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)


A submission by the defence that there is ‘no case to answer’ can be made in a contested criminal matter after the prosecution has closed its case. No case to answer submissions are made when the defence is arguing that the prosecution case 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. A no case submission can be made both in a contested hearing in the summary jurisdiction or in a trial in an indictable matter. The test that has to be applied is the same in both jurisdictions.

The test for a no case to answer submission

The test for a no case to answer submission is whether the prosecution case, taken at its highest, can support a verdict of guilty against the accused.

How does the court decide a no case to answer submission?

A judge or magistrate assesses a no case to answer submission by assessing whether the prosecution evidence, when viewed as favourably as is reasonably open to the court to view it, could support a finding of guilt against the accused.

For the purpose of a no case to answer submission, the court must assess whether the prosecution evidence supports a finding of guilt if accepted and:

  • Taken at its highest and strongest;
  • 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 the answers prosecution witnesses give to cross-examination questions. However, the court does not have to consider evidence that contradicts the prosecution case or evidence that supports the defence case. Where expert evidence has already been called by the defence (as sometimes occurrs 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 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 directs it to find the accused not guilty. If the ‘no case’ submission fails, the jury then hears the defence case.

What if there is an appeal?

When a decision is appealed, the court of appeal does not consider whether the decision made on a no case to answer submission was correct. When a court hears an appeal by the defence it considers the evidence in its entirety, including the defence case and decides whether the evidence heard supports the finding of guilt beyond a reasonable doubt.

The test in an appeal against conviction is whether the verdict is ‘unsafe or unsatisfactory’, whereas the test that applies when a no case to answer submission is made is whether the evidence could reasonably support a finding of guilt.

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

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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