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State v Prasad [2011] FJMC 110; Criminal Case 1143.2006 (14 October 2011)

IN THE MAGISTRATE’S COURT OF NASINU

CRIMINAL CASE NO.1143/2006

STATE

VS

MAHESH PRASAD

Mr. Malcoim Maitava for the State (DPP Office)
Mr. Rajendra Chaudhry for the accused

RULING

(ON NO CASE TO ANSWER)

The Application

[1] This is an application by the defence under Section 178 of the Crimes Decree No.44 of 2009 (Section 210 of the Criminal Procedure Code). At the close of the prosecution case, the defence submitted that there was no case to answer and as a result the accused should be acquitted.

The Governing Sections

[2] Section 178 of the Crimes Decree No.44 of 2009 states that:-

“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused”

Section 210 of the Criminal Procedure Code state that:-

“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused”

The Charge

[3] The accused is charged as follows:-

CHARGE

Statement of Offence [a]

First Count

INDECENT ASSAULT: Contrary to Section 154 (1) of the Penal Code Act 17.

Particulars of Offence [b]

MAHESH PRASAD S/O GOBAR DHAN, on the 12th day of September 2006, at Nasinu in the Central Division, unlawfully and indecently assaulted PRIYASHNA D/O KRISH CHAND.

The Charging Section

[4] Section 154(1) of the Penal Code states as follows:-

“154.-(1) any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and is liable to imprisonment for five years, with or without corporal punishment.”

Applicable Case Law

[5] The court is called for making a determination of whether or not a prima facie case has been made out against the Accused. It should be noted that ample past and recent judgements of superior court could be found in this regard.

i) R V Jai Chand 18 FLR 101 at page 103;

ii) Rohit Ram latchan V The State Criminal Appeal No. AAU0015 1996S [High Court Criminal Action No. HAA0032J of 1996];
iii) Practice Note [1962] All ER 448;

(iv) State v Aiyaz [2009] FJHC 186; HAC033.2008 (31 August 2009) and;
(v) Abdul Gani Sahib v. State [2005] HAA0022/05S, 28th April 2005

[6] Justice Grant in R V Jai Chand 18 FLR 101 at page 103 states that;-

“...the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, 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 the close of the 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 on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence”.

[7] In Rohit Ram Latchan V The State, the appeal judges were guided by the principles set out in the Practice Note [1962] All ER at page 448:-

“LORD PAKER, C.J:- Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the result, the court has had on many occasion to send the case back to the justices for the hearing to be continued with inevitable delay and increased expenditure. Without attempting to lay down any principle of law, we think as a matter of practice justices should be guided by the following considerations.

A submission that there is no case to answer may properly be made and upheld:

when there has been no evidence to prove an essential element in the alleged offence;

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.

Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal [ if compelled to do so ] would at the stage convict or acquit but on whether on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer’.

[8] In State v Aiyaz [2009] FJHC 186; HAC033.2008 (31 August 2009) Justice Daniel Goundar differentiates the guiding rules between High Court and Magistrates Court.

“The test under section 293(1) is settled and is more stringent than the test under section 210 of the Criminal Procedure Code, which governs an application for no case to answer in the Magistrates’ Court.”

The test for no case to answer in the Magistrates’ Court under section 210 is adopted from the Practice Direction, issued by the Queen’s Bench Division in England and reported in [1962] 1 All E.R 448 (Moiden v R (1976) 27 FLR 206). There are two limbs to the test under section 210:

[i] Whether there is no evidence to prove an essential element of the charged offence;

[ii] Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.

An accused can rely on either limb of the test under section 210 to make an application for no case to answer in the Magistrates’ Court.” [Emphasis added]

[9] In Abdul Gani Sahib v. State [2005] HAA0022/05S, 28th April 2005, Justice Shameem held that the correct test in Magistrate’s Court under Sec. 210 of the Criminal Procedure Code is,

1. Whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and;

2. Whether on the prosecution case at its highest, a reasonable tribunal could convict.

[10] According to Justice Shameem's guidelines, where the evidence is entirely discredited, no matter from which angle one looks at it, a court can uphold a submission of no case. However, where there is a possible view of the evidence might lead the court to convict, the case should proceed to the defence case. [Emphasis added]

[11] In order to decide whether there is sufficient evidence to put the accused to his defence, it is important to determine the elements of the offence and the evidence adduced in support of the said elements.

The Element of charge

[12] Elements of the charge of indecent assault are:

(1) Any person
(2) Unlawfully and indecently
(3) Assaults
(4) Any woman or girl

[13] To sustain a charge, all the elements must be proved. In Haw Tau Tau v Public Prosecutor (1982) A.C. 136 English Privy Counsel held at p.151:

"It is well established that in a jury trial at the conclusion of the prosecution's case it is the judge's function to decide for himself whether the evidence adduced which, if it were accepted by the jury as accurate, would establish each essential element in the alleged offence: for what are the essential elements in any criminal offence is a question of law. If there is no evidence (or only evidence that is so inherently incredible that no reasonable person could accept it as being true) to prove any one or more of those essential elements, it is the judge's duty to direct an acquittal, for it is only upon evidence that juries are entitled to convict..."

The evidence

[14] To prove this charge prosecution called following witness;

PW1-Priyashna
PW2-Avinesh Pal
PW3-DC 2771, Aminand Prasad

In addition interview notes of the Accused and Charge Statement tendered as Ex-1 and Ex-2 respectively.

Summary of evidence

[15] PW1-Priyashna; said on this particular day at about 6.30 am in the morning, she was changing her clothes in the accused's room as she was attending school at the time. This was the room that she usually used to change in before going to school. (PW1) further stated that whilst she was getting dressed in the accused's room, the accused entered the room, "touched and pinched her backside". He then said in Hindustani that her backside was "small" and was in the room for two (2) minutes. The complainant stated that when the accused touched her backside and said those words to her, she "felt bad". She stated that her brother entered the accused's room and questioned the accused as to what he was doing to his sister. She straightened her dress, when the accused swore at her brother saying in Hindustani "fuck your mother, just go out or else I'll kill you".

[16] At cross examination, she said that she didn't see brother standing in room; When dressing wears panties first; she made no reference to any dress being stuck; she was getting ready at 6.30 am as was getting late for school; her father took her to Police Station; her father wanted mother of PW1 to go back to him; further father helped give statement; she didn't know why father signed.

[17] PW2- Avinesh Pal; on the day in question, he was in the sitting room and waiting for his sister. As she was taking too long, he went to the bedroom and saw the accused touching the complainant's backside/bum and saying it was small in Hindustani. He was shocked to see what was happening and called out to the accused, saying what he was doing. The accused yelled at (PW2) and said what he wanted then swore at him.

[18] In cross examination witness said that the light in the room was off and curtains were drawn; at that time. His sister was by the wall and accused was standing behind the sister and couldn't memorise and then that the accused was standing on one side; his sister was half dressed and said she was wearing panties and then said he was not sure; His father was standing beside him as he gave his statement to Police.

[19] PW3-DC 2771, Aminand Prasad; this investigations Officer and said that he interviewed and recorded the accused's statement. In cross examination said he did not visit the crime scene and that he should have. Duplicate interview notes were marked as Exhibits.

Burden of proof

[22] In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[23] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This mhis means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reaso doubt as to whether the ache accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsels asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable doubt aboe thlt of the accused."