State v Permal [2013] FJMC 92; Criminal Case 220.2009 (22 February 2013)

IN THE MAGISTRATE'S COURT
AT SUVA,FIJI
CRIMINAL CASE N0: 220 OF 2009

BETWEEN:

THE STATE
PROSECUTION

AND:

WILLIAM SEDRICK PERMAL
ACCUSED

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,

COUNSEL: Mr. Alvin Singh for the Prosecution,
Ms Naomi Nawasaitoga for the Accused,
Date of the Ruling: 22nd of February 2013.

RULING ON NO CASE TO ANSWER

1. The accused is charged with one count of "Possession of Forged Document"" contrary to section 346 (1) of the Penal Code Act 17, two counts of "Uttering a False Document" contrary to section 343 of the Penal Code Act, one count of "Obtaining good on forged document" contrary to section 345 of the Penal Code and one count of "attempt to obtain good on forged documents" contrary to section 345 and 380 of the Penal Code Act 17.
   
2. The accused person pleaded not guilty for these five counts wherefore the matter was set down for hearing. During the hearing Prosecution called ten witnesses and tendered fifteen 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 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 e [2000] HAC0023C0023.1999S] my learned sister Justice Shameem described the test as whether at this stage there is evidenclevant and admissible evidence, that the accused committed the offence. I adopt her honour'nour's view that if there is some relevant and admissible evidence, direct or circumstantial touching on all elements of the offence then there is a prima facie case.

In coIn considering this application I accordingly need to have regard to the evidence and ask if there is andible reliable evidence at the conclusion of the Prosecution Case that would make it properroper and safe to convict".

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 346 (1) of the Penal Code Act stipulates that "Any person who, without lawful authority, or excuse, the proof whereof lies on the accused, imports into Fiji, or purchases or receives from any person, or has in his custody, or possession, a forged currency note or bank note, knowing the same to be forged, is guilty of a felony, and is liable to imprisonment for fourteen years."
    
11. In view of the section 346 (1) of the Penal Code Act, the main elements of the offence of "Possession of forged document" are,
    
    1. The accused,
       
    2. Without lawful authority or excuse,
       
    3. Has his custody or possession,
       
    4. A forged currency note or bank note,
       
    5. Knowing the same to be forged.
       
12. Section 343 of the Penal Code Act stipulates that "Any person who knowingly and fraudulently utters any forged document, seal or die is guilty of any offence of the like degree (whether felony or misdemeanour) and is liable to the same punishment as if he himself had forged the document, seal or die".
    
13. The main elements of the offence of "uttering a false document" are;
    
    1. The accused,
       
    2. Knowingly and fraudulently,
       
    3. Utters,
       
    4. Any forged document,
       
14. In respect of the fourth and fifth counts that is Obtaining goods on Forged Document, section 345 of the Penal Code Act stipulates that "Any person who, with intent to defraud, demands, receives, or obtains, or causes or procures to be delivered, paid or transferred to any person, or endeavours to receive or obtain or to cause or procure to be delivered, paid or transferred to any person any money, security for money or other property, real or personal-(a) under, upon, or by virtue of any forged instrument whatsoever, knowing the same to be forged;".
    
15. The section 380 of the Penal Code provides the definition for "attempt" as "When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence".
    
16. In view of the section 345 of the Penal Code Act, the main elements for the offence of "Obtaining Goods on Forged Documents" are that;
    
    1. The accused,
       
    2. with intent to defraud,
       
    3. demands, receives, or obtains, or causes or procures to be delivered, paid or transferred to any person, or endeavours to receive or obtain or to cause or procure to be delivered, paid or transferred to any person any money, security for money or other property, real or personal,
       
    4. by virtue of any forged document,
       
    5. Knowing the same to be forged.
       
17. Bearing in mind 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.
    
18. Coming back to the issues of whether there has been no evidence to prove an essential element of the alleged offences, 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.
    
19. After careful consideration of the prosecution evidence, I find that the nexus of the dispute in this case is whether the accused person had knowledge that these three cheques were forged and whether he possessed, uttered and obtained goods on these alleged cheque with such knowledge.
    
