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

Criminal Appeal Case No: HAA 019 of 2008

BETWEEN

THE STATE
Appellant

AND

MAHEND PRASAD
s/o Hari Prasad
Respondent

Mr. M. Korovou for the Appellant
Mr. A. Kholi for the Respondent

Date of Hearing: 24 October 2008.

RULING

1.	The respondent, Mahend Prasad s/o Hari Prasad was charged with one count of Attempted Rape contrary to section 151 of the Penal Code cap 17. At the closure of the prosecution case and following an application by Defence counsel, the learned Magistrate upheld an application that there was no case to answer pursuant to section 210 of the Criminal Procedure Code Cap 21.

2.	The respondent was thereafter acquitted of the charged brought against him.

3.	It is against the Order of acquittal in the Magistrates’ Court, pursuant to section 210 CPC, that the State, has filed an appeal for. The appeal has the sanction of the DPP as required under section 308(1) of CPC . It is properly brought.

4.	When the matter was called before me on 29 August 2008, I ordered that the State filed their written submission in court by 12 September. This was duly observed. The respondent was ordered to file their response by 19 September and hearing is set for 3 October 2008. I opined to counsels that they should confine their submissions to the issue of whether the learned Magistrate correctly identified the principles of law to follow in exercising the powers extant under section 210 CPC and secondly, if so, whether he applied those principles correctly. 

State Submission

5.	The State submissions may be summarized as follows:

i)	hat the learned Magistrate failed to take into account material aspects of the prosecution evidence in arriving at his finding;

ii)	That the learned Magistrate failed to give reasoned judgment, which reflected the material aspects of the prosecution evidence, the points for determination and the reasons for decision;

iii)	That the learned Magistrate misrepresented the material aspects of the prosecution case in determining the issue of consent.

Respondent Submission

6.	Mr. Kohli for the respondent submitted that in the light of the recent High Court decision in Jale Baba & Anor v State [2008] FJHC 258;HAA 043 of 2008, 9 October 2008, he conceded that the trial magistrate had applied the incorrect test when evaluating the evidence for determining a no-case-to-answer under section 210 of the CPC. He further pointed out to the court the difficulty it will face given the clear terms of section 319(2) of the CPC, now that the trial Magistrate is no longer in the service. 

Appeal Determination

6.	In reviewing the court record of the trial, I noted the trial Magistrate’s ruling on the application of No Case to Answer, consisted of 7 paragraphs and each paragraph has a subtitle. Paragraph 3 is titled ‘Material Facts’ and under that subtitle is listed 20 specific references to evidence called by the Prosecution; Paragraph 4 is sub-titled "Law and General Principles" and under this heading the trial Magistrate referred to relevant principles of law that a court would apply when considering a section 210 CPC application of No Case To Answer; Paragraph 5 is subtitled " Application of Law and Legal Principles to Evidence" and there the trial Magistrate held that there was no evidence adduced by the prosecution relating to ‘no consent’ and paragraph 6 is subtitled ‘Finding’ wherein the trial Magistrate held ‘I find there is no evidence before the court of essential element of the offence (i.e. no consenting). There was no other explanation given and with reference to evidence adduce by the prosecution to support how that finding was reached.

7.	This was case in which the trial Magistrate referred to some ‘Material Facts’ and ignored others and where he identified relevant law and legal principles, but did not apply it at all to the evidence that had been adduced by the prosecution.

8.	It is clear from the wording of the trial Magistrates finding that he accepted that there was no evidence on the issue of ‘no consent’. Yet the material facts he identified had the following:

‘(iii) While sitting there an Indian boy came and got hold of her mouth and started talking;

(iv) Indian boy said for them to go and have conversation but Joana refused;

(v) Indian boy pushed to the ground and lay on her with clothes on’

9.	From the above and if the trial Magistrate was indeed applying the objective test, which is the correct test at this stage of the trial, he could not have reached the finding that there was no evidence at that stage touching on the issue of ‘no consent’. This is not say that after the defence case is heard, the evidence may be disbelieved by the trial Magistrate applying the subjective test in evaluating all the evidence and determining which to believe and which not to believe.

10.	The trial Magistrate ignored the admission of the accused that he wanted to have sex with the complainant [Caution Interview Statement: Answer to Q 60.]. It supports the State’s submission that ‘the trial Magistrate failed to reflect the material aspects of the prosecution evidence, the points for determination and the reasons for the decisions.’

