IN THE HIGH COURT OF THE FIJI ISLANDS
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal Case No. HAA 43 of 2008

BETWEEN:

THE STATE

AND

JALE OSISAYA BABA
KAIE NAWASA

Counsel: 
Mr. P. Bulamainaivalu for the State
Mr. S. Karavaki for the Respondents

Date of Hearing: 3 October 2008 
Date of Ruling: 9 October 2008.

RULING

1.	 Jale Osisaya Baba and Kaie Nawasa, are the respondents in this appeal. They were charged and tried in the Suva Magistrates Court, as follows:

Count 1

Statement of Offence

Attempted Larceny: contrary to section 281 and 262 of the Penal Code Cap 17

Particulars of Offence

JALE OSISAYA BABA and KAIE NAWASA on the 17 day of March 2000, at Suva in the Central Division, attempted to steal $700.00 from the sale of vehicle registration No: GK965, the property of Fiji Pine Limited

Count 2

Statement of Offence

Conversion: contrary to section 279(1)(b) of the Penal Code Cap 17

Particulars of Offence

JALE OSISAYA BABA and KAIE NAWASA on the 17th day of March 2000 at Suva in the Central Division, fraudulently converted to their own use $700.00 which had been the sale of Government Vehicle Registration Number GK 965, the property of the Fiji Pine Ltd.

2.	At the end of the prosecution case, counsel for the respondents submitted a ‘ No Case To Answer Submission’ under section 210 of the Criminal Procedure Code Cap 21 [CPC], to the court. The learned Magistrate after hearing submissions from both counsel, ruled in favour of the applicants, the respondent in this appeal, that there was no case to answer and acquitted both of the charges they faced, on 19 February 2008. 

3.	 The State having obtained the sanction of the Director of Public Prosecution as required under section 308(1) of the CPC filed a petition of appeal in the Suva Magistrates Court on 14 March 2008. The petition was timely.

Appellant’s Submission

4.	The appellant submits the following grounds in support of their appeal:

i)	The learned Magistrate erred in law when he held that there were no evidence by the prosecution to prove the essential element of the relevant charges;

ii)	The learned Magistrate erred in law when he held that the entire evidence were so manifestly unreliable that no reasonable tribunal could safely convict on it;

iii)	That the learned Magistrate erred in law and in fact when he subjectively rather than objectively assess the entire prosecution evidence;

iv)	That the learned Magistrate erred in law when he held that the charges were defective and non-curable.

Respondent’s submission

5.	The written submission for the respondents were not filed before or on 18 August 2008 as the court ordered on 1 August 2008. Indeed it was not filed until the hearing was beginning in court on 3 October 2008. Counsel concerned must not take it for granted that in future the court would be as charitable at it was on this occasion, as regards the filing of submissions.

6.	Mr. Karavaki for the respondent’s restated the essence of the submission he made to the learned Magistrate when he made his section 210 CPC application. In the written submission filed there were five grounds advance. But it was not necessary to address given the conclusion I have reached.

Relevant Principles of Law for a Section 210 CPC application

7.	At the outset it should be stated that the plain words of section 210 of the CPC, must guide the approach of the court when an application is made to it under that provision.

8.	 It must be made clear that when an application of ‘No Case To Answer’ is made under section 210 of the CPC, the court concerned is not at that stage of the trial being asked to make a determination of guilt or otherwise of the accused person: Rohit Latchan v The State. The court is to merely assess objectively whether the evidence adduced at the closure of the prosecution may move a reasonable tribunal to convict.

9.	 The Court of Appeal in Rohit Latchan (supra) adopted the following statement of English law as applicable to Fiji when considering the application an application under section 210 CPC:

‘ A submission of 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 a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

10.	 In R v Jai Chand the Court of Appeal made the following observation which is a pivotal consideration for a court to keep in mind when considering an application under section 210 CPC:

‘…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 close of 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 to his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence.’

11.	 What this means is that the court must not seek to evaluate the evidence at the close of the prosecution case as if to determine the guilt or otherwise of the accused person. At this stage of the trial the court should only assess the evidence and be satisfied that there is evidence touching each element of the offence charged sufficient to require putting the accused to their defence. This will involve reference to the elements of the offence charge and the court must clearly refer to thee and the evidence in the ruling.

Appeal Determination

12.	 Before I address the substantive issue of this appeal, I wish to observe that the decision of the learned Magistrate to make a determination that the charges in the case was defective in the course of the hearing of a section 210 CPC application, was difficult to comprehend. If he had any concern about the charges, fairness dictates that he should have directly and specifically address the issue by indicating to both counsel of his views and then invite their submission before deciding that the charges were defective. The requirements of section 214 of the CPC would also be considered in that exercise. This was not done in this instance. The approach adopted by the learned Magistrate was wrong and to that extent he erred in law.
 
