IN THE MAGISTRATE’S COURT OF NASINU

CRIMINAL CASE NO.377/2010

STATE

VS

RAJESH RAMAN

Sgt Volavola for the State
Mr. Sunil Kumar 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”

The Charge
[3] The accused is charged as follows:-

CHARGE:

Statement of Offence [a]

COMMON ASSAULT: Contrary to Section 274 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

RAJESH RAMAN, between the 8th day of March, 2010 and the 9th day of March, 2010, at Nasinu in the Central Division, unlawfully assaulted AMIT KUMAR CHAND.

The Charging Section

[4] Section 274 of the Crimes Decree 2009 states as follows:-

“274. — (1) A person commits a summary offence if he or she unlawfully assaults another person. 

Penalty — Imprisonment for 1 year” 

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.

[12] In R v GALBRAITH (1981) 2 ALL ER 1060 AT 1060, English Court Noted; 

"How then should the Judge approach a submission of "no case"? [1] If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The Judge will of course stop the case. [2] The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the Judge comes to the conclusion that the Crown's evidence, taken at the highest, is such that a jury properly directed could not properly convict on it; it is his duty, on a submission being made, to stop the case. (b) where however the Crown's evidence is such that its strength or weakness depends on the view to be taken of a witness' reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the jury (Magistrate).

[13] The case of HAW TAU TAU v PUBLIC PROSECUTION (1982) ALL ER 136, from which the following portion of the Judgment to is to assist the bench who has the role was to decide both the facts and law in a charge:-

"The proper attitude of mind that to decide the of fact ought to adopt towards the prosecution evidence at the conclusion trial before a Judge and jury….it is well established that in a jury at the conclusion of Prosecution's case it is the judges function to decide for himself whether evidence has been adduced which, if it were to be accepted by the jury as accurate, would establish each essential elements 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 it as being true) to prove any one or more of those essential elements, it is Judge's duty to direct an acquittal' for it only upon evidence that juries is entitled to convict; but, if there is some evidence…."

[14] In the STATE v VIJAY KAPOOR AND KALLESA CHANDRA SUVA HIGH COURT, CRIMINAL APPEAL NUMBER 6 OF 94, His lordship the Chief justice Fatiaki J after citing the discrepancies in Prosecution case said:-

"Needless to say in my view of the phrase 'no evidence' as it occurs Section 293 (1) of the Criminal Procedure Code must mean 'no reliable evidence' and not simply any evidence no matter how inherently such evidence may be".

[15] In R V SHIPPERY (1988) CRIM LR 767 Tunner J stated that taking Prosecution case to its highest level as it does not mean "picking out all plumps and leaving all duff's behind".

[16]In Wentworth v Rogers (1984) 2 NSWLR 422 at 429 Glass JA said;

"that the trial Judge is required to rule up the sufficiency of evidence".

[17] In STATE V MOSESE TUISAWAU F.C.A. CRIMINAL APPEAL NO. 14/90, Fiji Court of Appeal noted;

 "Mr. Wikaramanayaka (Prosecutor) also complained that the learned Judge failed to refer to various pieces of Prosecution evidence which he claimed were unfavorable to the Respondent……… Pursuant to the duty imposed on the trial Judge by Section 293 (1) he had to consider at the conclusion of the Prosecution's case whether there was any evidence that the accused committed the offence. If he considered that there was no evidence that he committed the offence it is his duty to record a finding of not guilty....In order to come to the conclusion that there was "some evidence" direct or circumstantial and irrespective of its weight, credibility or it's tenuous nature, it must be shown that the evidence in question was relevant, admissible and in its totality inculpatory of the accused. This means that the evidence in its totality must at least touch on all the essential ingredients of the offence charged. Assuming that an offence contains 3 essentials ingredients, proof of two ingredients only would not justify holding there was a case to answer if no evidence is led in respect of the 3rd element."

[18] In STATE v VIJAY KAPOOR AND KALLESA CHANDRA SUVA HIGH COURT, CRIMINAL APPEAL NUMBER 6 OF 94, after citing the discrepancies in Prosecution case; 

"Needless to say in my view the phrase 'no evidence' as it occurs in Section 293 (1) of the Criminal Procedure Code (now Section 231 (1) of the Criminal Procedure Decree 2009) must mean 'no reliable evidence' and not simply any evidence no matter how inherently vague or unreliable such evidence may be".

The Elements of charge 
[19] Elements of the charge of common assault are the following:

(a) the accused

(b) assaulted, unlawfully and

(c) to the victim.

 The evidence

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

PW1-Amit Kumar Chand
PW2-Constable 1945 Bavesi
In addition to these evidence, Medical Report tendered as Ex-1, the accused statement tendered as EX-2 and charge statement tendered as EX-3 by the prosecution. 

