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

Criminal Case No. 200 of 2011

State

v.

Aseer Tarzee Safiq

For State: PC Chetty
Accused : Present - Represented by Mr. Jasveel Singh 

RULING – No Case to Answer

Introduction

The Accused is charged with, Careless Driving, contrary to Section 99 (1) and 114 of the Land Transport Act 1998. The particulars of the offence is that “Aseer Tarzee Safiq on the 11th day of September 2010 at Sigatoka in the Western Division drove a Taxi Registration Number LT 1012 on the Queens Road, Solevu without due care and attention.”

At the close of the prosecution case, the Counsel for the defence made a oral 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 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." 

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 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 Prosecution Witnesses Evidence

The Prosecution called 4 witnesses. 

Submission 

The Prosecution and the Defence made oral submissions which this Court has carefully considered. 

Analysis

The Court noted all the evidence that was 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 evidence of the prosecution witnesses, mainly the victim is so unreliable and has been discredited in cross-examination that it cannot be relied upon. 

In cross-examination the evidence of PW-1 the victim of the accident on her positioning when the accident took place was that "was beside the taxi. Hand on handle was close to the taxi. Was right beside the taxi with hip touching taxi and hand on handle." The Investigating Officer of the case had identified the photos as that of the vehicle and the point of impact as the dent on the bonnet. The photos of the accident vehicle were marked for identification by the Defence. The Prosecution did not object to the identification of the photos. The photos were viewed by the Court. The Photos showed that the victim had been hit in the middle part of the bonnet of the vehicle and landed on the windscreen. It is clear from the substantive dent on the bonnet and the shattered windscreen. From the sketch of the accident and the evidence of the witnesses the Court notes from the evidence and the photos that it is not possible to hit the victim with the middle portion of the car without hitting the other vehicle as per the evidence of the victim that she was right beside the taxi with hip touching taxi and hand on handle. The evidence is clearly unreliable. 

The Court noted from the evidence that the other vehicle had no impact. If the Court notes the victims evidence she states that she was right next to the vehicle she was travelling in when she was hit by the accused. According to her evidence and the photos this cannot be so as the point of impact with the victim by accused's vehicle was in the middle part of his Taxi, if the victim was next to the taxi she was travelling and the accused hit her with the middle portion of his vehicle than the accused's vehicle cannot miss the other vehicle, the victim was beside. The accused vehicle will have hit the other vehicle. The evidence of the complainant is clear unreliable and cannot be believed by this Court. The Court finds that the evidence of the complainant is so unreliable that no reasonable tribunal would believe her version in relation to the accident and her position and the point of impact of the accused's vehicle and the other vehicle she is stating she was holding onto. 

For the foregoing reasons the Court acquits the accused. 28 days to appeal. 

Chaitanya Lakshman
Resident Magistrate
14th May 2012