State v Vishwa [2014] FJMC 56; Criminal Case 1442.2013 (9 April 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal case: 1442/2013

STATE

V

MOHINI VISHWA

For Prosecution : - PC Josua
For Accused : -MS. Vulimaidave for the Legal Aid

RULING ON NO CASE TO ANSWER

[1] The accused is charged with two counts of Indecently Annoying a Person contrary to Section 213(1) (a) of the Crimes Decree No.44 of 2009. The State alleges that on 12th day of July 2013 at Nabua in the Central Division the accused swore at PW1 and PW2 thereby committing these two offences.

[2] The State closed their case on 13th March 2013 after calling 02 complainants as witnesses. After that the learned counsel for the accused made an application for a 'no case to answer' pursuant to section 178 of the Criminal Procedure Decree No.43of 2009.

[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 the Magistrates Court the defence can make no case to answer submission when there is no evidence to prove an essential element in the alleged offence or when the evidence adduced by the prosecution has been so discredited as a result of cross examination or so manifestly unreliable that no reasonable tribunal could safely convict on it (Moidean v Reginam Criminal Appeal No. 41 of 1976, State v Aiyaz [2009] FJHC 186; HAC033.2008)

[5] In this case the accused is charged with two counts of Indecently Annoying a Person contrary to section 213(1) (a) of the Crimes Decree. The elements in this offence are;

1. The accused
2. Intending to insult the modesty of the complainant

100. Uttered words intending that such words shall be heard by PW1
     

[6] After considering the evidence presented by the prosecution I would agree with the learned defence counsel contention with regard to the first count. The complainant in the first count throughout her evidence said that the accused swore only at her daughter (PW2). She never indicated on that day the accused swore at her. Therefore I find that the prosecution has failed to prove an essential element in this offence.

[7] For the second count PW2 (Vanishu Lata) said the accused swore at her and she felt bad after hearing the words. At this stage this is enough for me to decide that there is a case against the accused for the second count.

[8] Therefore I find that there is a case against the accused only for second count and acquit the accused from the first count.

09th April 2014

H. S. P. Somaratne
Resident Magistrate, Suva