A no-case submission is made at the close of the prosecution case, before the accused decides whether to call evidence.
The submission
A no-case submission may put either or both of two things —
That there is no evidence on an essential element of the offence charged. That is a question of law: if an element is unsupported by any evidence, the accused must be acquitted.
That the evidence is so lacking in weight or reliability that no tribunal properly instructed could safely convict on it. That engages the Court’s assessment of the material as a whole.
On the first, the accused is entitled to an acquittal. On the second, the Court is exercising a judgement about whether the case should go further, and may allow the case to continue even though the evidence is thin.
Frame the submission accordingly. Identify each element of the count, and say against each whether the complaint is no evidence or insufficient evidence.
Order 7 Rule 7(4)
Under Order 7 Division 4 of the Criminal Practice Rules 2022, where the State has conveyed an intention to offer no evidence, the matter is set down for trial and an indictment shall be presented and the accused shall be arraigned; on a not guilty plea the prosecutor shall formally notify the Court that no evidence is offered, giving brief reasons.
If the Court considers the State’s approach acceptable, it shall ask the defence counsel for their response and in the event that a no-case submission is made, the Court shall hear and determine that submission forthwith and make such orders as are necessary or appropriate, including entering a verdict of not guilty.
The rule contemplates the submission being heard and determined immediately and, where it succeeds, a verdict of not guilty being entered — not a discharge or a withdrawal.
That matters: a verdict of not guilty engages Order 10 Rule 1, so the order in Form 61 records that the accused is discharged from the charge under section 591 of the Criminal Code Act (Chapter 262), is released from custody and discharged from bail obligations, and that any cash bail or other surety is refunded. A certificate of acquittal and discharge may be requested in Form 62 and issued in Form 63.
The Rules do not prescribe a separate procedure for the ordinary no-case submission at the close of the State’s case. It is made orally, in accordance with the general practice of the Court.
Order 1 Rule 8(1) supplies the general answer where a procedure is not prescribed: a person may apply to a Judge for directions; and by Rule 8(2) a Judge may at any time, with or without application, give such directions for the fair and expeditious conduct of a case as are considered necessary or desirable in the interests of justice.
Three other challenges
| Challenge | When | What it says |
|---|---|---|
| Application to quash the indictment — O 2 r 17 | After presentation and before pleading | The indictment is defective — ss 534(2), 558 of the Code |
| Demurrer — O 2 r 18 | After presentation and before pleading | Even if everything alleged is true, it discloses no offence — s 567 |
| No-case submission | Close of the prosecution case | The evidence does not support a case to answer |
| Stay for abuse of process | Any stage | A fair trial is not possible, or the process is being misused |
A demurrer and an application to quash must both be made after presentation of the indictment or information, and before pleading to the charge. Once the plea is entered, those doors have closed — see arraignment.
Conversely, a no-case submission cannot be made before evidence has been called, because it depends on the evidence actually led.
Practical points
- Take each count separately. Charges are described as Counts and numbered consecutively under Order 2 Rule 15, and a submission may succeed on one and fail on another. Order 10 Rule 1 requires the verdict to be recorded in respect of each charge.
- Deal with alternatives. Where an alternative charge is pleaded it must clearly indicate the count in respect of which it is an alternative. A submission on the principal count should address the alternative too.
- Account for admissions. Facts admitted under section 589 of the Code, in Form 36 or orally with leave, are part of the evidence against the accused.
- Account for evidence excluded on the voir dire. If contentious evidence was rejected after a separate hearing within the trial under Order 8 Rule 6, the submission is made on what remains.
- Consider what follows a refusal. If the submission fails, the accused must decide whether to give or call evidence — a question the defence pre-trial statement in Form 25 will already have addressed under Order 6 Rule 4(c), whether it is likely that the accused will give evidence.
A verdict of not guilty is entered and the accused is discharged. Under Order 10 Division 6 the file is then closed.
Where the acquittal is on account of unsoundness of mind or insanity, Order 10 Rule 5 requires the Court to make such findings and orders as are necessary in accordance with ss 590 and 592 of the Code and Order 9 of the Rules.
Sources
- Criminal Practice Rules 2022 — O 1 r 8; O 2 rr 15, 17, 18; O 6 r 4; O 7 Div 4; O 8 rr 1, 6; O 9; O 10 rr 1, 4, 5, Div 6; Forms 25, 36, 61–63
- Criminal Code Act (Chapter 262) — ss 534(2), 558, 567, 589, 590–592
The Criminal Practice Rules 2022 do not prescribe a procedure for a no-case submission made at the close of the prosecution case in the ordinary course; the express reference in Order 7 Rule 7(4) arises where the State offers no evidence. The general practice of the Court governs otherwise.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.