Re WA; Ex Parte Mcleod

[2005] WASCA 238

Western Australia Court of Appeal

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A ground of appeal asserting only that the trial judge wrongly rejected a no case submission is not a proper ground of appeal against conviction, because a challenge to a no case ruling is not a challenge to the jury's verdict; the appeal must be directed to the conviction itself (R v Davis (1990) 50 A Crim R 55; Avis v The Queen [2002] WASCA 45).
Under s 27 of the Criminal Appeals Act 2004 (WA), a ground that baldly asserts it was not open to the jury to convict, without identifying the evidence, how it was deficient, or whether the disputed matter (here, continuity of exhibits) was an element requiring proof beyond reasonable doubt or merely one circumstance among others, cannot show a reasonable prospect of succeeding.
On the facts, evidence that seized drugs were locked in a police cell for about half an hour, with access limited to police or others on official business, and that officers observed no discernible difference in the items on retrieval, was capable of supporting an inference of continuity; whether continuity was proved beyond reasonable doubt was a question for the jury.