R v Seller; R v McCarthy

1. [1]

   HIS HONOUR: The accused are charged that:

2. [2]

   At the close of the Crown case the accused each applied for a verdict by direction upon the basis that there was no case to answer. I am disinclined to accede to those applications. My brief reasons for coming to that decision are as follows.

Legal principles

1. [3]

   The applicable principles are not in doubt. As long ago as 1955 the High Court stated the position in May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at 658:

2. [4]

   The question to be determined is a question of law. This was confirmed in Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433.

3. [5]

   In The Queen v Bilik (1984) 36 SASR 321, King CJ said this at 335:

4. [6]

   His Honour continued at 337 in these terms:

5. [7]

   A court hearing a no case submission is bound to take the prosecution case at its highest. In Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 214-214 the High Court stated:

6. [8]

   The application of the test was considered recently in R v PL [2102] NSWCCA 31. Bathurst CJ said this at [32]:

7. [9]

   I am alive to the suggestion that on one view of the evidence the jury would, and perhaps even should, find the accused not guilty of the offence charged. That is, however, not the test. As long as I am bound to proceed upon the basis that the case ought to be left to the jury if they could find the accused guilty, I consider that in this case I am bound to reject the applications. I have referred to and am required to take account of the fact that the prospect that a jury might be found unreasonably to have convicted the accused is a concern of the Court of Criminal Appeal and not of a trial judge. Whatever ultimate outcome this trial produces, it is not possible for me at this stage, proceeding consistently with binding authority, to direct the jury return a verdict of acquittal. There is at least some evidence upon which the jury could convict the accused. It is unnecessary at this stage to elaborate upon or identify what that evidence might be. I observe in passing that the alleged status of Chambers Finance Limited as “like a merchant bank” and cognate representations might qualify as examples of such evidence. I recognise immediately, however, that there are several available hypotheses consistent with innocence which could be, and which have in the course of detailed written and oral submissions already been, formulated by counsel for the accused. Undoubtedly those submissions will find a significant place in the final addresses of counsel.