State v Kumar [2012] FJHC 1385; Criminal Case 66.2012 (11 October 2012)

IN THE MAGISTRATE'S COURT
AT SUVA,FIJI

CRIMINAL CASE N0: 66 OF 2009

BETWEEN:

THE STATE
PROSECUTION

AND:

SALVINESH KUMAR
ACCUSED

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,
COUNSEL: Cpl Ajey for the Prosecution,
Mr. Singh .R. for the Accused,

Date of the Ruling: 11th of October 2012.

RULING ON NO CASE TO ANSWER

1. The accused person is charged with one count of "Indecent Assault" contrary to section 154 (1) of the Penal Code Act 17. The particulars of the offence are that;
   

"Salvinesh Kumar on the 28th day of January 2009, at Nadi in the Western Division, unlawfully and indecently assaulted Aliti Biu".

2. The accused person pleaded not guilty for the charge wherefore the matter was set down for hearing. At the hearing Prosecution called 2 witnesses and tendered the record of the caution interview of the accused and the Charging Statement of the accused with the consent of the Defence as prosecution exhibits. At the conclusion of the prosecution case the learned counsel for the defence made a submission for no case to answer pursuant to section 178 of the Criminal Procedure Decree. Having considered the oral submission of the learned counsel for the Defence, I invited the learned prosecutor and the counsel for the defence to file their respective written submissions on this issue of no case to answer which they have filed accordingly.
   
3. In careful consideration with the evidence presented by the prosecution witnesses and the respective written submissions of the prosecution and the defence, I now proceed to pronounce my ruling under section 178 of the Criminal Procedure Decree 2009.
   
4. Section 178 of the criminal Procedure Decree states that "if at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused".
   
5. The test to apply to determine the issue of no case to answer at the conclusion of the prosecution case has extensively discussed in R. v Jai Chand (1972) 18 FLR 101), where it was held that " that the decision as to whether or not there is a case to answer should depends not so much whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other world 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 not can any amount of worthless discredited evidence".
   
6. The practice note (1962) 1 All ER 488, stipulates that "a submission that there is no case to answer can properly be made and upheld (a) where there has been no evidence to prove an essential element in the alleged offence, (b) where the evidence adduced by the prosecution has been so discredited as a result of cross examination or is manifestly unreliable that no reliable tribunal could safely convict on it".
   
7. Winter J held in State v George Shiu Raj ([2005] FJHC 522; HAC0019.2005 (9 September 2005) "This is not a test involving judicial prediction of the assessors opinion or my verdict. It is not a question of likelihood of outcome but what may be properly done to give an opinion on guilt and render a guilty verdict. This task requires an objective assessment of the prosecution evidence.
   

In some cases the evidence supporting the charge may be barely adequate and so tenuous as to lead a judge to the view that it would not be proper for the assessors to render an opinion or the judge to convict and accordingly the interests of justice require the trial to be stopped and that a finding of not guilty be made. The evidence in a case may be adequate if accepted but witnesses may appear so manifestly discredited or unreliable that it would be unjust for a trial to continue. Yet again it may be that in the circumstances the tribunal properly directing its mind to the law and evidence would be unlikely to convict. The rationale for a no case finding of not guilty is not the likelihood of an acquittal in those circumstances but the unsafeness of a conviction having regard to the evidence and the law. (R v Flyger, CA 11/00 judgment 16 August 2000, paragraph 15).

In Fiji the judge's task has been described as assessing the case to see if the prosecution evidence in its totality touches on all the essential ingredients of the offence [adopted in State v Chae [20000023C1999S] my learnedarned sister Justice Shameem described the test as whether at this stage there is evidence, relevant and admissible evidence, that the acccommithe offence. I adopt her honour's view that if thif there iere is some relevant and admissible evidence, direct or circumstantial touching on all elements of the offence then there is a prima facie case.

In coIn considering this application I accordingly need to have regard to the evidence and ask if there is any credible reliable evidence at the conclusion ofProsecution Case that would make it proper and safe to conv convict".

8. Bearing in mind the laws and judicial precedents pertaining on the issue of no case to answer, that the court is required to adopt an objective approach to determine that;
   
   1. where there has been no evidence to prove an essential element in the alleged offence or
      
   2. the evidence adduced by the prosecution has been so discredited as a result of cross examination or.
      
   3. is manifestly unreliable that no reliable tribunal could safely convict on it.
      
