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State v Schwald [2012] FJMC 150; Criminal Case 017.2010 (9 July 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF FIJI ISLANDS
AT SUVA

Criminal Case No: 17/10

STATE

V

ARMIN SCHWALD

Prosecution: State Counsel Mr. Niudamu and
Mr. Shavendra Nath (for DPP)

Accused: Mr. Fa. S.

RULING ON NO CASE TO ANSWER

1. As per the amended charge sheet filed by the prosecution on 18.05.2012 following charges were laid against the accused,

1. Common Assault contrary to section 274(1) of the Crimes Decree 2009 for unlawfully assaulting Ms Jasmine Narayan.
   
2. Common Assault contrary to section 274(1) of the Crimes Decree 2009 for unlawfully assaulting Ms Natasha Narayan.
   
3. Annoying Female contrary to section 213(1)(a) of the Crimes Decree 2009 for annoying Ms Jasmine Narayan.
   
4. Criminal Intimidation contrary to section 375(1)(a)(3) of the Crimes Decree 2009 for threatening Ms Makarite Rave, Ms Jasmin Narayan and Ms Natasha Narayan.
   

2. The incident of this case occurred in Rotuma. Initially the matter was transferred to Suva Magistrate’s Court as there was a separate Arson charge between the same parties. Somehow the State dropped the Arson charge in the High Court and requested this matter to be sent back to Rotuma. However both parties later agreed to precede the case in Suva.

3. The accused of this case is a German national. Hence hearing of this case commenced on 18.05.2012 assisted by a German interpreter.

4. At the hearing prosecution called four witnesses in support of their case. Two medical reports and the caution interview statement of the accused tendered by consent of both parties. Counsel for the defence applied the Court to act under section 178 of the Criminal Procedure Decree at the conclusion of prosecution case even though the Court is empowered to make such determination ex-mero motu.

5. The agreed facts filed by the parties give an introduction to the case. The accused was residing with Ms Makarite Rave as husband and wife. She had three daughters and a son from a previous marriage. But all were living within the same compound with the accused. Ms Jasmin Narayan was the eldest and she was 16 at the time of the incident. Ms Natasha Narayan was thirteen.

6. On the 21st day of July 2010 the dispute which led to this action arose.

7. 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”.

8. The Court is benefited by the comprehensive written submissions filed by both parties, on the issue of ‘No Case to Answer’.

9. Before the inauguration of the Criminal Procedure Decree in 2009 applications on ‘No Case’ was governed by section 210 of the Criminal Procedure Code.

10. 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.

11. 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.

12. 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 mind to the law, and the evidence could or might convict on the evidence so far laid before it".

13. 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.

14. In Fiji Independent Commission Against Corruption v Rajendra Kumar and Jaswant Kumar HAC001.2009; 11.02.2010. His Lordship Justice Goundar very succinctly formulated the test to be applied in dealing with a matter at the stage of the close of prosecution case. His Lordship held that:

'The test is that there must be some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence.

The credibility, reliability and weight of the evidence are matters for the assessors (Sisa Kalisoqo v. State Criminal Appeal No. 52 of 1984, State v. Mosese Tuisawau Criminal Appeal No. 14 of 1990)'.

15. In Sahib v The State [2005] FJHC 95; HAA0022J.2005S (28 April 2005) Hon. Shameem J held,

'In the Magistrates' Courts, both tests apply. So the magistrate must ask himself or herself firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence,

And second whether on the prosecution case, taken at its highest, a reasonable tribunal could convict. In considering the prosecution case at its highest, there can be no doubt at all that where the evidence is entirely discredited, from no matter which angle one looks at it, a court can uphold a submission of no case. However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defence case'.

16. The test, referred to above, therefore pertains only to the issue of existence of evidence to satisfy all the elements of the offence so as to enable the Court to proceed after the case for the prosecution is closed.

17. Prosecution admits that the evidence led in the case is not sufficient to prove the second and fourth counts of the charge sheet. The Court endorses the view of the prosecution. Hence it is not necessary to rule on counts of 'Common Assault' of Natasha Narayan and 'Criminal Intimidation'.

