IN THE MAGISTRATES COURT OF FIJI AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No: 454 of 2011

DPP

vs

SIMIONE BALE

Prosecution : SC Uci
Accused : Mr Iqbal Khan 

Date of Hearing: 29.09.14 – 30.09.14
Date of Ruling: 09.10.2014

" NO CASE TO ANSWER " RULING

1.	The accused has been charged with the following offences;

COUNT 1
“Statement of offence”
ABUSE OF OFFICE: Contrary to section 139 of the Crimes Decree 2009.

“Particulars of offence”
Simione Bale on the 24th day of December 2012 at Lautoka in the Western Division being employed as a member of the Fiji Police Force, in abuse of the authority of his office, directed the closure of Leon’s Night Club, which act was prejudicial to the rights of Ritesh Rao Kumar, the owner of Leon’s Night Club.
 
COUNT 2
“Statement of offence”
BRIBERY: Contrary to section 135 (1) (a) (i) and (b) (ii) of the Crimes Decree 2009.

“Particulars of offence”
Simione Bale on the 1st day of April 2011 and the 30th day of September 2011, at Lautoka in the Western Division being employed as a member of the Fiji Police Force, without lawful authority and without reasonable excuse, asked for a benefit of $300.00 from Kaliappan Reddy, with the intention of inducing in Kaliappan Reddy the belief that by giving Simione Bale the said $300.00, Simione Bale would exercise his powers as a Police Officer in Kaliappan Reddy’s favour. 

COUNT 3
“Statement of offence”
BRIBERY: Contrary to section 135 (1) (a) (i) and (b) (ii) of the Crimes Decree 2009.

“Particulars of offence”
Simione Bale on the 25th day of December 2012at Lautoka in the Western Division being employed as a member of the Fiji Police Force, without lawful authority and without reasonable excuse, asked for a benefit of $500.00 from Kaliappan Reddy, with the intention of inducing in Kaliappan Reddy the belief that by giving Simione Bale the said $500.00, Simione Bale would exercise his powers as a Police Officer in Kaliappan Reddy’s favour. 

COUNT 4
“Statement of offence”
ABUSE OF OFFICE: Contrary to section 139 of the Crimes Decree 2009.

“Particulars of offence”
Simione Bale on the 25th day of December 2012 at Lautoka in the Western Division being employed as a member of the Fiji Police Force, in abuse of the authority of his office, directed the closure of Mammu’s Fastfood Takeaway and Milkbar, a restaurant situated at 40 Namoli Avenue, Lautoka which act was prejudicial to the rights of Kaliappan Reddy, the owner of Mammu’s Fastfood Takeaway and Milkbar.

2.	In order to prove the aforesaid charges against the accused prosecution led the evidence of following witnesses namely and marked the following documents.

PW1 -	Kaliappan Reddy
PW2 - 	Aswin Reddy
PW3 -	Paanjali
PW4 -	Anjiline Deo
PW5 -	Dharmend Kumar

The Prosecution also tendered the following documents:
PE1 -	Accused’s Record of interview dated 16th January, 2013.
PE2 -	Accused’s Record of interview dated 17th January, 2013.
PE3 -	Accused’s Charge Statement dated 27th June, 2013 (handwritten and typed statement)

3.	After leading and marking the aforesaid document the prosecution closed their case. Then the counsel for the accused made an application for “no case to answer” despite that court can call a defense ex mero moto in terms of section 178 of the Criminal Procedure Decree. 

4.	The grounds urged by the counsel for no case to answer by the accused are that;

1.	The evidence by the aforesaid prosecution witnesses are manifestly unreliable and worthy of not credit.
2.	The evidence led in related to the first charge is amount to hearsay.
3.	The evidence by the prosecution fall far short even to suggest that there is a case to answer by the accused. 

5.	Law on submission no case to answer is governed by section 178 Criminal Procedure Degree. The Section 178 reads as follows;

“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 defense, the court shall dismiss the case and shall acquit the accused”.

6.	The similar section regarding no case to answer is in section 210 Criminal procedure Code and the said section reads as follows:

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 to make a defense, the court shall dismiss the case and shall forthwith acquit the accused.

