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State v Kobit [2013] FJMC 310; Criminal Case 1177.2011 (12 August 2013)

IN THE RESIDENT MAGISTRATE’S COURT AT SUVA

Criminal Case : - 1177/2011

THE STATE

V

SERA FAKALAWA KOBIT

For Prosecution : - Cpl. Williame
For Accused : -Ms. Preetika

RULING ON NO CASE TO ANSWER

[1] The accused is charged with one count of Damaging Property contrary to section 369 of the Crimes Decree 2009.

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

[3] The defence filed detailed written submission setting down their ground for this application.

LAW ON NO CASE TO ANSWER

[4] Section 178 of the Criminal Procedure Decree deals with the no case submission in the magistrate courts. 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”.

[5] 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
   

[6] In State V Aiyaz [2009] FJHC 186 His Lordship Justice Goundar said 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."

ANALYSIS OF THE EVIDENCE

[7] PW1 in her evidence stated that during 1st to 31st April 2010, the accused came with some boys and broke her wall. In cross examination she said the wall was in her land. This same position was taken by PW2 also in her evidence.

[8] The accused also admitted in her caution interview pulling down the wall.

[9] Above evidence has fulfilled all the elements in this offence and they were not discredited enough to act under section178 of the Criminal Procedure Decree.

[10] Therefore at the end of the prosecution case I find that there is a case made out sufficiently enough against the accused to call his defence.

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

12/08/2013

H. S. P. Somaratne

Resident Magistrate