State v Begum [2012] FJMC 199; Criminal Case 12.2012 (22 August 2012)

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

Criminal Case No: 12/12

STATE

V

SHAZYA SHAINAZ BEGUM

Prosecution: Cpl Temesi, Police Prosecutor.

Accused: Mr.Reddy (Reddy & Nandan Lawyers)

RULING ON NO CASE TO ANSWER

1. The accused of this case has been charged for a count of ‘Indecently Annoying any Person’ contrary to section 213 (1)(a) of the Crimes Decree No 44 of2009. The alleged incident had taken place on 01.01.2012.
   
2. Hearing of the case commenced on 02.02.2012 and the prosecution called five witnesses in support of their case. Three of them were civilian witnesses who testified to 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 decision ex-mero motu.
   
5. Before 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. Counsel for the accused addressed on the second limb of the test, referred to above. Therefore it pertains only to the issue of existence of credible evidence to satisfy the elements of the offence so as to enable the Court to proceed after the case for the prosecution is closed.
    
13. Section 213 (1)(a). — of the Crimes Decree 2009 reads as follows,
    

'A person commits a summary offence if he or she, intending to insult the modesty of any person —

(a) utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person;

14. Ms Zarina Bi who was the victim of the case testified first. She stated that she went to his husband's shop at around 11 am on the day of the incident to buy a bottle of juice. She was accompanied by her sister Merul Nisha. As she entered in to the shop she has seen the accused with her husband. Accused of this case has been the girlfriend of her husband. Her husband has tried to avoid any confrontation between the two. He tried to send the accused with his sales boy which she refused. Witness Zarina stated that at this point the accused started to swear at her in abusive language. She stated that she was embarrassed by the act of the accused. Later she had reported the matter to the police.
    
15. During her cross examination it was transpired that she was not in good terms with the accused as her husband had an affair with the accused. In fact she stated that she was angry with the accused for taking her husband away. Defence counsel drew the attention of the Court to some contradictory positions which were taken by the complainant in her police statement. She did not give any sufficient explanation to the said contradictions. However she stated that she did not do anything on the day for the accused to act in that manner.
    
16. Prosecution's second witness was Meena Kumari. She stated that she is a friend of the complainant and went on that day to look for his son. She had gone inside the shop where the incident occurred. She relayed a similar narration to the complainant. However she admitted that she told the police that she did not go inside the shop. It is to be noted that this is a very critical contradiction on her testimony. This was further added by another contrary position. She stated that the accused almost punched the victim.
    
17. Meena Kumari's evidence is highly unreliable as she disclosed her motive and attitude towards this action. She stated that she felt sorry for the victim as she was left out with a small child and also she will support her as she too is a lady. Therefore I note that it is not safe to act on such evidence as it can be and is influenced by emotions.
    
18. Filex Ashnil Kumar played a vital role in this case. Prosecution called him as an independent witness who worked at the shop. His testimony entirely cut a crossed the prosecution case. He stated that Zarina started the incident by yelling at the accused. According to this witness Zarina has called the accused in filth. In fact the accused tried to call the police. He further added that the accused did not utter a word after the complainant walked in to the shop.
    
19. This witness was not called as a hostile witness by the prosecution. View of this Court is that the prosecution has placed two entire different versions before the Court. Other two witnesses have not experienced the incident as they were official witnesses. Also there is no formal admission by the accused in her caution interview.
    
20. 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'.
    
21. 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 witnesses who experienced the incident have given contradictory evidence. And that a reasonable tribunal properly directing its mind to the law, and evidence cannot convict on the evidence so far laid before it.
22. 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 Shazya Shainaz Begum to require her to make a defence.
    
23. Wherefore, pursuant to section 178 of the Criminal Procedure Decree, I dismiss the charge against the accused person and acquit her from further proceedings.
24. Twenty eight (28) days to appeal against this order.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

22nd August 2012