7.	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:

(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.

…… If, however a submission is made there is no case to answer, the decision should depend not so much on whether the adjucating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such 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.”

8.	The aforesaid principle was later adopted in the cases of Moiden v R (1976) 27 FLR 206) R v Galbraith All ER [1981] 2 All ER 1060, R v. Jai Chand [1972] 18 FLR 101, Abdul Gani Sahib v State [2005] HAA0022/05S(28 April 2005) and State v Aiyaz [2009] FJHC186; HAC033.2008(31 August 2009).)

In Moidean v. Reg (1976) 22 FLR 206 at 208 the FCA state:

“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.

Apart from these two situations a tribunal should not in general be called on 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 answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) 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 Reg v. Galbraith (CA) [1981] 1 WLR 1039 at 1042 per Lord Lane CJ:

“How then should the Judge approach a submission of “no case”? 

(1) If there is no evidence that the crime alleged has been committed by the Defendant, there is no difficulty. The Judge will of course stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the Judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the jury.”

9.	Thereby when no case to answer submission is made court does not need to evaluate the availability of relevant and admissible evidence, direct or circumstantial, but only need to ascertain following two grounds those are;

1.	Whether there is no evidence to prove an essential element of the charged offence; and to ascertain 

2.	Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.

10. 	Her Ladyship Justice Shameem Sahib v The State [2005] FJHC 95; HAA0022J.2005S (28 April 2005) precisely held that 

'In the Magistrates' Courts, both tests apply. So the Magistrate must ask himself or herself firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, 

And second whether on the prosecution case, taken at its highest, a reasonable tribunal could convict. In considering the prosecution case at its highest, there can be no doubt at all that where the evidence is entirely discredited, from no matter which angle one looks at it, a court can uphold a submission of no case. However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defence case'.

11.	In R v. Jai Chand [1972] 18 FLR 101, Justice Grant 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. 

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

11.	With forgoing legal provisions and the principles lay in the authorities this court has to ascertain in this case is also; 

1.	Whether there is evidence that the prosecution has proved the essential elements in first to fourth charge and

2.	Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.

12.	Thereby this court thought fit to appropriate two tests by evaluating evidence in regards to the first and the fourth firstly and second to third count secondly.

13.	Accordingly the elements that the prosecution has to prove in first and fourth count are that; 

First count

1.	On 24.12.2012. 
2.	The accused being employed as a member of Fiji Police Force.
3.	In abuse of the authority of his office.
4.	Directed Ritesh Rao Kumar to close the Leon's night club.
5.	Which was prejudiced to the rights of said Ritesh Rao Kumar.

Fourth count

1.	On 25.12.2012 for the fourth count.
2.	The accused being employed as a member of Fiji Police Force.
3.	In abuse of the authority of his office.
4.	Directed Kaliappan Reddy to close the Mammu's Fast Food and Milk Bar.
5.	Which was prejudiced to the rights of said Kaliappan Reddy.

14.	In regards to the second and the third count the elements that the prosecution has to prove are that

Second count

1.	The accused between day of April 1st of 2011 to 30th September 2011.
2.	Being a member of Fiji Police Force.
3.	Without lawful authority and without lawful excuse.
4.	Asked $300.00 benefit from Kaliappan Reddy.
5.	With the intention of inducing the said Kaliappan Reddy by giving that $300.00 to the accused.
6.	The accused would exercise his powers as a police officer on favor of said Kaliappan Reddy. 

Third count
1.	The accused on 25.12.2012.
2.	Being a member of Fiji Police Force.
3.	Without lawful authority and without lawful excuse.
4.	Asked $500.00 benefit from Kaliappan Reddy.
5.	With the intention of inducing the said Kaliappan Reddy by giving that $500.00 to the accused.
6.	The accused would exercise his powers as a police officer on favor of said Kaliappan Reddy. 

