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State v Lutumailagi - Ruling [2012] FJHC 941; HAC022.2008 (28 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 022 OF 2008

BETWEEN:

STATE

AND:

1. TEMO LUTUMAILAGI
2. JOAPE DRAUNA
3. TEVITA KAMA

Applicant Inperson
Ms L. Vateitei for the State

Date of Hearing : 27th February, 2012.
Date of Ruling : 28th February, 2012.

RULING ON NO CASE TO ANSWER

[1] The above named accused persons were charged by the Director Public Prosecution as follows:

FIRST COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1) (b) of the Penal Code, Cap. 17.

Particulars of Offence

TEMO LUTUMAILAGI, JOAPE DRAUNA, TEVITA KAMA on the 1st day of December 2007, at Nadi in the Western Division, robbed SIN HAR SUE of $150.00 cash at the time of such robbery threatened the said SIN HAR SUE with personal violence.

SECOND COUNT

Statement of Offence

MURDER: Contrary to section 199 and 200 of the Penal Code, Cap. 17.

Particulars of Offence

TEMO LUTUMAILAGI, on the 1st day of December 2007, at Nadi in the Western Division, murdered SIN HAR SUE.

[2] At the end of the Prosecution Case the 2nd and 3rd accused made an application under Section 231 (1) of the Criminal Procedure Decree that there is no case established against them therefore they have No Case to Answer.

[3] Section 231(1) of the Criminal Procedure Decree states as follows:

"When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if any) any arguments which the prosecution or the defence may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or any one of several accused) committed the offence". (emphasis added)

[4] In Sisa Kalisoqo v State Crim. App. 52 of 1984 the test articulated as follows:

"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".

[5] State Counsel submits that the accused persons had confessed that they took the money from the place of the incident therefore there is some evidence against them therefore the defence should be called against 1st, 2nd, and 3rd accused persons.

[6] As per the above section if the Court finds there is no evidence then the Court shall find them not guilty. In State vs Semisi Wainiqolo HAC 015 of 2004S Justice Gates (as then) said:

"In order that section 293 of the Criminal Procedure Code be satisfied there must be available for consideration by the assessors, evidence which is to be considered as more than "no evidence" in the sense no evidence that it was the Accused who had committed the offences".

[7] In Moidean v Reginam [1976] 22 Fiji LR 206 at p.208B the Court of Appeal interpreted the Magistrate's task to be:

"to decide whether, or not a reasonable tribunal might convict, on the evidence so far laid before it – if so there would be a case to answer".

The court referred to and approved the long standing English Practice Note at [1982] 1 All E.R. 448 per Lord Parcker CJ; similarly cited with approval by the "Court of Appeal in Rohit Ram Latchan v The State (unreported) Court of Appeal Criminal App. No. AAU0015 of 1996S; 28 November 1997.

[8] Justice Gates (as then) said in State v Tieri Raitini & 2 Others (Criminal HAC 005.03S):

There is no perceptible between the two tests; that is between whether the court considers there is "no evidence", the High Court test (section 298) and that for the Magistrates Court "a case is not made out....sufficiently....." [section 210 CPC]. When considering whether the evidence on identity of the accused is proximate or sufficient, insufficiently of evidence in reality is the same as there being no evidence. A mere scintilla as in Jai Chand would not be sufficient: Mosese Tuisawau (supra at p.6).

[9] Justice Gates (as then) said in State v Semisi Wainiqolo HAC 015.2004S:

In order that section 293 of the Criminal Procedure Code be satisfied there must be available for consideration by the assessors, evidence which is to be considered as more than "no evidence" in the sense no evidence that it was the accused who had committed the offences.

[10] Considering the nature of the evidence before the Court, the Prosecution called 22 witnesses for the prosecution. None of the witnesses speaks of a Robbery or Theft of Money at the place of the deceased. In other words there is no evidence that there is a theft on the 1/12/2007 at the scene of crime. The Investigating Officer, Waqa who visited the scene had observed the drawers were pulled and the till was opened but he doesn't speak of any money missing from the deceased.

[11] When evaluating the evidence before the Court, I find the Prosecution had not proved basic elements of the offence of Robbery.

[12] Section 237 (2) of the Criminal Procedure Decree states as follows:

"The Judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors."

[13] Considering the legal system of Republic of Fiji, the assessors are to assist the trial judge. It is the judge who is hearing the case makes the final determination and delivers his judgment.

[14] Considering the law the expenditures of the court and all other factors, this court is of the view that the judge should be satisfied that there is a prima facie case proven against accused persons.

[15] Considering the proving of prima facie case, the court expects the prosecution to prove the charge against the accused persons. Proving the charge means that all elements of the offence should be proved. If the defence opted to not offer any defence the court should be able to convict the accused. Considering the decided authorities in similar jurisdiction, this court finds that should be test for the defence to be called.

[16] Considering the present case, the prosecution had relied completely on the statement made by the accused persons in the caution interview.

[17] Admitting the statements made during the caution interview does not mean the case is proved, the prosecution should prove the confession. It doesn't mean that they have to prove all of the confession but the salient and important factors must be proved by independent evidence.

[18] Considering the law, decided cases and the facts of the case I uphold the application by the 1st, 2nd and 3rd accused persons and rule that the 1st, 2nd and 3rd accused persons need not answer to the charge of Robbery with Violence leveled against them.

[19] Considering all the materials before the Court, I find the 1st accused Temo Lutumailagi, 2nd accused Joape Drauna and 3rd accused Tevita Kama not guilty to the charge of Robbery with Violence and acquit them accordingly.

[20] Further, I find that the Prosecution had established a Prima facie case against the 1st accused on the charge of Murder, therefore I act under Section 231 (2) of the Criminal Procedure Decree and call for defence.

S. Thurairaja

JUDGE

At Lautoka

28th February, 2012.