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State v Cakacaka [2012] FJMC 113; Criminal Case 1141.2010 (28 May 2012)

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


Criminal Case No. 1141 of 2010


State


v.


Joape Cakacaka


For State: Mr Filimoni Lacanivalu
Accused : Present - Represented by Mr. Iqbal Khan


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 “Joape Cakacaka on the 14th day of July 2010 at Sigatoka in the Western Division drove a Motor Vehicle Registration Number ER291 on the Queens Road, at Komave without due care and attention.


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 answe0;may pmay 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 thsecution has been so discreiscredited 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 toer, 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 whether the evidence is such that sonable tribunal might conv convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a to answer."



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


"the decision as to whether or not there is a case to answ answer&#1b>sshould 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 reasonablbunal properly directing its mind to the law and the evidenvidence 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 1 witness.


Submission


The Prosecution and the Defence made written 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.


The prosecution has relied on the evidence of the Investigating Officer the sole witness in the case. The accused in his caution interview to the police which was tendered by consent had mentioned that "the rear portion of the vehicle was pulling to the [his] right. [he] tried to balance the vehicle with the steering wheel. I could not control the vehicle and the vehicle went of the road... at about 60 km/hr." The accused also stated in the caution interview that he had checked the vehicle before he left Lautoka and their was no defects in the vehicle.


The accused brought to the attention of the investigating officer and the police that vehicle pulling to the right side after descending the slope caused the accident. This was the accused's defence. The Police/investigator should have had the vehicle examined to see what might have caused this as was alleged by the accused. No inspection of the vehicle took place. The Prosecution needed to call evidence of a vehicle examiner to tell the Court whether a defect existed or not. No such witness was called in Court by the Prosecution. From the case before it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence. For the foregoing reasons the Court acquits the accused. 28 days to appeal.


Chaitanya Lakshman
Resident Magistrate
28th May 2012


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