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State v Prasad - Ruling [2013] FJMC 417; Criminal Case 03.2012 (12 December 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case: 03/2012

STATE

V

SHALENDRA SASHI PRASAD
SHITAL SHIVANGANI CHAND

For Prosecution : - Ms. Fong for the State
For both Accused : -Mr. Samad

RULING ON NO CASE TO ANSWER

1. The accused have been charged with following offences.
   

FIRST COUNT

Statement of Offence

Prohibited Use of Examination Papers: contrary to Section 3(a) and Section 8 of the Examination Act, Cap 262A

Particulars of Offence

Shalendar Shashi Prasad on the 30th day of October 2008, at Suva in the Central Division, whilst being employed as the Information System Administrator at Fiji School of Medicine obtained possession of an examination paper, namely Advanced Food Service Management Examination paper which was to be sat by candidates on the 31st day of October 2008 permitted the said paper to be seen by one Shital Shivangani Chand, a candidate of the said examination paper.

SECOND COUNT

Statement of Offence

Handing of Papers to Police: contrary to Section 4 and Section 8 of the Examination Act, Cap 262A.

Particulars of Offence

Shital Shivangani Chand, on the 30th day of October 2008 at Suva in the Central Division, whilst being a student at the Fiji School of Medicine came into possession of a paper containing questions and instructions to candidates in connection to the Advance Food Service Management Examination paper which she had to sit for on the 31st day of October 2008 and failed to handover the said paper to the nearest Police Officer.

2. At the conclusion of the prosecution's case, learned defence counsel made an application under section 178 of the Criminal Procedure Decree No.43 of 2009 for a 'no case to answer'.
   
3. Both parties filed comprehensive written submissions setting down their grounds and I have carefully considered them also.
   
4. The section 178 of the Criminal Procedure Decree provides :
   

"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. The legal position with regard to these kind of applications have been discussed in R v Jai Chand (1972)18FLR 101, Moidean v Reginam Criminal Appeal No. 41 of 1976 and Rohit Ram Latchna v The State Criminal Action No 32 of 1996.
   
6. In R v Jai Chand (supra) His Lordship Justice Grant stated at p.103
   

"it seems clear 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's case, the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. However, the question does 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 no can any amount of worthless discredited evidence".

7. In Moidean v Reginam (supra), the Fiji Court of Appeal clarified the instances when a submission of a no case answer maybe properly made.
   
   • When there is no evidence to prove an essential element in the alleged offence.
   • 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.
   • The decision should depend on whether the evidence is such that a reasonable tribunal might convict.
     
8. In Rohit Ram Latchan v The State (supra), the Court of Appeal observed :
   

"A submission that there is no case to answer may 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 a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it".

9. The defence made this application on the basis that there has been no evidence adduced in the trial to link that both accused had possession of the said exam paper. Therefore the defence contended that the prosecution has failed to prove an essential element in the offence.
   
10. The State submitted that the y have led clear, cogent evidence that goes towards proving each and every element of the offence and none of the witnesses were discredited in cross examination. Therefore they submitted that this application should be refused.
    
11. I have considered the evidence as well as submissions of both parties. I am satisfied that there is enough evidence at this stage to satisfy all the elements in both counts. Also they were not discredited enough to act under this application.
    
12. Therefore I find that there is a case to answer against both accused and accordingly dismiss this application.
    

13 December 2013

H. S. P. Somaratne
Resident Magistrate, Suva