No Case to Answer - Assignment PDF

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No Case to Answer – Problem/ Solution Model answer Whether or not [ ] has a case to answer? The evidence identifying [ ] as someone causing a breach of the … if that is the case, then the Crown will have failed to discharge the evidential burden of proving [ ]’s allegedly criminal action, and, in accordance with the authorities of cases such as May v O’Sullivan (1955) 92 CLR 654 and Doney v The Queen (1990) 171 CLR 207, [ ] has’ no case to answer’ because there is insufficient evidence in law on which to convict. This is a separate question from whether or not there is sufficient evidence in practice to discharge the Crown’s ultimate burden beyond reasonable doubt. If this submission is unsuccessful, [ ] will still be allowed to lead evidence in his/her own defence as per the Evgeniou v The Queen (1964) 37 ALJR 508.  

No evidence is adduced on the essential material fact that […], so D is making a no case submission. The evidence adduced on the essential material fact that […], is […].

1. The test for a "no-case" submission is the same in a contested summary hearing as in a criminal trial. The court must determine whether, on the evidence available, the accused can lawfully be convicted. It is not necessary to consider the weight of evidence or whether he or she ought to be convicted (May v O’Sullivan (1955) 92 CLR 654; Doney v R (1990) 171 CLR 207; [1990] HCA 51). [I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty (Doney v R (1990) 171 CLR 207; [1990] HCA 51). 2. A judge assesses a "no-case" submission by taking the prosecution evidence (including the answers of prosecution witnesses to cross-examination) at its highest and by drawing all inferences that are the most favourable to the prosecution case that are reasonably open (Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410; Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323; R v Galbraith [1981] 2 All ER 1060). 3. Where the case depends on circumstantial evidence, the question is not whether the trial judge considers that there remains open a reasonable hypothesis consistent with innocence. Rather, the test is whether the jury could rationally conclude that any inference consistent with innocence is not reasonably open on the evidence (DPP v Iliopoulos [2016] VSC 132 at [8]-[9]). 4. The weight of evidence is purely a question for the jury. The judge is not called upon to determine whether he or she thinks that the accused should be convicted. The test is whether, as a question of law, a jury could lawfully find the accused guilty (May v O’Sullivan (1955) 92 CLR 654; Zanetti v Hill (1962) 108 CLR 433). 5. The judge must assume that the jury will accept the prosecution witnesses as credible and reliable. The assessment of witnesses is a matter for the jury and where, on one view of the evidence, the evidence demonstrates the accused’s guilt, a "no-case" submission must be rejected (Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410; R v Galbraith [1981] 2 All ER 1060). 6. At common law, the judge did not need to consider evidence that contradicts, qualifies or explains the prosecution’s case or that supports the accused’s case (R

v R (1989) 18 NSWLR 74). However, following the commencement of CPA 2009 s226(2), the judge may take into account any evidence from an expert witness which has already been called by the accused. This may occur where the judge orders under CPA 2009 s232A that expert evidence be given concurrently or consecutively (see 5.6.2 – Concurrent and consecutive expert evidence). 7. The test for a "no-case" submission is different to the test on appeal for whether a verdict is "unsafe or unsatisfactory". A judge on a "no case" submission must apply the test stated above and may not uphold the submission on the basis that any conviction is likely to be overturned on appeal as unsafe and unsatisfactory (Doney v R (1990) 171 CLR 207; [1990] HCA 51; Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410; c.f. M v R (1994) 181 CLR 487; [1994] HCA 63). 8. Courts on appeal will not inquire into the correctness of a decision on a "no-case" submission. The court will instead consider the whole of the evidence to determine whether the conviction was unsafe or unsatisfactory. This will include any evidence led by the accused in his or her defence. The court is not limited to deciding whether the evidence that was available at the close of the prosecution case was sufficient to support the verdict (R v Wood [1974] VR 117; R v Vasic (2005) 11 VR 380; [2005] VSCA 38; R v Barclay, Unreported, VSC CCA, 13 February 1985). 9. A no-case submission is not the time to raise defects in the drafting of the indictment. Such matters must be raised at the earliest opportunity as part of counsel’s obligation to assist the court and to identify issues of law and procedure as soon as possible after becoming aware of the issue (see CPA 2009 ss199, 200; Downer EDI Works Pty Ltd v R [2017] VSCA 27 at [34]-[41]; DPP v VibroPile (2016) 49 VR 676; [2016] VSCA 55 at [131]).

