State v Lingam - ruling 2 [2001] FJHC 34; Hac0010x.2000s (13 June 2001)

Fiji Islands - The State v Lingam - Pacific Law Materials

ass=MsoNormal align=cenn=center style="text-align: center; margin-top: 1; margin-bottom: 1"> IN THE HIGH COU FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 010 of 2000S

p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> STATE

-v-

RAM LINGAM

Mr F. Vosarogo for the State

Mr G. O’Driscor the Accused

Hearing: 13th June 2001

Ruling: 13th June 2001

RULING

&

Counsel for the Accused has made a submission that there is no case for the Accused to answer on all five counts of the Information.

Section 293(1) of the Criminal Procedure Code provides:

“When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if of the accused person beforbefore 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. 52 of 1984 said that section 293 lown a different test to the test commonly adopted in magistagistrates 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 TuisawauApp. 14 of 1990, the Court of Appeal said that such a stringent test could lead to an absurabsurdity. At page 11 of its judgment it said:

“In order to come to the conclusion that theresome evidence direct or circumstantial, and irrespective of its weight, credibility or its 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.”

I accept therefore that as Pain J said in State -v- Anthony Frederick Stephens Criminal Case No. 3 of

“......the question to be addressed at this stage e trial is whether there is some relevant and admissible evle evidence in respect of each element that must be proved before the accused could be convicted of the offences alleged against him in the Information.”

At the outset State Counsel conceded that there was no evidence in respect of Count 1. This concession is both fair ander. Count 1 is laid under sder section 309(a) of the Penal Code. It requires proof of a false representation on the basis of which the complainant parted with his money. There is no evidence of either false representation, or reliance upon it. As such, Count 1 cannot be put to the assessors and the accused is hereby found not guilty and acquitted on Count 1.

As to the other offences, the offence charged is Obtaining Money on Forged Document, contto section 345(a) of the Penal Code. Whatever view one take takes of the credibility of PW1, the prosecution has led evidence of 1) obtaining, 2) intent to defraud, 3) a forged document; and 4) knowing the same to be forged. Whether the accused had an intent to defraud and whether he knew at the time of the alleged obtaining, that the withdrawal slips had been forged, are matters which must be left to the assessors.

Suffice it to say that the evidence of PW1, cepted is both relevant and admissible in respsect of these elements. Furthermore, it appeaappears that the prosecution relies not only on the evidence of PW1 in respect of the elements, but also on circumstantial evidence in relation to the passbook and the bank account of PW1.

For these reasons the submission of no case to answer onts 2 to 5 on the Information is dismissed. There is sufficient evidence to put the accused used to his defence on Counts 2 to 5.

p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> Nazhat Shameem

JUDGE

At Suva

Hac0010x.00s