State v Prasad [2013] FJMC 91; Criminal Case 1654.2009 (22 February 2013)

IN THE MAGISTRATE'S COURT
AT SUVA,FIJI
CRIMINAL CASE N0: 1654 OF 2009

BETWEEN:

THE STATE
PROSECUTION

AND:

UMESH PRASAD
ACCUSED

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,

COUNSEL: Mr. S. Vodokisolomone for the Prosecution,
Mr. D. Sharma for the Accused,
Date of the Ruling: 22nd of February 2013.

RULING ON NO CASE TO ANSWER

1. The accused is charged with another for one count of "Conspiracy to Commit a Felony" contrary to section 385of the Penal Code Act 17. The particulars of the offence are that;
   

"Umesh Prasad and Mohan Chand between the 1st to the 31st of August of 2008 at Suva in the Central Division conspired to commit a felony namely Larceny by servant".

2. The second accused person Mr. Umesh Prasad pleaded not guilty for the charge wherefore the matter was set down for hearing. During the hearing Prosecution called five witnesses and tendered the record of the caution interview of the accused with some other documents as prosecution"s exhibits. At the conclusion of the prosecution case the learned counsel for the defence made a submission for no case to answer pursuant to section 178 of the Criminal Procedure Decree. Having considered the oral submission of the learned counsel for the Defence, I invited the learned counsel for the prosecution and the counsel for the defence to file their respective written submissions on the issue of no case to answer which they have filed accordingly.
   
3. In careful consideration with the evidence presented by the prosecution witnesses and the respective written submissions of the prosecution and the defence, I now proceed to pronounce my ruling under section 178 of the Criminal Procedure Decree 2009.
   
4. Section 178 of the criminal Procedure Decree 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. The test of to determine the issue of no case to answer at the conclusion of the prosecution case has discussed in R. v Jai Chand (1972) 18 FLR 101), where it was held that " that the decision as to whether or not there is a case to answer should depends not so much 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 world 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 not can any amount of worthless discredited evidence".
   
6. The practice note (1962) 1 All ER 488, enunciated that "a submission that there is no case to answer can properly be made and upheld (a) where there has been no evidence to prove an essential element in the alleged offence, (b) where the evidence adduced by the prosecution has been so discredited as a result of cross examination or is manifestly unreliable that no reliable tribunal could safely convict on it".
   
7. Winter J held in State v George Shiu Raj ([2005] FJHC 522; HAC0019.2005 (9 September 2005) "This is not a test involving judicial prediction of the assessors opinion or my verdict. It is not a question of likelihood of outcome but what may be properly done to give an opinion on guilt and render a guilty verdict. This task requires an objective assessment of the prosecution evidence.
   

In some cases the evidence supporting the charge may be barely adequate and so tenuous as to lead a judge to the view that it would not be proper for the assessors to render an opinion or the judge to convict and accordingly the interests of justice require the trial to be stopped and that a finding of not guilty be made. The evidence in a case may be adequate if accepted but witnesses may appear so manifestly discredited or unreliable that it would be unjust for a trial to continue. Yet again it may be that in the circumstances the tribunal properly directing its mind to the law and evidence would be unlikely to convict. The rationale for a no case finding of not guilty is not the likelihood of an acquittal in those circumstances but the unsafeness of a conviction having regard to the evidence and the law. (R v Flyger, CA 11/00 judgment 16 August 2000, paragraph 15).

In Fiji the judge's task has been described as assessing the case to see if the prosecution evidence in its totality touches on all the essential ingredients of the offence [adopted in State v Chae [ HAC0023.1999S] my learnedarned sister Justice Shameem described the test as whether at this stage there is evidence, relevant and admissible evidence, that thesed cted the offence. I adopt her honour's view that ihat if thef there is some relevant and admissible evidence, direct or circumstantial touching on all elements of the offence then there is a prima facie case.

8. In view of the abovementioned laws and judicial precedents pertaining to the issue of no case to answer, I find that the court is required to determine objectively that;
   
   1. where there has been no evidence to prove an essential element in the alleged offence or
      
   2. the evidence adduced by the prosecution has been so discredited as a result of cross examination or.
      
   3. is manifestly unreliable that no reliable tribunal could safely convict on it.
      
9. Turing to the issue of objective test approach to assess the evidence of the prosecution. The Objective approach is that assessing or measuring something based on some hypothetical person or situation as an "informed person" or reasonable person". Moving to the issue of no case to answer, the court is not required to determine the criminal responsibility of the accused either in subjectively or objectively. However the court is required to analyze the evidence presented by the prosecution through the eyes of a reasonable tribunal in order to determine whether there has been evidence to prove an essential elements of the offence and/ or the evidence presented by the prosecution has been discredited as a result of cross examination and/or is manifestly unreliable that no reliable tribunal could safely convict on it.
   
