State v Chand [2014] FJMC 17; Traffic Case 158.2010 (28 January 2014)

MAGISTRATE’S COURT
SUVA
CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS

Traffic Case No. 158 of 2010

State

v.

Dinesh Chand

For State: Sgt Jiten
Accused : Present – With Counsel Mr M Nand (Nands Law)

RULING – No Case to Answer

Introduction

The defendant is charged with One Count of Dangerous Driving Occasioning Death, contrary to Section 97 (2) (c) and one count of Dangerous Driving Occasioning Grievous Bodily Harm contrary to 97 (1) (a) of the Land Transport Act 1998.

At the close of the prosecution case, the defendant’s Counsel made a submission for a no case to answer.

The Law – No Case to Answer

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 casenswer may pmay properly be mnde and upheld (a) when there has been no evidence to prove an essential element e alleged offence; (b) when the evidence adduced by the prosecution has been been so discredited as the result of 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 casanswer, the decisdecision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at thage convict or acquit but on whether the evidence is such that a reasonable tribunal might ight 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 orthere is a case to answer&#16>shouldhould depend nond 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 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 7 witnesses. The Caution Interview and the Charge Sheet, together with medical cause of death certificate and vehicle test result sheet were tendered.

Submission

Only the Defence has made written submissions which this Court has carefully considered. In summary, the Defence submitted that "... no evidence has been adduced by the prosecution to suggest that the manner of driving by the accused was dangerous or reckless"

Analysis

This Court has 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.

From the evidence before it this Court finds that the accused has a case to answer. The options available to him are that he can give sworn evidence or remain silent. He can also call witnesses on his behalf to defend himself.

Chaitanya Lakshman
Resident Magistrate

28th January 2014