Magistrates Court of Fiji

[6]. In State v Aiyaz [2009] FJHC 186; 3.2008 (308 (31 August 2009) held that "there are two limbs to the test under section 210:

• (a). Whether there is no evidence to prove rove an essential element of the charged offence;
  
• (b). Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.
  

His lordship Justice Daniel Goundar further stated that 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. Furthermore his lordship stated that the test under section 210 has no application in the High Court. Nor is the English test for no case to answer stated in the case of Galbraith (1981) 2 All ER 1060 has any application to a case in the High Court.

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

"The decision as to whether or not there is a case to answer coul>could or might convict on the evidence so far laid before it.

[8]. In other words, at the close of the prosecution case the Court should adopt an objective test distinct from a subjective test. 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".

[9]. This guideline was cited in the recent case of State v Jale Osisaya Baba, High Court of Fiji Criminal Appeal No. HAA 43 of 2008.

[10]. In State vs Tieri Raitini, (HAC005.03S 20th October 2003) His Lordship Justice Gates, (as he was then,) noted that " There is no perceptible difference between the two tests; that is between whether the court considers there is 'no evidence', the High Court test[section 298] and that for the Magistrate's Courts 'a case is not made out.... Sufficiently...' [Section 210 CPC]. When considering whether the evidence on identity of the Accused is proximate or sufficient, insufficiency of evidence in reality is the same as there being no evidence. A mere scintilla as in Jai Chand would not be sufficient."

[11]. Therefore it is for this Court to determine if there has been evidence led on each of the essential elements of the offence, and if that evidence is such that a reasonable tribunal might or could convict upon it and also to see whether there is some relevant and admissible evidence, may they be either direct or circumstantial, implicating the accused with which he is been charged with and touching on all the elements of the said offence.

[12]. Her ladyship Justice Nazhat Shameem in Abdul Gani Sahib V The sate discussed the tests that are applicable in considering whether there is a no case to answer. Accordingly the court has to consider;

1. Firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence and;
   
2. Secondly, whether on the prosecution case, taken at its highest, a reasonable tribunal could convict.
   

[13]. In the light of all the laid down legal principles discussed above, now I proceed to discuss the matter before this court. The accused is been charged contrary to section291 (1) of the Crimes Decree 2009.

[14]. For the charge of THEFT contrary to Section 291 of the Crime Decree No. 44 of 2009 of the Crimes Decree No.44 of 2009, the elements of offence are:

1. The Accused
   
2. Dishonestly appropriated,
   

100. The items belonged to another,
     

4. With the intention of permanently depriving the items from the owner.
   

[15]. The Prosecution called 3 witnesses.

[16]. The complainant testified that on the 18th day of November, 2011 at about 10.30 am at Robertson Road the complainant [PW1] Janki Devi, stopped her car at a traffic light awaiting for the traffic light to change as the traffic light was red indicating a stop. [PW1] recalled that her hand bag was on the front seat of her private vehicle and also the glass was lowed.

[17]. Then [PW1] heard one taxi driver who was behind her car started to toot the horn and subsequently the taxi driver informed her that someone had picked her bag from the car seat. In cross examination [PW1] stated neither that she neither saw her bag was stolen nor the accused person committed the alleged offence. Moreover [PW1] said that a security guard from R.B Patel had identified the accused person.

[18]. [PW2], Ovini Barekalou of Totogo police station, testified that on the date of question an investigation was carried out after the incident was reported to the police by the complainant. Subsequently the [Accused] was arrested by [PW2] and charged for the offence. In cross examination the [PW2] admitted that he did not recover anything from the accused person.

[19]. Nacagilaba Rarasea [PW3],in his evidence he stated that he was on duty at R.B.Patel as a security officer and stated that on the date of alleged incident he saw the accused person did pick a bag from the [PW1]'s car. He did identify the accused and stated that as he always sees him in front of RB Patel In the cross examination when the unrepresented accused questioned the witness asking "do you know me?" the [PW3] replied contrary to what he testified in the examination in chief "not at all" and described about the that the person who committed the offence is "dark" person. It should be noted that [PW3] gave very confusing evidence. It also should be noted that the accused person objected to doc identification.

[20]. The prosecution did not lead the evidence of DC 3019 James Sukulu, the interviewing officer.

[21]. The caution interview of the accused tendered by consent. There is no confession with regards to this offence.

[22]. All evidence has been adduced by the prosecution weighed and evaluated by court and also considered written submissions filed by the accused and the prosecution.

[23]. At this stage the Court need not look into the merits of the case in a comprehensive manner, it is the responsibility of the Court to test the evidence of the Prosecution as it was stated by her ladyship Justice Shameem in Abdul Gani Sahib V The State. And State v Aiyaz by hrdship Gounder. In . In the light of above discussed relevant law, authorities pertaining to no case to answer and evidence adduefore this court, I am of the view that the prosecution failed to adduce relevant and admisadmissible evidence implicating the accused in respect of each element of the offence and taken at its highest, no reasonable tribunal could safely convict on it.

[24]. Therefore, the court upholds the application of the Accused persons and rules that the Accused persons need not answer to the charge of THEFT, contrary to Section 291 (1) of the Crimes Decree and in the circumstances I decide to acquit the accused.

28 days to appeal.

Lakshika Fernando
Resident Magistrate

On this 26th day of June, 2013