State v Naicker [2013] FJMC 46; Traffic Case 2194.2010 (30 January 2013)

IN THE RESIDENT MAGISTRATE’S COURT AT NAVUA

Traffic Case : - 2194 /2010

THE STATE

V

SHALVEEN SACHIN NAICKER

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

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 Dangerous driving Occasioning Death contrary to Sec 97(2) ( c) and 114 of the LTA Act.

[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 for their defence and asked the Court to acquit the accused accordingly.

[4] The defence also filed written submission setting their grounds for this application. Therefore based on the relevant case laws and evidences given by the prosecution’s witnesses as well as the defence’s submissions I pronounce my ruling.

LAW ON NO CASE TO ANSWER

[5] 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”.

[6] 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
   

[7] In Fiji the position with regard to no case submission was discussed in a number of cases.

[8] Justice Grant in R v Jai Chand 18 FLR 101 at page 103 states 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 case, the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the trial. But the question does not solely depend on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused to his defense. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence”.

[9] 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."

[10] 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

[11] The prosecution called 07 witnesses for their case. The PW1 said on that day he took the bus to garage and the deceased and some of her friends were in the bus. The PW1 parked the bus at Deuba and deceased and others got off . As the deceased was crossing a truck hit her. The PW1 also said when the first sketch plan was drawn he was not there and that plan was wrong. In cross examination the PW1 said a new sketch plan was drawn and the point of impact of the first plan was wrong.

[12] The PW2 a friend of the deceased said on that day she crossed first and as the deceased was crossing a truck came and bumped her. In cross examination the Pw2 said the deceased was halfway on the lane and she told the police of the point of impact.

[13] The PW3 was the IO as well as the officer who charged the accused. In cross examination the PW3 said the accused was driving at high speed but later admitted that he did not have evidence for that. The PW3 also said the accused should have taken precaution.

[14] The PW4 visited the scene and drew the sketch plan on that day. It was marked as Prosecution Ex-3 prepared a new plan after talking to the Pw1 and it was marked as Ex-04. In cross examination he said he visited the scene with eye witnesses and they showed him the point of impact. He also stated in the first sketch plan the point of impact was near the middle of the road and when he drew the second plan he did not visit the scene.

[15] The PW5 recorded the statement of the accused.

[16] The PW6 was also present on that day and said as she was crossing with the deceased a truck came and bumped the deceased. The PW7 also said the deceased was bumped whilst she was crossing the road. The defence tendered 07 documents as exhibits.

ANALYSIS OF THE EVIDENCE

[17] The accused is charged with Dangerous driving Occasioning Death contrary to Sec 97(2) ( c) and 114 of the LTA Act.

[18] In State v. Navnit Narayan [2009] FJHC 34; HAC 188J.2008 her Ladyship Justice Shameem set down the following as the elements of this offence .

a. The accused

b. drove a vehicle

c. which was involed in an impact

d. occasioning the death of a person

e. in a dangerous manner

[19] In this case only dispute is whether the accused was driving in a dangerous manner.

[20] From the evidences given by the prosecution witnesses I find there is some sufficient evidences to fulfill that element of the offence. Also at this stage even though some contradictions between the witnesses I believe there are not discredited enough to act under section 178 of the Decree.

[21] 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.

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

30/01/2013

H. S. P. Somaratne
Resident Magistrate, Navua