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What is a Second Limb May v O’Sullivan Submission?

What is a Second Limb May v O’Sullivan Submission?

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In Australian criminal law, a second limb May v O’Sullivan submission is a type of no-case-to-answer submission* made during a trial. It is named after the High Court case May v O’Sullivan (1955), which clarified when such submissions can be used.

*A no-case-to-answer submission is a legal argument made during a trial where the defence argues that the prosecution has failed to present sufficient evidence to justify the case continuing. If the submission is successful, the court can dismiss the charges, and the accused is acquitted without having to present their defence.

 

When might Second Limb Submissions Apply?

The second limb specifically applies when:

1) The prosecution’s evidence, even when taken at its highest, is so unreliable or incomplete that no reasonable jury could convict.

2) The evidence doesn’t meet the legal standard of proof required for a criminal conviction: beyond reasonable doubt.

This submission focuses on the quality of the evidence, not just its existence, ensuring only credible and sufficient cases proceed.

 

Importance of Second Limb Submissions

The second limb May v O’Sullivan submission plays a critical role in upholding justice and fairness in criminal trials. It is important because:

⚖️ It prevents unnecessary trials, saving the court’s time and resources when the evidence is too weak to justify proceeding.

⚖️ It protects the accused from being unfairly burdened with presenting a defence against a flawed case.

⚖️ It safeguards the presumption of innocence, reinforcing the principle that the prosecution must prove the accused’s guilt beyond reasonable doubt.

 

When are these Submissions Made?

A second limb submission is typically made after the prosecution closes its case. At this point, the defence can assess the strength of the evidence presented. The defence must argue that the evidence is insufficient for a conviction. They may highlight inconsistencies, gaps, or the unreliability of witnesses or exhibits. If the court agrees with the submission, the charges may be dismissed, and the accused is acquitted without needing to present their case.

This mechanism ensures that trials proceed only when there is enough reliable evidence to justify asking a jury to deliberate on guilt.

 

Key Cases

The principles governing second limb submissions are drawn from two key cases:

May v O’Sullivan (1955) 92 CLR 654: Highlighted the importance of ensuring the prosecution meets its burden of proof.

Doney v The Queen (1990) 171 CLR 207: Reinforced that no case should go to a jury if the evidence is so unreliable that no reasonable jury could convict.

 

Importance of Second Limb Submissions for Legal Representatives

For barristers, the ability to identify and argue a second limb May v O’Sullivan submission is a vital skill. It can lead to the dismissal of charges without the accused having to testify or call witnesses, potentially changing the outcome of a trial.

For law students and aspiring advocates, understanding this principle is essential for mastering criminal procedure. It’s a practical application of the presumption of innocence and the requirement for the prosecution to prove guilt.

 

About Post Author


* Information contained in this article is of a general nature only and should not be relied upon as concise legal advice.
Please contact for legal advice tailored to your situation. *


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About Brian Walker

B.Acc., GradDipLegPrac, Juris Dr Barrister & Accountant. Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters. Post Created by Cassidy Pole, paralegal.

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