State v Ihaka [2015] FJMC 30; EJR04.2014 (5 March 2015)

IN THE RESIDENT MAGISTRATE'S COURT
WESTERN DIVISION-SIGATOKA
Criminal Case EJR No:-04/2014

STATE

V

WILLIAM MATHEW IHAKA

Before :- Resident Magistrate, Tomasi Bainivalu
For the State : - Ms Fatiaki.Juleen JM of ODPP
For Accused : - Mr KitioneVuataki of Vuataki Law
Date of Hearing States Evidence :- 24th& 25th February, 2015
Date of Ruling :- 05thMarch, 2015 @ 2.15pm

RULING ON NO CASE TO ANSWER

Introduction

1. The accused, William Mathew Ihaka, is charged with:
   

Statement of Offence

Arson: - contrary tosection 362(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

William Mathew Ihakaon the 06thday of July 2014 at Sigatoka in the Western Division, willfully and unlawfully set fire to Room number 602, situated in the Nadi Wing ofNaviti Resort.

2. He pleaded not guilty and the matter proceeded to trial for two days consecutively, on which the States/Prosecution called the following eight (8) witnesses.
   
   • PW1- LaisaniNadruku of Tagaqe,Baravi, Nadroga Hotel Worker;
   • PW2-EroniMatanikorocaof Votua Housing;
   • PW3 – KameliN of Namatakula, Secu Security officer;
   • PW4 Lelly of Votualailai, Nadroga,Laundry Supervisor, Naviti Resort;
   • PW5 – SemisiKoroi of Serua, unemployedbut used to work at Naviti Resort as a security;
   • PW6 -DC 4219 Sunil Dutt of Sigatoka Police on;
   • PW7 Elizabeth HickyofMelbourne, Victoria, Australia;and
   • PW8 MeliTaginavula of Tavua town, OC Tavua Fire Station.
     
3. The State on the second day of hearing had closed its case, and before the Court now is an application by the Defence counsel, Mr. Vuataki for a No case to answer.
   
4. Both the State and the Defence Counsel were then directed by the court to file in their written submissions simultaneously by 11.00am on the 26/02/2015. And both submissions are filed herewith,andI thank the Counsels for complying with the filing directives on time.
   
5. The court had thoroughly perused both submissions from the Defence and the State, and I do not intent to reproduce them in this ruling as the court record has them.
   

The Law

6. To be able to sustain the charge in this case, the state counsel/prosecution must lead evidence that:
   
   • the accused,
   • willfully and unlawfully,
   • sets fire to,
   • any building or structure (whether completed or not).
     

[On No Case to Answer]

7. Section 178 of the Criminal Procedure Decree 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."

8. This provision is identical to s. 210 of the now repealed Criminal Procedure Code, Cap 21, such that the test to be applied at this stage of proceedings has not changed. (See also FICAC v Rajeshwar Kumar and Jaswant Kumar Criminal Case No: HAC 001 of 2009 at [13], per Goundar J.
   
9. The test at the close of the states/prosecution case, on whether there is a case to answer, is set out in Latchan -v- State [1997] FCA 51; AAU0015U.96S (28 November 1997). There, their Lordships adopted the Practice Note in the Queen's Bench Division [1962] 1 All ER 448 per Lord Parker CJ:
   

"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.

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 answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit,but on whether the evidence is such that a reasonable tribunal might convict. If areasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.(underlined emphasis mine)

10. In State v Ganesh [2009] FJHC 207; HAM030.2008 (17 September 2009) at 13, Goundar J stated, "either limb of the test can be relied upon to make an application for no case to answer in the Magistrates' Court."
    
11. In Sahib v The State [2005] FJHC 95; HAA0022J.2005S (28 April 2005), Shameem J (as she then was) stated:
    

"In the Magistrates' Courts, 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 secondly 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, from no matter which angle one looks at it, a court can uphold a submission of no case to answer. However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defence case."

12. In other words, applying this test requires looking at the evidence in its totality and checking to see that there is evidence touching on all the essential ingredients of the offence (Shameem JinState vPoasaYavala citing Court of Appeal in SisaKalisoqovR AAU 52/84)).
    
13. Also, at this stage, I am not so concerned about the quality of the evidence. So long as there is evidence touching on all the essential elements of the offence, that would be sufficient to require to answer to the case.
    

"If there is some evidence, then irrespective of its quality, a no case submission must fail." (ibid).(underlined emphasis mine).

But if the evidence is inherently vague or incredible, a no case to answer submission will succeed (see State v George Shiu Raj[2006] AAU 0081/05S).

The Evidence

14. I have read the States and the Defence submissions and have compared them with the court record on the states witnesses evidence, and most evidence are identical with the court record, to which I do not wish to reproduce them in this brief ruling.
    