Tendency Evidence Tendency evidence- that is, evidence that a person has, in the past exhibited a tendency to behave in a certain way – is dealt with under the tendency rule provisions of s 97 of the UEA in civil cases in just the same way as it is in criminal trials. That is to say, it will not be admissible solely in order to prove that tendency, but only when it may prove to be of ‘significant’ probative value’ in the case for some other reason, and the party seeking to adduce it has given reasonable notice in writing of that fact. It was already established at common law that what might be called the established habits of relevant persons in civil cases could be the legitimate subject of what was then called similar fact evidence. In Joy v Philips, Mills and Co, for example, evidence was admitted, in a case concerned with the cause of death of a stable boy, of his habit of teasing the horses, while in Eichsteadt v Lahrs the court was told that a cyclist who had died in a road accident at the foot of a hill was in the habit of walking his cycle down that particular hill. In cases such as this, implied use is made of the presumption of continuance, under which, in the absence of any rebutting evidence, it will be assumed that a person continued the habit that they are shown to have followed. Precisely the same line of logic was pursued by the Full Federal Court in respect of s 97 in Jacara Pty Ltd v Perpetual Trustees WA Ltd, a case in which prospective tenants of a shopping centre kiosk claimed to have been misled by representations made to them by the landlord’s agent, where those representations were held to be relevant to their case to adduce evidence of similar misrepresentations having been made to other prospective tenants. However, the evidence was rejected under s 7 because the accounts given by the various witnesses of the representations made to them were so different in nature that it could not be said that their evidence was of significant probative value in the case. In the present case, [ 으로 했는지]

] had been in the dangerous habit - ……[누가 어떠한 행동을 습관적

Therefore, its relevance/ irrelevance to the case in hand.

Coincidence evidence The issue in the given fact involves what is known as coincidence evidence, which in a criminal trial, is evidence that reveals that on some occasion other than the one on trial the accused has committed an act, acts similar in nature to the one now alleged against them. In particular, goes the theory, it defies coincidence that [ 누가 어떠한 행동을 했는지] S 98 of the UEA which required that before the evidence may admitted under the coincidence rule, it must be so similar in its detail that is cannot be dismissed as mere coincidence. It must possess significant probative value.

Hearsay 1. The oral evidence from [ ] is essentially the statement of [ 누군가 ], and may well be admissible under s 63 of UEA as a first hand hearsay statement by him/her that was heard by [ ]. It is of course, an implied assertion [ 사건에 대한 진술 ]. However, the plaintiffs will need to notify the defendant under s 67 of the UEA of their intention to adduce the statement, and the intensity of the likely challenge to its credibility by the defendant might serve to have it excluded Under s 136 of the UEA. 2. The evidence here coms directly from what [ ] observed for himself, and may also be admissible under s 63. However, the plaintiffs will need to justify [ ]’s unavailability as a witness, and will be required to give the same s 67 notice. [ ]’s evidence may also be challenged under ss 108A, 135 and 136 of the UEA. Additionally, it may be challenged as mere opinion so far as concerns the [ 사건의 진실 ] 3. the real evidence is what [ ] heard from [ 누군가] and essentially this was an admission by him/her that he/ she was not properly accredited to be [ 어떠한 행동] this is information that, it may be reasonably supposed, was known to him personally, and is all the more relievable because it was against his interest to admit it. As such, it constitute an admission, which is exempted under s 81 of the UEA, from the normal operation of the hearsay rule. Hearsay exception 1. FOR A CRIMINAL TRIAL (Documentary Hearsay)… a. WARNING: applies to criminal cases only!!! b. Documentary hearsay evidence in a criminal trial may be admissible under s 93 QEA where: i. There is a statement; and 1. Defined in Schedule 3 to include: “any representation of fact, whether made in words or otherwise and whether made by a person, computer or otherwise.” ii. In a “document”; and 1. The definition of ‘document’ in the QEA is very wide and would fall within para (?) of the definition in Sch 3. 2. Document includes: (Sch 3 QEA) a. A document in writing b. Any part of a document (a)

iii.

iv.

v.

vi.

