IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0022 of 2005S

Between:

ABDUL GANI SAHIB
Appellant

And:

THE STATE
Respondent

Hearing: 22nd April 2005
Judgment: 28th April 2005

Counsel: Mr. H. Nagin for Appellant
Mr. P. Bulamainaivalu for State

JUDGMENT

This is an interlocutory appeal from a decision of a Suva Magistrates’ Court to find a case for the accused to answer. The Magistrates’ Court awaits this decision before proceeding further with the trial.

The Appellant was charged as follows:

Statement of Offence

INDECENTLY ANNOYING FEMALES: Contrary to Section 154(4) of the Penal Code Act 17.

Particulars of Offence

ABDUL GANI SAHIB s/o Sheik Mira Sahib, on the 4th day of January, 2003 at Nasinu in the Central Division, with intent to insult the modesty of a woman namely SHOBNA PRASAD f/n Bhagauti Prasad did an act of indecency on her.

The trial proceeded on the 4th of August 2004. The prosecution called 4 witnesses. At the end of the prosecution case, the defence made a submission of no case to answer. In substance, the defence said that the prosecution evidence, especially that of the complainant, was so discredited, that no reasonable tribunal could have convicted on it.

The learned Magistrate ruled as follows:

“On Defence Counsel’s submission of no case, section 210 of the Criminal Procedure Code is relevant. At this stage, the issue to decide is whether or not a reasonable tribunal might convict on the evidence so far adduced in respect of the charge against the accused.

I have also examined Prosecution evidence and authorities cited by defence counsel in support of the submission.

At this stage and on the evidence so far laid, I find there is a case to answer by the accused.

I so order accordingly.”

The defence has appealed against this ruling. The grounds of appeal are as follows:

(a)	The Learned Trial Magistrate erred in law and in fact in holding that there was a case to answer and did not give any reasons for her decision.

(b)	The Learned Trial Magistrate erred in law and in fact in not properly addressing herself to the provisions of the Criminal Procedure and the authorities and principles relating to “No Case to Answer.”

(c)	The Learned Trial Magistrate erred in law and in fact in not properly examining the evidence and considering the submissions made by the Appellant when the Appellant’s submission were quite clear and had shown that Prosecution had no case against the Appellant in light of the following:-

(i)	The Complainant’s contradictory statements in and out of Court and the incredible nature of her story.

(ii)	The Prosecution witness Manoj Ram’s contradictory statements in and out of Court.

(iii)	The Investigating Officer did not believe the Complainant and wanted to charge her for making a false statement to the Police.

On the 1st of April 2005, the Director of Public Prosecutions moved to strike out the appeal on the grounds that the High Court had no jurisdiction to hear the appeal, that section 308 of the Criminal Procedure Code does not give a right to an appeal in this case, and that the appeal is frivolous and should not be entertained.

I heard the Director’s application on the 15th of April, and because it was apparent that the nature of the appeal itself was relevant to the question of whether it was frivolous, heard the appeal proper on the 22nd of April 2005. During argument, State counsel conceded that the amended section 308 of the Criminal Procedure Code gave a right of appeal in the case of interlocutory orders, but invited me to strike out the appeal summarily because it was based solely on the credibility of PW1 (the complainant) and on issues which were irrelevant at the end of the prosecution case. He referred to the Court of Appeal decision in Ratu Ovini Bokini v. State [1999] 45 FLR 273, an appeal against a decision not to disqualify the tribunal on the ground of bias. In that case the Court said:

“We are not impressed with the ‘floodgates’ argument that interlocutory appeals in criminal matters will increase because of this interpretation. We have sufficient faith in High Court Judges to deal swiftly and severely with frivolous appeals against Magistrates’ interlocutory orders, brought merely to buy time or to obstruct the criminal process. Only interlocutory appeals with the degree of seriousness demonstrated by this case should be entertained.”

Counsel for the Appellant submits that this case is of sufficient seriousness to be heard. He points to what he says are serious deficiencies in the evidence of the complainant, the evidence of some trade dispute between the complainant’s husband and the Appellant to suggest an ulterior motive for the making of the complaint, and to the failure of the Learned Magistrate to indicate in her ruling that she had put her mind to the correct test and to the relevant evidence.

The evidence at the trial came substantially from Shobna Prasad, the complainant. She gave evidence that she is a divorcee, currently in a de facto relationship with a taxi driver, Muni Ram Manoj. He worked for Nasinu Express Taxis, which was and is owned by the Appellant. On the 4th of January 2003, the complainant went to the Nasinu Express Office at 9am, to pick up her husband’s pay packet. She went into his office, and he opened his drawer and took out the money to give her. He then pulled her t-shirt, causing her to fall onto the table. He then kissed her on her right cheek. She asked him why he had done this. He told her that if she wanted more money he would increase her husband’s wages. She told him that she was not that sort of woman. He then offered to take her to a hotel and give her what she needed. She pushed him away and ran home. It took her 3 to 4 minutes to run home. At home she told her husband what had happened. She was distressed. Her husband rang the Appellant and asked him why he had behaved like this. The complainant then made a complaint at the Valelevu Police Station. She then told Fiji TV about the incident.

