State v Salabula [2011] FJMC 2; Criminal Case 1300 of 2008 (18 January 2011)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 1300 of 2008

STATE

v.

MANASA SALABULA

For Prosecution: PC Prasad
Accused: Present in Person

RULING on No Case to Answer

1. Accused is charged for committing an offence of "Larceny from Person' on 17th June 2008, an offence punishable under sec. 271(a) of the Penal Code.
   
2. On 25th March 2009 hearing conducted before then Chief Magistrate and two prosecution witnesses gave evidence. Hearing then adjourned as then Chief Magistrate decided to have a Voir Dire Inquiry.
   
3. Thereafter several other magistrates have handled this file and prosecution had sought time to ascertain the whether the accused indeed had been assaulted by the police.
   
4. Thereafter accused had failed to appear before the Court on several occasions.
   
5. However, on 30th November 2010 accused informed the Court that he is adopting the evidence lead so far and he is ready for the trial. Prosecutor then indicated to the Court that they will be calling one more witness. Then special hearing date assigned for continuation as the accused is in remand.
   
6. On the date the continuation of hearing supposed to take place prosecutor informed that they failed to serve summons and accused filed 'no case to answer' submission in writing.
   

Law applicable

7. After the new Criminal Procedure Decree 2009 came into force on 01st February 2010, Sec. 178 of CPD is applicable to "No case to answer" submissions in the Magistrate's Court proceedings. However, previously the relevant section was sec. 210 of the Criminal Procedure Code (Cap 21).
   

S. 210 of the Criminal Procedure Code

'210. 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'.

S. 178 of the Criminal Procedure Decree 2009

'178. 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.'

When comparing the both sections it is apparent that both sections are verbatim except for the word "forthwith" is missing from the sec. 178 of CPD 2009. Therefore, the decided law under sec. 210 of the Criminal Procedure Decree could be safely applied for the present day situation.

8. In the Practice Note of the Queen Bench Division [1962] 1 All ER 448, Lord Parker speaking for judges of that Division had stated that:
   

"A submission that there is a no case to answer may be properly made and upheld if;

a). 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 so manifestly unreliable that no reasonable tribunal could safely convict against it;

c).whether a reasonable tribunal might convict on the evidence so far laid before it

In Moidean v. R [1976] 22 Fiji LR 206, above guidelines had been approved by the Fiji Court of Appeal and had stressed the fact that these guidelines are equally useful to magistrates as well.

9. According to Justice Shameem in, Abdul Gani Sahib v. State [2005] HAA0022/05S, 28th April 2005, the correct test in Magistrate's Court under Sec. 210 of the Criminal Procedure Code is,
   
   1. Whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and;
      
   2. Whether on the prosecution case at its highest, a reasonable tribunal could convict.
      
10. According to Justice Shameem's guidelines, where the evidence is entirely discredited, no matter from which angle one looks at it, a court can uphold a submission of no case. However, where there is a possible view of the evidence might lead the court to convict, the case should proceed to the defence case.
    
11. In this case prosecution have to prove following elements to prove the charge.
    
    1. The accused
    2. With out the consent of the owner
    3. Did take $30 cash
    4. With the intention of permanently depriving the owner
    5. Did this fraudulently and without a claim of right made in good faith.
       
12. Owner of the stolen cash gave evidence in court and informed that he saw the accused clearly and he identified the accused after he was arrested by the police. In fact Police had asked the owner to come to the police station in order to identify the accused who had been arrested by then.
    
13. According to the interviewing officer, the cautioned interview had conducted on 16th July 2008 nearly one month after the commission of the alleged offence.
    
14. Prosecution failed to provide any more witnesses. Caution Interview of the accused had been allowed to mark only for the purpose of identification and the presiding magistrate had call for voir dire inquiry.
    
15. According to the available evidence it is clear that the complainant had identified the accused only after he had been arrested by the police and according to the date in the cautioned interview it is safe to assume that accused was arrested nearly one month after the alleged incident.
    
16. Based on the above finding I am of the view that the identification evidence by the complainant is unsafe to accept without any other corroborative evidence.
    
17. In this case there is no other evidence to prove the prosecution's version of the case.
    
18. Therefore, I accept the submission for 'no case to answer' and acquit the accused accordingly.
    
19. 28 days to Appeal.
    

On this Tuesday the 18th day of January 2011

Kaweendra Nanayakkara
Resident Magistrate