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State v Khan [2017] FJMC 7; Criminal Case 502.2015 (4 January 2017)

IN THE MAGISTRATE'S COURT

AT NAUSORI

IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 502/15

State

V

Mohammed Kadir Khan

Representation and Appearances

Prosecution: PC Semi

Accused: Present and represented by Mr. J Singh (Samusamuvodre Sharma Law)

Ruling – No Case to Answer

Introduction

The accused person is charged with Sexual Assault, contrary to 210 (1) (a) of the Crimes Decree Number 44 of 2009. At the close of the Prosecution case the Defence has submitted no case to answer. This is the ruling for the submission for no case to answer made by the Defence.

The Law

The section 178 of the Criminal Procedure Decree section 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".

In Shabib v The State [2005] FJHC 95; HAA0022J.2005S (28 April 2005) Her Ladyship Madam Justice Shameem stated that:

"In the Magistrates' Court 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, form 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".

The Evidence

The Prosecution called 1 witness in this case. It was the victim.

Analysis

This Court notes the legal pronouncement in Shabib v The State [2005] FJHC 95; HAA0022J.2005S (28 April 2005) by her Ladyship Madam Justice Shameem. It set out the principles that a Magistrate must follow in dealing with a no case to answer submission. This Court has noted the law and the submission of the defence in the no case to answer.
Section 178 of the Criminal Procedure Decree 2009 is identical to Section 210 of the Criminal Procedure Code, Cap 21, which it has replaced.

This Court is guided by a long standing Criminal Practice Direction, cited as A Practice Note [1962] 1 All ER 448 which provides that:

"A submission that there is no case to answer may propbe made and uphd 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 the rthe resultesult 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 upon 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 acqut on whether the evidence is such that a reasonable tribunal might convict. If a reasonablonable tribunal might convict on the evidence so far laid before it, there is a case to answerp>

This Court also takes note of R v. Jai Chand [1972] 18 FL, where JustiJustice Grant stated that: