State v Bete [2015] FJHC 956; HAC70.2014 (2 December 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 70 OF 2014

BETWEEN :

STATE

AND :

JIMI BETE

Counsel : Mr. Niudamu for State
Mr. Aman Ravindra-Singh & Mr. Anthony for the Accused

Date of Hearing : 27th of November 2015
Date of Ruling : 02nd of December 2015

RULING

Introduction

1. At the conclusion of the prosecution case, the learned counsel for the accused made an application pursuant to section 231 (1) of the Criminal Procedure Code that there is no case for the accused person to answer as there is no evidence presented by the prosecution that the accused person committed these two offences as charged in the information.
   
2. The accused person is charged with one count of "manslaughter arising from breach of duty" contrary to section 240 and 241(5) of the Crimes Decree and one count of "reckless or negligent act" contrary to Section 268(b) of the Crimes Decree. The particulars of the two counts are that;
   

First Count

"Jimi Bete on the 15th day of May 2014 at Malolo in the Western Division, having a duty of care whilst in control of a boat namely Gaunavou, was in breach of that duty, in that he omitted to take reasonable precaution as to the maneuvering of the boat thereby causing the death of Mark Timothy Hardaker"

Second Count

"Jimi Bete on the 15th of May 2014, at Malolo in the Western Division, whilst in control of a boat namely Gaunavou, was negligent as to the maneuvering of the boat thereby causing harm to Mosese Soqeta"

Background

3. The prosecution called seven witnesses for the prosecution case.
   
4. The deceased Mr. Mark Hardaker with his friend Mr. Saso went for a fishing trip on a fiber glass boat in the evening of 15th of May 2014, while they were vacationing at Mana Island Resort with their wives. They were accompanied by one Nicholas MacGee. Late Mosese Soqeta was the captain of the boat. On their way back to the island, they were hit by a boat that was captained by the accused. Mr. Mark Hardaker succumbed to death due to the injuries he sustained at this accident.
   

The Law

5. Section 231 (1) of the Criminal Procedure Degree states that:
   

"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 committed the offence".

6. The test to determine whether there is evidence that the accused person committed the offence pursuant to section 231 (1) of the Criminal Procedure Decree is settled and precise. The correct approach is to examine whether there is some relevant and admissible evidence on each elements of the charged offence and not whether the evidence is fundamentally imprecise or inconceivable. (State v George Shiu Raj and Shashi Shalndra Pal ( 2006) AAU008/05, State v Brijan Singh ( 2007) AAU0005, State v Rasaqio (2010) FJHC 284; HAC 155.2007 (5 August 2010).
   

Analyses

7. The prosecution presented evidence that the accused was the captain of the boat that collided with the boat of the deceased. It came from right side of the boat and collided. The accused was seated at the back of his boat beside the engine. Mr. Mosese has sustained injuries due to this accident.
   
8. Having considered the evidence presented by the prosecution, I find that there is evidence that the accused has committed these two offences as charged in the information. I accordingly refuse and dismiss the application made by the learned counsel for the accused person pursuant to Section 231(1) of the Criminal Procedure Decree.
   

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
02nd of December 2015

Solicitors : Office of the Director of Public Prosecutions
Aman Ravindra Singh Lawyers for the Second Accused person