IN THE MAGISTRATE'S COURT
AT NAUSORI
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 502/15

State

V

Mohammed Kadir Khan

Representation and Appearances
Prosecution: PC Semi
Accused: Present and represented by Mr. J Singh (Samusamuvodre Sharma Law)

Ruling – No Case to Answer
Introduction

The accused person is charged with Sexual Assault, contrary to 210 (1) (a) 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 1 witness in this case. It was the victim.
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 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 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, 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 a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer." 

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 to answer should 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 directing its mind to the law and the evidence could or might convict 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 the prosecution witness 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.
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 no case to answer submission by the defence is refused. The accused is put to his defence.

Chaitanya Lakshman
Resident Magistrate
4/1/2017