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State v Christopher [2012] FJMC 275; Criminal Case 683.07 (2 November 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF FIJI
AT SUVA

Criminal Case No: 683/07

STATE

V

JOSEPH CHRISTOPHER

Prosecution : PC Yasin, Police Prosecutor.
Accused : In person.

RULING ON NO CASE TO ANSWER

1. The accused of this case has been charged for a count of ‘Robbery with Violence’ contrary to section 293 (1) (b) of the Penal Code, Act 17. The alleged incident had taken place on 09.04.2007 at Samabula.
   
2. Hearing of the case commenced on 02.04.2009 and the prosecution called four witnesses in support of their case. The only civilian witness was Ms Nanise Tabuavou who testified to the actual circumstances of the incident. The remaining witnesses were the interviewing and charging officers.
   
3. At the outset I note that the prosecution application to adduce the caution interview and charging statements as evidence was turned down by the voire-dire ruling which was delivered by the Court before this ruling.
   
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. The Court is empowered to make such decision ex-mero motu.
   
6. Before inauguration of the Criminal Procedure Decree in 2009 applications on ‘No Case’ was governed by section 210 of the Criminal Procedure Code.
   
7. 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.

8. 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.
   
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 mind to the law, and the evidence could or might convict on the evidence so far laid before it".

10. 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.
    
11. 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'.

12. As stated in Sahib Case there should be relevant and admissible evidence which implicates the accused person. Therefore in my view before or whilst leading the evidence on the elements of the offence, the prosecution has to satisfy that it is the accused now who stands before the Court committed the offence. In other words the identity of the accused.
    
13. At the present case it is prudent to note now the case is solely based on the identification evidence adduced by Ms Nanise Tabuavou. She stated that she was the one who present at the time of the alleged incident which took place during the early hours at Kundan Singh BP Service Station in Samabula.
    
14. At this juncture the Court notes that the charge sheet refers to a victim by the name of Ms. Nanise Merewalesi. The name of the victim was not amended at any stage by the prosecution. However the witness who testified in Court was a person called Nanise Tabuavou. The prosecution did not lead any evidence to show that these two names are referred to the same person, in case if the discrepancy of the names had been an oversight by the prosecution.
    
15. Ms Nanise Tabuavou stated that although now she is a police officer attached to the Criminal Records Division she was the cashier at the Kundan Singh on 09.04.2007. She stated that on the day, an unidentified person broke the glass of the service station and came to her cashier's desk. He has demanded money and she has run towards the door.
    
16. At the door there was another person whom she explained as a person who looks partly Indian. The person was not known to her prior to the incident. He has assaulted her by giving a punch on her face. At this time the person who came inside first had returned with the collected money [$ 520]. Later both have escaped from the place. She further states that her mobile phone too was taken by the accused although it was not included in the charge.
    
17. She then stated how the police brought the accused Joseph Christopher to her for identification. She has identified the accused as the person who was there at the door during the incident.
    
18. During cross examination the witness stressed that there were no identification parade held for the case. She stated that she could not remember whether the accused was handcuffed during the time he was brought for identification. She further stated that she cannot remember the cloths that the accused had at the time in question. After having minor infirmities of witness's evidence, the cross examination concluded.
    
19. It is important to note that the Court questioned on the time duration of the observation made by the witness on the accused Christopher. Her answer was "if it took 10 minutes the whole thing, but I cannot recall how long I observed the person at the door."
    
20. It is clear that the witness identified the accused for the second time when he was in the police custody. This was not during a formal identification parade. Her evidence does not specify any reason as to why she identified the accused Christopher. The only reason she gave is that the accused looked like party Fijian who is bit taller than her. I note that any person who faced such experience, there would be a natural tendency in those circumstances to assume that the accused in police custody must be the offender.
    
21. Therefore the procedure that was followed by the police to give an opportunity to the witness to identify the accused person cannot be considered legitimate. Thus the evidence will not carry any weight on the issue of identification.
    
22. That takes the prosecution case to another level as now they are left with 'dock identification'. It is to be noted that witness Nanise Tabuavou made this dock identification two years after the actual incident.
    
23. The view of this Court is that this case is totally based on the dock identification by the witness Nanise Tabuavou. Dock identification of the accused persons by the witnesses has been recognised by the Courts as problematic and potentially unreliable. This is due to the easiness for an honest witness to make a confidant but false identification of a suspect.
    
24. It was stated in Gayle [2011] EWHC 472; [1999] 2 Cr App R 130, that a mere description of the culprit or his clothing is not identification evidence, even if it matches the appearance or clothing of the defendant.
    
25. The ideal approach of the investigating authority in this case would have been to hold an identification parade. If that was done, a positive identification would strengthen the case for the prosecution, whilst the accused had the opportunity to have witness to the crime to declare that the offender she saw is not in front of her.
    
26. Therefore I note that the evidence of identification by the sole eye witness of the case is unsatisfactory. It is to be noted that there is no other incriminating evidence against the accused. This position is different from witness's integrity or her trustworthiness. The only issue is that whether the witness has sufficiently identified the accused.
    
27. Now the Court faces another issue whether it can be considered at the conclusion of the prosecution case and before calling a defence.
    
28. Magistrates in the summery jurisdictions are the judges of both facts and the law. Therefore in committal proceedings the question that is to be determined by the magistrate's court in the event of a submission of no case being made is the same question which a judge has to ask himself in like circumstances during a trial on indictment. [ Archbold 2012 on Criminal Practice]
    
29. In R v Turnbull 1977 QB 224 it was held that,
    

' when in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends only on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification'

30. When the judge forms the view that the identification evidence is poor and unsupported, he is under a duty to invite submissions and if appropriate to withdraw the case from the jury.[ Daley v R 1994 AC 117 PC]
    
31. It was stated in R v Fergus 98 Cr App R 313 CA that the evidence of identification can be assessed either at the closure of the prosecution case or the defence case.
    
32. It is therefore I conclude that evidence of identification by the only witness is poor and unsupported. Thus it is unsafe to proceed further on such identification in order to determine whether the prosecution has adduced evidence to touch on the elements of the offence.
    
33. View of this Court is that the prosecution has not sufficiently proved the identity of the accused to call a defence from him.
    
34. Accordingly the charge is dismissed and the accused Joseph Christopher is acquitted from further proceedings.
    
35. Twenty eight [28] days to appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

02nd November 2012