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State v Simpson [2013] FJMC 153; Criminal Case 276.2012 (15 April 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT NAVUA

Criminal Case : - 276 / 2012

THE STATE

V
ALBERT SIMPSON
SAIMONI CAMA
TURUBIO TUILEVUKA

For Prosecution : Sgt. Lenaitasi
For all accused : Mr. Uludole

RULING ON NO CASE TO ANSWER

[1] This is the ruling with regard to the no case submission made by the Learned Counsel for the defence at the conclusion of the prosecution’s case.

[2] The accused were charged with the offence of Assault Occasioning Actual bodily Harm contrary to section 275 of the Crimes Decree No.44 of 2009.

[3] At the conclusion of the prosecution’s case the learned defence counsel submitted that there was a no case made out against all the accused under section 178 of the Criminal Procedure decree to call for their defence and asked the Court to acquit the accused accordingly.

[4] The Learned Counsel also filed detailed written submission setting out the grounds for this application.

[5] Therefore based on the relevant case laws and evidences given by the prosecution’s witnesses as well as the defence’s submissions I pronounce my ruling.

LAW ON NO CASE TO ANSWER

[6] Section 178 of the Criminal Procedure Decree is relevant with regard to this application. That section 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”.

[7] A practical note issued by the Queen’s Bench Division held that :

“A submission that there is no case to answer may be properly made and upheld :

1. When there has been no evidence to prove an essential element in the alleged offence
   
2. When the evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it
   

[8] In Fiji the position with regard to no case submission was discussed in a number of cases.

[9] His Lordship Justice Grant in R v Jai Chand 18 FLR 101 at page 103 stated that:-

“..... the decision as to whether or not there is a case to answer should depend 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. 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 trial. But the question does not solely depend on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused to his defense. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence”.

[10] In State V Aiyaz [2009] FJHC 186 His Lordship Justice Goundar held that

“ 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."

[11] Based on above guidelines a party can make a no case submission on following grounds.

[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 a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it

SUMMARAY OF EVIDENCE

[12] The prosecution called 04 witnesses (the complainant and 04 police officers) for their case. The PW1 said on that day he was at his wife's village and had an argument with her. She yelled and the three accused came inside his house. PW1 ran out and hid in a mangoes where they found him. The second accused hit him with a steel rod and all the accused assaulted him. PW1's medical report was tendered as EX-01.

[13] In cross examination and re- examination PW1 further stated that at that time he was not holding a knife and was assaulted by the three accused.

[14] The PW2, PW3, PW4 and PW5 were interviewing and charging officers and through them the caution interviews and charge statements of the accused were tendered.

ANALYSIS OF THE EVIDENCE

[15] The accused were charged with Assault Occasioning Actual bodily Harm contrary to section 275 of the Crimes Decree. Section 275 of the Crimes Decree states:-

"A person commits a summary offence if he or she commits an assault occasioning actual bodily harm."

[16] The learned counsel for the defence in his written submission has stated that the prosecution has to prove following elements in this case.

That the three accused had

[a] Arrested the complainant without any crime committed as per section 22 of the CPC of 2009.

[b] That the accused subjected the arrested person to unnecessary restraint than is necessary to prevent escape contrary to section 13 of the Crimes Decree

[c] That the alleged assault was intentional and unnecessary.

[17] I can't agree with the Learned Counsel in that ground. Section 57 of the Crimes Decree has imposed the prosecution with the burden of proving elements of the offence and elements are ;

[ A] The accused

[b] Commit an assault,

[c.] Occasioning actual bodily harm

[18] PW1 stated that all the accused assaulted him as well as the second accused hit him with a steel rod. His medical report was tendered and it shows that PW got injuries from the assault.

[19] The Learned Counsel did not object tendering this document. But in his submission he has submitted that the prosecution failed to tender this through the doctor and therefore the Court should attach no weight to this document.

[20] Again I have to disagree with the learned Counsel. If the accused did not agree for the report they could have acted under section 133(1) (b) of the Criminal Procedure Decree which states :-

133. — (1) Any plan, report, photograph or document purporting to have been made or taken in the course of an office, appointment or profession by or under the hand of any of the persons specified in sub-section (3), may be given in evidence in any trial or other proceeding under the provisions of this Decree, unless the person shall be required to attend as a witness by —

(b) the accused person, in which case the accused person shall give notice to the prosecutor not less than 14 clear days before the trial or other proceeding.

[21] The defence did not give notice under section 133 (1) (b) of the Decree nor objected when the document was tendered by the prosecution. Therefore as I noted above I have to disagree with the Learned Counsel.

[22] Therefore from the evidence given by the PW1 and the medical report I find there is some sufficient evidences to fulfill all the element of the offence.

[23] Also at this stage the evidences were not discredited enough to act under section 178 of the Decree.

[24] In view of above 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.

[25] Accordingly I dismiss the submission made by the learned counsel for the Accused person under the section 178 of the Criminal Procedure Decree.

15 April 2013

H. S. P. Somaratne
Resident Magistrate, Navua