State v Nalawa [2017] FJMC 35; Criminal Case 361.2009 (7 March 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case : 361/2009

STATE
V
LAITIA NALAWA
SAULA VUNIVESI

For the Prosecution : Cpl Fisher
For 1^st accused : Mr.Tuicolo(LAC)
The 2nd accused : In person
Date of Hearing : 07^th of March 2017
Date of Ruling : 07^th of March 2017

RULING ON NO CASE TO ANSWER

1. The accused are charged with one count Conspiracy to commit a Felony namely Shop breaking Entering and Larceny contrary to section 385 of the Penal Code, one count of Shop Breaking entering and Larceny contrary to section 300(a) of the Penal Code. In addition the 1^st accused is also charged with one count of Giving False information to the police officer contrary to section 143(a) of the Penal Code.
2. The prosecution called one civil witness and 03 police officers and closed their case this morning. Subsequently the counsel for the 1^st accused made a ‘no case submission ‘pursuant to section 178 of the Criminal Procedure Decree.
3. 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”.

4. In State V Aiyaz [2009] FJHC 186 his Lordship Justice Goundar held 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.”

5. In his oral submission the counsel for the 1^st accused submitted that there are no evidence to satisfy the elements of all the offences and hence his client need to be acquitted from this case.
6. During the hearing the prosecution marked the caution statement of the 1^st accused as prosecution exhibit 2. In this statement the accused admitted he with the 2^nd accused and some other planned to break in to the service station. Whilst he was doing the night shift the 2nd accused and others came with some other and broke in to the shop and to hide the accused involvement they tied him. The 1^st accused also admitted when the police came he gave a false statement.
7. Even though the 2^nd accused did not made a ‘no case submission’ since he is unrepresented I would now consider if there are evidence against him also.
8. Again I turn in to his caution statement which has been marked as prosecution exhibit 01. In this he also admitted planning with 1^st accused and some others to break in to the service station and later committing this break up.
9. Hence at this stage I find there is a credible evidence to satisfy all the elements of offences against both accused.
10. I find there is a case against both accused.

Shageeth Somaratne

Resident Magistrate