20. In respect of the third and fifth counts, the prosecution failed to provide any substantive evidence apart from the evidence of the accountant of the Suva Container Park Ltd, and the depot manager of the Suva Container Park Limited. The evidence of the Accountant who is the PW1 only limited to explain the procedure of preparation and proceeding of LPO in the company. The Depot manager stated in his evidence that he saw the accused came to the office premises and left soon after on the 4th day of October 2008. He then received a call from the Carpenters Hardware seeking some clarification on the alleged LPO which the prosecution alleged the accused person utters and attempted to obtain goods on it. There is no evidence that the accused was in possession of this alleged LPO and uttered the same and attempted to obtained goods with it. In view of these reasons, I find the prosecution has failed to adduce evidence to prove the main elements of the count three and count five.
    
21. I now turn to the first count in which the accused is charged with "possession of three forged bank cheque of Suva Containaer Park Ltd bearing number 7821,7822 and 7790. The first prosecution witness who is the Accountant and the Company Secretary of the complainant company stated that he was informed by the Depot Manager that three cheques of the company were missing. He then upon inquiring from the ANZ bank and obtaining the copies of those cheques found out the signatures on them were not authorized signatures. He stated that he is one of the three designated authorized signatories for the company in its banking. The second prosecution witness who is one of the Directors of the Complainant Company positively identified these three alleged cheque and also confirmed the signatures on them are not authorized signatures of the company. These two witnesses presented evidence that these three alleged cheque of the complainant company was forged with unauthorized signature on it.
    
22. Mr. Mohammed Azam and Oliver Turner the prosecution third and fourth witnesses respectively and both are former sales assistances of Sun Court hardware stated in their evidence that the accused came with these three alleged cheque to purchase some hardware materials on 20th of September, 23rd of September and 27th of September 2008 respectively. Both of them are knew the accused person as he was a regular customer of the shop. The fifth prosecution witness who was the credit manager of the Sun Court Hardware confirmed that on those mentioned dates he received these alleged cheque for his approval and identified them in court. Mr. Simione Radrodro who is a Bank officer at ANZ bank in Suva confirmed that the bank has processed these three cheque upon they were presented to the bank by Sun Court Hardware. These four prosecution witnesses provide evidence to prove that the accused was in possession of these three alleged cheque which were identified by first and second prosecution witnesses as forged with unauthorized signature.
    
23. Third, fourth and fifth prosecution witnesses specifically stated in their evidence that the accused purchased some hardware materials on 20th, 23rd and 27th of September 2008 and paid with those three alleged cheque of Suva Containers Park Ltd respectively. Moreover the third and fourth prosecution witness together with the sixth prosecution witness deposed that the hardware materials that the accused was ordered on those respective days were delivered to the accused and the prosecution tendered the cash sale dockets and the delivery notes of those transactions.
    
24. In view of these evidence adduced by the prosecution, I am satisfied that the prosecution has been adduced evidence to prove the main elements of the first, second and fourth counts against the accused person.
    
25. 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.
    
26. Prior to analyze the evidence presented by the prosecution in respect of 2nd and 3rd limbs, I find it is prudent to briefly understand the laws on the issue of discredited and unreliable evidence of a witness. 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".
    
27. 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, that 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".
    
28. Bearing in mind the above mentioned judicial precedents, I do not find the evidence of the prosecution has been discredited during the cross examination of the prosecution witnesses. None of the witnesses contradicted with their previously made statements and neither were they inconsistence with their evidence.
    
29. In conclusion, I am satisfied that the prosecution has presented evidence to prove the essential elements of the offences embodied in first, second and fourth counts and the evidence presented by the prosecution has not been discredited by the cross examination and not manifestly unreliable that no reliable tribunal could safely convict on it. Hence, I refuse and dismiss the application of the learned counsel of the Defense and hold that at the conclusion of the prosecution case, it appears to the court that a case is made out against the accused person sufficiently to require to make a defence in respect of 1st, 2nd and 4th counts.
    
30. Further, I hold that 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 in respect of 3rd and 5th count. I accordingly dismiss the 3rd and 5th count and acquit the from 3rd and 5th count.
    

On this 22nd day of February 2013.

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