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State v Kumar [2012] FJMC 41; Criminal Case 68.2012 (6 March 2012)

IN THE MAGISTRATE’S COURT
SIGATOKA
WESTERN DIVISION
REPUBLIC OF FIJI ISLANDS

Criminal Case No. 68 of 2012

State

v.

Davis Davesh Kumar

For State: PC Chetty
Accused : Present - Represented by Mr. Robinson Kamal Prasad

RULING – No Case to Answer

Introduction

The Accused is charged with, Theft, contrary to Section 291 (1) of the Crimes Decree 2009. The particulars of the offence is “Davish Davesh Kumar between 31/12/11 to 03/01/12 at Sigatoka Town in the Western Division dishonestly appropriated one Sony Ericson Xperiar Mobile Phone valued at 41499 the property of Digicel Flagship Sigatoka Branch”

At the close of the prosecution case, the Counsel for the defence made a submission for a no case to answer.

The Law

Part XIII - of the Criminal Procedure Decree 2009 provides for the Procedure in Trials before Magistrates Courts. Division 1 of Part XIII deals with Provisions Relating to the Hearing and Determination of Cases. Section 178 of the Criminal Procedure Decree 2009, falls within Part XIII and it provides 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.”

Section 178 of the Criminal Procedure Decree 2009 is identical to Section 210 of the Criminal Procedure Code, Cap 21, which it has replaced.

This Court is guided by a long standing Criminal Practice Direction, cited as A Practice Note [1962] 1 All ER 448 which provides that:

"A submission that there is no case to answ60;may pmay 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 so discredited as the result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. Apart from these two situations a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If however, a submission is made that there is no case twer, the decisdecision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer."

This Court also takes note of R v. Jai Chand [1972] 18 FLR 101, where Justice Grant stated that:

"ecision as to whether or not there is a case to answer could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution case the Court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence".

The Prosecution Witnesses Evidence
The Prosecution called 4 witnesses.

Submission

The Prosecution and the Defence made oral submissions which this Court has carefully considered. In summary, the Defence submitted that "there is no Sony Ericsson phone, It has not been tendered. No proof of ownership of phone by complaint. Nothing tendered in Court. No break in. no evidence of serial number of phone. Value of phone not determined at all. "

In summary the submission by the prosecution is that "complainant was Manager of Digicel. She did ID the Phone and box. PW-2 Zuber he bought the phone outside the shop. PW-3 told the Court accused sold phone at cheaper price."

Analysis

The Court noted all the evidence that was tendered in this Court. Having considered the evidence of the prosecution witnesses, the Court at this stage is not so much concerned at this stage on conviction or acquittal but on whether the evidence is such that the Court properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. From the evidence tendered in Court at the close of the prosecution case the Court has adopted an objective test as distinct from the ultimate subjective test as adopted at the close of the trial.

From the evidence tendered in Court at the end of the prosecution case the Court finds that the prosecution has failed to establish one of the crucial elements of the charge which is the ownership of the phone. No phone or documents relating to the phone was tendered to establish the ownership of the phone. The Prosecution failed to establish the ownership of the property alleged to have been stolen. Some evidence of the witnesses were contradictory, for instance PW-1 told the Court that the door was damaged. The Police Officer who investigated the alleged crime told the Court the door was ok.

A crucial element of the alleged charge has not been established by the Prosecution and some the evidence is clearly unreliable. The accused has no case to answer. For the foregoing reasons the Court acquits the accused. 28 days to appeal.

Chaitanya Lakshman
Resident Magistrate
6th March 2012