State v Salabula [2011] FJMC 3; Criminal Case 427 of 2008 (18 January 2011)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 427 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 01st February 2008, an offence punishable under sec. 271 of the Penal Code.
   
2. On 30th March 2009 hearing conducted before then Chief Magistrate and three prosecution witnesses had given evidence. Hearing then adjourned as then Chief Magistrate decided to have a Voir Dire Inquiry.
   
3. On 27th October 2009, the previous magistrate had allowed the accused person's application for trial de-novo and fixed the case for a mention. Thereafter the accused failed to appear before court and on 30th November 2010, accused indicated to the Court that he wants to adopt the evidence lead so far. Accused then signed the case record to that effect and informed the Court that he need time to file submission for no case to answer.
   
4. Case record then typed and a copy of the record handed over to the accused and accused filed his submission for no case to answer.
   

Law applicable

5. 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.

6. 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.

7. 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.
      
8. 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.
   
9. 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 a brief case valued at $170.
   4. With the intention of permanently depriving the owner
   5. Did this fraudulently and without a claim of right made in good faith.
      
10. Owner of the stolen brief case gave evidence in court and informed that he saw the accused clearly and he identified the accused. According to the witness he has seen the accused even prior to the incident and this piece of evidence had not been challenged by the accused. Later witness had identified the accused at Raiwaqa police station when the accused had been arrested by the police. According to the witness, in the police station accused had admitted stealing the brief case to the witness and this piece of evidence also had not been challenged by the accused.
    
11. PW-2 had recorded the caution interview on 11th February 2008 and accused had challenged the caution interview stating that it has not admitted freely. According to the PW-2 accused had shown him the place where he threw the brief case. PW-2 rejected the allegation of threats and force during the caution interview.
    
12. PW-3 was the charging officer and informed the Court that the accused had not made any statement.
    

Analysis

13. Evidence of the owner of the stolen item was very clear in court and there is no ambiguity as to the identification of the accused person. Accused had failed to discredit the evidence of the PW-1. In the light of the above findings, it is difficult for me to understand the need for voir dire inquiry to prove the prosecution's case.
    
14. I find that by the evidence of PW-1 alone in Court, all the elements of the charge mentioned above in paragraph 9 of this ruling had been proved and it has not been challenged.
    
15. Therefore, I find that there is no merit in the submission filed by the accused regarding the failure to conduct a voir dire inquiry. Hence, submission for 'no case to answer' is dismissed. Accused has a case to answer.
    
16. It is explained to the accused that he has a right to give evidence, call evidence on his behalf or to remain silent.
    

On this Tuesday the 18th day of January 2011

Kaweendra Nanayakkara
Resident Magistrate