Dodd, Regina v [1971] PGSC 17; [1971-72] PNGLR 255 (7 July 1970)

Papua New Guinea Law Reports - 1971-72

[1971-72] PNGLR 255 - Regina v Dodd

[1971-72] PNGLR 255

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

DODD

Rabaul

Kelly J

1-3 July 1970

6-7 July 1970

CRIMINAL LAW - Evidence - No case to answer - Discretion to acquit despite case to answer.

On a submission of no case to answer in a criminal trial the test is whether on the evidence as it stands the accused could lawfully be convicted.

May v. O’Sullivan [1995] HCA 38; (1955), 92 C.L.R. 654 applied.

However, even where there is a case to answer, the trial judge may, if of the opinion that such evidence is insufficient to establish guilt beyond reasonable doubt, indicate that he does not wish to hear evidence from the defence and thereupon acquit the accused.

Benney v. Dowling[1959] VicRp 41; , [1959] V.R. 237 followed.

Criminal Trial.

Raymond Bert Dodd was charged with unlawful assault. At the close of the Crown case, counsel for the defence submitted that the accused had no case to answer and alternatively that even if there were a case to answer the trial judge should nevertheless acquit the accused at that stage. The report relates only to his Honour’s discussion of the legal effect of these submissions.

Counsel:

Waight, for the Crown.

E. Pratt, for the accused.

7 July 1970

KELLY J:  Mr. Pratt submits that the Crown has not made out a case against the accused and, alternatively, that even if I should hold there is a case to answer I should nevertheless acquit the accused at this stage without requiring to hear any evidence for the defence.

On a submission of no case to answer, the test is whether on the evidence as it stands, the accused could lawfully be convicted and this is a question of law, May v. O’Sullivan[ccxcix]¹. However, in Benney v. Dowling[ccc]², O’Bryan J. expressed the view that there was nothing said in May v. O’Sullivan[ccci]³ which would prevent what he referred to as “the common practice” being followed that even where as a matter of law the evidence as it stands might justify a conviction, nevertheless the jury might, very often at the suggestion of the trial judge, indicate that it did not require to hear evidence for the defence and acquit at that stage. To my mind there is nothing inconsistent between the proposition for which May v. O’Sullivan[cccii]⁴ is authority and the practice referred to in Benney v. Dowling[ccciii]⁵, and so far as I can see there is nothing in The Criminal Code which would prevent that practice being followed in appropriate cases under the Code.

The application of the practice in this Territory where I sit as a judge without a jury is not really difficult. Even if as a matter of law I were to hold that there is evidence on which the accused could lawfully be convicted I might nevertheless as the tribunal of fact form the view on the evidence as it stands that I could not be satisfied beyond reasonable doubt of the guilt of the accused and, if this were so, I would be justified in the exercise of my discretion in indicating that I did not wish to hear evidence for the defence and to then and there acquit the accused. I do not think it is necessary to consider in detail the circumstances in which such a discretion might be exercised in favour of the accused, but certainly if at the end of the Crown case after hearing submissions from counsel I were to reach the clear view that on the Crown case it was not possible for me to be satisfied beyond reasonable doubt of the guilt of the accused there would be no reason why I should not then and there acquit.

It now becomes necessary to apply these principles to the evidence as it stands in order to determine (1) whether there is evidence on which the accused could lawfully be convicted and (2) if so, whether I would nonetheless be justified in acquitting the accused at this stage.

[His Honour then considered the evidence, rejected the first but accepted the second submission made on behalf of the accused and returned a verdict of not guilty.]

Verdict: Not Guilty.

Solicitor for the Crown: P. J. Clay, Acting Crown Solicitor.

Solicitor for the accused: Craig Kirke & Pratt.

R>

[ccxcix](1955) 92 C.L.R. 654.

[ccc][1959] V.R. 237.

[ccci][1995] HCA 38; (1955) 92 C.L.R. 654.

[cccii](1955) 92 C.L.R. 654.

[ccciii][1959] VicRp 41; [1959] V.R. 237.