State v Prasad [2013] FJMC 11; Criminal Case 293.2011 (10 January 2013)

IN THE RESIDENT MAGISTRATE’S COURT OF NAVUA
Criminal Case : - 293/2011

THE STATE

V

NITIN PRASAD

For Prosecution : - Sgt. Lenaitasi
For Accused : -Mr. Prasad.

RULING ON NO CASE TO ANSWER

[1] This is the ruling with regard to the no case submission made by the defence at the conclusion of the prosecution’s case.

[2] The accused is charged with the offence of Damaging Property contrary to Sec 369 of the Crimes Decree and the prosecution called 6 witnesses.

[3] At the conclusion of the prosecution’s case the learned defence counsel submitted that that there was a no case made out against the accused under Sec 178 of the Criminal Procedure decree to call their defence and asked the court to acquit the accused accordingly.

[3] The defence was invited to file written submission setting down their grounds which they failed to comply with. Therefore based on the relevant case laws and evidences given by the prosecution’s witnesses I am going to consider this application.

LAW ON NO CASE TO ANSWER
[4] The relevant provision with regard to no case submission is section 178 of the Criminal Procedure Decree. That section 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] A practical note issued by the Queen’s Bench Division held that :

“A submission that there is no case to answer may be properly made and upheld :

1. When there has been no evidence to prove an essential element in the alleged offence
   
2. 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
   

[6] In Fiji the position with regard to no case submission was discussed in a number of cases. His Lordship Justice Goundar stated in State V Aiyaz [2009] FJHC 186 that

“ 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."

[7] Therefore in a Magistrate Court a party can make an application for no case to answer based on following grounds.

1. When there has been no evidence to prove an essential element in the alleged offence
   
2. 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
   

SUMMARAY OF EVIDENCE

[8] The PW1, the complainant in this case said she got permission from her brothers and planted water melon, pumpkin on that land. On 05 Dec 2010 she saw a horse tied in that land and later found it had damaged her farm. The horse was tied there by the accused. She reported the matter to the police.

[9] The PW2 also said the vegetables belonged to the PW1 and the accused tied the cow, calf and horse there.

[10] The PW3 is a brother of the PW1. He said they gave permission for the PW1 to plant the water melon and he saw the cow and the horse tied there on that day.

[11] The PW4 is the interviewing officer and the PW5 charged the accused.

[12] The PW6 is the Agricultural Officer who conducted the damage assessment. The report was marked as EX-03. The PW6 noted that there were damaged water melon and Pumpkin in the land and the total damaged was around $ 1,912.75.

ANALYSIS OF THE EVIDENCE

[13] The accused is charged with Damaging Property contrary to Sec 369 of the Crimes Decree. The elements of the offence are

1. The accused
   
2. Willfully and unlawfully
   

100. Damage or destroy the property
     

[14] From the evidence of the PW1, I note that on 05 Dec 2010 she saw her farm was destroyed by the animals belonging to the accused. The PW2 and the PW3 also said the vegetables belonged to the PW1 and they saw the animals in that land that day.

[15] The assessment report marked as EX-03 shows that water melon and Pumpkin were damaged to the total value of $1912.75.

[16] Therefore I find that there are enough evidences to fulfill all the essential elements of the offence. I also find that at this stage the evidence are reliable enough to call the defence.

[17] In view of above 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.

[18] Accordingly I dismiss the submission made by the learned counsel for the Accused person under the section 178 of the Criminal Procedure Decree.

10/01/2013

H. S. P. Somaratne
Resident Magistrate, Navua