State v Naitau [2014] FJMC 53; Traffic Case 167.2012 (1 April 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Traffic Case: 167/2012

STATE

V

SAMULEA NAITAU

For Prosecution : - PC Josua
For Accused : -Mr. Fesaitu for the Legal Aid

RULING ON NO CASE TO ANSWER

1. The accused is charged with one count of Dangerous Driving Occasioning Grievous Bodily Harm contrary to section 97(4) (C) and 114 of the Land Transport Act NO 35 of 1998.
   
2. After the State closed their case on 24th February 2014 the defence made an application for a no case to answer pursuant to section 178 of The Criminal Procedure Decree.
   
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 R v Jai Chand ((1972)18FLR 101supra) His Lordship Justice Grant stated at p.103
   

"it seems clear that the decision as to whether or not there is a case to answer 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 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's case, the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. However, the question does 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".

5. In Moidean v Reginam (Criminal Appeal No. 41 of 1976 supra), the Fiji Court of Appeal clarified the instances when a submission of a no case answer maybe properly made.
   
   • When there is no evidence to prove an essential element in the alleged offence.
   • 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.
   • The decision should depend on whether the evidence is such that a reasonable tribunal might convict.
     
6. In Rohit Ram Latchan v The State Criminal Action No 32 of 1996 the Court of Appeal stated:
   

"A submission that there is no case to answer may properly be made and upheld:

(a) When there has been no evidence to prove an essential element in the alleged offence.

(b) 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".

7. The thrust of the defence's application is that there are no eye witnesses to prove that the accused was driving in a dangerous manner and PW2 is unreliable witness.
   
8. From the sketch plan I note that PW2's truck was parked in front of service station in Lami and the accused's vehicle had bumped it from behind. At that time there were some cones around the truck and a street light was near to that place which makes the truck visible to others.
   
9. As for the question of unreliability arose from the PW2's denying that he gave a statement to the police. I do not think that would affect the evidence of PW2 which is consistent with the sketch plan.
   
10. Based on the above reasons I find that there is no merits in this application and therefore dismiss this application.
    

01st April 2014

H. S. P. Somaratne
Resident Magistrate