15.	The full evidence that the Prosecution submitted as follows,

16.	PW1 is the complainant and stated that he started a business named Mammu's Fast Food Vine and Dine in year 2011. He obtained the business license in year 2011 particularly the liquor license was on 29.09.2011. In year 2011 the accused had demanded $300.00 from the witness to support the witness to get the liquor licenses. The incident was in the month of April 2011.

17.	Again on 25.12.2009 the accused demanded $500.00. When he refused to give money the accused had told the witness to close down his business. The witness claimed that the accused used to demand money by coming in a police vehicle and that police vehicle was used to park in the front and the back door of his restaurant.

18.	Since the accused continue to trouble the witness he pursed to complain that matter to the Prime Minister as there had been no action by the police for his complaints.

19.	He further said that the accused used to come and chased the customers at the counter as a result of the witnesses refusal to give money to the accused.

20.	At the cross examination it was highlighted to court that the one of complainant's employee had a case of sale of liquor after hours and since there was information to the effect that the complainant was indulging in selling liquor after hours the accused used to inspect the restaurant. As the complainant was not happy with that he had lodged brogues complaint against the accused. 

21.	It is observed by the court that the complainant was unable to submit any of the complainants made to the police to that effect as well as any letter written to the Prime Minister. Additionally no complaint by the complainant made in year 2012 as per his evidence in court was also not produced in court.

22.	After PW1 the evidence of PW2 what the brother of PW1 Mr Ashvin Reddy deposed that on 24.12.2012 when he was at the Mammu's Restaurant around 2.00am he saw police was chasing customers and heard police was saying to close down the business and to bring the license. He said that he conveyed said message to the complainant and when the complainant was showing license he went inside the shop and was unaware what happened after wards.

23.	At the cross examination he denied stating to police in his statement that the accused left the restaurant after seeing the license from the complainant. Further he admitted that before he signed the statement the police did not read back the statement to him although he has authenticated that he signed the document after it was read over to him. 

24.	PW3 Panjali the mother of the complainant also gave evidence. According to her evidence on 24.12.2012 around 2.30 am some police officers had come and chased their customers who were eating inside. While the customers were being chased one police officer had asked license to be shown. According to witness both PW1 and PW2 had been at the door step when the license was shown. She stated that then she informed that they have license to carry out the business for 24 hours. And the accused was identified as the police officer who chased the customers and who demanded to show the license.

25.	At the cross examination it was put to the witness that in her statement she had not mentioned in her statement to the police that the accused told to close the shop. The witness admitting that she mentioned that to the police further admitted that her statement was also not read over back to the witness before she signed her statement at the police.

26.	After PW3 the evidence of PW4 was called. That witness has worked as a waitress in that Mammus's Restaurant during the time of the incident. According to the witness on 24.12.2012 she had started work at 5.00pm and had work till 7.00am on the following day. Accordingly around 2.30am when she was at the restaurant the accused had come and shouted out asking the license. When the license was shown by PW1 she said then accused left place by telling that he will look after them. She further stated that before the accused left he chased out the customers who were inside the restaurant at that time.

27.	At the cross examination the witness admitted mentioning in her statement to the police that the accused told to close the business. And denied that the license was brought from outside. But she admitted that PW1 was not at the premises and PW3 Panjalii went to wake up PW1. She further stated that before the accused left the premises he told that he will watch them.

28.	After the aforesaid evidence then evidence of PW5 Sarita Devi was led. In her evidence basic evidence was that she worked at Leons Club during the time of the incident indicated in the first count. She stated that she saw the accused was at the club on certain occasion being talking to the owner who is one Madhu Kumar Kant. The balance evidence of the witness was based on hearsay and thus this court thought fit disregard the balance evidence as inadmissible.

29.	After PW5 the prosecution finally called the evidence of PW6 PC3334 Dharmen Kumar. He stated that on 24.12.2012 he joined the accused to conduct operational duties. According to the witness the operational duties had been conducted to observe drinking spots, night clubs and liquor shops and the restaurants were open for other businesses. Thereby around 1.30am Mammus's restaurant also had been checked. The witness said when the accused asked for license form them he heard telling the accused that the license was not at the premises. And then he saw the license was being brought and showing the accused from elsewhere. The witness then stated that the accused left the place telling them to keep the business but not to sell liquor.

