State v Raitini [2003] FJHC 148; HAC0005R.2003S (20 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO. HAC005 OF 2003S

THE STATE

V

TIERI RAITINI and Others

Gates J.

Mr S. Leweniqila and Mr W. Rano for the State
Mr R. Singh for Accused 1
Accused 2 in Person
Mr M. Raza for Accused 3

14-17 October 2003, 20 October 2003

RULING
[On submission of no case to answer]
In absence of assessors

[1] Counsel for Accuseds 1 and 3 submit that there is no case to answer on both counts of the information. Accused 2 is not represented, so I will examine the case against him in the light of similar submissions.

[2] The test which the High Court has to consider is set out in section 293(1) of the Criminal Procedure Code. It states

"293. (1) When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused or any one of several 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. (Amended by 35 of 1961, s. 27.) (Emphasis added)

[3] Having reviewed several authorities dealing with the nature of the task, Grant J concluded in Regina v Jai Chand [1972] 18 Fiji LR 101 at p.103D:

"... at the close of the prosecution case the Court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence."

[4] More recently Shameem J. had occasion to consider the test in a High Court trial [The State v Ameo Ramokosoi Liaci and 2 Others (unreported) Suva High Criminal Action HAC013.99S; 2 September 2003]. Her ladyship said:

" The test to be applied at this stage of the trial, is whether on each count on the Information, there is evidence that the accused committed the offences (Sisa Kalisoqo –v- State Crim. App. No. 52 of 1984; State –v- Mosese Tuisawau Crim. App. No. 14 of 1990). If there is some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offences, then there is a prima facie case under section 293 of the Criminal Procedure Code."

In that trial, the evidence in question related to whether the accused "were involved", a similar issue to the matter before me. Shameem J. found the inextricable links to be missing.

[5] In Moidean v Reginam [1976] 22 Fiji LR 206 at p.208B the Court of Appeal interpreted the Magistrate’s task to be:

"to decide whether, or not a reasonable tribunal might convict, on the evidence so far laid before it if so there would be a case to answer."

The court referred to and approved the long standing English Practice Note at [1982] 1 All E.R. 448 per Lord Parker CJ; similarly cited with approval by the Court of Appeal in Rohit Ram Latchan v The State (unreported) Court of Appeal Criminal App. No. AAU0015 of 1996S; 28 November 1997.

[6] There is no perceptible difference between the two tests; that is between whether the court considers there is "no evidence", the High Court test [section 298] and that for the Magistrates Court "a case is not made out ... sufficiently ..." [section 210 CPC]. When considering whether the evidence on identity of the Accused is proximate or sufficient, insufficiency of evidence in reality is the same as there being no evidence. A mere scintilla as in Jai Chand would not be sufficient: Mosese Tuisawau (supra at p.6).

[7] I called on Mr Raza for the Accused 3 to submit first. He submitted there was no evidence for the assessors to consider on count 1. This count alleges against the 3 Accused jointly a robbery against Liu Cung Ming in which it is said F$250 and 200 Yuan were stolen from him, the male complainant in this matter.

[8] Presently Mr Ming is on a fishing boat. It was due into Suva harbour in time for the trial but is yet to arrive. This trial had been set down on 7 August 2003 for commencement on 14 October 2003. His evidence could not be taken therefore. There is however evidence from other witnesses of this complainant being at the Carnavon Street Restaurant that night, and of being put into the police vehicle GM924. PW3 Liu Chun Yan had referred to meeting Mr Ming at a nightclub later. She said that he told her "They wanted money from him. After he gave them some money, those police left." But all of this was hearsay, and too inadequate on the circumstances.

[9] Ms Yan said in answer to one of Mr Raza’s questions "I had only $200 left; the other was stolen by the police. I had only F$300 left." It was not clear what this was about, since there was no charge in relation to such an allegation. This witness went off with the first police officer (who is not part of this trial) in a taxi separately since all 3 Chinese persons at the restaurant could not fit into the one police vehicle. She did not witness events when that police car stopped at the roadside in Drew Street with her friends Huai and Ming.

[10] PW4 Liu Jing Huai, though giving evidence of her own loss, did not give evidence of seeing any money being robbed from her friend Mr Ming. None of the 3 Accused admitted in their interviews taking from Mr Ming the currency listed in count 1. The absence of the witness Mr Ming, means that there is no evidence direct or indirect for the assessors and the court to weigh and to consider after its subjection to cross-examination, on what was taken from him. There is also a general insufficiency of evidence on that count. None of the witnesses dealt with what was happening to Mr Ming, at the time. The State, through no fault of prosecuting counsel, has been unable to call "the necessary minimum evidence to establish the facts of the crime": Barker (1977) 65 Cr. App. R. 287 at p.288. The actus reus of the theft is missing, as also evidence of the loss: Galbraith (1981) 23 Cr. App. R. 124.

