State v Musa [2012] FJMC 94; Criminal Case 206.2010 (7 May 2012)

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

Criminal Case No. 206 of 2010

State

v.

Mohammed Musa

For State: PC 2493 Munsami. Chetty
Accused : Present - Represented by Ms. Christina Choy (Legal Aid)

RULING – No Case to Answer

Introduction

The Accused is charged with 7 Counts of Obtaining Money by False Pretence, contrary to Section 309 (a) of the Penal Code.

At the close of the prosecution case, the Counsel for the defence made a submission for a no case to answer.

The Law – No Case

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 ca answer may pmay properly be ande and upheld (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence ad by tosecution has bees been so discredited as the result of crof 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 co answer, 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 a reasonable tribunal migh might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer."

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

"the decision as to whether or not there is a case to ans160;shouldhould 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 reale tribunal properly directing its mind to the law and the the evidence 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 Law – Obtaining Money by False Pretence

The offence of false pretence islcompupon proof that that the pretence was made, that the money was obtained, with intent to defraud and that the pretence was false to the knowledge of the acc(Rtt 8 Cr App R 51). The offence is codified ined in sect section 309 of the Penal Code. Section 309 mirrors section 32 of the English Larceny Act 1916 and therefore the English authorities are relevant.

Section 309 reads:

"Any person who by any false pretenc0;–<211;

(a) with intent to defraud, obtains from any other person any chattel, money, or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person; or

...., is guilty of a misdemeanor, and is liable to imprisonment for five years."

Section 308 of the Penal Code defines false nce:

>

"Any representation made by words, writing or conduct, of a matter of fact, either past or present, whepresentation is false in fact, and which the person making it knows to be false, or does noes not believe to be true, is a false pretence."

The Elements

To establish this charge, the State must prove three elements.

1. First, that the accused obtained the possession, ownership or benefit of any chattel, money or valuable security (or got any chattel, money or valuable security delivered to a third party).

2. Second, that the accused obtained that possession, ownership or benefit by means of a "false pretence". That is, that there is a direct link between the use of a false pretence and the obtaining of the possession, ownership or benefit. There are three stages to analyzing whether there has been a "false pretence". The State needs to prove:

(i) That there was a "representation", that is, a statement about a matter of present, or past fact, or a statement about a future event, or a statement about an existing intention, opinion, belief, knowledge or some other state of mind;

(ii) That the representation was "false". It will be a false representation if the person making it knew it was false. In short, that the statement was a deliberate lie;

(iii) That the false representation was made with the intention of inducing the person to whom it was made to act on it.

3. Third that the false pretence was made "with intent to defraud". To defraud someone is to deprive that person of something by dishonestly causing that person to believe something that is not true. A person does something dishonestly if he or she does it deliberately and knowing that it is in breach of his or her legal obligations. Even if this is established, if it is claimed that D nevertheless believed that he was "justified" in departing from such a legal obligation, or was "entitled" to so act, it must be shown that D did not honestly believe this.
In summary, the State must prove that the accused without justification or entitlement told a deliberate lie, intending that the complainant would believe it and thereby hand over or deliver something which he or she would not have done if the truth had been known.

The Prosecution Witnesses Evidence

The Prosecution called 4 witnesses.

Submission

The Prosecution and the Defence made written submissions which this Court has carefully considered. In summary, the Defence submitted that "prosecution has not produced sufficient evidence on the elements of the offence for the accused to make out a defence."

In summary the submission by the prosecution is that "accused took the money from PW-1 stating that he knew one Poonam at the US embassy and that he will arrange a visa and used the money. "

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.

From the evidence tendered in Court at the end of the prosecution case the Court finds that the prosecution has failed to establish one of the crucial elements of the charge which is false pretence. PW-2 attended an interview at the US Embassy which was arranged by the accused. The visa was declined as the embassy needed further documents. From the charge the Court notes that accused is charged that "he would process [pw-2's] visa application for the said [pw-1] such representation being false..." In fact the visa was processed and the PW-2 attended the interview for the visa. The Court finds that if no interview was scheduled and conducted than the complainants can allege false pretence as is alleged in the charge. Furthermore any reasonable person will know that it is the embassy and its personnel that determine visa applications and whether to grant one or not. It cannot be taken for granted that a visa will be issued once one goes for an interview. No one can guarantee a visa other than the visa issuing officer of the embassy.

The Court has also noted the agreement signed by the accused and the complainant in the presence of a Justice of Peace. The Justice of Peace had explained the contents to both parties before they signed the agreement. The JP in court gave evidence that the agreement was a loan agreement between the accused and the complainant. The JP had also told the accused and the complainant that the agreement did not contain all the legalities and the implications of signing the document.

A crucial element of the alleged charge has not been established by the Prosecution and some the evidence is clearly unreliable. The accused has no case to answer. For the foregoing reasons the Court acquits the accused. 28 days to appeal.

Chaitanya Lakshman
Resident Magistrate
7th May 2012