State v Tamanalevu - Ruling [2012] FJHC 1296; HAC344.2011S (14 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 344 OF 2011S

STATE

vs

LIVAI TAMANALEVU

Counsels: Ms. J. Cokanasiga for State
Mr J. Savou for Accused

Hearings: 13th and 14th August, 2012
Ruling: 14th August, 2012

RULING ON "NO CASE TO ANSWER SUBMISSION"

1. The prosecution called a total of 5 witnesses. Then it closed its case. Mr. J. Savou, on behalf of the accused, made a submission of "no case to answer". The prosecution replied. I dismissed the defence submission, and held there was "a case to answer", and the accused ought to be put to his defence. I said I would give my reason later, and these are my reasons.
   
2. As a matter of law, the court, at the end of the prosecution's case, is bound to consider, whether or not there is a case to answer for the accused, where or not the accused choose to make such submission. The guiding authority, at this stage of the proceeding, is Section 231 of the Criminal Procedure Decree 2009.
   
3. Section 231 of the Criminal Procedure Decree 2009, reads as follows:
   

(1) When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defence may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or any one of several accused) committed the offence.

(2) When the evidence of the witnesses for the prosecution has been concluded, the court shall, if it considers that there is evidence that the accused person (or any one or more of several accused persons) committed the offence, inform each such accused person of their right:

(a) to address the court, either personally or by his or her lawyer (if any); and

(b) to give evidence on his or her own behalf; and

(c) to call witnesses in his or her defence.

4. The test under Section 231 is well settled. It is whether or not, there is some relevant and admissible evidence, direct or circumstantial, touching on all elements of the offence, the weight and credibility of such evidence, not being matters for assessment: Sisa Kalisoqo v Reginam, Criminal Appeal No. 52 of 1984, Fiji Court of Appeal; The State v Mosese Tuisawau, Criminal Appeal No. 14 of 1990, Fiji Court of Appeal, and The State v George Shiu Raj & Another, Criminal Appeal No. AAU 0081 of 2005, Fiji Court of Appeal.
   

5. After considering the evidence of all 5 prosecution's witnesses, and bearing in mind what was said in section 231(1) and (2) of the Criminal Procedure Decree 2009, including the authorities mentioned in paragraph 4 hereof, I find there is a case to answer for the accused on all counts. In my view, in the agreed facts, it was agreed that, the complainant was the accused's niece and the two resided in the same house, at the time of the alleged offending. In my view, identification evidence was not a problem, and certainly the defence's case during cross-examination, was not run on identification of the accused.

6. The defence has indicated that the accused will give sworn evidence and call one witness. I rule so accordingly.

Salesi Temo
JUDGE

Solicitor for the State: Office of the Director of Public Prosecutions, Suva
Solicitor for Accused: Legal Aid Commission, Suva