69. Procedure for joint hearings if no case submission made

69. Procedure for joint hearings if no case submission made

(1) After the close of the case for the prosecution, an accused who wishes to make a submission that there is no case for the accused to answer must do so at that time.

(2) If, after the Magistrates' Court has ruled on all no case submissions, charges against 2 or more accused remain to be determined, each accused must advise the court, in response to questioning under section 67 or 68, which of the options referred to in section 66(b) or (c) the accused elects to take.

The provisions here and at 66 appear to change what was the position at common law in Victoria, that where one co-accused makes a no case to answer submission and the othe co-accused does not, the judge should not rule on the submission until the co-accused not making the submission has called evidence (if any): R v Anthony [1962] VR 440.

This approach was approved by Young CJ in R v Faure and Corrigan [1978] VR 246 but is inconsistent with other Australian jurisdictions.

Most recently, in R v Croxford & Doubleday (Ruling No 4) [2009] VSC 519 Coghlan J allowed counsel for a co-accused to defer announcement of the course to be taken, and was permitted to do so. This occurred in August 2009 (before the commencement of the Criminal Procedure Act 2009).