c. Book, map, plan, graph, drawing (b) d. Photograph (c) e. Label, marking, any writing that identifies or describes something (d) f. Disc, tape, sound track, any sound recording (e) i. Note: also real evidence (Butera). g. Film, negative, tape, any video recording (f) i. Note: also real evidence (Sitek). h. Catchall: any record of information whatever (g). Oral evidence of the fact would be admissible; and 1. If [document maker] was around to provide evidence about [facts] this would be admissible because it is relevant to [fact in issue]. The record was made in the course of trade or business (s 93(1)(a)); and 1. business includes any public transport, public utility or similar undertaking carried on in Queensland or elsewhere by the Crown (in right of the State of Queensland or any other right) or a statutory body (s 93(2)). Information was supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied (s 93(1)(a)); and 1. A statement is made in a document if it is: s 92(4)(?) QEA a. (a) Written, made, dictated or produced; b. (b) Recorded with the person’s knowledge; c. (c) Recorded in the course of and ancillary to a proceeding; or d. (d) Recognised as the person’s statement by their signature or initialling. The source of the information is not available (s 93(1)(b)): 1. source is dead or unfit due to bodily or mental condition (s 93(1)(b)(i)); or 2. source is out of the state and it is not reasonably practicable to secure their attendance (s 93(1)(b)(ii)); or 3. source cannot, with reasonable diligence, be found or identified (s 93(1)(b)(iii)); or 4. source can not reasonably be supposed (having regard to the time which has lapsed since the person supplied the information and to all the circumstances)

to have any recollection of the matters dealt with in the information the person supplied (s 93(1)(b)(iv)). a. this provision is particularly relevant for doctors, police, person with many clients etc. c. Conclusion: is the evidence admissible under s 93 QEA? ii. If dealing with oral OR documentary evidence… 1. WARNING: Applies to CRIMINAL trials ONLY!!! 2. Hearsay evidence may be admissible under s 93B QEA where: a. The proceeding is a prescribed criminal proceeding (s 93B(1)); and i. Homicide, suicide, concealment of birth, offences endangering life or health (GBH, bodily harm, torture), assaults (common assault, assault occasioning bodily harm and serious assault), rape and sexual assaults (s 93B(5) QEA). b. Person has personal knowledge of an asserted fact; and i. Must have personal knowledge of the asserted fact 1. Asserted fact is the thing that the truth of the statement is going to prove a. In McGrane, the asserted fact was that the doctor had drugged her. 2. State what the asserted fact is. ii. Ie can make the representation personally or through an agent (even as an alter ego to avoid embarrassment) (R v McGrane) c. Person makes a representation; and i. Representation defined in s 93B(5)(?) to include: 1. (a) an express or implied representation, whether oral or 2. written; and 3. (b) a representation to be inferred from conduct; and 4. (c) a representation not intended by the person making it to be communicated to or seen by another person; and 5. (d) a representation that for any reason is not communicated. d. Person who made representation is unavailable (s 93B(1) (b)); and i. Only by reason of the person being dead or mentally or physically incapable of giving the evidence. i.e. doesn’t apply to out-of-state people etc. e. And one of the following applies: i. The representation was made shortly after the asserted fact, and unlikely to be fabricated (s 93B(2)(a)); or 1. The onus is on the prosecution to show in a positive way that it is unlikely that the representation was fabricated and that the standard of proof is on the balance of probabilities (R v Martin [2009] per Bradley DCJ @ [29]). ii. Highly likely that the representation is reliable (s 93B(2)(b)); or

1. If witness’s evidence goes to a central question of fact = more likely to admit (Lester @ [30]) 2. Even if predisposed against the accused, if doesn’t outweight the evidence’s probative value = more likely to admit (Lester @ [30]) 3. No internal inconsistencies either with statement or other evidence = more likely to admit (Lester @ [30]) iii. Representation was made against the interests of the person who made it (s 93B(2)(c)). 3. Conclusion: is the hearsay evidence admissible under s 93B? 4. Note: A party to the proceeding can request the court to give the following warnings to the jury: (s 93C(2)) a. Hearsay evidence may be unreliable (s 93C(2)(a)); and b. Matters that may cause the hearsay evidence to be unreliable (s 93C(2)(b)); and c. Warn the jury of the need for caution in deciding whether to accept hearsay evidence, and its weight (s 93C(2)(c)). 5. Note: still a general discretion to exclude evidence if either unfair, or under s 130 QEA (R v Burke [2009] per Bradley DCJ @ [25] a. But the mere fact that the person making the representations cannot be cross-examined, and indeed could not be cross-examined at committal, could not in itself be a sufficient reason for excluding evidence admissible under s 93B under s 130 (Higgins)....