[11] Accordingly, I uphold the submissions on count 1. All 3 Accused are discharged on that count. I record a finding of not guilty for all Accused on count 1.

[12] Count 2 is also a joint charge against all 3 Accused alleging a robbery committed against Liu Jing Huai, PW4, in which it is said she had had F$100 cash taken from her.

[13] I consider the case against Sandeep Singh, Accused 3, first. Three police officers were referred to by the witnesses, that is excluding the first policeman who had entered the restaurant, the police officer called Jolame. The first witness Jennifer did not identify Accused 3 in any way. She said she saw the driver in the driver’s seat. Again, she did not identify him. She said "2 or 3 officers" got off the police car. This witness did not say if Accused 3 came into the restaurant.

[14] The waitress Raijieli said she did not see any police officers get off the vehicle, though she said 2 police officers entered the restaurant. She said they were Fijian. Her evidence did not identify Accused 3 as entering the restaurant or of carrying out any specific and inappropriate acts at the restaurant.

[15] Ms Yan, PW3, related the conduct of the first police officer. This must have been of PC Jolame who is not charged in this information. After Jolame had "dragged" her friend Ms Huai to the back of the restaurant out of hearing, Ms Yan said "the 3 other policemen entered the restaurant. They started pulling my boyfriend and my girlfriend, and then me too". This evidence might point to Accused 3 as being one of the officers who entered the restaurant. In cross-examination she said they wanted to check her friend’s papers. Ms Yan went off in a taxi separately and gives no evidence relevant to the robbery.

[16] Ms Huai was the person taken to the back of the restaurant by PC Jolame. She said "the police officer followed me with 3 other officers". She offered them 2 F$50 notes which they refused. She was taken forcibly to the police vehicle. She spoke to her sponsor on her mobile phone. Her sponsor Mr Gao asked her to pass the phone to one of the police officers. She does not say to which one she then gave the phone, whether it was the driver, the crew, or to the taller larger one, who came to speak to Mr Gao. Indeed the evidence is bereft of any identifying characteristics of the police officers in the vehicle.

[17] The car stopped in a dark street. Two officers searched two of them Ms Huai and Mr Ming. She did not in her evidence give any evidence to link Accused 3, or to suggest he was the remaining officer at the Cumming Street police post afterwards where her boyfriend was kept whilst she had to look for another F$300.

[18] Accused 3 admits he was the designated patrol car crew for GM924 fleet 176 on that night. In his interview with Sgt Suraiya Kishore he says the vehicle stopped at the restaurant in Carnavon Street. He says he was told to wait in the vehicle whilst the other two went to investigate a possible report. In effect he denies going into the restaurant, and says these two were not following his orders that night.

[19] Upon being asked why the two Chinese were put in the vehicle, he says he was told that they had information that the Chinese were illegal immigrants. The driver drove off. He asked him to stop. He did not stop until they reached Vatuwaqa Primary School, and went into the feeder road Drew Street. A search was carried out by the other two. He was standing at the time and did not take part. This appears to fit with what the State’s witness has indicated, that only two officers took part in the search.

[20] Accused 3 said he went along with the request to drop Moriti in Cumming Street with the 2 Chinese, and he then went to CPS. He denied saying anything to the Chinese and denied asking them for money. He said he did go back to Cumming Street at Tieri’s request and took the Chinese man to the Planet Nightclub, where he was dropped off.

[21] He denied stealing any money from the two Chinese, but gave permission for a search of his barracks and car if necessary. He admits that no charges were brought against the two Chinese.

[22] There is no prosecution evidence to disprove Accused’s 3 account of events that evening. Some parts give rise to suspicion, but nothing more. Being present in the police vehicle, when he should have prevented a crime from being committed or at least prevented highly questionable police procedures in the handling of immigration suspects is not conduct that amounts to the crime of robbery. He did not drive the two complainants around. He was not of senior rank. He did not take part in the searches. There is no evidence of his participation in, or of his unequivocal assistance to others in the commission of crime.

[23] So far as Accused 1 and 2 are concerned in relation to the remaining count 2, it is best at this stage if I say very little: Sisa Kalisogo (supra at p.9) since I have formed the view that the trial on that count should continue. The assessors will have to consider the evidence of the State’s witnesses along with the admissions of Accused 1 and 2 concerning the searches at Drew Street, and the purpose of the detention of the suspects in the police car and at Cumming Street.

[24] Accordingly I rule that

1. All 3 Accused are discharged on count 1, and I record findings of not guilty for all 3 Accused on that count.
   
2. On count 2 I reject the submissions of no case for Accused 1 and 2 and they are to be called upon to make their defences.
   

100. On count 2, Accused 3 is discharged and I record a finding of not guilty against him. Accused 3 may now stand down.
     

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions
Solicitors for Accused 1: Messrs Kohli & Singh
Accused 2: In Person
Solicitors for Accused 3: Messrs M. Raza & Associates