When should a judge prevent a prosecution case from continuing and discharge the accused for lack of evidence?
The "no case" submission was addressed in DPP v Varlack  UKPC 56 (1 December 2008). This was a case in which the prosecution had relied on inferences, rather than on direct evidence of involvement in a murder.
There is potential in this subject for confusion of a number of threads. One thread is what the judge must decide in ruling on a no case submission. Another is how the jury must be directed on inferences. Another is how an appellate court decides whether an error may have deprived the accused of a real chance of a more favourable verdict.
In Varlack the Privy Council endorsed a statement of the law by King CJ in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, 5, which included the following:
"It is not [the judge's] concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence ... ."
So, never mind how the jury will be directed about inferences of innocence, and never mind about how an appellate court will view a conviction. It is beside the point on a no case submission that the judge will tell the jury that they cannot convict if they think there is a reasonable inference that prevents an essential element of the prosecution case from being established to the necessary standard.
But it is relevant on a no case submission that the judge considers that the evidence on an element of the offence is so inherently weak or vague that a reasonable jury properly directed could not convict. It is only in that class of case, where the evidence is tenuous, that the judge's assessment of the acceptability of the prosecution evidence is relevant to the no case issue.
That is because questions of fact are for the tribunal of fact. On a no case submission, if the evidence is not inherently weak or vague, the judge has to decide whether the evidence is adequate. Adequacy is a question of law. It does not require anticipating what the jury will decide. A case is adequate, in this sense of overcoming a no case submission if, to quote the "canonical statement of the law" by Lord Lane CJ in R v Galbraith  1 WLR 1039, 1042 cited in Varlack at 21:
"... a reasonable jury properly directed could on that evidence find the charge in question proved beyond reasonable doubt."
King CJ elaborated, in the passage quoted by the Privy Council at 22 of Varlack:
"I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence."
So, as the Board put it at para 23, the test is what inferences a reasonable jury properly directed might draw, as distinct from what inferences the judge (or the Court of Appeal) thought could or could not be drawn.
You may think that here there are moments of clarity, rapidly followed by periods of obscurity. The point to remember is that the facts are for the jury to determine except in cases where the evidence is inherently weak or vague.
The position was summarised in R v Harder 29/5/03, Williams J, HC Auckland T002481:
"A conviction will be unsafe within the terms of the authorities only rarely and only where the 'necessary minimum evidence to establish the facts of the crime has not been called' so that the elements have not been proved or in the rare case where the evidence is plainly so inadequate and threadbare or the witnesses so discredited that the trial Judge concludes that a conviction must necessarily be unsafe and the interests of justice therefore compel discharge."
I think the position would be clarified by this sort of omission of reference to the jury. The issues are whether there is evidence on each element of the case, and whether any of that evidence is plainly so inadequate and threadbare or the witnesses so discredited that the trial Judge concludes that a conviction must necessarily be unsafe and the interests of justice therefore compel discharge.
In Varlack the Board held that the trial judge had correctly rejected the no case submission, and the respondent's conviction was restored. On another point, it held that a good character direction should have been given even though the accused's defence involved admissions of bad conduct, but that here the omission of that direction had made insufficient difference to the trial to affect the verdict.
For the sake of a bit of mental exercise, one might compare the law on no case submissions to that on applications of the proviso. The latter, insofar as relevant here, involves considering whether, in the absence of an error that occurred at trial, the jury could have acquitted the accused. So whereas the no case issue is whether the jury could convict, the proviso issue is whether the jury could acquit.
As can be seen from the cases on the proviso (see Index to this site, entries under "Proviso" and "substantial miscarriage of justice"), the courts are not of one mind on how to decide whether a jury could acquit. Again, the difficulties arise from the court having to decide what a jury could do.
Just for the sake of tossing around ideas, what if the appellate court's task were to be seen as deciding whether there is a defence case that should go to a jury? The error at trial would have to link to the defence case, but, assuming it did, should the court quash a conviction and order a retrial if there is a defence case that is not tenuous (inherently weak or vague)? Each side should meet the same criteria of adequacy on the question of whether its case should go to the jury, whether before or at trial (prosecution case considered by the judge) or by way of retrial (defence case considered on appeal). Discuss.