State v Nand [1990] FJHC 43; HAC0015d.89s (14 May 1990)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

CRIMINAL CASE NO. 15 OF 1989

STATE

v.

1. BARMA NAND alias
MOTU s/o Ram Autar

2. MUN SAMI alias ANIL
s/o Ranga Sami

MANSLAUGHTER: Contrary to Section 198 of the Penal Code Cap. 17.

Ms. Aruna Prasad for the Prosecution
Mr. M. Raza for both Accused persons

RULING

At the close of the prosecution's case learned defence counsel made a submission of "no case to answer".

When such a submission is made in the course of a High Court trial it can only succeed if (in the words of section 293 of the Crim. Proc. Code Cap. 21): "...... the court ....... considers that there is no evidence that the accused or any one of several accused committed the offence ....."

In his submissions to the Court learned defence counsel has referred to the evidence of the several eye-witnesses who were called by the prosecution and the evidence of the pathologist.

In his submissions learned defence counsel dwelt at some length on the inconsistencies and improbabilities of the prosecution's evidence and submits that they vary and are unsupported on very material aspects in particular, the nature of the acts committed by the accused persons, where the deceased is alleged to have fallen, and the cause of his death.

Learned counsel for the State whilst accepting that there are variations in the witness' evidence nevertheless counters that the resolution of such discrepancies and inconsistencies are matters of fact for the determination of the assessors. Similarly with the cause of death.

Furthermore State Counsel argues that whatever might be the reliability of the evidence, nevertheless, there is "some evidence" that the accused committed the offence.

Having carefully considered the various submissions placed before me I am satisfied that there is a prima facie case made out by the prosecution's evidence and I call upon each accused person to make his defence to the charge.

(D.V. Fatiaki)
JUDGE

At Suva,
14th May, 1990.

HAC0015D.89S