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State v Singh [2010] FJMC 13; Criminal Case 596.2008 (19 February 2010)

IN THE RESIDENT MAGISTRATE’S COURT AT SUVA

Criminal Case No: 596 of 2008

STATE

V

JASPREET SINGH s/o Dharshan Singh

For Prosecution: Inspector Harish
Accused: Duty Solicitor Mr. Terere of the LAC

RULING

1. At the close of the prosecution’s case, learned counsel for the accused had filed written submission of "no case to answer" under the sec. 210 of the Criminal Procedure Code – Cap 21.

2. Six prosecution witnesses had testified against the accused and the written submissions’ regarding the issue has filed before my sister Magistrate. When this matter came before me both parties did inform the court that they are willing to accept a ruling by me.

3. In his written submission, counsel for the accuse draw the attention of the court to the Practice Note of the Queen Bench Division [1962] 1 All ER 448, where Lord Parker speaking for judges of that Division had stated that:

"A submission that there is a no case to answer may be properly made and upheld if;

a). There has been no evidence to prove an essential element in the alleged offence;

b). Where 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 against it;

c).whether a reasonable tribunal might convict on the evidence so far laid before it

In Moidean v. R [1976] 22 Fiji LR 206, above guidelines had been approved by the Fiji Court of Appeal and had stressed the fact that these guidelines are equally useful to magistrates as well.

4. According to Justice Shameem in, Abdul Gani Sahib v. State [2005] HAA0022/05S, 28th April 2005, 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.

5. 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.

6. Accused is charged with one count of "Fraudulent Conversion" contrary to sec. 279 (c) (1) of the Penal Code. So far it is relevant, this section reads as:

"being entrusted either solely or jointly with any other person with any property in order that he may retain in safe custody or apply, pay or deliver, for any purpose or to any person, the property or any part thereof or any proceeds thereof;.... fraudulently converts to his own use or benefit, or the use or benefit of any other person....."

7. Above-mentioned charge requires the prosecution to prove the following elements.

1. That the accused had been entrusted with a property which he may retain in safe custody or apply, pay or deliver, for any purpose or to any person.

2. Accused fraudulently converts that property to his own use or benefit, or the use or benefit of any other person.

8. Summary of the prosecution witnesses are as follows:

PW-1

As the investigation officer he had interviewed the Accused, Laisa Divavesi and one Virisila Vueti both working partners of the accused. Witness confirmed that Laisa never mentioned about accused in her statement but Virisila who had later terminated from the job had blamed the accused.

PW-2

As the Admin Officer of Fiji Islands Maritime Safety Administration (FIMSA) that she (Laisa) had come to know about an overpayment for two employees. She had called a meeting and investigated from timekeeper Virisila who had denied the knowledge. Timekeeper Virisila had not mentioned accused’s name and after referring that matter to the Ministry, Virisila had been terminated.

PW-3

One of the employees at FIMSA who got overpayment of $135. Timekeeper had informed him of overpayment and asked him to return the same, which he did. He was not issued a receipt for returning $ 135.

PW-4

One of the employees at FIMSA who got overpayment of $165. Virisila had informed him of overpayment and asked him to return the same, which he did.

(According to the minutes of court record, this witness had given two version of evidence. Statement of 2006 is different from the evidence given in the court. However, it is not clear as to which portion of evidence differs from the other).

PW-5

Works as a cleaner and temporary messenger at FIMSA. Despatched some money to Accused who was at the Ministry, on the request of Virisila. Money was inside an envelope and witness told the court that $300 was written on top of the envelop. Accused had signed the despatch book and had opened the envelop in front of the witness and had inquired as to who gave that money to the witness. Accused had told the witness that he will call Virisila and upon returning to office, witness had informed that to Virisila.

After questioned by the prosecutor, witness had admitted that he doesn’t know how to read and he had took everything told to him by Virisila as a fact. Witness further said that he knew it was $ 300, because Virisila told him the amount.

PW-6

Worked as a timekeeper at FIMSA. When questioned her whether there was an overpayment, witness first denied it and later accepted. After she noticed it had informed accounts section for reversal of payment. But as it was too late, she has asked two workers to withdraw money from their accounts. Received money $300 and had hand delivered the same to Accused in a brown envelop, putting it to the dispatch book together with a time sheet. Only time sheet, batch number and delivery destination was entered in the dispatch book not the envelope containing money. She has done that on the request of the Accused. After perusing the copy of the dispatch book, witness confirmed the accused’s signature in the despatch book. Confirmed that she didn’t give receipt for returning overpayment. In March 2007 she has realised that money had not gone to Accounts section.

9. At the end of the prosecution’s case, prosecution had made an application to stuck off all the questions relating to "copy of the dispatch book". After this request identification of accused’s signature by PW-6 had become void.

10. Apart from PW-6, the only person who said that $300 had given to the accused is PW-5. It was later found that PW-5, cannot read and PW-5 had believed everything told by PW-6.

11. There is no supporting evidence to believe the evidence given by PW-6. Even the so called dispatch book doesn’t have an entry to the effect that $ 300 was sent to the accused. It is strange that why she had not given receipts for the returned money. The manner in which PW-6 answered the first few questions made me to disbelieve her version of the incident.

12. Therefore, it is clear, the main element of the offence that is "the accused was entrusted with that money" was not established by the prosecution. Apart from that, prosecution has to prove that the accused had fraudulently converted that money to his own use. However, not an iota of evidence had been led to that regard.

13. As Justice Shameem pointed out in, Abdul Gani Sahib v. State [2005] HAA0022/05S, no matter from which angle you look, there is no case established by the prosecution against the accused in this case.

14. Therefore I uphold the "no case to answer" submission made by the accused counsel and dismiss the case. Accused is acquitted.

15. 28 days to appeal.

On this Friday 19th day of February 2010.

Kaweendra Nanayakkara
Resident Magistrate.