Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Prasad [2011] FJMC 73; CRC 2071.2007 (22 June 2011)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 2074/2007

THE STATE

V

RONIL RITESH PRASAD,
SATNAM SINGH

For Prosecution: - Ms. Prasad J,
1sr Accused: - Mr. Marawai.
2nd Accused:- Mr. Shah

RULING

1. The 1st and 2nd accused persons were charged for Selling Passport for Personation, contrary to section 372 of the Penal Code Act 17.
   
2. Both Accused persons pleaded not guilty for the charge wherefore the matter was set down for the hearing. At the hearing Prosecution called 8 witnesses and tendered 7 documents as prosecution exhibits.
   
3. At the conclusion of the prosecution case, learned defence counsels for 1st accused and the 2nd accused made submissions under section 178 of the Criminal Procedure Decree. Accordingly, learned counsels for the prosecution and the Defence were invited to submit their written submissions on the issue of no case to answer and the same filed accordingly. Upon perusing these written submissions of the prosecution and the defence, I pronounce my ruling under section 178 of the Criminal Procedure Decree 2009.
   
4. The learned counsel for the prosecution submitted in her submission that the prosecution has adduced relevant and admissible evidence that proves all elements of the offence of selling passport for personation and entire prosecution evidence has not discredited under cross examination by the defence. The learned counsel affirmatively submitted that the evidence presented by the prosecution is manifestly reliable that the court could safely convict the accused persons on such evidence. In her submission the learned counsel for the prosecution relied on Moidean v Reg ( 1976) 22 FLR 206 and Reg v Galbraith ( CA) (1981) 1 WLR 1039).
   
5. The leaned counsel for the 1st accused contended in his written submission that the bulk of evidence adduced in this hearing in term of it probity had been against the 2nd accused and the only evidence that was adduced against the 1st accused was his statement in his caution interview. The learned counsel for the 1st accused further submitted that there is little or no corroborative evidence to prove the charge against the 1st accused.
   
6. The learned counsel for the 2nd accused submitted a detailed written submission on the issue of no case to answer. Having analyzing the evidence presented by the prosecution the learned counsel for the 2nd accused submitted that the prosecution had failed to prove the essential elements of the offence. Furthermore, the learned counsel submitted that prosecution has failed to produce the Passport No 5484300 of the 1st accused as stated in the particulars of offense in the amended charge sheet and instead produced a passport No 584300 of the 1st accused. The Learned counsel for the 2nd accused forcefully contended in his submission that the 1st and the 2nd accused were not charged for the offence of lending document for personation in respect of passport No 584300 but they were charged for the passport No 5484300. In the circumstance the learned counsel argued in his submission that the 2nd accused was charged with a defective charge, hence he cannot be convicted on it.
   
7. Having considered the submissions of the prosecution and the defence, I now draw my attention to the laws pertaining to the issue of no case to answer.
   
8. Section 178 of the criminal Procedure Decree 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".
   
9. The test of determination on the issue of no case to answer at the conclusion of the prosecution case is a prima facie standard. It was held in R. v Jai Chand (1972) 18 FLR 101), " the decision as to whether or not there is a case to answer should 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 mid to the law, and the evidence could or might convict on the evidence so far laid before it".
   
10. The practice note (1962) 1 All ER 488, stipulate that "a submission that there is no case to answer can properly be made and upheld (a) where 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 manifestly unreliable that no reliable tribunal could safely convict on it".
    
11. Winter J held in State v George Shiu Raj ([2005] FJHC 522; HAC0019.2005 (9 September 2005) "This is not a test involving judicial prediction of the assessors opinion or my verdict. It is not a question of likelihood of outcome but what may be properly done to give an opinion on guilt and render a guilty verdict. This task requires an objective assessment of the prosecution evidence.
    

In some cases the evidence supporting the charge may be barely adequate and so tenuous as to lead a judge to the view that it would not be proper for the assessors to render an opinion or the judge to convict and accordingly the interests of justice require the trial to be stopped and that a finding of not guilty be made. The evidence in a case may be adequate if accepted but witnesses may appear so manifestly discredited or unreliable that it would be unjust for a trial to continue. Yet again it may be that in the circumstances the tribunal properly directing its mind to the law and evidence would be unlikely to convict. The rationale for a no case finding of not guilty is not the likelihood of an acquittal in those circumstances but the unsafeness of a conviction having regard to the evidence and the law. (R v Flyger, CA 11/00 judgment 16 August 2000, paragraph 15).

In Fiji the judge's task has been described as assessing the case to see if the prosecution evidence in its totality touches on all the essential ingredients of the offence [adopted in State v Chae ] HAC0023.1999S] my learnedarned sister Justice Shameem described the test as whether at this stage there is evidence, relevant and admissible evidence, that the accused committed the offence.opt hnour's view that that if thif there is some relevant and admissible evidence, direct or circumstantial touching on all elements of the offence then there is a prima facie case.