State v Kumar [2012] FJMC 233; Criminal Case 7.2011 (1 October 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF NAVUA

Criminal Case : - 70/2011

THE STATE

V

AMLESH KUMAR

For Prosecution : - Sgt. Lenaitasi
For Accused : -Miss. Sharma from the Legal Aid.

RULING ON NO CASE TO ANSWER

[1] The accused was charged with Damaging Property contrary to s.369 of the Crimes
Decree No 44 of 2009.

[2] Since the Accused person pleaded not guilty to the charge this case was set down
for the hearing. At the hearing Prosecution called 4 witnesses and tendered the caution interview and the charging statement of the accused as exhibits.

[3] At the conclusion of the prosecution case, learned counsel from the Legal Aid
submitted that there is no case made out against the accused under s. 178 of the
Criminal Procedure Decree. Learned counsel for the defence submitted written submission regarding that which I have gone through as well as the evidence presented by the prosecution.

LAW ON NO CASE TO ANSWER

[4] The relevant section with regard to no case to answer is s. 178 of the criminal
Procedure Decree. It 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”.

[5] In the leading case of Regina v Galbraith 9C.A0[1981] Lord Lane CJ said as follows
“How then should the judge approach a submission of “no case”

(i) If there is no evidence that the crime alleged has been committed by the

defendant, there is no difficulty. The judge will of course stop the case.(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistence with other evidence.”

[6] This was also applied in Fiji Court of Appeal case of Moidean Hassan v Reginam
Cr.App 41 of 1976 where Judge Gould V.P quoted from a practical note issued the Queen’s Bench Division:

“A submission that there is no case to answer may be properly 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

a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.”

[7] In State v Aiyaz [2009] FJHC 186; HAC033.2008 (31 August 2009) Justice
Daniel Goundar differentiates the guiding rules between High Court and
Magistrates Court.

“The test under section 293(1) is settled and is more stringent than the test under section 210 of the Criminal Procedure Code, which governs an application for no case to answer in the Magistrates’ Court. 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.

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." [Emphasis added]

[8] Based on the principles laid down in the above cases a party can make a submission
on following grounds.

(a) Where there has been no evidence to prove an essential element in the alleged offence or

(b) The evidence adduced by the prosecution has been so discredited as a result of cross examination or is manifestly unreliable that no reliable tribunal could safely convict on it.

[9] The defense counsel in her written submission stated that she is relying on both
grounds for her application. Therefore it is important to look in to the evidence
given by the prosecution in deciding this application.

[10] The accused is charged with Damaging Property contrary to s.369 of the Crimes
Decree . The elements of the offence are:-

1. The accused
2. Willfully and unlawfully

100. Destroys/ damages

4. Any property
   

SUMMARAY OF EVIDENCE

[11] Now I will consider the evidence briefly . The PW1 is a taxi driver by profession. On 13/04/2012 while going to pick a job he saw the accused coming from opposite direction. He also saw the accused throwing a stone to his vehicle damaging the windscreen. The PW1 went to pick the job and then came back and reported the matter to the Navua Police. In his cross examination the PW1 said he could not remember what the accused was wearing that day and also admitted he had a case against the accused. The PW1 said at that time he had no one in the taxi but later he picked a lady.

[12] The PW2 , Aiyaz Ali said he also saw the accused throwing a stone. He said the stone
landed in the windscreen of the PW1's vehicle. . In his cross examination he said he
was not sure what the accused wore at that time. .

[13] The PW3 was the interviewing officer. The caution interview was marked as EX-2.
The PW4, Cpl Ulaiasi was the IO in this case. He said on that day he got a report about damaging property and the PW1 showed him the damage.

[14] Now I will briefly consider the defense counsel grounds. . The learned counsel in her submission denied the accused committed that but there are two witnesses (PW1, PW2) about the incident. It was also submitted by the Counsel that the witnesses could not remember what the accused wore which I consider as a minor matter. This incident happened on 2010 and no reasonable person can be expected to remember all these things. .

[15] It was also mentioned by the counsel that the PW1 did not call the lady . The lady
was not present at the time of the incident and no relevant to the case.

[16] Therefore for the above mentioned reasons I find that there is enough evidence to
fulfill all the elements in this offence and these evidences presented by the
prosecution were not discredited by the Counsel of the accused in her cross
examination and nor manifestly unreliable.

[17] In view of foregoing reasons, I hold that at the conclusion of the prosecution case, it
appears to the court that a case is made out against the accused sufficiently to
require making a defense. Wherefore, I dismissed the submission made by the learned counsels for the Accused person under the section 178 of the Criminal Procedure Decree.

01/10/2012

H. S. P. Somaratne
Resident Magistrate, Navua