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State v Verma [2015] FJMC 110; Criminal Case 174.2012 (3 November 2015)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case : - 174/2012

STATE

V

MELVIN AVITESH VERMA

For Prosecution : PC Josuha
For Accused : Mr.Paka (LAC)
Date of Ruling : 03rd of November 2015

RULING ON NO CASE TO ANSWER

1. The accused is charged with one count of Conspiracy contrary to section 49 of the Crimes Decree No 44 of 2009. Particulars of the offence are “Melvin Avitesh Verma on the 27th day of January 2012 at Ratu Mara Road, Samabula in the Central Division, conspired with Naveneet Singh to commit theft.”
   
2. At the conclusion of the prosecution case, the learned counsel for the defence made a ‘no case submission’ pursuant to section 178 of the Criminal Procedure Decree and made oral submission regarding that.
   
3. The counsel submitted that the evidence was discredited through the cross-examination and the prosecution also failed to tender enough evidence to satisfy an essential element of this offence (overt action ) and therefore the Court should acquit the accused from this charge.
   
4. Section 178 of the Criminal Procedure Decree provides 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

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”

6. His Lordship Justice Grant in R v Jai Chand 18 FLR 101 at page 103 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. In other words, at the close of the prosecution case, the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the trial. But the question does not solely depend on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused to his defense. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence”.
   
7. In State V Aiyaz [2009] FJHC 186 his Lordship Justice Goundar held 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."

8. Bearing in mind the above legal principles now I would consider this application. During the hearing the prosecution called two civil witnesses and the interviewing officer. The caution statement was tendered as an exhibit by the prosecution.
   
9. The co-accused (Navneeth Singh ) has already pleaded guilty and dealt by this Court. The accused is presently charged with a one count of Conspiracy and Crimes Decree defined this in the following manner.
   

"A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.

(2) Subject to sub-section (8), for the person to be guilty—

(a) the person must have entered into an agreement with one or more other persons; and

(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and

(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement."

10. In his caution statement the accused has admitted planning to commit the theft with the co-accused and going with him around 11.30pm to MHCC to execute that.
    
11. Even though the defence submitted that there was no evidence presented by the prosecution to satisfy the overt action by the accused, I find that the above admissions by the accused in his caution statement are enough to fulfill that element .Also the evidence is credible at this stage to call for the defence .
    
12. Therefore I decide that there is a case against the accused and dismiss this application by the defence.
    

Shageeth Somaratne
Resident Magistrate