State v Dutt [2011] FJMC 114; Traffic Case 199.2011 (23 September 2011)

IN THE MAGISTRATE’S COURT
SIGATOKA
WESTERN DIVISION
REPUBLIC OF FIJI ISLANDS

Traffic Case No. 199 of 2011

State

v.

Kunal Kritesh Dutt

For State: PC Munsami Chetty.
Accused : Present - Represented by Mr. Janend K Sharma.

RULING – No Case to Answer

Introduction

The Accused is charged with 2 counts of Dangerous Driving occasioning Death, contrary to Section 97 (1), (2) (c), (5) (D) and 114 of the Land Transport Act No 35 of 1998.

At the close of the prosecution case, the Counsel for the defence made a submission for a no case to answer.

The Law

Part XIII - of the Criminal Procedure Decree 2009 provides for the Procedure in Trials before Magistrates Courts. Division 1 of Part XIII deals with Provisions Relating to the Hearing and Determination of Cases. Section 178 of the Criminal Procedure Decree 2009, falls within Part XIII and it 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 or her to make a defence, the court shall dismiss the case and shall acquit the accused.”

Section 178 of the Criminal Procedure Decree 2009 is identical to Section 210 of the Criminal Procedure Code, Cap 21, which it has replaced.

This Court is guided by a long standing Criminal Practice Direction, cited as A Practice Note [1962] 1 All ER 448 which provides that:

"A submission that there is no case to answer&#1b>may pmay properly be made and upheld (a) when there has been no evidence to prove an essential element in the alleged offence; (b) whe evidence adduced by the prosecution has been so discrediteedited 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 ansb>, the decisdecision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whethe evidence is such that a reasonable tribunal might convict.vict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a casanswer."

This Court also takes note of R v. Jai Chand [1972] 18 FLR 101, where Justice Grant stated that:

"the decision as to whether or not there is a case to answer coub>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 Prosecution Witnesses Evidence

The Prosecution called 7 witnesses.

Submission

The Prosecution and the Defence filed written which this Court has carefully considered. In summary, the Defence submitted that "the accused did not drive dangerously or cause the dangerous situation. PW3 does not state that he saw a car drive past his garage fast. He was however not asked whether it was the accused car and was not asked what was PW 3's estimate of the speed of the accused's car. In fact another prosecution witness, PW 5 clearly stated that the accused was driving between 70 to 80 km/h, which is within the national speed limit. The prosecution has not been able to satisfy an essential element of the charge."

In summary the submission by the prosecution is that "the accused was driving vehicle registration No Sai 23 and whilst driving at Togovula went on the wrong side of the lane to avoid flowing water. Due to the accused going on the wrong side collided with the on coming vehicle of PW-1 on the passenger side of PW-1's vehicle."

Analysis

The Court noted all the evidence and the documents that were tendered in this Court.

Having considered the evidence of the prosecution witnesses, the Court at this stage is not so much concerned at this stage on conviction or acquittal but on whether the evidence is such that the Court properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. From the evidence tendered in Court at the close of the prosecution case the Court has adopted an objective test as distinct from the ultimate subjective test as adopted at the close of the trial.

From the evidence tendered in Court at the end of the prosecution case the Court finds that a case is made out against the accused person sufficiently to require them to make a defence.

The accused is put to his defence.

Chaitanya Lakshman
Resident Magistrate
23rd September 2011