30.	At the cross examination the witness admitted that he was 5 feet away from the incident being watching what was happening. He said it was taken 10-15 minutes to bring the license form outside. He said Indian boys came with a carrier drive had shown the license to the accused.

31.	With that evidence the prosecution closed the case. 

32.	When evaluating the aforesaid evidence it is incumbent that the prosecution has failed proved any of the elements in regards to the first count. Without evaluating more as there is no evidence even to discuss about that count with the two tests I acquitted the accused from the first count. 

33.	In regards to the fourth count it is uncontested that the accused was police officer being employed as a member of Fiji Police Force by 25.12.2012. The issue is whether the accused in abuse of the authority of his office directed Kaliappan Reddy to close the Mammu's Fast Food and Milk Bar which was prejudiced to the rights of said Kaliappan Reddy. The contentions of the witnesses of the prosecution were that the accused had done so as oppose to the version by the accused in his line of cross examination. When look at the contents of some prosecution witnesses they have deposed to the effect that they saw the accused was telling to close the business. However it should be noted that at the cross examination the accused also was able to show certain inconstancies in that evidence. But as stated in in FICAC v Rajendra Kumar and Jaswant Kumar HAC 001/09; 11.02.2010. His Lordship Justice Goundar very succinctly 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 (Sisa Kalisoqo v. State Criminal Appeal No. 52 of 1984, State v. Mosese Tuisawau Criminal Appeal No. 14 of 1990)' Thereby with foregoing findings I see that the prosecution has been able to lead evidence complying two tests as it is matter of court to evaluate the veracity at the end of the trial. 

34.	In regards to the second and third count it is uncontested that the accused was a police officer being employed as a member of Fiji Police Force between days of April 1st of 2011 to 30th September and also by 25.12.2012 but the question before this court is whether there is evidence to the effect that whether the accused without lawful authority and without lawful excuse asked $800.00 benefit from Kaliappan Reddy during the period mentioned in both counts with the intention of inducing the said Kaliappan Reddy by giving that $800.00 to the accused the accused would exercise his powers as a police officer on favor of said Kaliappan Reddy. 

35.	In regards to the second account the complainant was precise that during period in April 2011 the accused came and demanded money telling him that he will support the complainant to obtain liquor license. His exact words to that portion of evidence was 

'It was month of April 2011 he demanded $200.00. I was at my shop. He told me if I give him money he will support to obtain liquor license''

36.	In regards to demanding money $500.00 by the accused on 25.12.2012 although the prosecution in his submission paragraph 3.8 has mentioned that the purpose of demanding $500.00 from the complainant was also that the accused will support the complainant to obtain liquor license there is no evidence from the complainant that the accused uttered that he will support to obtain liquor license. The complainant admitted getting liquor license in the month of September 2011. There is no evidence as to what was the reason for the accused to support to get license in the month of December in the same year. There is no evidence before this court to arrive at a conclusion what was the exact intention of the accused. What inducement the accused intended to do the complainant by taking that $500.00 and what kind of favor that the accused would exercise on behalf of the complainant.

37.	Therefore it is incumbent that the prosecution was lack in proving the mental element of the accused in relates to the third count and with forgoing reasons this court thought fit that the accused to be acquitted from the third count.

38.	In regards to the second count although the accused had denied the allegations the same analysis applied to evaluate the fourth count is applied in evaluating the second count as well. As it is premature to evaluate the veracity of the evidence I am satisfied that the prosecution was able to make out a case to answer by the accused. Thereby I thought fit that the accused to be called to produce his defense in count number 2.

39.	Accordingly with the aforesaid reasons I acquitted the accused from first and the third count. I called the defense of the accused in terms of section 179 of Criminal Procedure Decree 2009 for the second and the fourth count against the accused. The application for no case to the answered by the counsel for the accused is accordingly dismissed subjected to aforesaid ruling of this court.

28 days to appeal.

.………………………………
Lakmini Girihagama
Resident Magistrate
9th October 2014