State v S.S [2017] FJMC 131; Juvenile Case 50.2014 (25 October 2017)

IN THE RESIDENT MAGISTRATES COURT
AT SUVA
CRIMINAL JURISDICTION

Juvenile Case No. 50 of 2014

The State

V

S. S

For the State : Counsel Mr.soni E.

.

For the Juvenile : Counsel Mr. Verebalavu K. (Legal Aid)

Date of the Ruling : 25th October 2017

Ruling on No Case to Answer Submissimissions

1. The Juvenile has been charged with 2 counts of Rape contrary to section 207(1) and (2) ( c) and (3) of the Crimes Decree No. 44 of 2009, alleging that he penetrated the mouth of another juvenile with his penis on two occasions.
   
2. These are indictable offences and the High Court has granted extended jurisdiction to the Juvenile Court on 21/11/2014 in terms on Section 4(2) of the Criminal Procedure Act 2009.
   
3. The Juvenile has pleaded not guilty to charges and the case was taken up for the trial proper on 11/10/2017 and at the conclusion of the prosecution case, the learned counsel who appeared for the juvenile, made a No Case to Answer submission in terms of section 178 of the Criminal Procedure Act 2009.
   
4. This Ruling is on the said No Case to Answer application.
   
5. Section 178 of the Criminal Procedure Act of 2009 states 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.”
   
6. The legal principles to be followed in no case to answer scenario have been discussed in several decided cases.
   
7. In Sahib v State [2005] FJHC 95; HAA0022J.2005S (28 April 2005), Justice Shameem has adopted a test to be applied in Magistrate Courts, in ‘No Case to Answer’ situation. Justice Shameem has cited the test found in R v. Galbraith (1971) 73 Cr. App. R. 124, which is in two- pronged.
   1. whether there is no evidence that the accused committed the offence
   2. if there is evidence, whether it is so discredited that no reasonable tribunal could convict on it

Her Ladyship further said, “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 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, from 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.”

8. In State v Aiyaz [2009] 186; HAC033.2008 (31 August 2009), Justice Goundar observed that;

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). There are two limbs to the test under section 210:

[i] Whether there is no evidence to prove an essential element of the charged offence;

[ii] Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.

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.

(Section 210 is the correspondence section of the repealed Criminal Procedure Code to the section 178 of the Criminal Procedure Act 2009.)

9. Accordingly, this court must decide whether the facts of this case fall within either one of limbs aforementioned.
   
10. The Defence submitted that the evidence adduced by the prosecution is so unreliable and they failed to bring out a case sufficiently for the juvenile to answer.
    
11. The prosecution called two (2) witnesses at the trial proper and further relied on the evidence given at the voir dire hearing by investigation officers, to prove the charges against the Juvenile.
    
12. The witness No.1, I G (the victim’s name is supressed) is the complainant who is a 10 years old child and he testified that the juvenile has asked him to suck his penis in two occasions within a short period of time. One incident happened in woods and the other instance is inside a toilet. In cross examination he said that he was coached by his father to give evidence in court.
    
13. It is my opinion that the mere fact that a 10 year old child was coached by the father to come and give evidence in court does not mean that he is lying in court. His evidence should be considered as a whole and it is to be noted that the evidence of the victim is consistent and believable. Though he has said his father coached him, he reiterated the fact that he is not lying in court.
    
14. Therefore the court cannot agree with the submission by the Defence that the evidence given by PW1 is totally unreliable.
    
15. PW 2 is the grandmother of the PW1 and she said that the juvenile told her what has happened inside the toilet, when he was questioned after seeing he was coming out from the toilet with the juvenile. Though she hasn’t seen anything, her observation corroborates the version of the PW1.
    
16. Accordingly, it is the opinion of this court that the evidence adduced by the prosecution support the elements of the offence of rape and they are consistence and credible.
    
17. Therefore, I conclude that the facts of this case does not fall within either one of limbs discussed in Sahib v State(supra) or State v Aiyaz (supra), hence the section 178 of the Criminal Procedure Act does not apply in the instance case.
    
18. Therefore I refuse the application of the Defence for a ruling of No Case to Answer in favour of the juvenile and order that the juvenile should proceed with his Defence.
    
19. 28 days to Appeal.
    

.........................
Geethani Wijesinghe
Resident Magistrate

At Suva
25^th October 2017