State v Khan [2013] FJMC 286; Criminal Case 761.2011 (1 August 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
WESTERN DIVISON AT NADI
[CRIMINAL JURISDICTION]

Nadi Criminal Case No. 761 of 2011

BETWEEN:

STATE

AND:

ABDUL RIAZ KHAN

WPC Ana for Prosecution
Mr Rupash Singh for accused
Date of Ruling: 01.08.2013

RULING [On no case to answer]

THE APPLICATION

[1] This is an application by the defence counsel made under Section 187 of the Criminal Procedure Decree.

[2] The prosecution has never responded to this application.

[3] The Defence submitted that there has been no evidence to establish that the accused did cause actual bodily harm to the victim.

THE GOVERNING SECTION

[4] The provisions for a no case to answer submissions in the Magistrates Court is found in section 175 of the Criminal Procedure Decree which reads:

"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"

THE CHARGE

[5] The Accused has been charged with one count of assault caution actual bodily harm contrary to section 275 of the Crimes Decree. The charge read as follows:-

CHARGE

Statement Of Offence

ASSAULT CAUTION ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Decree No.44 of 2009.

Particulars Of Offence

ABDUL RIYAZ KHAN on the 23 day of July at Nadi in the Western Division assaulted Mohammed Tufik thereby causing him actual bodily harm.

[6] In is to be noted that the particulars of offence do not mention the year in which the assault incident took place. Further, the prosecution never made application to amend the charge. Seemingly they have left it open.

THE CHARGING SECTION

[7] Section 275 of the Crimes Decree provides:

"275. A person commits a summary offence if he or she commits an assault occasioning actual bodily harm".

EVIDENCE OF THE PROSECUTION

[8] The prosecution called two witnesses, namely Mohammed Tufik, the complainant (PW1), Zia Ezul Ali (PW2).

[9] I will summarize in a short while what each witness stated in evidence in my analysis.

THE LAW

[10] The general principles governing a no case to answer application in the Magistrates Court were set out in the long standing case of R v Jai Chand (1972) 18 FLR 101. In upholding a submission that there was no case to answer in the Magistrates Court Grant CJ stated at p.103.

"It seems clear that the decision as to whether or not there is a case to answer should 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 reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution's case the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. However, the question does 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."

[11] In Moidean v Reginam Criminal Appeal no. 41 of 1976, the Court of Appeal also set out the incidences when a submission of no case to answer may be properly made and clarified to a greater extent what the learned Magistrate is to focus on.

[12] Moidean (supra) pointed out the following instances in which a no case to answer application may be upheld:

1. When there is 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;
   

100. The evidence is so manifestly unreliable that no reasonable tribunal could safely convict on it.
     

[13] In the case of Haw Tau Tau v Public Prosecutor [1982] AC 136 where it was held that it is a duty of a judge to direct the acquittal of a charge where there is no relevant evidence to prove one or more essential elements of the charge.

ANALYSIS

[14] The Accused has been charged with one count of assault caution actual bodily harm. To establish this charge the Prosecution must prove the following three elements:

1. The Accused;

2. Assaulted;

3. Causing actual bodily harm to the complainant, namely Mohammed Tufik.

[15] First element was not in dispute hence will not to be deliberated in this analysis. Other two elements are in dispute.

[16] PW1 in evidence stated that on 23 July 2011 he saw the accused and Zia Ezul (PW2) fighting and arguing about the base at Nadi Town Carrier Stand. The accused was with another four drivers. He (PW1) was talking to another driver over there, when all of a sudden the accused punched him. The witness did not tell how and where he punched him.

[17] PW2 stated in evidence that on 23 July he was at the Carrier Stand. He just parked his carrier at the Carrier Stand and there was no base for him to park. Then the accused called the tow-truck to tow his (PW1's) carrier because he did not have a carrier base. He was standing at Courts Fiji and he saw the accused pointing to the tow-truck to come and to his carrier. Afterwards he removed his carrier from the base, came to accused and nicely told the accused at least he should have told him to remove the carrier before calling the tow-truck. Then the accused told him he is a low caste. He told to accused he is a low caste. The accused might have thought Tufik had said this. The accused went and punched Tufik (PW1).

[18] There was no Medical Examination Report tendered by the prosecution. None of the prosecution witnesses stated that the complainant received injury or actual bodily harm. It is one of the important elements of the charge that the accused caused actual bodily harm to the victim. The prosecution's evidence is lacking on this important element of the charge of assault causing actual bodily harm. There is no evidence whatsoever touching this important element.

[19] At the close of the prosecution case, I find there has been insufficient evidence on the important element of the charge namely the accused did cause actual bodily harm to the complainant. There has been failure to prove an essential element of the charge in this case.

CONCLUSION

[20] In my judgment there is no sufficient evidence in respect of "causing actual bodily harm" one of the essential elements of the offence to require the accused to be put to his defence. I therefore dismiss the charge and acquit the accused from the charge of assault causing actual bodily harm. This order is being made pursuant to section 187 of the Criminal Procedure Decree.

Dated at Nadi this 1st day of August 2013.

......................................................
M H Mohamed Ajmeer
Resident Magistrate