State v Bokadi - Ruling no case to answer [2014] FJMC 67; Criminal Case 448.2012 (19 March 2014)

IN THE RESIDENT MAGISTRATE’S COURT AT SUVA
Criminal Case No.448 OF 2012

THE STATE
PLAINTIFF

V

LEONE ROKOMARAIVALU TUPOU BOKADI
& OTHERS
DEFENDANTS

For State : Cpl. Apenisa
For Accused1: In Person
For Accused2: In Person

RULING ON ‘NO CASE TO ANSWER’

[1]. INTRODUCTION

LEONE ROKOMARAIVALU and TUPOU BOKADI were charged with two counts of AGGRAVATED ROBBERY: Contrary to section 311 (1) (a) of the Crimes Decree, 2009 and two counts of THEFT: Contrary to section 291 (1) of the Crimes Decree, 2009.The particulars of the Offence states as follows;

Count 1

Statement of Offence (a)

Aggravated Robbery: Contrary to Section 311 (1)(b) of the Crimes Decree, 2009.

Particulars of Offence (b)

Leone Rokomaraivalu and TupouBokadi with others, on the 17th day of March 2012, at Namadi Heights in the Central Division, stole 1 x Black berry phone valued at $500.00, 1 x Nokia Mobile valued at $1,000.00, $1,200.00 cash and assorted bunch of keys valued at $100.00, all to the total value of $2,800.00 from Ricky Vicklesh Kumar.

Count 2

Statement of Offence (a)

Aggravated Robbery: Contrary to Section 311 (1)(b) of the Crimes Decree, 2009.

Particulars of Offence (b)

Leone Rokomaraivalu and TupouBokadi with others, on the 17th day of March 2012, at Namadi Heights in the Central Division, stole 1 x Nokia Iphone valued at $1,000.00, $30.00 cash and 1 x Apple Ipod valued at $500.00, all to the total value of $1,530.00 from JasminRonita Kumar.

Count 3

Statement of Offence (a)

Theft: Contrary to Section 291 (1)of the Crimes Decree, 2009.

Particulars of Offence (b)

Leone Rokomaraivalu and TupouBokadi with others, on the 17th day of March 2012, at Namadi Heights in the Central Division, dishonestly appropriated (stole) 8 x Assorted Duty Free Liquor bottles valued at $2,000.00, the property of Jainandra Kumar.

Count 4

Statement of Offence (a)

Theft: Contrary to Section 291 (1) of the Crimes Decree, 200

Particulars of Offence (b)

Leone Rokomaraivalu and TupouBokadi with others, on the 17th day of March 2012, at Namadi Heights in the Central Division, dishonestly appropriated (stole) 1 x Toyota Land cruiser valued at $100,000.00 and 1 x car stereo valued at $1,200.00, all to the total value of $101,200.00, the property of Ricky Vicklesh Kumar.

At the close of the prosecution case, the unrepresented accused persons did not make any submission for a no case to answer. But this court is obliged under Section 178 of the Criminal Procedure Decree 2009 that 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.

[2]. The Law on No Case to Answer provides

1. Section 178 of the Criminal Procedure Decree 2009, stipulate 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.”

2. Section 178 of the Criminal Procedure Decree 2009 is similar to Section 210 of the Criminal Procedure Code, Cap 21.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).
   

100. For clarity I wish to quote relevant paragraph of the Practice Direction which reads that;
     

"A submission that there is may pry be made ande 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 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 case to an/b>, the decisdecision 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 mightict. If a reasonable tribunribunal might convict on the evidence so far laid before it, there is a case to answer."

4. In State v Aiyaz [2009] F86; H.2008 (31 Aug1 August 2009) held that "there are two limbs to the test under sectisection 210:
   
   • (a). Whether there is no evidence to prto prove an essential element of the charged offence;
     
   • (b). Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.
     

His lordship Justice Daniel Goundar further stated that 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. Furthermore his lordship stated that the test under section 210 has no application in the High Court. Nor is the English test for no case to answer stated in the case of Galbraith (1981) 2 All ER 1060 has any application to a case in the High Court.

5. This Court also considers R v. Jai Chand [1972] 18 FLR 101, where Justice Grant stated that:
   

"The decision as to whether or not there is a case to answer&shouldhould 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 reasonaribunal properly directing its mind to the law and the evid evidence could or might convict on the evidence so far laid before it.

6. In other words, at the close of the prosecution case the Court should adopt an objective test distinct from a subjective test. 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".
   
7. This guideline was cited in the recent case of State v Jale Osisaya Baba, High Court of Fiji Criminal Appeal No. HAA 43 of 2008.
   
8. In State vsTieri Raitini, (HAC005.03S 20th October 2003) His Lordship Justice Gates, (as he was then,) noted that " There is no perceptible difference between the two tests; that is between whether the court considers there is 'no evidence', the High Court test[section 298] and that for the Magistrate's Courts 'a case is not made out.... Sufficiently...' [Section 210 CPC]. When considering whether the evidence on identity of the Accused is proximate or sufficient, insufficiency of evidence in reality is the same as there being no evidence. A mere scintilla as in Jai Chand would not be sufficient."
   
