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Magistrates Court of Fiji |
IN THE RESIDENT MAGISTRATE’S COURT OF FIJI AT SUVA
Case No.TR 218 of 2011
STATE
-V-
AKLESH NARAYAN
For Prosecution : - CPL Reddy
For Accused : - Present in Person
RULING ON ‘NO CASE TO ANSWER’
The Accused was charged with Careless Driving, contrary to Section 99(1) and 114 of the Land Transport Act 35 of 1998.
Particulars of Offences
AKLESH NARAYAN, on the 20th day October, 2010 at Suva in the Central Division, drove a motor vehicle registration number EY 318 on Toorak Road without due care and attention.
At the conclusion of the prosecution case the accused made an oral submission for no case to answer.
Section 178 of the Criminal Procedure Decree 2009, stipulate 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 similar to Section 210 of the Criminal Procedure Code, Cap 21.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 (197 FLR 20LR 206).
For clarity quote relevant paragraph of the Practice Direction which reads that;
"A submission that there is no case to a&#/b>map properly brly be made 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 to answ>, the decisdecision 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 might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer."
In State v Aiyaz [2009C 186; HAC033.2008 (308 (31 August 2009) held that "there are two limbs to the test under section 210:
(a). Whether there is no evidence to prove 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.
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 answerb>shouldhould 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 reasonablbunal properly directing its mind to the law and the evidenvidence 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 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".
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.
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."
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.
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;
The Prosecution called 4 witnesses.
The [PW1], 50 yrs, Baker of Lot 148 Toorak Road heard a bang and went out of the shop and on 20th Ocober 2010, saw the vehicle reg no: EY 318 bumped the vehicle which was parked on the road side which belongs to [PW2]. She did inform [PW3] for the accident. She did not see how accident happened and did not identify the accused.
The [PW2] 48yrs, 196 Toorak Road, Suva on 22nd October 2010, received a call from [PW1] that his vehicle was bumped by the Courts Limited vehicle. [PW2] came and saw his vehicle was damaged and did talk to the accused who was the driver of the said vehicle.
The [PW3], police officer, took necessary measurement and saw the front right side of the vehicle reg no: DP 131 parking lot was partially damaged. PW 2 drew Rough sketch plan of the accident.
The [PW4] police officer, interviewed the accused, identified and exhibited the interview of the accused. It is prudent to highlight that the date of alleged accident occurred according to the complainant was 22nd October 2010 and according to the PW2 the date was 20th October 2010.
The Caution Interview
Justice Goundar, in the above case held that "The test is that there must be some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence. The credibility, reliability and weight of the evidence are matters for the assessors." The same stand was taken by Justice Goundar in State vs Simon John Macartney (Criminal Case No. HAC 175 of 2007) by saying "The question for me is whether there is some relevant and admissible evidence, direct or circumstantial, touching on all the elements of alleged murder."(Offence)
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 his lordship Go. In . In the light of above discussed relevant law, authorities pertaining to no case to answer and evidence adduced before thirt, I am of the view that the prosecution failed to adduce relevant and admissible evidencedence implicating the accused in respect of each element of the offence and taken at its highest, no reasonable tribunal could safely convict on it.
28 days to appeal
...............................
Lakshika Fernando
RESIDENT MAGISTRATE
On this 25th day of July 2013.
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URL: http://www.paclii.org/fj/cases/FJMC/2013/309.html