13.	The error was a substantial miscarriage of justice and the finding of the learned magistrate is set aside. In the light of the decision I have reached in the substantive issue of appeal, the Magistrate must carefully follow section 214 of the CPC if he is to pursue the issue of the defective charge in the continuation of the hearing of this matter.

14.	As regards the substantive issue of the appeal, I will decide it on a narrow point of law and procedure. It will not be necessary for me to address the detail grounds submitted by both parties. More importantly it avoids the need to review the evidence in the trial, which is the correct approach, given the directions I will be making.

15.	 This appeal succeeds on the ground that the learned Magistrate erred in law when applying the relevant principles applicable to a section 210 CPC no case to answer submission; in particular the test the court must apply in assessing the evidence at that stage of the trial. The learned Magistrate correctly identified the relevant legal principles as those discussed in Moiden v R (1976) 22 FLR 206. But in applying them and in his assessment of the evidence for the purpose of determining whether there was a case to answer he applied the wrong test. Instead of applying the objective test, the learned Magistrate was subjective in his evaluation: Jai Chand (supra)

16.	An integral part of a magistrates’ determination of a section 210 CPC application is that he or she must ask whether there are evidence adduced at that stage of the trial implicating the accused in respect of each element of the offence. In reviewing the ruling of the learned Magistrate, it is not evident from it that he addressed his mind to this aspect of his determination: Sahib v The State [2005] FJHC 95. The learned Magistrate’s ruling and the manner in which he evaluated and drew inferences from the evidence adduced at that stage of the trial, is consistent with his approach in determining the guilt or otherwise of the two accused persons. That was a wrong approach and is subjective in nature.

17.	It is clear from his conclusion that the learned Magistrate applied the wrong test in assessing the evidence. He was subjective in the test he applied in evaluating the evidence. Instead of reviewing the evidence to determine whether the prosecution have adduced evidence touching on all the essential elements of the offence, sufficient to put the accused persons to their defence, The learned Magistrate stated as follows:

‘All in all, I am not satisfied that an inference of guilt was the only rational inference that can be drawn on the facts of this case. There were inference available inconsistent with the guilt of the two accused. The circumstances raised a strong suspicion, but in a criminal trial, guilt has to be proved beyond reasonable doubt.’

18.	The above passage from the learned Magistrate ruling, shows clearly that he applied the subjective test in assessing the evidence, which is the test to be applied after both parties have adduced their evidence and the issue of guilty or not is to be determined by the court. The prosecution evidence was entitled to be assessed objectively, since the question at that stage of the trial was whether a reasonable tribunal could or might convict upon the evidence so far adduced. It is of the essence of impartiality or appearance of impartiality of a trial that the judicial process should be seen to be correct and fair.
 
19.	In applying the incorrect test, the learned Magistrate erred in law and consequently a substantial miscarriage of justice has arisen. In these circumstances I find the decision to terminate these proceedings at the conclusion of prosecution evidence without the court directing its mind to the proper test to be applied leaves the adjudication in this trial unsatisfactory.

20.	 The appeal must succeed. The order of acquittal made in the Magistrate Court for the two respondents are hereby vacated.

Section 319 CPC Powers of the High Court

21.	 I invited submission from both counsel on the best approach to adopt in the light of my ruling above and section 319 of the CPC.

22.	 Mr. Karavaki for the respondents submitted that the court should exercise its powers under section 319(1)(b) CPC and order that the case be remitted for continuation before the same Magistrate.

23.	 Mr. Bulaimainaivalu submits that the trial should be heard de novo before another Magistrate.

24.	This is a case in which the trial Magistrate evaluated the evidence and decided on the issue of guilt while applying the incorrect test in the assessment of the evidence. But for the clear provision of section 319(1)(b) of the CPC, fairness would dictate that the trial be heard de novo before another Magistrate. I am therefore forced to conclude that this matter is to be remitted to the same Magistrates for continuation of hearing and for the accused to be put to their defence.

25.	In conclusion the appeal by the State succeeds and is allowed. 

ORDERS

26.	I make the following orders:

i)	The acquittal of the two respondents in the Magistrates Court is set aside;

ii)	This case is remitted to the Magistrate Court for continuation of the trial and for the accused to be put to their defence;

iii)	This case will be called before the Suva Magistrates Court for the fixing date for continuation of trial of this matter on 20 October 2008;

iv)	The two respondents Bail is extended to the 20 October 2008 at 9am.

Isikeli Mataitoga
JUDGE

At Suva
9 October 2008.