State v Prasad [2010] FJMC 2; Traffic Case 5320.2008 (20 January 2010)

IN THE FIRST CLASS MAGISTRATE’S COURT
AT NAUSORI
FIJI ISLANDS

Traffic Case No. 5320 of 2008

STATE

V

ASHIS PRASAD

Before Chaitanya Lakshman
Resident Magistrate

For Prosecutor: Ins. Ali
Accused: Present – Mr S Kumar

RULING

The accused was charged with Careless Driving, contrary to Section 99(1) and 114 of the Land Transport Act (1998).

The case was heard on 4th January 2010.

At the conclusion of the Prosecution case the counsel for the accused made a submission for no case to answer. The Prosecution argued that the accused had a case to answer.

The Law on No Case to Answer

Section 210 of the Criminal Procedure Code provides 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 to make a defence, the Court shall dismiss the case and shall forthwith acquit the accused".

A Practice Note [1962] 1 All ER 448 directed that in criminal cases, which is also applicable in traffic cases:

"A submission that there is no case to answer may properly be made and upheld (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as the result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. Apart from these two situations a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer."

In R v. Jai Chand [1972] 18 FLR 101, Justice Grant stated that "the decision as to whether or not there is a case to answer should depend not so much on 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 words, 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".

The Evidence

The Prosecution in this case called 3 witnesses.

Pw- 1 was SC Daven Singh. The other two witnesses were: (a) Pc Avinesh (b) PC Elia.

The material evidence of PW-1 was as follows:

"I approached the driver and asked for his driving licence and after booking him gave him the tin. I also told him that I will seize the vehicle and tow to LTA. I was demanding the key. I was close to the vehicle. He swerved the vehicle to my right and almost ran over me I had to step back to save the accident." In cross examination PW-1 told the court "I was standing close to the vehicle next to the driver by the side mirror. Cannot recall another vehicle in front. When accused turned he tried to flee. He almost bumped me. I created dangerous situation."

The material evidence of PW-2 was as follows:

"while he was serving the Tin. The driver of that vehicle swung the steering towards his right and SC Diven moved 2 steps backwards to avoid the accident and the tyre not to go over his leg. After that SC Diven wanted to tow his vehicle to LTA and when Diven asked for the driver refused to give the key and somehow Diven took out the key from the ignition. When the accused swung the steering towards the right side- careless aspect."

In cross examination PW-2 agreed that his written statement was incorrect.

Courts analysis

This Court takes note of Practice Note [1962] 1 All ER 448 and the test laid down in it with respect to no case to answer.

This Court has in this ruling scrutinised the evidence of the first two prosecution witnesses. The Court finds that the evidence adduced by the prosecution has been so discredited as the result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. This Court also warns itself that at this stage it is not so much on whether the Court would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. This Court finds that the evidence before is manifestly unreliable and that no reasonable tribunal could safely convict on it. The accused is acquitted of the charge.

28 days to Appeal.

Chaitanya Lakshman
RESIDENT MAGISTRATE

20/01/2010