Citation: R v Seller; R v McCarthy [2015] NSWSC 1315
Court: Supreme Court of New South Wales
Date: 9 September 2015
Judge: Harrison J
Background
Two accused faced a charge of conspiracy, alleged to have occurred between May 2001 and December 2002 in Sydney. The charge was that they conspired with each other and other persons with the intention of dishonestly influencing a Commonwealth public official, namely the Commissioner of Taxation, in the exercise of his duties.
At the close of the Crown's case, both accused applied for a directed verdict of acquittal on the basis that there was no case to answer. Each argued that the evidence before the jury was insufficient to support a conviction.
Harrison J declined both applications and gave brief reasons explaining why the matter had to proceed to the jury.
Legal Issues
- Whether, at the close of the prosecution case, the evidence was sufficient to support a verdict of guilty on the conspiracy charge.
- What legal test governs a no case to answer application in a criminal trial, including where the case is partly or wholly circumstantial.
- Whether the existence of reasonable hypotheses consistent with innocence requires a directed verdict of acquittal.
Decision
Harrison J applied the well-established test from May v O'Sullivan (1955): the question on a no case submission is not whether the accused ought to be convicted on the evidence as it stands, but whether he could lawfully be convicted. That is a question of law, not of fact.
Where the Crown case is wholly or partly circumstantial, the trial judge must assess whether, taking all evidence of primary fact at its strongest for the prosecution and drawing all reasonable inferences in the prosecution's favour, the evidence is capable of producing satisfaction of guilt beyond reasonable doubt in the mind of a reasonable jury. The existence of reasonable hypotheses consistent with innocence does not of itself require a directed verdict.
Harrison J acknowledged that on one view of the evidence, the jury might well acquit, and perhaps even should acquit. However, that consideration is irrelevant to the no case test. His Honour also noted that the prospect of a jury convicting unreasonably is a matter for the Court of Criminal Appeal, not for a trial judge at this stage.
The judge found there was at least some evidence upon which a jury could convict. He identified, by way of example only, the alleged characterisation of Chambers Finance Limited as operating "like a merchant bank" and associated representations as potentially relevant evidence. On that basis, both applications were refused and the matter was left to the jury.
Orders Made
No orders were made in this decision.
Key Takeaways
- The governing test on a no case to answer application, confirmed by the High Court in Doney v The Queen and May v O'Sullivan, requires the trial judge to ask whether the accused could lawfully be convicted, not whether a conviction is likely or probable.
- Where the prosecution case is circumstantial, the judge must assume all primary facts are accurate and draw all reasonable inferences in favour of the Crown before deciding whether the evidence is capable of sustaining a guilty verdict.
- The presence of reasonable hypotheses consistent with innocence does not automatically entitle an accused to a directed verdict of acquittal on a circumstantial case.
- Even tenuous, weak, or vague evidence must be left to the jury if it is capable of supporting a guilty verdict, per Doney v The Queen.
- Assessing whether a jury verdict would be unsafe or unsatisfactory is a supervisory function of the Court of Criminal Appeal, and that power does not expand the role of a trial judge on a no case submission.
Legislation and Cases Referenced
Cases:
- May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654
- Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433
- The Queen v Bilik (1984) 36 SASR 321
- Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207
- R v PL [2012] NSWCCA 31
Legislation: No specific legislation was cited in the provided text (the offence charged relates to dishonestly influencing a Commonwealth public official, which is a Commonwealth criminal law matter).