State v Narayan [2012] FJMC 139; Criminal Case 1581.2010 (22 June 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF FIJI SLANDS
AT SUVA

Criminal Case No: 1581/10

STATE

V

DIP NARAYAN

Prosecution : Cpl Temesi, Police Prosecutor.
Accused : Mr.Singh (Parshotam Law)

RULING ON NO CASE TO ANSWER

1. The accused of this case has been charged for a count of ‘Unlawful Wounding’ contrary to section 261 of the Crimes Decree No 44 of2009. The alleged incident had taken place in 03.09.2010.
   
2. Hearing of the case commenced on 04.04.2012 and the prosecution called six witnesses in support of their case. Four of them were civilian witnesses who testified the actual circumstances of the incident. The remaining two witnesses were the interviewing and charging officers.
   
3. Section 178 of the Criminal Procedure Decree states 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”.

4. At the end of the prosecution case, counsel for the defence made this application although the Court is empowered to make such determination ex-mero motu.
   
5. Before the inauguration of the Criminal Procedure Decree in 2009 applications on ‘No Case’ was governed by section 210 of the Criminal Procedure Code.
   
6. The test for no case to answer in the Magistrates’ Court under section 210 is adopted from the Practice Direction, issued by the Queen’s Bench Division in England and reported in [1962] 1 All E.R 448 (Moiden v R (1976) 27 FLR 206). There are two limbs to the test under section 210:
   

[i] Whether there is no evidence to prove an essential element of the charged offence;

[ii] Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.

7. An accused can rely on either limb of the test under section 210 to make an application for no case to answer in the Magistrates' Court.
   
8. The test of determination on the issue of no case to answer at the conclusion of the prosecution case is a prima facie standard. It was held in R. v Jai Chand (1972) 18 FLR 101),
   

" the decision as to whether or not there is a case to answer should 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".

9. Winter J held in State v George Shiu Raj ([2005] FJHC 522; HAC0019.2005 (9 September 2005) "This is not a test involving judicial prediction of the assessors opinion or my verdict. It is not a question of likelihood of outcome but what may be properly done to give an opinion on guilt and render a guilty verdict. This task requires an objective assessment of the prosecution evidence.
   
10. In FICAC v Rajendra Kumar and Jaswant Kumar HAC 001/09; 11.02.2010. His Lordship Justice Goundar very succinctly formulated the test to be applied in dealing with a matter at the stage of the close of prosecution case. His Lordship held that:
    

'The test is that there must be some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence.

The credibility, reliability and weight of the evidence are matters for the assessors (Sisa Kalisoqo v. State Criminal Appeal No. 52 of 1984, State v. Mosese Tuisawau Criminal Appeal No. 14 of 1990)'.

11. In Sahib v The State [2005] FJHC 95; HAA0022J.2005S (28 April 2005) Hon. Shameem J held,
    

'In the Magistrates' Courts, both tests apply. So the magistrate must ask himself or herself firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence,

And second whether on the prosecution case, taken at its highest, a reasonable tribunal could convict. In considering the prosecution case at its highest, there can be no doubt at all that where the evidence is entirely discredited, from no matter which angle one looks at it, a court can uphold a submission of no case. However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defence case'.

12. The test, referred to above, therefore pertains only to the issue of existence of evidence to satisfy all the elements of the offence so as to enable the Court to proceed after the case for the prosecution is closed.
    
13. Section 261. — of the Crimes Decree 2009 reads as follows,
    

'A person commits a summary offence if he or she unlawfully wounds another person'.

Elements of the offence that could be extracted from the above section are,

1. The Accused person,
2. Unlawfully,
3. Wounds,
4. The victim.
   

14. The Prosecution presented six witnesses for their case. Mr Asish Kumar is the victim of this case. He said at around 11 pm in the night when he was watching TV he heard a dog bark and came out from his house. When he came out he has seen that the dog bark was due to a commotion that was happening near his gate. He identified his brother (Amrith Kumar), his friend (Herve Damlamian) and a taxi driver (later identified as the accused) engaged in an argument.
    
