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State v Lal [2004] FJHC 452; HAC0002.2003L (18 August 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0002 OF 2003L

STATE

v.

BRIJ LAL
SUSHIL CHANDRA
SURESH KUMAR
RAJ KUMAR
SUNIL KUMAR
RONAL ROHINESH KUMAR
ASHWIN CHANDRA

Counsel: Mr. M. Korovou for the State
Mr. I. Khan for the Accused

Hearing: 5, 6, 9, 11, 12, 13, 16 – 18 August 2004
Ruling: 18 August 2004

RULING ON NO CASE TO ANSWER

Counsel for the Accused, that is the 7 Accused, makes a submission that there is no case for the 7 Accused to answer on the charge of manslaughter.

The test to be applied under section 293 of the Criminal Procedure Code is whether there is evidence in respect of each ingredient of the offence. If there is some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence, then there is a prima facie case (Sisa Kalisoqo –v- State Crim. App. No. 52 of 1984, State –v- Mosese Tuisawau Crim. App. No. 14 of 1990).

As was adopted by Mr. Justice Govind in The State v Mul Chand HAC0022 of 2003, the evidence referred to must be reliable and not simply any evidence no matter how inherently vague or unreliable it might be.

I have had the benefit of written submissions from Counsel for the Accused and oral submissions from Counsel for the State.

Section 293(1) of the Criminal Procedure Code provides that at the end of the prosecution case, the court “if it considers that there is no evidence that the accused ... committed the offence shall ... record a finding of not guilty.”

In State –v- Anthony Frederick Stephens Crim. Case No. 3 of 1997, Pain J said (at page 2):

“The narrow prescription of section 293(1) of the Criminal Procedure Code excludes the common law test enunciated in such cases as Galbraith (1981) 2 ALL ER 1060 that if the evidence is of such a tenuous character that a jury properly directed could not convict on it, the Judge should stop the case.

Accordingly, the question to be addressed at this stage of the trial is whether there is some relevant and admissible evidence in respect of each element that must be proved before the accused could be convicted of the offences alleged against him in the information.”

That was the position accepted by the Court of Appeal in Sisa Kalisoqo and Mosese Tuisawau and that is the test applied by Shameem J. in State –v- Waisale Tuivuya HAC0015 of 2002S and is the test as I see it that I should apply in this case.

The Information reads as follows:

Statement of Offence

MANSLAUGHTER: Contrary to sections 198 and 201 of the Penal Code, Cap. 17.

Particulars of Offence

BRIJ LAL s/o Ajodiya Prasad, SUSHIL CHANDRA s/o Ram Sharan, SURESH KUMAR s/o Ram Lakhan, RAJ KUMAR s/o Deo Raj, SUNIL KUMAR s/o Saras Chand, RONAL ROHINESH KUMAR s/o Deo Raj and ASHWIN CHANDRA s/o Sabash Chandra on the 15^th day of January, 2003 at Nadi in the Western Division, unlawfully caused the death of SEFANAIA NAROGI.

The ingredients of the offence of manslaughter are firstly that the accused, that is, collectively did an unlawful act and secondly that that act caused the death of the deceased. In this case there is no dispute that the deceased died as a result of injuries sustained by multiple blows and kicks as is more particularly described in an Exhibit 1, being the report of the pathologist.

There is however no direct evidence that the accused or any of them did an unlawful act to the deceased. The evidence of PW-2 and PW-3 is that the accused were all on the property of the 4^th Accused at the relevant time. That the son of the 2^nd Accused called out that he had been robbed and sought assistance to chase the thief. Later, a Fijian man was seen sitting on the ground but there is no evidence before the court of any assault on the Fijian man, that is the deceased, and more particularly there is no evidence of any such assault having being carried out by the 7 Accused or anyone of them.

Therefore I cannot be satisfied that there is some relevant and admissible evidence that is reliable and credible in respect of each element that must be proved by the prosecution. I find therefore there is insufficient evidence to put the accused that is all 7 accused to their defence. There is no case to answer and in accordance with the provisions of section 293, I record a finding of not guilty against each of the 7 accused.

JOHN CONNORS
JUDGE

At Lautoka
18 August 2004