11.	Under Section 155 of the CPC it is mandatory for the trial Magistrate to set out clearly and briefly the evidence touching each of the elements of the offence of Attempted Rape contrary to section 151 of the PC in deciding an application by the defence under section 210 CPC for a no-case-to-answer finding. 

12.	To simply say state that he found no evidence that there was ‘no consent’ without a brief discussion regarding the evidence adduced touching this element of the offence, in my view violated the requirements of section 155 (1) of the CPC. The trial Magistrate in this situation is required to at least refer to what evidence that has been adduced by the prosecution on the essential element concerned and give reasons for not considering it as adequate from an objective standpoint. His failure to do so, in my view, invalidates his ruling in this instance and must be set aside. 

13.	In Kaliova Rage v The State (1996) 42 FLR 176 at page 179, Mr. Justice Fatiaki said:

‘I accept at once that "…a Magistrate is not obliged to give reasons for his acceptance or rejection of any particular witness…where it is based on his assessment of the witness credibility [per Grant J in Jan Barkat Ali v R. (1972) 18 FLR 129], but even in such a case, it is till incumbent on the trial magistrate in my view, to refer clearly in his judgment, to the evidence which he accepts as establishing the ingredients of the offence.

14.	In this case there is a listing of what the trial magistrate considered as material facts. He found that there were no credible evidence on the element of ‘no consent’ without any discussion he reached that conclusion. He could not have found that there was no evidence on that element, because there was evidence touching it. He did not provide any explanation as why he rejected those evidence. These failure on the part of the trial magistrate amounted in my view, to an incurable error of law. It sufficient for the ruling under review in this appeal to be set aside.

15.	It should be also pointed out that accountable judging requires courts to be open and transparent with regard to the provision of reasons for reaching a decision. Failure to observe this practice could on itself result in the ruling being overturned on appeal.

Wrong Test Applied

16.	I also find that the trial magistrate erred in the test he applied in evaluating the evidence adduced at the end of the prosecution case. He clearly rejected the evidence of the complainant [PW1] as lacking in credibility and that of PW2, even without the benefit of the defence. He did this by incorrectly referring to section 293 CPC, which provision applies only to submission of no-case-to-answer in the High Court. The test to applied in the Magistrates, was explained in Abdul Ghani Sahib v The State [2005] FJHC 95; HAA 0022 of 2005; 28 April 2005, as:

‘In the Magistrates Court, both tests apply. So the Magistrate must ask himself firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and second whether the prosecution, taken at it highest, a reasonable tribunal could convict. In considering the prosecution at its highest, a reasonable tribunal could convict. In considering the prosecution case, taken 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 on no case. However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defence case.’ 

17.	In reviewing the evidence adduced at the end of the prosecution case with regard to the essential element of ‘no consent’. The following relevant circumstantial evidence were adduced:

•	In answer to Q 60 in his caution interview statements, the accused admitted he wanted to have sex with the complainant PW1;

•	Evidence of PW1 that accused forced her to the ground and placing his hands over her mouth;

•	The injuries sustained by PW1 according to the medical report was consistent with her claim of being pushed down in the cane field.

19.	Despite the above evidence on the issue of whether there was evidence touching on consent or not, the trial Magistrate found there was no evidence. To have reached that conclusion he must have applied the subjective test, normally applied after all the evidence has been called and the court is to determine the guilt or not of the accused person in doing so determine credibility and weight of evidence to accept.

20.	In my view, the trial magistrate may have been correct in not believing the complainant, but he should have waited until all the evidence in the trial is heard. He did not do that and that is an error of law that is incurable: Jale Baba & Anor (supra).

21.	In conclusion, there has been substantial miscarriage of justice. The State appeal succeeds. The order of acquittal of the accused is set aside. Section 319(2) CPC requires that I remit the case to the same Magistrate for continuation and I would but for the fact that the magistrate in question is no longer in the service. I would therefore order that the case be remitted to the Magistrates Court at Labasa for a first call at 9am on 3 November 2008 before another Magistrate.

22.	It may be appropriate in this instance that the DPP consider entering a nolle prosequi when the case is called in the magistrates Court on 3 November 2008, to allow the case to restart before another magistrate.

ORDERS

23	I make the following Orders:

i)	The order of acquittal of the respondent in the Magistrates court is set aside;

ii)	The case is remitted to the Magistrates Court for a new trial given that continuation of the trial before the same Magistrate is now impossible;

iii)	The case is to be called before the Labasa Magistrate Court on 17 November 2008;

iv)	The Respondent is bailed on his own recognizance to appear on that day.

Isikeli Mataitoga
JUDGE

At Labasa
7 November 2008.