State v Rawawa - Ruling no case to answer [2014] FJMC 69; Criminal Case 2162.2013 (5 May 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal case: 2162/2013

STATE

V

SAKIUSA SOKO RAWAWA

PC Josua for the Prosecution
Mr. Fesaitu (Legal Aid ) for the Accused
Date of Hearing : 04th May 2014
Date of Ruling : 05th May2014

RULING ON NO CASE TO ANSWER

[1] The accused is charged with following offence in this Court.

THEFT: contrary to Section 291(1) of the Crimes Decree No 44 of 2009.

Particulars of Offence

SAKIUSA SOKO RAWAWA, on the 14th day of December 2013 at Lemeki Street Vatuwaqa in the Central Division dishonestly appropriates ( stole) a silver chain valued $350.00 the property of FULORI CIRIKISUVA.

[2] After the State closed their case 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".

[5] In Shabib v The State [2005] FJHC 95; HAA0022J.2005S (28 April 2005) Her Ladyship Madam Justice Shameem said:

"In the Magistrates' Court both tests apply. So the Magistrate must ask himself or herself firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence,

And second whether on the prosecution case, taken at its highest, a reasonable tribunal could convict. In considering the prosecution case at its highest, there can be no doubt at all that where the evidence is entirely discredited, form no matter which angle one looks at it, a court can uphold a submission of no case. However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defence case".

[6] In this case the accused is charged one count of Theft contrary to section 291(1) of the Crimes Decree. The elements in this offence are;

1. The accused
2. Dishonestly appropriate the silver chain

100. Belonged to the complainant (FULORI CIRIKISUVA )

4. With the intention of permanently depriving the complainant of the chain.
   

[7] The learned counsel in his oral submission submitted that the there is not sufficient evidence to prove the essential element of the offence (ownership) and therefore the accused need to be acquitted .

[8] The PW1 , FULORI CIRIKISUVA in her evidence in chief as well as cross- examination said that the chain belonged to her daughter. When this was revealed in her testimony the prosecution did not take any steps to amend the charge and closed the case after calling other two witnesses ( Interviewing officer and the charging officer).

[9] Therefore I agree with the defence that there is no evidence about the ownership of the property ( property belonged to the complainant) and acquit the accused from this charge.

[10] 28 days to appeal

H. S. P. Somaratne
Resident Magistrate, Suva