State v Miski [2014] FJMC 19; Criminal Case 443.2010 (5 February 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case : 443/2010

STATE

V

ADRIU MISKI
FILIPE BABA

For Prosecution : - Cpl. Wiliame
For Accused : -Ms. Ravono for the 1st accused and 2nd accused in person

RULING ON NO CASE TO ANSWER

[1] The accused have been charged with one count of Rape contrary to section 149 and 150 of the Penal Code Cap 17.

[2] The prosecution closed their case on 08th of November 2013 and thereafter both accused submitted No case to answer pursuant to section 178 of the Criminal Procedure Decree. Learned counsel for the 1st accused and the 2nd accused has filed their respective written submissions with regard to this application.

[3] The section 178 of the Criminal Procedure Decree section provides :

“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”.

[4] In State V Aiyaz [2009] FJHC 186 His Lordship Justice Goundar said 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."

[5] Based on the above observation in State v Aiyaz a party has the right to make this application 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.
   

[6] The prosecution called the complainant and 08 other witnesses for their case. Both accused in their submissions highlighted that there were contradictions in the victim's testimony, the doctor has failed to give evidence about any penetration and the identifications were not properly done by the police officers.

[7] I believe all these have to be decided at the end of the trail. At this stage I am satisfied that there is enough evidence to satisfy all the elements in the offence of Rape and they were not discredited by cross examination .

[8] Therefore I dismiss this application and invite the defence to present their case.

05th February 2014

H. S. P. Somaratne
Resident Magistrate, Suva