15. The witness stated that the taxi driver was armed with a wheel brazier. And when he tried to stop the fight the accused struck him with the wheel brazier. The accused had hit him twice on his head. He was admitted to the private hospital in Suva.
    
16. During cross examination the witness stated that he approached the accused in a manner that may have caused the accused to think that he was going to attack the accused. After the assault He pushed the accused down the cliff which was near the gate. Eventually the accused landed on his neighbour's property. His neighbour Ms Lomawai Tuwai stressed them not to trespass her land when he and his brother followed the accused.
    
17. This witness specifically stated that,
    
    • He pushed the accused down the cliff.
    • His brother or his friend did not assault or do anything to the accused during the incident as they were drunk.
    • He witnessed this incident from the light of the lamp post.
      
18. Herve Damlamian the friend who accompanied the victim's brother in the taxi testified next. On the date of the incident he and Amrith Raj (brother of victim) had a drinking session and took the taxi of the accused to get them dropped at Delainavesi. They have bought meals from Mc Donald's. When they reached Amrith's place some Coca-cola had been spilled on the back seat of the taxi. The driver (accused) had asked for extra money for spilling Coke. It had led to an argument. Then he stated that the victim came to the scene and the accused struck him with a spanner.
    
19. In his cross examination the witness admitted that he grabbed and held the accused from his back. He went on to state that he pushed the accused down the cliff. But the witness stressed that none of them assaulted the accused.
    
20. Ms Lomawai Tuwai, the neighbour of the victim was the witness called next. I note that this witness can be treated as an independent witness as there was no interest for either party. She is a school teacher. Her house is situated 25 meters away from the victim's house. Having heard the commotion she has come out from her house. She has seen a white Taxi and two persons approaching the driver of the taxi. At this point the victim had come out from the house and he too was facing the accused. She stated that the victim could not stop the accused and the accused tumbled down the cliff to her property.
    
21. It is to be noted that during her cross examination she stated Amrith (brother of Victim) first assaulted the accused with a tree branch. After that the accused went inside the car and armed with something which she did not see clearly. Then he was tumbled down the cliff. This witness stated that she is not aware how the victim sustained injuries.
    
22. After this witness prosecution called two police officers to establish the formalities of caution interview and charging procedure. There is no admission to the offence in accused caution interview.
    
23. Witness Amrith Raj is the final witness of the prosecution case. Prosecution did not pose any questions to the witness whether he assaulted the driver during the argument. He said that the accused was armed with the weapon at the time he got out from the vehicle. During the cross examination the witness stated that he never struck the accused with a tree branch.
    
24. This application by the defence counsel is mainly based on the first limb of the test of 'No Case to Answer'. He submits that the prosecution had failed to prove the element of 'Unlawfulness'.
    
25. In the case of State v Tegu 2010 FJHC 489 Hon. Justice Temo during his summing up to the assessors explained the meaning of 'Unlawful'.
    

'An "unlawful act", is simplyct not justijustified in law. For example, during a drinking party, if A and B had a dispute, and A punched and kicked B in the head, or body, without any justiion, that punching and kicking would be "unlawful acts;acts". The "unlawful&#ful acts" because tre assaults ults in law, that is, they are an unlawful applicati force to the pers person of another, and therefore unlawful. Likewise, if A later stoon B'd, after punchingching him to the ground, that "stomping" wng" would also be an "unlawful act", becat is an un60;unlawful appion tf force to the pere person of another, and thus an assault, in law. As explained in paragraph 9(i) hereof, this is thet legrdle rosecution must overcome, before it cant can ground a murder conviction against Vnst Vaioneaione Tegu. The question therefore becomes: Did Vaione Tegu commits an unlawful act or acts against Si Sega Seganaluvena on 27th May 2006?'

