When the Prosecution Case is Weak
| Author | Douglas Brown |
| Published date | 01 September 1971 |
| Date | 01 September 1971 |
| DOI | http://doi.org/10.1177/000486587100400303 |
144 AUST. &N.Z. JO,URNAL OF CRIMINOLOGY (Sept., 1971): 4, 3
When the Prosecution
Case is Weak
DOUGLAS
BROWN*
SOME
years
ago in
East
Africa I was
concerned
in
the
investigation
of alleg-
ed
fraud
by
two local
government
clerks. Although
there
was some
doubt
in
the
minds
of
the
police
about
obtaining
aconviction, adecision was
made
to
prosecute. At
the
trial
the
principal
prosecution
witness
told
a
different
story from
that
which
he
had
related
to
the
police
at
an
earlier
date.
In
consequence
the
prosecution case collapsed
and
the
prosecuting
police
officer
decided
to
cut
his losses
and
not
to proceed
further.
"We
can
have
another
go
at
them
(the
defendants)
when
we
have
collected a
bit
more
evidence,"
he
explained
subsequently.
"If
we
had
gone on
they
might
have
been
acquitted."
Further
evidence was collected
and
on
an
amended
charge
one of
the
two clerks was
charged
with
fraud.
On
this
occasion
the
prosecu-
tion
completed
its
evidence
and
the
defendant
submitted
that
there
was no
case to answer.
The
magistrate
so
held
and
the
defendant
was released.
Nothing
daunted,
the
prosecuting
police officer
said
he was pleased costs
had
not
been
awarded
against
the
police
and
even spoke of
prosecuting
yet
again.
The
purpose
of
this
article
is to
examine
two
aspects
of
this
incident
in common law jurisdictions, outside
the
United
States,
which
adhere
closely to
the
principles of English law: first,
the
position
where
the
prosecu-
tion
evidence is so weak or
non-existent
as to cause
the
judge
to
bring
the
trial
to a close;
and
secondly,
what
rights
the
prosecuting; officer
has
to
stop
the
trial
when
the
case does
not
proceed as
he
hoped
it
would.
No case
to
answer;
judge's
duty
In
English
law
it
has
long
been
established
that
at
the
close of
the
prosecution case,
the
defendant
(or
more
often
his
counsel)
may
submit
that
there
is
"no
case to
answer")
Indeed,
it
is
more
than
adiscretion:
it
is
the
duty
of
the
counsel for
the
defence
to
submit
that
there
is no case
to go to
the
jury.2
In
appropriate
circumstances
it
is
then
the
duty
of
the
judge
to
consider
whether
there
is (i)
any
or (ii)
sufficient
evidence to
call
upon
the
defendant
to
make
his
defence.
If
there
is no case to go to
the
*LL.B., M.A. (Dublin), of Gray's Inn, Barrister-at-Law, Senior Lecturer, University
of
Western
Australia.
1. See H.
Calvert,
No
Case
to Answer, in
the
Court
of Criminal Appeal,
[1958]
Crim.L.R. 232;
Glanville
Williams,
Application
for a
Directed
Verdict
[1965]
Crim.L.R. 343, 410;
it
is
better
known
as a
'motion
for
acquittal'
in
the
United
States
and
a
'motion
to
dismiss'
in
Canada.
2. R. v.
White
(1918) 13 Cr. App. R. 211.
To continue reading
Request your trial