10. Section 385 of the Penal Code Act stipulates that "Any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Fiji would be a felony, and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a felony, and is liable, if no other punishment is provided, to imprisonment for seven years, or, if the greater punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years, then to such lesser punishment."
    
11. In view of the section 385 of the Penal Code Act, the main elements of the offence of conspiracy to commit a felony are,
    
    1. The accused,
       
    2. Conspires with another,
       
    3. To commit any felony or,
       
    4. To do any act which would be a felony,
       
12. The definition and the main elements of the offence precisely indicate that the commission of the offence of conspiracy is completed with the accused person's agreement with another to commit any felony or to do any act. However the scope of proving the main elements of the offence of conspiracy has widened. It was held in Narendra Prasad v Reginam (1979 25 FLR 221) that " if the conclusion to be drawn from the overt acts proved against the appellant and the other accused was that there was a conspiracy, then a charge of conspiracy will lie notwithstanding the lack of evidence of a formal agreement between the appellant and the other accused persons concluding such a conspiracy. Where and when the conspiracy originated is often unknown and seldom relevant as conspiracy is often proved by overt acts from which an antecedent conspiracy is to be inferred".
    
13. Having considered the evidence and the respective submissions of the prosecution and the defence, I now proceed to analyze the evidence presented by the prosecution with the relevant legal principles pertaining to the issue of No case to answer.
    
14. Coming back to the issues of whether there has been no evidence to prove an essential element in the alleged offence, I find the court is only required to determine whether the prosecution has presented evidence to prove essential elements of the offence and not that whether the evidence presented have proved the essential elements of the offence at that stage of the hearing.
    
15. After careful consideration of the prosecution evidence, I find that the prosecution case is mainly focus to present evidence to prove the alleged overt acts of the second accused and invited the court to form a positive inference of an antecedent conspiracy. The first prosecution witness Mr. Aklesh Kumar mainly testified about the accused person's interaction with Mohand Chand subsequent to the alleged robbery incident on 22nd of August 2008. Though he admitted in his evidence that he accompanied the accused to visit Mohand Chand at his in-law's house but he did not hear what was transpired in a conversation between Mohand Chand and the accused. He only heard from the accused, that Mohand Chand has manipulated this fake robbery in order to cover up his shortage of money to the company. In his evidence he further admitted that the accused was in the theft committee of the company and he went to the police station on the day of that fake robbery took place in his capacity as a member of the theft committee.
    
16. The second prosecution witness Mrs. Pritika Devi Singh contradicted with the evidence of PW1 where she said the accused came in a pajero, but the PW1 said it was a Toyota car in which the accused and himself came to the house of Mhan Chand's in-laws' in the evening of 27th of August 2008. Moreover, she stated in her evidence-in- chief that the accused came with Mohand Chand to drop the bag after the fake robbery took place but she changed her position in her cross examination and admitted that only Mohan Chand came to drop the bag at her place. The contradictory nature of these evidences will be discussed later in this ruling.
    
17. The third prosecution witness is Mr. Mohan Chand who is the co accused person in this case. He stated that he and the accused discussed to stage this fake robbery in order to cover up the money that he gave to the accused over the period prior to that incident. However he was not able to precisely state the date and the time of that discussion but merely stated that it was took place at his resident at Nasouri. He further admitted that he lied in his caution interview to the police by telling that he gave the accused the bag after he took it from his in- law's house. He admitted that he returned the bag to his in-laws house. He was not consistence with his evidence and changes his evidence time to time. He initially states that he gave the accused all the money he obtained from the fake robbery which was about $63,000. However in his cross examination he changed it and said he gave the accused around $40,000 and remaining money of $8,000 kept with him. Again he admitted that the money he obtained from the said fake robbery was not that much and it was less than $12,000. The fourth prosecution witness only states that he met the accused on the corridor and mentioned him let the police to conduct the investigation.
    
18. In view of these evidence presented by the prosecution, I do not find the prosecution has presented evidence to prove the main elements of the offence of conspiracy. There is no evidence presented to prove that the accused had an agreement with Mohan Chand to commit this crime apart from the inconsistence evidence of Mohan Chand, The evidence of PW1, PW2, and PW3 do not implicate any overt act of the accused which can link him with this crime. PW1 only saw the accused went to meet Mohan Chand in two occasions subsequent to the alleged fake robbery and told him that Mohan Chand has manipulated that fake robbery.
    