Analysis

15. I bear in mind the law on no case to answer as I have cited above in determining the application before me. I also note that Mr. Vuataki brings his application under the second limb of the test, as in the case ofLatchan (ante).
    
16. In brief, Mr. Vuataki invites the Court to consider the objective testand the assessment of circumstantial evidence and inferences that can be drawn from the evidence and submitted that the prosecution evidence has been so discredited or is so manifestly unreliablethat the application for no case to answer should succeed, and his client be acquitted.
    
17. And to consider the law on circumstantial evidence and inferences drawn, which was well set out by the Learned Magistrate Rajasinhe inState v Vitukawalu [2011] FJMC 12; Criminal Case 925.2010 (2 February 2011).In my view, with due respect to the Defence Counsel, the principle concept of circumstantial evidence in the latter case was referred to by the Learned Magistrate Rajasinheafter the full hearing had concluded; and not at the prime stage of no case to answer; but, the court is not turning a blind eye to this important principle, because it totally accepts, that the effects of some circumstantial evidence do play a major role in this case in totality.
    
18. And having stated thus, I accept what both Counsels did raise in their submissions;the sentiments outlined by her Ladyship Justice Shameem (as she thewas), in the case of State v Vulaca (2008) FJHCHAC120AC120.2007 (22 April 2008) & [2011] Crim.App.AAU 0030 of 2008:-
    

"...with circumstantial evidence you must look at all the evidence together and ask ylves whether the only reasoreasonable inference you can draw from the evidence is the guilt of the accused. You must ask yourselves whether there can be any other explanation for the evidence which is also consistent with the accused's innocence. That is the law on circumstantial evidence."

19. In reply, the prosecution submitted for the court to consider the evidence of PW2, PW3, PW4, PW5 and PW7, where they all gave evidence to the effect that on the night of06th day of July 2014, the Accused was in Room 602; and whilst they stood outside they could hear a male voice as well as glass being smashed inside the same room. One of the witnesses even said that glass had came out from under the door where they stood. The Accused refused to open the door when the Police had arrived and he was intoxicated at the material time. After the Police Officers left (about 20minutes had lapsed) they smelt smoke and saw fire coming out from the front portion of the said room. PW7 gave evidence to the effect that when she went into the washroom, the Accused was alone in the main room;and when she opened the door to come back to the main room,she saw the smoke and the flame engulfed. The evidence given by the Investigator [PW8] from the National Fire Authority indicated that the point of origin of the fire was from the front portion of the main room where a chair had cushions stacked on it. He also concluded that the cause of the fire was deemed to be suspicious in nature.
    
20. Also therewere noises being heard by the security guardswho at most times outside room 602 and they all said that it was coming from the same room.Also prior to the accused going or taken to his room the night in question, he was refused for more drinks and at one stage whilst being escorted back to his room, he ran to the pool area picked up a post and/or a stick and ran to his room. Even at one stage when Police officers arrived, they knocked the room door 602and introduce themselves as Police officers, PW2 said that the respond from the room was the word "fuck off" and "bull shit-fuck off"; PW3 also said in cross examination that after they made several knocking on the door of room 602, they received response from the room such as "fuck you security" and "fuck the Police"
    
21. I have considered the states/prosecution evidence before the Court and the Defenceapplication for my determination. I agree with Mr. Vuatakithat there were some inconsistencies in some of the witnesses' evidence in courtand the fact that one crucial witness namely Tani was not present to give evidenceand to be cross examined upon his own statement.
    
22. Having considered the law on no case to answer against the evidence now before the Court, including the inconsistencies;I had alsolook at all the evidence togetherin its totality in terms of circumstantial evidence now adduced so far by the State,irrespective of its quality; the court finds that the prosecution's case is notentirely discredited from no matter which angle one looks at it. And rather, I am of the opinion that the prosecution's case, taken at its highest, could lead a reasonable tribunal to convict. (See Sahib, ante)
    
23. I therefore reject the application made by the Defence Counsel and find instead that there is a case for the accused, William Ihaka to answer and he is to be put to his Defence accordingly.
    
24. At this stage, if I may comment; bearing in mind that PW7, who had lived with the accused for 26-27 years and had two children from their relationship, was called as state witness, most of her evidence in cross examination had favored the accused position in terms of the alleged condition of "sleep apnoea". Though, I am fully aware of the common principle, that the burden always lies with the State/Prosecution and not at any time shifts, since the court had now put the accused William Ihakato his defence, it would be interesting to hear him elaborate more on the alleged condition of "sleep apnoea" or to bring evidence support of the same.
    

Ruling accordingly.

MrT.Bainivalu
Resident Magistrate

SIGATOKA

Distributions

• TheDefence/Accused Counsel, MrVuataki
• The State Counsel, MsFatiaki.
• File Copy EJ 04/14