State v Woo Chin Chae [2000] FJHC 133; HAC0023d.1999s (14 December 2000)

Fiji Islands - The State v Woo Chin Chae - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 023 OF 1999S

STATE

-v-

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WOO CHIN CHAE

Mr Robert Schuster-Counsel for the State

Mr MehRaza-Counsel for the Accuseccused

Hearing: 13th November 2000

Ruling: 14th December 2000<2000

RULING

Counsel for the Defence has made a submission that there is no case for the accused to answer. Section 293(1) of the Criminal Procedure Code provides:

“When the evidence of the witnesses for the prosecution has been concluand the statement or evidence (if any) of the accused persoperson before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused ..... committed the offence, shall, after hearing, if necessary, any arguments which the barrister and solicitor for the prosecution or the defence may desire to submit, record a finding of not guilty.”

The Court of Appeal in Sisa Kalisoqo -v- R Crim. App. 51984, said that section 293 lays down a different test to the test commonly adopted in d in magistrates courts based on the English Court of Appeal decision in R -v- Galbraith (1971) 73 Cr. App. R. 124. The Fiji Court of Appeal said that “no evidence” in section 293 means just that, and that “some evidence” is never “no evidence”. If therefore there is some evidence then irrespective of its quality a no case submission must fail.

However in State -v- Mosese Tuisawau Cr. App. 14 of 1990, the Court of Appeal said that such a stringent test could lead to an absurdity. At page 11 of its judgment it said:

“In order to come to the conclusion that there was some evidence direct or circumstantial, and irrespective of its weight, credibility or its tenuous nature it must be shown that the evidence in question is relevant, admissible and is in totality inculpatory of the accused. This means that the evidence in its totality must at least touch on all the essential ingredients of the offence.”

This test appears to have been adopted by Fatiaki J in State -v- Vijay r & Anr. (Crim. Case 6/94) where his Lordship chip considered the relevance and admissibility of the evidence against the accused in upholding a submission of no case.

In the circumstances, because Mosese Tuisawau was a later decision, and because the principles laid down in it, are more favourable to the accused than the narrow test in Sisa Kalisoqo (supra), I will consider whether there is relevant and admissible evidence implicating the accused in respect of the offences charged, to justify the accused being put to his defence, and having the matter laid before the assessors.

The English authorities are useful in this regIn Galbraith (supra) the English Court of Appeal said that where a Judge come comes to a conclusion that the prosecution evidence taken at its highest is such that the jury properly directed could not properly convict upon it, it is his duty to stop the case. Where however the prosecution’s evidence is such that its strength or weakness depends on the view, to be taken of a witness’ reliability or other matters which generally speaking are within the province of a jury and where on a possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the Defendant is guilty than the Judge should allow the matter to be tried by the jury.

It is not my function therefore to weigh up the prosecution case and the competing hypotheses suggested by the Defence. To do so would be to usurp a function of the Assessors. My role is to look at the totality of the evidence, and to apply the principles in Mosese Tuisawau and Galbraith.

Counsel for the Defence submits that there is no credible evidence which warrants the case gong before the evidence. He says that there is no real evidence of motive, opportunity or of lies born of a realisation of guilt. He says that the accused’s alibi, that he was at home between 12 to 2pm on the 14th was corroborated by prosecution witnesses and that at 11.30am he was at the market buying eggs at the Stall of Lo Hing. He asks me to uphold his submission that there is no case to answer.

Counsel for the prosecution submits that there are inevitable guesses as to time from the witnesses, and therefore inevitable discrepancies. He says that this was a matter for the assessors. He says that the evidence from the witnesses show that a white car was parked at the scene at 12 noon on the 14th and was gone by 2pm. He says the question of when the murder took place, was a matter for the assessors after considering all the circumstances.

Similarly the question of the identity of the Asian man seen at Namosi wearing a white hat, a brown hat or a black hat is for the assessors having heard all the evidence.

Looking at the prosecution evidence, I am of the view that tis sufficient evidence to go to the assessors. I consider that the prosecution case taken aken at its highest is capable of supporting a conviction on both counts. There is evidence which (if believed) would be evidence of motive, and opportunity. There is also evidence of the accused’s behaviour after the death of the deceased. Taken together, the evidence is capable, with proper directions of supporting a conviction.

There are of course important matters in rial in respect of the credibility of the witnesses on which the Prosecution relies, and whnd which if accepted, could result in a conviction, but if rejected, could result in an acquittal.

However, these are matters for the assessors to consider. Similarly the question of other hypotheses as to who caused the death of the deceased are matters which the Assessors should consider after being properly directed.

I find therefore that there is some evidence under section 293(1) of the Criminal Procedure Code, and that such evidence is relevanmissible and inculpatory ofry of the accused.

Nazhat Shameem

JUDGE

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> At Suva

14th December 2000

Hac0023d.99s