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

[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: Matt submisubmits that the Crown has not made out a case against ccused and, alternatively, that even if I sf 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 wprev prevent what he referred to as “the common practice” being follthat even where as a matteratter 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[ccxcix] (1955) 92 C.R. 654.
[ccc][1959] VicRp 41; [1959] VR. 237.
[ccci][1995] HCA 38; (1955) 92 CLR. 654.
[cccii][1995] HCA 38; (1955) 92 CLR. 654.
[ccciii][1959] VicRp 41; [1959] VR. 237.