9. Therefore it is for this Court to determine if there has been evidence led on each of the essential elements of the offence, and if that evidence is such that a reasonable tribunal might or could convict upon it and also to see whether there is some relevant and admissible evidence, may they be either direct or circumstantial, implicating the accused with which he is been charged with and touching on all the elements of the said offence.
   
10. Her ladyship Justice Nazhat Shameem in Abdul Gani Sahib V The sate discussed the tests that are applicable in considering whether there is a no case to answer. Accordingly the court has to consider;
    
    1. Firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence and;
       
    2. Secondly, whether on the prosecution case, taken at its highest, a reasonable tribunal could convict.
       

[3]. In the light of all the laid down legal principles discussed above, now I proceed to discuss the matter before this court. The accused persons are been charged withtwo countsof contrary to section 311 (1) (a) of the Crimes Decree, 2009 and two counts of contrary to section 291 (1) of the Crimes Decree, 2009.

[4]. ELEMENTS OF THE OFFENCE

THE PROSECUTIONS CASE

At the trial proper the prosecution led the evidence of 07 witnesses and the following is a summary of evidence that was adduced during trial. The Caution Interview and Charge Statement of second Accused was tendered in as Exhibits.

The Prosecution called the following witnesses:

PW1. Ricky Vicklesh Kumar
PW2. JasminRonita Kumar [PW5]
PW3. Rachel Kumar
PW4. DC 2161 Nacani Bolabia
PW5. Jenendra Kumar
PW6. DC 3036 Amani
PW7. DC 4576 Eliki

[5] For the charge of Aggravated Robbery: Contrary to section 311 (1) (a) of the Crimes Decree, 2009, the elements of offence are:

1. The Accused,
2. Robbed the complainant,
3. With one or more persons.
   

For the charge of Theft: Contrary to section 291 (1) of the Crimes Decree, 2009, the elements of offence are:

1. The Accused,
2. Dishonestly appropriated,
3. The items belonged to another,
4. With the intention of permanently depriving the items from the owner.
   

[6] PW1-Ricky Vicklesh Kumar(Compliant) and her sister PW2-JasminRonita Kumar were at their home on the 17th day of March 2012, at Namadi Heights during the alleged robbery and theft. But, as all the "robbers" were masked they could not identify them and also failed to identify the accused persons in court .Both PW3– Rachel Kumar and PW7–Jenendra Kumar, parents of the PW1 and PW2 were at Nadi at the time of the alleged offences. The other witnesses from police are Investigating officers and the charging officers of the accused persons.

[7] All evidence has been weighed and evaluated by court at the end of prosecution case and all witnesses have been considered. I also consider the test at the end of the prosecution case, referring to above discussed applying it to the facts of the case, and the law on the offence.

[8]The most important element to be proved is the identity of the Accused. In other words that this Accused persons were involved in the offence.

[9] It was revealed in the trial that the Accused was masked.

[10] Prosecution led evidence of 7 witnesses in the trial proper. None of them had identified the Accused persons.

[11] The only material before the Court is the confessionary statement made by the second Accused.. The Accused challenged the admissibility of the confession, therefore a voir dire inquiry held to determine the admissibility of the confession. At the end of the inquiry the Court held that the confession can be allowed to be led in evidence.

[12] The confession reveals certain details but not recalls the entirety of the incident. That brings a doubt in the mind of the Court whether it was made by the Accused or doctored.

[13]The prosecution did not claim that there was a recovery from the Accused persons or any recovered items not produced before the Court.

[14] I am of the view, that at this stage the Court need not look into the merits of the case in a comprehensive manner, it is the responsibility of the Court to test the evidence of the Prosecution as it was stated by Justice Shameem in Abdul Gani Sahib V The State. And also in light of the above discussed law and authorities pertaining to no case to answer this Court to determine if there has been evidence led on each of the essential elements of the offence, and if that evidence is such that a reasonable tribunal might or could convict upon it and to see whether there is some relevant and admissible evidence, may they be either direct or circumstantial, implicating the accused with which they have been charged with and touching on all the elements of the said offence.

[15] In this scenario I would like to draw my attention to the view formulated by His Lordship Justice Gounder in FICAC vsRajendra Kumar and Jaswant Kumar (HAC 001/2009 decided on 11th of February 2010).Justice Goundar, 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."

[16] In view of the reasons set out in above paragraphs, All what this court would look at is whether the both accusers go beyond the margin of section 178 of the Criminal Procedure Decree 2009. Considering all the Court finds that the the evidence tendered in Court at the end of the prosecution case the Court finds that a case is not made out against both accused persons sufficiently to require the accused to make a defence. Therefore, both the accused persons LEONE ROKOMARAIVALUTUPOU BOKADI are not guilty and acquits them accordingly accordingly.

28 days to appeal

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Lakshika Fernando
Resident Magistrate

On this 19 th day of March, 2014.