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State v Prasad [2015] FJMC 64; Criminal Case 705.2013 (27 February 2015)

IN THE MAGISTRATE’S COURT OF NASINU

CRIMINAL CASE NO.705/2013

STATE

vs.

SANT PRSAD

Mr.Paka (DPP) for the State
Mr. Sharma V. for the accused

RULING ON NO CASE TO ANSWER

[1] This is an application by the defence under Section 178 of the Crimes Decree No.44 of 2009 (Section 210 of the Criminal Procedure Code). At the close of the prosecution case, the defence submitted that there was no case to answer and as a result the accused should be acquitted.

[2] Section 178 of the Crimes Decree No.44 of 2009 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

”
[3] The accused is charged as ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Decree No. 44 of 2009.

SANT PRASAD, on the 9th day of June 2013 at lot 75 Sasawira Road,10 miles , Nasinu in the Central Division, unlawfully assaulted Ajay Singh thereby occasioning him actual bodily harm.

[4] Section 275 of the Crimes Decree 2009 states as follows:-

“275. A person commits a summary offence if he or she commits an assault occasioning actual bodily harm.

Penalty — Imprisonment for 5 years.”

Applicable Case Law

[5] The court is called for making a determination of whether or not a prima facie case has been made out against the Accused. It should be noted that ample past and recent judgements of superior court could be found in this regard.

i)R V Jai Chand 18 FLR 101 at page 103;

ii)Rohit Ram latchan V The State Criminal Appeal No. AAU0015 1996S [High Court Criminal Action No. HAA0032J of 1996];

iii)Practice Note [1962] All ER 448;

(iv) State v Aiyaz [2009] FJHC 186; HAC033.2008 (31 August 2009) and;

(v) Abdul Gani Sahib v. State [2005] HAA0022/05S, 28th April 2005

[6] Justice Grant in R V Jai Chand 18 FLR 101 at page 103 states 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 close of the trial. 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”.

[7] In Rohit Ram Latchan V The State, the appeal judges were guided by the principles set out in the Practice Note [1962] All ER at page 448:-

“LORD PAKER, C.J:- Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the result, the court has had on many occasion to send the case back to the justices for the hearing to be continued with inevitable delay and increased expenditure. Without attempting to lay down any principle of law, we think as a matter of practice justices should be guided by the following considerations.A submission that there is no case to answer may properly be made and upheld:when there has been 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.

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 the stage convict or acquit but on whether 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’.

[8] In State v Aiyaz [2009] FJHC 186; HAC033.2008 (31 August 2009) Justice Daniel Goundar differentiates the guiding rules between High Court and Magistrates Court.

“The test under section 293(1) is settled and is more stringent than the test under section 210 of the Criminal Procedure Code, which governs an application for no case to answer in the Magistrates’ Court.

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.” [Emphasis added]

[9] In Abdul Gani Sahib v. State [2005] HAA0022/05S, 28th April 2005, Justice Shameem held that the correct test in Magistrate’s Court under Sec. 210 of the Criminal Procedure Code is,

1. Whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and;

2. Whether on the prosecution case at its highest, a reasonable tribunal could convict.

[10] According to Justice Shameem's guidelines, where the evidence is entirely discredited, no matter from which angle one looks at it, a court can uphold a submission of no case. However, where there is a possible view of the evidence might lead the court to convict, the case should proceed to the defence case. [Emphasis added]

[11] In order to decide whether there is sufficient evidence to put the accused to his defence, it is important to determine the elements of the offence and the evidence adduced in support of the said elements.

[12] In R V Galbraith (1981) 2 ALL ER 1060 AT 1060, English Court Noted;
"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 Crown's evidence, taken at the highest, is such that a jury properly directed could not properly convict on it; it is his duty, on a submission being made, to stop the case. (b) where however the Crown's evidence is such that its strength or weakness depends on the view to be taken of a witness' 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 on 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 (Magistrate).