19. I now turn to the second and third limbs of the test of No case to answer that is whether the evidence adduced by the prosecution has been so discredited as a result of cross examination and whether the evidence of the prosecution is manifestly unreliable that no reliable tribunal could safely convict on it.
    
20. The prosecution main witness is Mohan Chand, who is apparently the co accused of this crime. Mohan Chand stated in his evidence in chief that he gave the accused money little by little from his sale's proceeds and accumulated it up to $66,000. According to Mohan Chand, that was the time the accused and Mohan Chand conspired to stage this fake robbery to inform the company that he lost the money in the said robbery in order to cover up his shortage in his sale account. However in his cross examination Mohan Chand admitted that he has no proper records of money given to the accused and he is not consistence with his answers. He once states that he has a clean sale account until July 2008, but earlier in his evidence-in- chief stated that he gave the accused money from his sale's proceeds during the period of early 2008. Apart from that, he further admitted that the money which was in the fake stolen bag was around $12,000 and not $66,000 and failed to give proper explanation of his earlier contradictory version in his evidence- in- chief.
    
21. Mohan Chand stated in his evidence –in- chief that he gave the bag with cards and money inside it to his brother-in-law and did not see the bag thereafter. However the evidence of PW2, the wife of his brother-in-law revealed contrasting version, where she stated Mohan Chand came with the accused and picked the bag from them. In his cross examination, Mohan Chand admitted that he lied to the police that he gave the bag to the accused. He admitted that actually he gave it back to his brother-in-law. PW 2 admitted that she and her husband, the brother-in-law of Mohan Chand were arrested by the police for selling the cards which were inside the bag sometimes in early September 2008. Moreover, the prosecution's witnesses failed to provide specific explanation of the invoices dated in early September 2008 which were found inside the bag and marked as prosecution exhibits if the prosecution claimed the bag was given to the accused on 27th August 2008.
    
22. Interestingly, Mohan Chand has stated in his statement in his caution interview which was tendered and marked as prosecution's exhibit that he gave the accused all the money from the fake robbery that was $63,887.11. Contrastingly, he changed his position in cross examination and said he gave the accused only $40,000 and he kept $8,000. However, he did not explained how he found that much of money when he himself admitted in his cross examination that the bag had only around $12,000 at the time of the alleged fake robbery.
    
23. Mohan Chand's subsequent admission in his cross examination that he never put the bag into the accused car and he lied to police about it has directly contradicted the PW2's evidence that she saw the accused came with Mohan Chand and got the bag.
    
24. It was held in R v Golder (1960) 3 All ER 457 that "when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence on which they can act".
    
25. The issues of credibility of the evidence of a witness has further discussed in Gyan Singh v Reginam ((1963 9 FLR 105) where it was held that " it is a duty of the trial judge to warn the assessors and to keep in mind himself, the it is dangerous to accept sworn evidence which is in conflict with statement previously made by the same witness; or at least that such evidence should be submitted to the closest scrutiny before acceptance. It is, however, still the duty of the assessors and of the judge himself, after full attention has been paid to this warning, to determine whether or not the evidence given before them in court at the trial is worthy of credence and if so, what weight should be attached to it. The assessors and the trial judge, in determining the credibility of the evidence, must decide the preliminary question as to whether or not the explanation given by the witness as to the reason for such conflict is feasible and acceptable. It is for the assessors to take all these factors into consideration before they give their advice to the trail judge".
    
26. Bearing in mind the above mentioned noticeable contradictory and inconsistence nature of the evidence presented by the prosecution with the judicial precedence on the issue of reliability of the evidence of a witness, I find the evidence presented by the prosecution, more particularly its two main witness PW2 and Mohand Chand has been so discredited as a result of cross examination and the evidence of the prosecution is manifestly unreliable that no reliable tribunal could safely convict on it.
    
27. In conclusion, I am satisfied that the prosecution has failed to present evidence to prove the essential elements of the offence of Conspiracy and the evidence presented by the prosecution has been discredited by the cross examination and manifestly unreliable that no reliable tribunal could safely convict on it. Hence, I hold that at the conclusion of the prosecution case, it appears to the court that a case is not made out against the accused person sufficiently to require to make a defence. Accordingly, I dismiss the charges and acquit the accused pursuant to section 178 of the Criminal Procedure Decree.
    
28. 28 days to appeal.
    

On this 22nd day of February 2013.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.