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State v Lum [2012] FJMC 231; Criminal Case 220.2007 (1 October 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF NAVUA

Criminal case No: - 220/2007

THE STATE

V

JOHN ONO LUM

For Prosecution : - Sgt. Lenaitasi
For Accused : - Ms. Sharma from the Legal Aid

RULING ON NO CASE TO ANSWER

[1] The accused is charged with Robbery with Violence contrary to Sec 293(1) (a) of the Penal Code.

[2] Since the Accused person pleaded not guilty to the charge the matter was set down for the hearing. At the hearing Prosecution called 4 witnesses and tendered the caution interview and the charging statement of the accused .

[3] At the end of the prosecution’s case the learned counsel for accused submitted that there was no case to answer for the accused and the accused should be acquitted. The defense filed detailed written submission regarding that which I
have gone through carefully.

LAW ON NO CASE TO ANSWER

[4] 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”.

[5] In Regina v Galbraith(C.A) [1981] Lord Lane CJ stated the following “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.”

[6] In Moidean Hassan V Reginam Justice Gould V.P quoted from a practical note issued by the Queen’s Bench Division “ 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 se discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it”.

[7] 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.

[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] Based on the above cases I find a party can make an application for no case to
answer on following grounds.

[i] That there is no evidence to prove an essential element of the charged offence;

[ii] The prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.

[10] The learned counsel for the accused in her written submission submitted that she was relying on the second limb with regard to her application. Her position was that the evidence has been so discredited or unreliable that no reasonable court can convict (Emphasis added).

[11] The accused in this case is charged with Robbery with Violence. The elements of the offence are :

1. The accused,
2. Being armed with any offensive weapon or instrument
3. Being together with one other person or more
4. Robs, or assaults
5. With intent to rob
6. Any person
   

SUMMARAY OF EVIDENCE

[12] PW1 Madu Lata: She said on 30/06/2006 she was in her home. She woke up around 3am and saw 5 people entering the house. They assaulted her and she recognized the accused. The accused had a pinch bar with him. The accused's face was not covered. They took the jewelries. On 04 July the police conducted an ID parade and the Pw1 identified the accused.

[13] In her cross examination by the defence counsel she said she gave a statement to the police on 30 /06/2006 . She said it was dark and the accused came first inside the house. She told the police she could recognize two people but the police did not take any action against the other person. The PW1 further said she knew the accused before the incident and earlier they were in good terms The accused used to call her "Aunty". It was pointed by the defence counsel that in her statement she stated they did not have burglar bars in the house whereby she said in evidence in court that they had burglar bars. Also in her statement she said only outside lights were on.

[14] PW2 Vikasin Singh; She said on that day around 3 am she heard dogs were barking and her mother went to check that. Then the people entered inside the house and the accused tried to chase her. The PW2 hid under the bed and the accused took the jewelries and ran out of the house. She saw the accused with the pinch bar.

[15] In her cross examination she said there was a light on inside the house. She said she gave a stamen to the police on 30 /06/2006 where she said she could not identified the accused properly. But in her reexamination the pw2 confirmed that she could identify the accused.

[16] PW3 Uraia: He said he conducted the ID parade and there were 9 people in that parade. The accused was given the chance to exclude the people but he did not object.

[17] PW4 Tuwaci; He is the IO in this case. He visited the scene of the crime and through him the interview was marked as EX-1.

[18] In his cross examination he said the complainant mentioned about two people and no recoveries were made.

ANALYSIS OF THE EVIDENCE

[19] Even though the defence did not rely on the first ground I will consider that first. From the prosecution's witnesses I find that there are some evidences to cover all the elements of the offence. But whether they are enough to prove the charge beyond reasonable doubt has to be decided at the end of the trial.

[20] Now I will turn to the defence's submission. The defence's contention is that the evidences were so discredited at the cross examination that a no reasonable
tribunal could safely convict that. In addition the defence was challenging the identification of the accused.

[21] I admit that there are some contradictions in the witnesses' evidences. But it has to be remembered that this incident happened in 2006 and no reasonable person can expect to remember all the things. There are bound to be omissions and contradictions between the witnesses and also with their police statements.

[22] The PW1 clearly said she identified the accused on that day. Even the pw2 stated she identified the accused. The PW3 who conducted the ID parade said that the pw1 and another witness identified the accused.

[23] Like I said previously there were some contradictions and omissions in the witness's evidences. . But I do not consider them to be material contradictions at this stage.

[24] Therefore I do not think the evidence given by the witnesses were unreliable or discredited by the cross examination. But as I said before whether these are enough to prove the charge beyond reasonable doubt against the accused has to be decided at the end of the trial.

[25] In view of above mentioned reasons , I hold that at the conclusion of the Prosecution case, it appears to the court that a case is made out against the accused sufficiently to require making a defense.

[26] Therefore, I dismissed the submission made by the learned counsels for the Accused person under the section 178 of the Criminal Procedure Decree.

01/10/2012

H. S. P. Somaratne
Resident Magistrate, Navua