[13] The case of Haw Tau Tau v Public Prosecution (1982) ALL ER 136, from which the following portion of the Judgment to is to assist the bench who has the role was to decide both the facts and law in a charge:-

"The proper attitude of mind that to decide the of fact ought to adopt towards the prosecution evidence at the conclusion trial before a Judge and jury....it is well established that in a jury at the conclusion of Prosecution's case it is the judges function to decide for himself whether evidence has been adduced which, if it were to be accepted by the jury as accurate, would establish each essential elements in the alleged offence: for what are the essential elements in any criminal offence is a question of law. If there is no evidence (or only evidence that is so inherently incredible that no reasonable person could it as being true) to prove any one or more of those essential elements, it is Judge's duty to direct an acquittal' for it only upon evidence that juries is entitled to convict; but, if there is some evidence...."

[14] In the State v Vijay Kapoor And Kallesa Chandra SUVA HC, CRIMINAL APPEAL NUMBER 6 OF 94, His lordship the Chief justice Fatiaki J after citing the discrepancies in Prosecution case said:-

"Needless to say in my view of the phrase 'no evidence' as it occurs Section 293 (1) of the Criminal Procedure Code must mean 'no reliable evidence' and not simply any evidence no matter how inherently such evidence may be".

[15] In R V Shippery (1988) CRIM LR 767 Tunner J stated that taking Prosecution case to its highest level as it does not mean "picking out all plumps and leaving all duff's behind".

[16]In Wentworth v Rogers (1984) 2 NSWLR 422 at 429 Glass JA said;
"that the trial Judge is required to rule up the sufficiency of evidence".

[17] In State V Mosese Tuisawau F.C.A. CRIMINAL APPEAL NO. 14/90, Fiji Court of Appeal noted;

"Mr. Wikaramanayaka (Prosecutor) also complained that the learned Judge failed to refer to various pieces of Prosecution evidence which he claimed were unfavorable to the Respondent......... Pursuant to the duty imposed on the trial Judge by Section 293 (1) he had to consider at the conclusion of the Prosecution's case whether there was any evidence that the accused committed the offence. If he considered that there was no evidence that he committed the offence it is his duty to record a finding of not guilty....In order to come to the conclusion that there was "some evidence" direct or circumstantial and irrespective of its weight, credibility or it's tenuous nature, it must be shown that the evidence in question was relevant, admissible and in its totality inculpatory of the accused. This means that the evidence in its totality must at least touch on all the essential ingredients of the offence charged. Assuming that an offence contains 3 essentials ingredients, proof of two ingredients only would not justify holding there was a case to answer if no evidence is led in respect of the 3rd element."

[18] Elements of the charge of common assault are the following:

(a) A person

(b), unlawfully assaulted and

(c) Causing bodily harm to the victim.

[19] To prove this charge prosecution called following witness;

PW1-Swastika Chandra( the doctor who examined the victim)
PW2-Ajay Singh( the victim)
PW-3-Ravneet Deo( an eye witness)
PW-4-Akuila Waibuta(the investigation officer)

In addition to this evidence, Medical Report tendered as Ex-1, the eye witness's statement tendered as EX-2 and interview notes tendered as EX-3 by the prosecution.

[20] PW1- Swastika Chandra( the doctor who examined the victim); The witness said that she treat the victim of this matter on 9/6/2013 and confirmed the injuries of the victim. She recognised the Medical report prepared by her and tendered as Ex-1. The accused was given opportunity cross examining the witness but fail to rebut the evidence of the PW-1.

[21] PW2- Ajay Singh( the victim); said that he received a phone call from one of his customer to do a job and he went with PW-3 and the spouse of the Accused to pick some items and the accused assaulted him with a timber . The accused was given opportunity cross examining the witness but fail to rebut the evidence of the PW-2.

[22] PW-3-Ravneet Deo( an eye witness); stated that he witness the accused assaulted the victim using timber stick. The statement tendered to court marked as ex-3 evident the assault. Then prosecution closed its case. The defence submitted no case to answer.

[23] In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[24] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable dou>. This mhis means that you must be satisfied so that you feel sure of the guilt of the accused persons befor express an opinion that they are guilty. If you have any reasonable doubt as to whether ther the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsels asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable doubt&#160t the the guilt of the accused.