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State v Singh [2016] FJMC 1; Criminal Case 1665.2013 (7 January 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case: - 1665 /2013

STATE

v

DAVENDRA DHANUK SINGH

Counsel: Ms. Lavinia for the ODPP
Mr.R. Singh for the Accused

Date of Hearing: 06th of January 2016
Date of Ruling: 07th of January 2016

RULING ON NO CASE TO ANSWER

1. The accused is charged with one count of Indecent Assault contrary to Section 212(1) of the Crimes Decree. At the end of Prosecution case the defence made a ‘no case submission’ pursuant to section 178 of the Criminal Procedure Decree. Both parties made oral submissions with regard to this application.
   
2. 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”.

3. 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”

4. 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."

5. In their submissions parties admitted that there is sufficient evidence to satisfy all the elements of this offence. But the argument taken by the learned counsel for the accused is that evidence was so discredited that they can't be accepted by the Court and therefore the accused should be acquitted without calling for the defence.
   
6. The relevant evidence came from the victim KN (name suppressed) who is 08 years old presently. In her evidence as well as in cross –examination she maintained that the accused on 07/01/2011 in MHCC touched her private part. Even though there were some inconsistencies at this stage I do not consider her evidence to be discredited or unreliable to disregard. Accordingly I find there is a case against the accused in this case.
   

Shageeth Somaratne
Resident Magistrate