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This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

No Case To Answer Submissions (WA)


After the close of the prosecution case in a criminal contested hearing either in the Magistrates Court or in a District Court for an indictable matter, the defence can make a no case submission. A no case to answer submission is  made when the defence is arguing that the evidence led by the prosecution  fails to support a finding of guilt and that the court should dismiss the charge without the need for the defence to present a case. A no case to answer submission will succeed where the prosecution case, taken at its highest, cannot support a finding of guilt against the accused. In the case of a jury trial, if there is no case to answer, the Magistrate or Judge is obliged to direct a jury to return a verdict of not guilty.

The Test For A No Case To Answer Submission

The test for a no case to answer submission is whether the prosecution’s case, taken at its highest, can support a verdict of guilty against the accused. This test is the same in both jurisdictions.

How Does The Court Decide A No Case To Answer Submission?

A judge or magistrate will assess whether the prosecution’s evidence, when viewed as favourably as is reasonably open to the court to view it, could support a finding of guilt against the accused.

In order for  a no case to answer submission to be successful, the court must assess whether the prosecution’s evidence supports a finding of guilt and if accepted is:

  • Taken at its highest and strongest; and
  • Even if it is tenuous, weak or vague;

UNLESS it is

  • Inherently incredible; or
  • Manifestly self-contradictory; or
  • The product of a disorderly mind.

The judge or magistrate does not need to consider whether the accused ought to be found guilty based on the prosecution case but only whether the court could lawfully find them guilty.

What Must The Court Consider?

When deciding a no case to answer submission, the court must consider all the evidence that has been called by the prosecution, including what has been said by any prosecution witnesses during cross-examination.

However, the court does not have to consider evidence that contradicts the prosecution’s case or evidence that supports the defence’s case. Where expert evidence has already been called by the defence (which sometimes occurs if the court has ordered that all expert evidence be heard together), this may be taken into account by the court when assessing a no case to answer submission.

When Is A No Case Submission Made?

A no case to answer submission is made in a contested hearing after the prosecution has closed its case.

In a jury trial, a no case submission is made while the jury is out of the courtroom. If the no case to answer submission succeeds, the jury is brought back into the court and the judge will direct them to find the accused not guilty. If the ‘no case’ submission fails, the jury then hears the defence case.

If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Armstrong Legal. 

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