18. Section 274(1). — of the Crimes Decree 2009 reads as follows,

'A person commits a summary offence if he or she unlawfully assaults another person'.

Elements of the offence that could be extracted from the above section are,

1. The Accused person,
2. Unlawfully,
3. assaults,
4. The victim.
   

19. Section 213(1)(a) - of the Crimes Decree 2009 states,

'A person commits a summary offence if he or she intending to insult the modesty of any person-

(a) Utters any word, makes any sound or gesture or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person;

Elements of the offence are,

1. The Accused person,
2. Utters any word, makes any sound or gesture or exhibits any object,
3. With intending to insult a person.
   

20. The first prosecution witness Ms Jasmine Narayan testified that this incident occurred when she returned home with her mother and sister after the Church prayer meeting. She was drawing some pictures with her brother when the accused walked in and engaged in to an argument. The initial response of the witness made the accused angry and he replied with abusive language.

21. The accused could not hold his anger. He slapped the witness and held her neck and squeezed her hands to tell her 'look at him'. He called her 'fucking bitch' when she laughed at him. Jasmine's mother intervened and it came to an end.

22. At around 1 midnight the accused awaked the witness and started asking several religious questions. The witness answered as her mother told her and the accused again lost his temper. This time he twisted Jasmine's hand. The witness's mother had again come in between to save her.

23. Later at examination in chief the witness referred to an incident that was happened few days prior to the present incident where the accused called her 'self arrogant ass'.

24. During cross examination she stated that there had been some disagreements between her and the accused as he was not witness's biological father. The counsel of the accused suggested that she was lying to Court due to the aversion she had on him. This position was refused by the witness.

25. The defence counsel submits that the medical report submitted for Ms Jasmine Narayan does not support her testimony. It should be noted that it is not essential to have any injury to prove a charge of common assault. It is well settled that even without any supportive medical findings a charge of 'Common Assault' can succeed.

26. This Court has to consider whether the assault is unlawful?

27. In the case of State v Tegu [2010] FJHC 489 Hon. Justice Temo during his summing up to the assessors explained the meaning of 'Unlawful'.

'An "unlawful act", is simply an act not justified in law. For example, during a drinking party, if A and B had a dispute, and A punched and kicked B in the head, or body, without any justification, that punching and kicking would be "unlawful acts". They anlawful a160;acts" because they ssa assaults in law, that is, they are an unlawful application oce to the pers person of another, and therefore unlawful. Likewise, if A later stomped's hefter punching himg him to the ground, that "stomping" wouldwould also be an "unlawful act", because it is an unlawful applicatf fooce to the pere person of another, and thus an assault, in law.

28. Therefore the prosecution is burdened to prhat tt of the accused is 'unlawful' on that night. The witness stated that the accusedcused got got angry because he thought that she is mocking him. The defence tried to establish that the assault or the slapping came in to correct her. In other words the accused acted as a rightful parent. These two situations are contrary to each other. This Court is of the view that even a parent is not entitle to assault or hares his own children.

29. The defence counsel marked a statement which was given by the witness to the police requesting to withdraw the charges. I note the content of that letter is limited to a request. It has no contrary effect to the evidence she gave in the Court. It would have been different if she has given a contradictory subsequent statement. I note that the prosecution has established the elements of the first count and it has not manifestly discredited by the accused to dismiss the charge.

30. It appears that the accused called her in an appropriate manner on the 21st of July 2010. Although there are some inconsistency in the exact words he uttered it is not so discredited to dispense him from calling a defence. The Court is mindful that the witness is testifying after two years from the incident. Human have differences in recollection. In the absence of a remarkable discrepancy, I note that it will not completely tear down a testimony of a witness.

31. In view of foregoing reasons, I hold that the prosecution case is sufficient enough to call a defence for the first and third counts of the charge sheet.

32. Accordingly the accused is acquitted from second and fourth counts.

33. The Court will now proceed under section 179 of the Criminal Procedure Decree 2009 to call a defence.

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

09th July 2012