State v Yau [2014] FJMC 172; Criminal Case 73.2012 (10 March 2014)

IN THE MAGISTRATES COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
Criminal Case No: 73 of 2012

STATE

vs

PETER YAU

Prosecution : PC/Sharma
Accused : MrQoro

Date of Hearing: 21.02.14 – 23.02.14
Date of Ruling: 07.03.14

" NO CASE TOER " RULING

1. The accused has been charged with anch palars of offences state as follows:
   

Statement of t of Offence (a)

OBTAINING PROPERTY BY DECEPTION: Contrary to Section 317 (1) (a) of the Crimes Decree no. 44 of 2009.

Particulars of Offence

PETER YAU on the 28th day of July, 2011 at Lautoka in the Western Division, by deception, dishonestly obtained 510kg of Sea Cucumber valued at $32,264.50 the properties of Fred Ho, with the intention of permanently depriving the said Fred Ho.

The elements of offence therefore are and that the State must prove that the accused person:-

1. On 28.07.2011 the accused.
2. By deception.
3. Dishonestly obtained a property worth $32 264.50.
4. Belonging to one Fred Ho.
5. With the intention of permanently depriving the said Fred Ho.

(Section 316 of the crimes decree interprets what action intents by the deception.)

2. Accordingly in order to prove the aforesaid elements the prosecution called two witnesses, the wife of the main complainant and the main investigating officer as PW1 and PW2. During their testimonies 3 documents PEX1-PEX3 were marked.
   
3. Then the counsel for the accused made an application for “no case to answer” despite that court called a defense ex meromoto in terms of section 178 of the Criminal Procedure Decree.
   
4. The grounds urged by the counsel for the accused in terms of section 178 are that;
   
   1. The complainant was not present on the hearing date and whereby the case against the accused should be dismissed accordingly in terms of section 166(1) (b) of the Criminal Procedure Degree.
      
   2. There is no evidence before court that the accused received goods.
      
5. The section 178Criminal Procedure Degreereads as follows;
   

“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 defense, the court shall dismiss the case and shall acquit the accused”.

6. The similar section regarding no case to answer isin section 210 Criminal procedure Code and the said section reads as follows:
   

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 to make a defence, the court shall dismiss the case and shall forthwith acquit the accused.

7. 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:
   
8. It is not to evaluate the availability of relevant and admissible evidence, direct or circumstantial, but to ascertain
   
   1. Whether there is no evidence to prove an essential element of the charged offence or
      
   2. Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.
      

(The other relevant authorities are that R v Galbraith All ER [1981] 2 All ER 1060,R v. Jai Chand [1972] 18 FLR 101, Abdul Gani Sahib v State [2005] HAA0022/05S(28 April 2005) and State v Aiyaz [2009] FJHC18033.2008(31 Au31 August 2009).)

7. Hence it should be noted that at this stage the court need not look into the merits of the case in a comprehe manner, but look into the evidence of each elements and ornd or the evidence is manifestly unreliable that a reasonable tribunal could convict the accused as stated by her Ladyship Justice Shameem in Abdul Gani Sahib v State [2005] HAA0022/05S(28 April 2005) and State v Aiyaz ] FJHC186;HAC033.2008(3008(31 August 2009) by his Lordship Justice Gounder.

8. In R v. Jai Chand [1972] 18 FLR 101,Justice Grant stated that:

"Thision as to whether or not not there is a case to answer160;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 directts mind to the law and the the evidence could or might convict on the evidence so far laid before it.

9. In other words, at the close of the prosecution case the Court should adopt an objective test distinct from a subjective test.
   
10. Accordingly all evidence by the prosecution was weighed and evaluated by this court.
    
11. According to the evidence of the prosecution PW1 as an assistant to the complainant and also the account of the Best Sea Food on the date of the incident confirmed the knowledge of having arrangements by the accused and the complainant regarding exporting the sea cucumber to a Hong Kong. She identified the PEX1 the document given by the accused affirming that he sent money to the complainant's account and the PX2 as the document which confirmed that the goods were delivered to the ultimate destination as requested by the accused.
    
12. PW2 tendered the PEX 3 as the caution interview of the accused. The court went into the contents of that interview. Court see that there is material contents in that interview to arrive at conclusion at the end regarding the 2,3 and the 4th elements of the offence as mentioned above.
    
13. In FICAC v Rajendra Kumar and Jaswant Kumar HAC 001/09; 11.02.2010. His Lordship Justice Goundar very succinctly held that:
    

'The test is that there must be some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence.

The credibility, reliability and weight of the evidence are matters for the assessors (SisaKalisoqo v. State Criminal Appe. 52 of 1984, State v. e v. MoseseTuisawau Criminal Appeal No.f 4 o0)'.

14. Regarding the application made under section(1) ( also considered.
    
15. The section166 reads as follows;
    

(1) This section applies to any case in a Magistrates Court, where —

(a) the accused person —

(i) appears in obedience to the summons at the time and place appointed in the summons for the hearing of the case; or

(ii) is brought before the court under arrest; and

(b) the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear—

(i) in person; or

(ii) by his or her lawyer.

(2) In the circumstances stated in sub-section (1), the court shall —

(a) dismiss the charge; or

(b) adjourn the hearing of the case until some other date, upon such terms as it determines if there are reasons for not dismissing the case; and

(c) upon any adjournment the court shall—

(i) admit the accused to bail; or

(ii) remand the accused to prison; or

(iii) take such security for his or her appearance as the court determines.

(3) The expression "lawyer" in this section and in this Part shall in relation to a complaint include any prosecutor.

16. Hence it is apparent that in terms of section (b) either of any orders set out in section 166(2) can be granted if the complainant is not present either by person or by his or her lawyer. According to section (3) the expression "lawyer" in above section has the prosecutor as well.
    
17. Thus court see that there no merit in the application by the counsel in that regard as well.
    
18. Therefore, the court upholds with the aforesaid grounds that the prosecution was able to produce admissible evidence relating to the elements of the offence. Thus this court decided to call the defense in terms of section 179 of the Criminal Procedure Decree 2009 and application for no case to the answered by the counsel for the accused is accordingly dismissed.
    

28 days to appeal.

LakminiGirihagama
Resident Magistrate, Lautoka

10thMarch 2014