State v Waqabaca [2016] FJMC 215; Criminal Case 436.2015 (19 October 2016)

IN THE MAGISTRATE'S COURT

AT NAUSORI

IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 436/15

State

V

Tiko Waqabaca

Representation and Appearances

Prosecution: PC Abinash

Accused: Present and represented by Ms.E. Radrole (Legal Aid)

Ruling – No Case to Answer

Introduction
The accused person is charged with Burglary, contrary to Section 312, Theft contrary to Section 291 (1) and Serious Assault, contrary to 277 (b) of the Crimes Decree Number 44 of 2009. At the close of the Prosecution case the Defence has submitted no case to answer. This is the ruling for the submission for no case to answer made by the Defence.

The Law

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".

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

"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".

The Evidence

The Prosecution called 5 witnesses in this case. Pw-1 was Josefa Rogo. Pw-2 was Constable Ropate, Pw-3 was Sargent Inoke, Pw-4 was Constable Rupeni and Pw-5 was Dc Emosi.

Analysis

This Court notes the legal pronouncement in Shabib v The State [2005] FJHC 95; HAA0022J.2005S (28 April 2005) by her Ladyship Madam Justice Shameem. It set out the principles that a Magistrate must follow in dealing with a no case to answer submission. This Court has noted the law and the submission of the defence in the no case to answer.
Section 178 of the Criminal Procedure Decree 2009 is identical to Section 210 of the Criminal Procedure Code, Cap 21, which it has replaced.

This Court is guided by a long standing Criminal Practice Direction, cited as A Practice Note [1962] 1 All ER 448 which provides that:

"A submission that there is no case to answer ay pmoperly be made and uphd upheld (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosen has so discredited ated as thes 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 answer,decisdecision 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 reasonableunal might convict. If a re a reasonable tribunal might convict on the evidence so far laid before it, there is a case to ansb>."

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

"the decision as to whether or not there is a case toer 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 reasonable tribunal properly ding itd to the law and and the evidence could or might conviconvict on the evidence so far laid before it. In other words, at the close of the prosecution case the Court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. 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".

Having noted the evidence of all the prosecution witnesses the first question the Court has considered is whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence as to the charges laid out against the accused. The answer to this question is in the affirmative. There is relevant and admissible evidence as to the charges laid out against the accused for all the three counts.

The second issue is whether on the prosecution case, taken at its highest, a reasonable tribunal could convict. There is relevant and admissible evidence before the Court upon which it might convict the accused. In considering the prosecution case in its entirety the Court taking an objective view finds that the case should proceed and the accused be given a chance to give evidence and call his witnesses.

The submission of no case to answer by the defence is refused. The accused is put to his defence.

Chaitanya Lakshman

Resident Magistrate

19/10/2016