9. I now turn to the issue of objective test approach to assess the evidence of the prosecution. The Objective approach is that assessing or measuring something based on some hypothetical person or situation as an "informed person" or reasonable person". Moving back to the issue of no case to answer, the court is not required to determine the criminal responsibility of the accused either in subjectively or objectively. However the court is required to analyze the evidence presented by the prosecution through the eyes of a reasonable tribunal in order to determine the issues pertaining to the no case to answer.
   
10. Section 154 (1) of the Penal Code Act stipulates that "Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and is liable to imprisonment for five years, with or without corporal punishment."
    
11. In view of the section 154 (1) of the Penal Code Act, the main elements of the offence of Indecent Assault are,
    
    1. The accused,
    2. Unlawfully and indecently,
    3. Assault the victim.
       
12. At this point I do not wish to be repetitive by reproducing the evidence adduced by the prosecution and proceed to analyze the evidence presented by the prosecution with the relevant legal principles pertaining to the issue of No case to answer.
    
13. Coming back to the issues of whether there has been no evidence to prove an essential element in the alleged offence, I find the court is only required to determine whether the prosecution has presented evidence to prove essential elements of the offence and not that whether the evidence presented have proved the essential elements of the offence at that stage of the hearing.
    
14. Bearing in mind the above requirement, I am satisfied that the prosecution has been able to present evidence to prove the essential elements of the offence of Indecent Assault. The Victim in her evidence has identified the accused as the person whom touched her breast and tried to open the zip of her trouser while she was travelling in the minivan. The victim stated in her evidence that she tried to stop him and express her disagreement but the accused unlawfully committed this act. The victim further stated in her evidence that the accused touched those parts of her body while two of their friends and the driver of the van were inside. Apart from the evidence of the victim, the prosecution tendered the record of caution interview of the accused person which was not challenged by the Defence. In line with the caution interview, the accused was inside the minivan at the time of this allege incident. It is my view that a reasonable tribunal indeed will apprehend with the evidence presented so far, that the prosecution has been able to present evidence to prove the essential elements of this offence of Indecent Assault.
    
15. I now move to determine the second issue that is whether the evidence adduced by the prosecution has been so discredited as a result of cross examination together with the third issue of that is whether the evidence of the prosecution is manifestly unreliable that no reliable tribunal could safely convict on it
    
16. The main contentions of the learned counsel of the Defence is that the evidence of the victim is highly inconsistence and contradicted with her statement that she made to the police, hence manifestly unreliable. The Defence mainly revolves its contention around that the victim has contradicted her own statement that she made to the police with the issues of that she did not drink at the beach and her omission to state in her police statement that the accused has slapped her when they got down from the minivan. The learned counsel of the defence urged that this inconsistence nature of the victim's evidence and her evasive nature of giving answers when she was cross examined have discredited her evidence and therefore manifestly unreliable.
    
17. The victim in her evidence in chief and in her statement to the police has stated that "then we all drink at the beach". However when she was cross examined she stated she did not drink at the beach. Moreover, she stated in her evidence in chief that the accused slapped her face when they got down from the minivan which is not stated in her statement to the police. The victim stated in her evidence when she was cross examined why she did not state to the police that she did not drink at the beach, she replied that it was not specifically put to her and we all had been drinking in that evening. It is a subjective test for the court to determine the credibility of the evidence of this witness by addressing the issue that whether these contradictions go to the root of this offence or peripheral issue and the explanation of the victim for these inconsistence are acceptable upon subjectively analyzing the circumstances in which the victim was in at the time she made her statement to the police. Moreover, the accused in his caution interview has not disputed the events leading up to this alleges incident inside the minivan, specially his statement in caution interview is in consistence with the victim's evidence apart from those two issues of her drinking at the beach and the slapping incident at the time they get off from the van. At this point a reasonable tribunal could objectively assess that the inconsistencies of such nature would not go to the main elements of the offence and do not discredited the evidence presented by the prosecution. In view of these finding the I am satisfied that the evidence presented by the prosecution is not manifestly unreliable that no reliable tribunal could safely convict on it
    
18. In conclusion, I hold that at the conclusion of the prosecution case, it appears to the court that a case is made out against the accused person sufficiently to require to make a defence. Accordingly, I refuse and dismiss the application of the learned counsel of the Defence which he made in pursuant of section 179 of the Criminal Procedure Decree.
    

On this 11th day of October 2012.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Nadi.