State v Small [2013] FJMC 202; Criminal Case 1698.2012 (9 May 2013)

IN THE MAGISTRATE’S COURT
SUVA
CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS

Criminal Case No. 1698 of 2012

State

v

Nina Small

For State: PC Pauliasi
Accused : Present - Represented by Ms. Raisua (Legal Aid)

RULING – No Case to Answer

Introduction

The Accused is charged with obtaining money by false pretences, 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 and filed written submission.

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 casanswer 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 addby thsecution has been been so discredited as the result of cros 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 ca 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 mightmight 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 answe0;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 reaso tribunal properly directing its mind to the law and the evhe 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 Prosecution Witnesses Evidence

The Prosecution called 2 witnesses. The Caution Interview and Charge Sheets were tendered by consent.

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.

The Court notes that a case is made out against the accused for her to defend herself. She can give sworn evidence, rely on her caution interview or remain silent. She can also call other witnesses.

For the foregoing reason this Court finds that the accused has a case to answer. Accused is put to her defence.

Chaitanya Lakshman
Resident Magistrate
9th May 2013