That was the crux of her evidence. In cross-examination, she denied that her husband’s employment had been terminated on the very day of, or the day before the alleged incident, and that he was terminated because he had incited other workers to go on strike. She denied going to the post office immediately after the alleged incident, but when she was shown her police statement she admitted going to the post office. She said she could not recall buying water melon after visiting the post office. She denied visiting one Rajendra Kumar, a pastor, and said she did not know if the Appellant was a reputable person having spent many years in the Police Force.

PW2, her de facto partner gave evidence that when the complainant came home at about 9am on the 4th of January 2003, she was crying and she hugged him. She told him what had happened. He then related the incident to the Appellant’s wife, and then spoke to the Appellant. The Appellant’s response to PW2’s questions is not on the record. PW2 then went with the complainant to the police station and filed a complaint. While they were there the Appellant came into the police station and started to berate PW2 and his de facto wife. PW2 took his wife to the Crisis Centre, to the Human Rights Commission, and to the Fiji TV. He said that after the incident on the 4th of January, he left the Appellant’s employment voluntarily. He said he was not terminated.

Under cross-examination, he denied the contents of a Daily Post article shown to him, and denied that he had incited others to join a trade union. He also denied a number of other allegations about his relationship with the Appellant.

The Appellant’s caution interview was tendered. The investigating officer said that his initial recommendation had been to file the case away, and to charge the complainant for giving false evidence to the police. He said he came to know that PW2 had been terminated from his employment for inciting drivers to go on strike. He said that after termination, PW2 had run away with the Appellant’s taxi. He also gave evidence of the Appellant’s good character.

On the basis on this evidence, the learned Magistrate found a case to answer. She applied the correct test under section 210 of the Criminal Procedure Code, that is, whether on the prosecution case at its highest, a reasonable tribunal could convict. The test at no case stage in the Magistrates’ Courts, is different from the test at no case stage in the High Court. The test in R v. Galbraith (1971) 73 Cr. App. R. 124 is two-pronged, first whether there is no evidence that the accused committed the offence, and second if there is evidence, whether it is so discredited that no reasonable tribunal could convict on it. In the High Court, only the first test applies because of the specific wording of section 293 of the Criminal Procedure Code (Sisa Kalisoqo v. R Crim. App. 52 of 1984; State v. Mosese Tuisawau Cr. App. 14 of 1990). In the latter case, the Court of Appeal said that in assessing whether there was “no evidence”, the court was entitled to ask whether the evidence was relevant, admissible and inculpatory of the accused.

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.

This appeal is really about whether the prosecution case is so discredited that believing PW1 and PW2 was impossible, and about whether the magistrate therefore erred in finding a case to answer. For the reasons I give later in this judgment, I do not consider that she erred. However, for the purpose of the State’s application I am of the view that the defence has presented an argument on the Galbraith test and on the evidence that she may have erred.

I do not consider this appeal to be one that ought to be summarily dismissed. Certainly section 308 gives to the defence a right of appeal. There is no doubt at all that PW1’s evidence was inconsistent in at least one regard, and that is her conduct after the alleged incident. What weight is to be put on that inconsistency is of course a matter for the trial magistrate. Indeed, the less I say about it the better.

However, I consider that this appeal should not be summarily dismissed, and I now proceed to deal with the appeal proper.

There were inconsistencies in the prosecution case. Indeed, the defence put forward an alternative explanation for the complaint. However I cannot agree with counsel that the evidence was so discredited that any reasonable tribunal had to reject the evidence in its entirety. Witnesses rarely tell an entirely consistent story in court. It would be remarkable if they did, because human beings often have different perceptions of the same incident. Recollections also differ. PW1 certainly changed her evidence about the visit to the post office. However, the effect of such change did not completely destroy her evidence because she remained constant as to the alleged events in the Appellant’s office. I note that there was little or no cross-examination on it. Similarly, her account of that incident appears to have been consistent since the 4th of January 2003.

In the circumstances, the question of whether or not she was a reliable and credible witness can safely be left to the trial magistrate at the end of the trial. She saw the witness, she undoubtedly evaluated her credibility, and her decision to accept or reject evidence would not be one an appellate court would lightly interfere with.

For these reasons, this appeal fails. It is dismissed. The trial must now proceed as quickly as possible.

Nazhat Shameem
JUDGE

At Suva
28th April 2005