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State v Vamosi [2011] FJMC 30; Criminal Case 190 of 2008 (22 March 2011)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 190 of 2008

STATE
v.

EPELI VAMOSI

For Prosecution: Ms. Tabuakuro (DPP Office)
For Accused: Mr. Jitoko

RULING

1. At the close of the prosecution's case, learned counsel for the accused had filed written submission on "no case to answer".
   
2. Two prosecution witnesses had testified for the prosecution.
   
3. Accused is charged with one count of "Careless Driving" an offence punishable under sec. 99 (1) and 114 of the Land Transport Act No. 35 of 1998.
   

Law applicable to "No case to answer" submission

4. After the new Criminal Procedure Decree 2009 came into force on 01st February 2010, Sec. 178 of CPD is applicable to "No case to answer" submissions in the Magistrate's Court proceedings. However, previously the relevant section was sec. 210 of the Criminal Procedure Code (Cap 21).
   

S. 210 of the Criminal Procedure Code

'210. 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'.

S. 178 of the Criminal Procedure Decree 2009

'178. 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.'

When comparing the both sections it is apparent that both sections are verbatim except for the word "forthwith" is missing from the sec. 178 of CPD 2009. Therefore, the decided law under sec. 210 of the Criminal Procedure Decree could be safely applied for the present day situation.

5. In the Practice Note of the Queen Bench Division [1962] 1 All ER 448, Lord Parker speaking for judges of that Division had stated that:
   

"A submission that there is a no case to answer may be properly made and upheld if;

a). There has been no evidence to prove an essential element in the alleged offence;

b). Where 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 against it;

c).whether a reasonable tribunal might convict on the evidence so far laid before it

In Moidean v. R [1976] 22 Fiji LR 206, above guidelines had been approved by the Fiji Court of Appeal and had stressed the fact that these guidelines are equally useful to magistrates as well.

6. According to Justice Shameem in, Abdul Gani Sahib v. State [2005] HAA0022/05S, 28th April 2005, 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.
      
7. 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.
   
8. The charge against the accused requires the prosecution to prove the following elements.
   
   1. That the accused
   2. Drove a motor vehicle
   3. On a public road
   4. Without due care and attention.
      
12. Summary of the prosecution witnesses are as follows:
    

PW-1

According to the witness on 22nd December 2006 he was at Harris road stopped for traffic light. Suddenly he had heard a vehicle applying break and when he looked back he saw police vehicle. Police vehicle bumped him from behind causing damages to his vehicle's boot, break lights and rear bumper. According to the witness, it was a heavy impact and witness had managed to save the front vehicle by turning his steering wheel.

During the cross examination witness said that his intended destination was Qauia and he was parked in the inner most lane for reg traffic light. Witness admitted that left most lane was the easiest lane if you are going towards Qauia but said that you can use both lanes. Witness said that he was stopped for traffic light for 3-4 minutes. Witness further admitted that if he was in left lane he does not have to follow traffic lights in the event that the road is clear. Witness denied the suggestion that he turned the vehicle to his left and tried to turn it again as another vehicle went pass him in the left lane. Witness further admitted that it was Christmas time and taxi drivers got more jobs comparing to normal days. Witness admitted signing a rough sketch plan but indicated to the court that it was not complete.

PW-2

Witness had caution interviewed the accused and interview had recorded 06 months after the incident.

13. Calling above-witnesses prosecution closed its case.
    

Analysis

14. Prosecution failed to call the officer who drew the rough sketch plan of the accident. No evidence led to show the damages sustained by both vehicles. Therefore, rough sketch plan was not a part of evidence for the prosecution.
    
15. According to PW-1 his destination was Qauia and he had been waiting in the traffic lights for 3-4 minutes. On behalf of the accused it was proved that the left lane is free moving lane and there is no need to wait for the green traffic lights.
    
16. Witness further admitted that it was the Christmas season and taxi drivers were busy than usual.
    
17. In the light of the above revelation it is hard to believe that a taxi driver who is well aware of the roads in Suva would spent 3-4 minutes unnecessarily in a lane when there is free moving lane available to reach his destination.
    
18. According to the accused, PW-1 had tried to turn his vehicle to the left lane. PW-1 said that he had to turn his steering wheel to avoid collision with the front vehicle.
    
19. Due to absence of a sketch plan and a damage report it is very difficult to determine the force of impact and the positions of vehicles after the accident. As a result of this failure on the part of the prosecution, this Court not in a position to have an idea as to the impact points on both vehicles which in most cases helpful to determine the veracity of witnesses.
    
20. It is the duty of the prosecution to prove all elements of the charge and if accused is successful in creating a reasonable doubt, prosecution must fail.
    
21. If evidence regarding sketch plan was available to Court it would have been easy to clarify whether what PW-1 said was true about hearing break sounds and heavy impact which made PW-1's vehicle to move forward. However, it is important to note that PW-1, disputed the correctness of sketch plan pointing out the absence of break marks caused by accused person's vehicle. There is no other evidence to support PW-1's statement regards to the break marks and absence of such evidence made it difficult for this Court to determine the speed of the accused person's vehicle before the accident.
    
22. Due to absence of important evidence in the prosecution case, accused was successful in convincing the Court that there is another version to the incident. Even if this Court is to allow the prosecution's submission, there would always be a doubt in the prosecution case, which is a main requirement to acquit an accused person.
    
23. For the above-mentioned reasons, I uphold the 'no case to answer' submissions filed on behalf of the accused and acquit the accused accordingly.
    
24. 28 days to appeal.
    

On this Tuesday the 22nd day of March 2011

Kaweendra Nanayakkara
Resident Magistrate