IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 7 OF 1997

THE STATE

V.

NEORI TAVAKATURAGA QOLI

Counsel: Mr. J. Auld & Ms. R. Shafiq for State
Mr. J. Maharaj for Accused

Hearing: 13th August 1997
Ruling: 13th August 1997

ORAL RULING OF PAIN J. ON
SUBMISSION OF NO CASE TO ANSWER

The accused is charged with the offence of assault occasioning actual bodily harm. The prosecution allegations against him are very simple. It is alleged that without lawful justification he struck the victim with a stick causing an injury to the victim's lip.

At the conclusion of the prosecution evidence counsel for the accused has made a submission that there is no case to answer. Counsel relies upon the English authorities, particularly the leading case of R v Galbraith [1981] 2 ALL ER 1060. In England, and to my knowledge in some other Commonwealth countries, if at the conclusion of the prosecution case there is some evidence that the accused committed the offence, but it is so tenuous that no jury properly directed could convict, then the case will not be allowed to proceed. 

The situation is different in Fiji. The matter is governed by S.293 of the Criminal Procedure Code. This states that the Court, if it considers that there is no evidence that the accused committed the offence, shall record a finding of not guilty. This section has been considered by the Court of Appeal in such cases as Sisa Kalisoqo v R (Criminal Appeal 52 of 1984) and the State v Mosese Tuisawau (Criminal Appeal 14 of 1990). In order for this Court to act under S.293 there must be no evidence that the accused committed the offence with which he is charged. It has been said "where is there some evidence a judge cannot say there is no evidence". 

It is neither appropriate nor necessary for me to review all the evidence. There is prosecution evidence that the accused and the victim were left alone together. The victim was found a few hours later with an injury to his lip. When questioned by the Police the accused admitted striking the victim with a stick to his jaw. That is some evidence that the accused assaulted the victim and caused bodily harm.

It may be that this is not the strongest case that the prosecution has ever presented in this Court. It may be that evidence could be given of other matters or that some legal defence is available to the accused. However, at this stage applying the appropriate test I cannot say that there is no evidence that the accused committed this offence charged.

Accordingly, the defence application is refused.

Justice D. B. Pain