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State v Kumar [2010] FJMC 86; Criminal Case 76 of 2009 (17 September 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 76 of 2009

STATE

V

ASHWIN KUMAR
s/o Ravin Kumar

For Prosecution: Insp. Vinesh
For Accused: Mr. Singh R.

RULING

1. At the close of the prosecution's case, learned counsel for the accused had filed written submission on "no case to answer".
   
2. Six prosecution witnesses had testified for the prosecution.
   
3. Accused is charged with one count of "Larceny by Servant" an offence punishable under sec. 274 (a) (i) of the Penal Code Act- Cap 17.
   

Law applicable to "No case to answer" submission

4. After the new Criminal Procedure Decree 2009 came into force on 01st February 2010, Sec. 178 of CPD is applicable to "No case to answer" submissions in the Magistrate's Court proceedings. However, previously the relevant section was sec. 210 of the Criminal Procedure Code (Cap 21).
   

S. 210 of the Criminal Procedure Code

'210. 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 to make a defence, the court shall dismiss the case and shall forthwith acquit the accused'.

S. 178 of the Criminal Procedure Decree 2009

'178. 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.'

When comparing the both sections it is apparent that both sections are verbatim except for the word "forthwith" is missing from the sec. 178 of CPD 2009. Therefore, the decided law under sec. 210 of the Criminal Procedure Decree could be safely applied for the present day situation.

5. In the Practice Note of the Queen Bench Division [1962] 1 All ER 448, 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.

6. 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.
      
7. 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.
   
8. The charge against the accused requires the prosecution to prove the following elements.
   
   1. That the accused
      
   2. Being employed in the capacity of a clerk or servant.
      
   3. Had steal the money belongs to or in the possession or power of his master or employer.
      
12. Summary of the prosecution witnesses are as follows:
    

PW-1

According to the witness accused had been a permanent worker at the New World Supermarket and on 17th September 2009 he was in his staff.

PW-2

On 17th January 2009, had worked as the head cashier for New World Supermarket at Shalemar street and at about 1215hrs had gone for banking with one Tani, Ikeli (security officer) to the Westpac bank. Accused had been the driver of the vehicle. From the bank witness had obtained $5 coins to the value of $1000 and $2 coins to the value of $600 and had brought the money bag to the vehicle.

On their way back to the Supermarket accused had stopped the vehicle near the Colonial Bank. Upon inquiring as to why he came this way, accused had explained that one of the staff had asked him to deposit cash in the bank. Whilst accused was in the vehicle with Tani, witness had gone into the bank with the security officer. Before leaving to the bank witness had asked the accused to look after the money bag.

When witness returned from the bank after about 15 minutes, Tani was not in the vehicle and accused had asked them where the money bad was. Despite of the thorough search, they could not find the money bag. According to the witness Tani did not bring anything when she came back.

When the witness reached the Colonial Bank she had been sitting in between the accused and Tani and security guard had been in the back. At the bank Tani had got down the vehicle allowing her to get down but Tani had again got into the vehicle. Money bag had been kept beside the accused. Tani had come back later stating that she had gone for shopping.

PW-3

Recall on 17th January 2009 going to bank with PW-2, security officer and the accused. Confirmed PW-1's version of the story and going to the Colonial Bank. When PW-1 and security officer gone into the bank, she had informed the accused that she is going to the Chinese shop looking for bags.

Witness had seen PW-1 giving the money bag to accused and informed that it was a Green bag.

(Under Cross-Examination)

She had bought a small hand bag from the Chinese shop and confirmed being a suspect at the initial stages of the case.

PW-4 (Security Officer)

Confirmed PW-1's version of the incident. However, according to the witness, the money bag was a Red Digicel plastic bag. After PW-1 given the money bag to the accused he had put it aside.

13. PW-3 and PW-2 are contradicting with regard to the colour of the plastic bag which contained the stolen money. According to PW-2, Tani did not have anything with her when she was returning to the vehicle. However, PW-3 informed that she brought a small hand bag and it was inside a plastic bag.
    
14. Everyone confirmed about the search being made inside the van and according to PW-2 she had been out in the bank with the security officer for not more than 15 minutes. In between PW-3 had gone out to a Chinese shop.
    
15. Question is whether accused had time to hide the money bag in less than 15 minutes or whether the PW-3 had taken it away when she was going out of the van.
    
16. If accused had an accomplice it has not been revealed through the evidence and prosecution had failed to prove that the accused had indeed took the money bag and hide it somewhere else. Moreover prosecution failed to prove that the accused gave that money bag to someone who is unknown to the prosecution and failed to prove that the accused had left the vehicle unattended within that 15 minutes time.
    
17. Above – mentioned observation cast a serious doubt about the prosecution case and it is unsafe to convict accused based on such evidence.
    
18. Therefore, the benefit of doubts is given to the accused and accused is acquitted accordingly.
    
19. 28 days to appeal.
    

On this Friday the 17th day of September 2010.

Kaweendra Nanayakkara
Resident Magistrate.