State v Mow [2012] FJMC 82; Traffic Case 3228.2011 (17 April 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF NAVUA

Traffic Case No: - 3228/2011

THE STATE

V

DENNIS JOSEPH MOW

For Prosecution : - Sgt. Lenaitasi
For Accused : -Ms. Ravono

RULING ON NO CASE TO ANSWER

1. The accused was charged with Dangerous Driving Occasioning Death contrary to s 97(2) ( c) and 114 of the LTA act No 35 of 1998.
   
2. Since the Accused person pleaded not guilty to the charge the matter 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 and two other exhibits.
   
3. At the conclusion of the prosecution case, learned counsel for the accused person made a submission under section 178 of the Criminal Procedure Decree. Accordingly, I invited the learned counsel for the defence to submit her written submission on the issue of no case to answer which she filed accordingly. Upon perusing these written submissions of the defence and the evidence presented for the prosecution, I now pronounce my ruling under section 178 of the Criminal Procedure Decree 2009.
   
4. The learned counsel for the accused person submitted a detailed written submission on the issue of no case to answer. Having analyzing the evidence presented by the prosecution the learned counsel for the defence submitted that the prosecution had failed to prove the essential elements of the offence and evidences presented by the witnesses were unreliable.
   
5. Having considered the submissions the defence, I now draw my attention to the laws pertaining to the issue of no case to answer.
   
6. 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”.
   
7. 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”.
   
8. The practice note (1962) 1 All ER 488, stipulate that “a submission that there is no case to answer can properly be made and upheld (a) where there has been no evidence to prove an essential element in the alleged offence, (b) where 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. 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 assessor's 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.
   
   1. In some cases the evidence supporting the charge may be barely adequate and so tenuous as to lead a judge to the view that it would not be proper for the assessors to render an opinion or the judge to convict and accordingly the interests of justice require the trial to be stopped and that a finding of not guilty be made. The evidence in a case may be adequate if accepted but the witnesses may appear so manifestly discredited or unreliable that it would be unjust for a trial to continue. Yet again it may be that in the circumstances the tribunal properly directing its mind to the law and evidence would be unlikely to convict. The rationale for a no case finding of not guilty is not the likelihood of an acquittal in those circumstances but the unsafeness of a conviction having regard to the evidence and the law. (R v Flyger, CA 11/00 judgment 16 August 2000, paragraph 15).
      
   2. In Fiji the judge’s task has been described as assessing the case to see if the prosecution evidence in its totality touches on all the essential ingredients of the offence [adopted in St Chae [2000] HAC0023C0023.1999S]emy learned sister Justice Shameem described the test as whether at this stage there is evidence, relevant and admissible evidence, that the accused committed the offence. I adopt her honour&#s view that if there is soms some relevant and admissible evidence, direct or circumstantial touching on all elements of the offence then there is a prima facie case.
      
100. In considering this application I accordingly need to have regard to the evidence and ask if therany credible reliable evideevidence at the conclusion of the Prosecution Case that would make it proper and safe to convict”.
     

10 ] 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]

11. Bearing in mind the laws and judicial precedents pertaining to the issue of no case to answer, I find the test on the issue of no case to answer is that to determine
    
    1. Where there has been no evidence to prove an essential element in the alleged offence or
       
    2. 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.
       

12 Now I draw my attention to the no case to answer in this case. The s 97(2) (c) 274 of the LTA act No 35 of 1998 read as"1) A person commits the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle –

(c) in a manner dangerous to another person or persons

13. In Rao v The State, Criminal Appeal No .HAA 102 of 2007 Her Ladyship Justice Nazhat Shameem outlined the elements under s 97(2) of the Land Transport Act to be as
    
    1. The accused drove a vehicle
    2. He occasioned death
    3. In an impact
    4. At the time of the impact the accused was either drunk or speeding or driving in a manner dangerous to other road users.
       
14. In this case the accused is charged under s 97 (2) (c) of the LTA act. Therefore the elements in the offence are
    

(a. The accused drove the vehicle

B That he occasioned the death

C In an impact

D At the time of the impact the accused was driving in a manner dangerous to another person

15. At this point I do not intend to reproduce the evidences adduced by the prosecution and proceed with analyzing the evidences presented by the prosecution with the relevant legal principles pertaining to the issue of No case to answer.
    
16. There is no dispute about the first 3 elements of the offence. Only dispute is whether at the time of the impact the accused was driving the vehicle in a dangerous manner to others.
    
17. The prosecution called 4 witnesses. The pw1 in his evidence said the accused was traveling very fast. On one occasion he noticed the speedometer reading 100kmph.The pw1 also said whilst going down the hill the vehicle was gaining speed.
    
18. The pw2 was IO in this case. He said he visited the scene and noticed wheel marks and that indicated the speed of the vehicle.
    
19. The pw3 was the vehicle examiner from the LTA and the pw4 was the interviewing officer.
    
20. At this stage I have to see only if there are some evidences to cover all the elements in the case. Whether that is enough to prove the case beyond reasonable doubt is to be decided at the end of the trial.
    
21. From the evidence of the pw1 and pw2, I find that the accused was driving fast. The pw1 said he saw the meter around 100kmph at one time and in his evidence said he could not sleep also. He also mentioned whilst going down vehicle was gaining speed.
    
22. The pw2 said he noticed wheel marks at the edge of the road to the length of 29m and he said they were brake marks in his cross examination.
    
23. Therefore I find that there is some evidence to show that vehicle was traveling fast and whilst going down the hill it was traveling like that manner.
    
24. The Learned defence counsel for the accused in her written submission mentioned about R v Gosney (1971) 3 All ER where court had said "We would state briefly what the law was and is on the question of fault in the offence of driving in a dangerous manner. It is not an absolute offence. In order to justify a conviction there must be, not only a situation, which vied objectively dangerous, but there must also have been some fault on the driver, causing the situation"
    
25. The learned defence counsel also pointed out that the accident was caused because the accused's sandal dislodged between the clutch and the brake which made him to lose control. The defence position was that there was no fault of the accused. It was suggested to the witnesses for the prosecution but no one admitted that and for the moment it is suggestion only. Until the defence gives evidence about that claim and subject to cross examination it is not an evidence to consider.
    
26. Therefore when analyzing the evidences of prosecution's witnesses I find that there are some evidences to cover all the elements of the offence. As I mentioned before whether they are enough to prove the charge beyond reasonable doubt has to be decided at the end of the trial.
    
27. Also I am not in a view that these evidences presented by the prosecution were discredited by the counsel of the accused in her cross examination and or manifestly unreliable.
    
28. 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.
    

28 days to appeal,

17/04/2012

H. S. P. Somaratne
Resident Magistrate, Navua