IN THE MAGISTRATE’S COURT
SIGATOKA
WESTERN DIVISION
REPUBLIC OF FIJI ISLANDS

Criminal Case No. 192 of 2010

State

v.

1. Luke Tabusakia.
2. Ponipate Damu.
3. Josua Kalioni.
4. Semiti Waqa.
5. Laisiasa Waqavatu.
6. Luke Navatoga.
7. Victor Bonito.

BEFORE MR. CHAITANYA LAKSHMAN
RESIDENT MAGISTRATE

For State : Inspector. Babu Newal Singh. 
Accused : All Present - All Represented by Mr. Anil J. Singh. 

RULING – No Case to Answer

Introduction

All the Accused are charged with Criminal Trespass, contrary to Section 387 (1) (b) of the Crimes Decree 2009. 

The particulars of the offence as amended reads: “Luke Tabusakia, Ponipate Damu, Josua Kalioni, Semiti Waqa, Laisiasa Waqavatu, Luke Navatoga, and Victor Bonito on the 5th day of June 2010 at Nagasau, Sigatoka in the Western Division having unlawfully entered into the property in the possession of Maui Bay Estate Limited unlawfully remains (sic) there with intent to annoy the said Julian Hennings a person in lawful possession of such property.”

At the close of the prosecution case, the Counsel for the defence made an oral submission for a no case to answer. The prosecution also made oral representation. 

The Law

Part XIII - of the Criminal Procedure Decree 2009 provides for the Procedure in Trials before Magistrates Courts. Division 1 of Part XIII deals with Provisions Relating to the Hearing and Determination of Cases. Section 178 of the Criminal Procedure Decree 2009, falls within Part XIII and it provides 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 178 of the Criminal Procedure Decree 2009 is identical to Section 210 of the Criminal Procedure Code, Cap 21, which it has replaced.

This Court is guided by a long standing Criminal Practice Direction, cited as A Practice Note [1962] 1 All ER 448 which provides that: 

"A submission that there is 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 the 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 upon 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 that stage convict or acquit but 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." 

This Court also takes note of R v. Jai Chand [1972] 18 FLR 101, where Justice Grant stated 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".

The Prosecution Witnesses Evidence

The Prosecution called 5 witnesses: 

PW 1 – Julian Hennings.
PW 2 – Benedito Acarewa. 
PW-3 – Mateo Matavuna.
PW-4 – Volai Tagi.
PW-5 – Dan Batibasaga.

Excerpts of the evidence of PW 1 – Julian Hennings- "5th June was at a funeral. On same afternoon came from Suva to the site. No one was there. It's a public park. Park not freehold, dedicated to State. Conveyed to me that they were intimidated by sticks. Conveyed to me by workers. Not my personal knowledge. Park for everyone for leisure. Open to general public. I was not present was only conveyed what took place. Construction site adjacent to park." 

Excerpts of the evidence of PW 2 – Benedito Acarewa – "5th June at Jetty, Maui Bay. One Josua got hold of stick and wanted to hit me. I stopped work. Discussed case with Julian. Not a public park. Working on land." 

Excerpts of the evidence of PW3 – Mateo Matavuna – "recall 5th June 2010. at the jetty. They came and abused me. kicked block, with stick. 3rd accused swore at me. I stopped work. Police came and stopped entry to park. He did not allow them to leave." 

Excerpts of the evidence of PW-4 – Volai Tagi – "5th June 2010 working at Maui Bay. Saw people come to site and stop work. People at public park since 2005." 

Excerpts of the evidence of PW-5 – Dan Batibasaga – "5th June at Korolevu Police Post. Received report and visited the scene. I saw the gentleman inside the compound. I told them they did not respect the law. They were under arrest. Bonito was answering. Telling me this is a public place. People under arrest stay put. Do not move. The park is fenced around. Maui Bay is the caretaker. It's a park."

The Court noted all the evidence and the documents that were tendered in this Court. In summary, the Defence submitted that the incident occurred in a public place and that there was no evidence that the accused were unlawfully in a public place. The defence further submitted that the police blocked the way and did not allow the accused to leave. None of the accused were abusive and that the elements of the charge were not made out. 

In summary the submission by the prosecution is that all the accused unlawfully entered the property in question and remained there until they were arrested. The accused had annoyed PW-1 by going onto the property. 

Analysis

From the evidence and the documents tendered in Court, the Court noted that the scene of the alleged incident was a public park. The Court noted from the memorial endorsed in the Certificate of Title of the property that the alleged site of the offence was dedicated as a Park in 2005. The evidence given by the prosecution witnesses, including their identification of the scene of alleged offence from the photos showed that it was a public park. All the accused persons were in a public area.

The possession of the park is vested in the State. The State has allowed the members of public to use and have full and unrestricted access to the park at all times. Entry into a public area by individuals in this country is not unlawful. No laws prohibit people from frequenting public areas. All the accused were lawfully in the public area. The complainant in this case was not in possession of the land and as such he had no control over the property where all the accused persons were present at the time of the alleged offence. 

The Court also noted from the evidence that the complainant in this case was not at the scene of the incident and the charge is that the accused persons annoyed the complainant, Julian Hennings. The evidence by Julian was that he was in Suva attending a funeral. It is amazing how the police were able to ascertain that the complaint was annoyed from the actions of the accused while the complainant was in Suva more than 50km from the scene where all the accused's were. 

The Court also noted from the caution interviews and the evidence several discrepancies in Police work. The first is that Police Officer, Dan Batibasaga, did not allow the accused persons to explain their position. Police officers must hear each party in such situations and then decide. In this case this police officer gave the accused persons no chance. As soon as he arrived he put them under arrest. He did not hear what they had to say. He also blocked the driveway.

The other notable concern is that despite being told by some of the accused persons that they wished to engage counsel when the right to legal counsel was put to them when they were caution interviewed, the accused were not allowed to seek legal advice. Some of the Police officers who interviewed the accused pressed on and continued with the interview and did not afford the accused the right to legal counsel. This is a serious breach of the rights of the accused to legal counsel at the time of caution interviewing. 

From the evidence tendered in Court and at the end of the prosecution case the Court finds a case is not made out against the accused person sufficiently to require them to make a defence. 

All the accused persons are acquitted. 

28 days to appeal

Chaitanya Lakshman 
RESIDENT MAGISTRATE
16th September 2011