26. Therefore the prosecution is burdened to prove that ct of the accused is 'unlawunlawful' on that night. Very outset the facts should be evaluated by giving some weight to the surrounding circumstances of the case. The incident was at 11.00 pm in the night. The accused opposed two youths whom were drunk after their drinking sessions. It appears that initially there was no person around to call for help of the accused.
    
27. Section 42 of the Crimes Decree 2009 deals with the concept of 'Self Defence'.

Self defence

42.—(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self defence.

(2) A person carries out conduct in self defence if and only if he or she believes the conduct is necessary:

(a) to defend himself or herself or another person; or

(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or

(c) to protect property from unlawful appropriation, destruction, damage or interference; or

(d) to prevent criminal trespass to any land or premises; or

(e) to remove from any land or premises a person who is committing criminal trespass —

and the conduct is a reasonable response in the circumstances as he or she perceives them.

(3) This section does not apply if the person uses force that involves the intentional infliction of death or grievous harm —

(a) to protect property; or

(b) to prevent criminal trespass; or

(c) to remove a person who is committing criminal trespass.

(4) This section does not apply if —

(a) the person is responding to lawful conduct; and

(b) he or she knew that the conduct was lawful.

(5) for the purposes of sub-section (4) conduct is not lawful merely because the person carrying it out is not criminally responsible for it.

28. The only independent witness Ms Lomawai Tuwai stated that the accused was initially assaulted by Amrith Raj. And she saw that two men were approaching the accused before the arrival of the victim. Then the victim joined the duo. It would undoubtedly create some degree of fear on the accused mind to defend himself and to protect his property. The prosecution did not submit any material to illustrate that this witness is bias towards the accused.
    
29. On the other hand the Court should consider whether the defensive behaviour justifies the injuries he caused on the victim. The medical report tendered by the prosecution confirms that the victim sustained two lacerated wounds on his head. It is hard to believe that the person who acts in his self defence would evaluate and apply the same resistance to the person who is in front of him in a moment of unexpected distress. In the light of Ms Lomawai Tuwai's evidence I conclude that the prosecution has failed to prove the element of 'Unlawfulness' in the offence.
    
30. The Court is mindful that the three men who faced the incident did not mention anything about the assault by the witness Amrith Raj. Further there were discrepancies in their testimonies. Fall of the accused person in to the neighbourhood is a vital circumstance of the incident. According to them that were the point where they survived from him. The victim says that he tackled the accused and threw him off the cliff.
    
31. But Herve Damlamian says that he is the one who pushed the accused down. Further he says that he held the accused from back. None of the brothers mentioned that Herve Damlamian actually held him from back. But Amrith strongly dined the fact that he assaulted the accused with a tree branch.
    
32. In Sahib v The State [2005] FJHC 95; HAA0022J.2005S (28 April 2005) Hon. Shameem J held that 'There were inconsistencies in the prosecution case. Indeed, the defence put forward an alternative explanation for the complaint. However I cannot agree with counsel that the evidence was so discredited that any reasonable tribunal had to reject the evidence in its entirety. Witnesses rarely tell an entirely consistent story in court. It would be remarkable if they did, because human beings often have different perceptions of the same incident. Recollections also differ'.
    
33. Whilst respecting the views observed by her ladyship I note that the presiding judicial officer is the best person to observe and decide on the deportment of the witnesses. I find that the three men who experienced the incident have given contradictory evidence. And that a reasonable tribunal properly directing its mind to the law, and the evidence could or might not convict on the evidence so far laid before it.
    
34. In view of foregoing reasons, I hold that at the conclusion of the prosecution case, it appears that a case is not made out sufficiently against the accused Dip Nrayan to require him to make a defence.
    
35. Wherefore, pursuant to section 178 of the Criminal Procedure Decree, I dismiss the charge against the accused person and acquit him from further proceedings.
    
36. Twenty eight (28) days to appeal against this order.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

22nd June 2012