Summary of evidence

[21] PW1-Amit Kumar Chand; The witness said that he has been living in Nakasi for past 30 years and he works at his mother's shop. He can recall 08-03-2010 at about 6.30pm. He said the accused phoned him and said he can pick his wages and do the last delivery to Walu Bay. He said that the accused was his boss and he paid $150 per week. The victim said he was a driver of the accused. After receiving call, the PW1 went to the accused house. He then talked about the money; the witness said "He was saying that I owed $350 money to him. He told me to pay and he pushed me, I fell on the floor, He he punch me on my face. I waited there till 11.00pm, two police officers came, we had a conversation till 1.00 am, and they dropped me in junction (close to the house)". Medical tendered as Ex-1. 

[22] At cross examination, the witness said he met police officers on that evening but did not lodge a complaint. The defence suggested this because there was no assault, but witness denied it. He said because of this assault he got cut inside the lip, but he admitted that Medical does not show that injury. The witness admitted that he was prosecuted for unlawful use of Motor vehicle on the accused's complaint to the police. He further admitted he was convicted by court No 2 and was fined $100. The defence suggested" you are physically more build than the accused; it was impracticable to push you down and punch you? No Answer, Q: Do you exercise self defence? No answer, Q: You could have avoided this situation, you are making up stories? Witness did not give and answer (looked down and voice slowed down). The witness said when he went there the gate was opened and the accused opened the door. He said he did not have grog but he served grog to the Police Officers. They tried to settle this matter. The witness was questioned conversation about of money $350 to settle it? He answered I do not owe him but I am making arrangement to pay it. Then he was asked "why would you arrange if you do not owe him? No answer. "After arrangement you were pushed and punched? I can't remember." The witness admitted that the injury was bleeding but he said he did not tell it to the police. The Defence tendered DEX-1, the witness statement to the police and said the witness had not told regarding punch. It was an omission and not a contradiction. 

 [23] PW2-Constable Bavesi; said that he received a phone call from Rajesh Raman, the accused. He went there and complaint was unlawful use of motor vehicle and some money transaction. The accused was the complainant. He said he saw 5,6 Indian were drinking grog and complaint of this case also having grog. 

[24] In cross examination witness said that he saw the complaint. He served grog to the others. He dropped the victim. But he did not complained about assault. The witness further said he did not look like a victim of assault. Then prosecution closed its case. The defence submitted no case to answer. 

 Burden of proof

[25] 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.

[26] 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 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 reasonable doubt as to whether the 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 counsel 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 about the guilt of the accused."

[27] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen (1970 AC 618) reported in 72 New Law Reports 313 (Sri Lanka), 

"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[28] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted. 
 
Analysis of the evidence

[29]The defense has said there was no case to answer. In line with the above guiding principles, I now evaluate the evidence adduced before me. The PW1 said he was pushed and punched by the accused. He was injured and he was bleeding. To prove this charge, as I noted earlier, elements are to be proved. 

[30] But in this case medical was tendered to prove that the victim was assaulted. But no injuries were seen by the doctor and medical report does not support not at all. The defence suggested this is a fabricated. The demeanour of victim in the witness box has been noted by this court. Witness unanswered vital questions and he did not complain to the PW2 at first instance. The defence said this is a made up story. The defence proved that there was a reason for that. That is on the complaint of the accused the victim was charged for unlawful use of motor vehicle and sentenced $100. The PW1's evidence is highly unreliable. He says he did not owe the accused but he made arrangements to pay $350. 

[31] It is to be noted that the accused has no burden to prove his innocence. But the prosecution is to prove its charges beyond reasonable doubt. As I earlier noted, there were several inconsistencies. Court notes there are material inconsistencies. PW1's evidence has no weight. Pw2 said that the victim had grog but victim said he served grog. The victim went to the accused house and stayed over 5 hours. He was assaulted at the very outset, but he did not disclose it to the police officers. They dropped him close to the house and the accused was not at that time. So, victim could have easily told this assault to the police but he kept silence. This court admits that the prosecution can go (prove) charge with a single witness. But that evidence must be firm. In this instant case, as I earlier noted, there are several discrepancies. Mainly, medical does not support the PW1's evidence. This is a serious charge and it is unsafe to convict the accused on available evidence. I hold that prosecution has not discharge its burden beyond reasonable doubt. The prosecution has not proved the elements of charge (the accused assaulted the PW1) and the witness (PW1) has been entirely discredited by the defence. I hold therefore no case to answer. The accused is acquitted and discharged. 

[32] 28 days for appeal

On 21st October 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate