIR 164 (Phillips JA applying Parker CJ in Practice Note ([1962] 1 All ER 448): “Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.”

Turnbull 1977 QB 224 Identification cases If the quality of the visual ID evidence is poor and there is no other evidence to support it, the judge should stop the case. Supporting evidence does not need to be corroboration in strict sense.

McKenzie Cr App R 98 Confession cases Where: the prosecution case depends wholly on confession and the defendant suffered from significant degree of mental handicap and the confessions were unconvincing to a point where jury properly directed could not properly convict on them the judge should stop the case.

DPP v. Varlack (BVI) [2008] UKPC 56 Circumstantial Evidence Could a reasonable jury, properly directed, conclude so that sure D guilty? Could reasonable jury, on one view, properly draw the inferences contended for by P? It is not the judge’s concern that a guilty verdict may be set aside by CA as unsafe.

Judge must decide upon basis that jury will draw inferences reasonably open to them and favourable to P. The fact that one reasonable inference is consistent with innocence does not mean case must be stopped. Not function of judge to choose between inferences which are reasonably open to jury. (See CA in Varlack) DPP v. Varlack (BVI) [2008] UKPC 56 Circumstantial Evidence (Cntd.)

AUTHORITIES Malcolm Maduro v The Queen ECSC CA - HCRAP 2007/004 Where the case involves circumstantial evidence, the only concern of the judge is whether a reasonable jury could reach a conclusion of guilt on the evidence by drawing reasonable inferences from the evidence that is given at the trial. The question, then, is whether a reasonable jury may on one view of the evidence convict the accused. If so, even if another view of the circumstances thrown up on the evidence may be consistent with innocence, the judge should not withdraw the case from the jury.

TO REPEAT A submission should only succeed If there is no evidence to prove an essential element of the offence or If the evidence is so weak that no reasonable jury properly directed could convict. If there is some evidence which at face value establishes each essential element of offence, the case should normally continue before the jury.

PROCEDURE Timing of the submission Normally at end of Prosecution case. Exceptionally at the end of the defence case. Who should raise the issue? Normally the Defence responsibility. Exceptionally in the interests of justice, the judge may raise the issue.