Smith (Elorda) & Goulbourne (Everton) v R.pdf - The Court of Appeal

sitting alone or with a jury. Chief Justice Lane’s formulation of the principle as capturedin the head note in Galbraith is set out below:“On a submission of no case to answer at the end of theprosecution [sic] case the trial judge should stop the caseand direct an acquittal if there is no evidence that the crimealleged against the accused was committed by him.However, if there is some evidence but it is of a tenuouscharacter (eg because of inherent weakness or vaguenessor because it is inconsistent with other evidence), it is thejudge’s duty, on a submission of no case, to stop the case ifhe comes to the conclusion that the prosecution evidence,taken at its highest, is such that a jury properly directedcould not properly convict on it; but where the prosecutionevidence is such that its strength or weakness depends onthe view to be taken of a witness’ reliability or on othermatters which are generally speaking within the provinceof the jury and where on one possible view of the factsthere is evidence on which a jury could properly come tothe conclusion that the accused is guilty then the judgeshould allow the matter to be tried by the jury.”And in Taibo it was held, following Galbraith, that on a submission of no case toanswer the criterion to be applied by the trial judge is whether there is material onwhich a jury could, without irrationality, be satisfied of guilt; if there is, the judge is notonly entitled but is required to allow the trial to proceed. This criterion would be ofgeneral application whether the tribunal of fact to be satisfied is a judge sitting alone ora jury.[14] In the instant case the complainant’s evidence had not been so discredited as aresult of cross-examination nor did it appear to have been so manifestly unreliable as towarrant withdrawing it from the magistrate’s jury mind. There was evidence for herconsideration on the issue of voice identification and it was for her as tribunal of fact to