IN THE RESIDENT MAGISTRATE’S COURT OF NAVUA

Criminal Case No: 85/2010

THE STATE

V

GULAM AHMED

For Prosecution : - Sgt. Lenaitasi
For Accused : - Ms. Sharma from the Legal Aid 

RULING ON NO CASE TO ANSWER

1.	 The accused was charged with Annoying Female contrary to Sec 213(1) (a) of the Crimes Decree.
 
2.	Since the Accused person pleaded not guilty to the charge the matter was set down for the hearing. At the hearing Prosecution called 3 witnesses and tendered the caution interview and the charging statement of the accused as exhibits. 

3.	At the conclusion of the prosecution case, learned counsel for the accused person made a submission under section 178 of the Criminal Procedure Decree. Accordingly, I invited the learned counsel for the defence to submit her written submission on the issue of no case to answer which she filed accordingly. Upon perusing these written submissions of the defense and the evidence presented for the prosecution, I now pronounce my ruling under section 178 of the Criminal Procedure Decree 2009. 

4.	The learned counsel for the accused person submitted a detailed written submission on the issue of no case to answer. Having analyzing the evidence presented by the prosecution the learned counsel for the defense submitted that the prosecution had failed to prove the essential elements of the offence and evidences presented by the witnesses were unreliable. 

5.	Having considered the submissions of the defence, I now draw my attention to the laws pertaining to the issue of no case to answer. 

6.	Section 178 of the criminal Procedure Decree 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”. 

7.	The test of determination on the issue of no case to answer at the conclusion of the prosecution case is a prima facie standard. It was held in R. V Jai Chand (1972) 18 FLR 101), “the decision as to whether or not there is a case to answer should 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”. 

8.	The practice note (1962) 1 All ER 488, stipulate that “a submission that there is no case to answer can properly be made and upheld (a) where 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 manifestly unreliable that no reliable tribunal could safely convict on it”. 

9.	Winter J held in State v George Shiu Raj [2005] FJHC 522; HAC0019.2005 (9 September 2005) “This is not a test involving judicial prediction of the assessor's opinion or my verdict. It is not a question of likelihood of outcome but what may be properly done to give an opinion on guilt and render a guilty verdict. This task requires an objective assessment of the prosecution evidence. 

a.	In some cases the evidence supporting the charge may be barely adequate and so tenuous as to lead a judge to the view that it would not be proper for the assessors to render an opinion or the judge to convict and accordingly the interests of justice require the trial to be stopped and that a finding of not guilty be made. The evidence in a case may be adequate if accepted but the witnesses may appear so manifestly discredited or unreliable that it would be unjust for a trial to continue. Yet again it may be that in the circumstances the tribunal properly directing its mind to the law and evidence would be unlikely to convict. The rationale for a no case finding of not guilty is not the likelihood of an acquittal in those circumstances but the unsafeness of a conviction having regard to the evidence and the law. (R v Flyger, CA 11/00 judgment 16 August 2000, paragraph 15). 

b.	In Fiji the judge’s task has been described as assessing the case to see if the prosecution evidence in its totality touches on all the essential ingredients of the offence [adopted in State v Chae [2000] HAC0023.1999S] my learned sister Justice Shameem described the test as whether at this stage there is evidence, relevant and admissible evidence, that the accused committed the offence. I adopt her honour’s view that if there is some relevant and admissible evidence, direct or circumstantial touching on all elements of the offence then there is a prima facie case. 

c.	In considering this application I accordingly need to have regard to the evidence and ask if there is any credible reliable evidence at the conclusion of the Prosecution Case that would make it proper and safe to convict”. 

10.	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].

11.	Bearing in mind the laws and judicial precedents pertaining to the issue of no case to answer, I find the test on the issue of no case to answer is that to determine 

a.	Where there has been no evidence to prove an essential element in the alleged offence or 

b.	 The evidence adduced by the prosecution has been so discredited as a result of cross examination or is manifestly unreliable that no reliable tribunal could safely convict on it. 

12.	Before I proceed with the issue of no case to answer I want to address one point raised by the defence in their written submission. It was pointed out that the court has allowed the prosecution to amend the particulars of charge during the trial. 

13.	Sec 182 of the Criminal procedure Decree says at any stage before the prosecution closes the case a charge can be amended. For clarity I reproduce the section as follows. 

14.		(1) 	Where, at any stage of the trial before the close of the case for the prosecution, 

it appears to the court that the charge is defective (either in substance or in 
form), the court may make such order for the alteration of the charge, either by— 

(a) 	amendment of the charge; or 
(b)	 by the substitution or addition of a new charge — 
as the court thinks necessary to meet the circumstances of the case 
(2) Where a charge is altered under sub-section (1) — 

15.	(a) the court shall call upon the accused person to plead to the altered charge; and 

16.	(b) the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his lawyer and, in such last-mentioned event, the prosecution shall have the right to re-examine any witness on matters arising out of the further cross-examination.

17.	The accused was first charged with pointing two fingers at the complainant. During the evidence of the pw1 it was shown that the accused did not point his fingers but waved his hand only. Thereafter the prosecution made an application to amend the charge and I allowed that. Thereafter the accused was called to plead for the amended charge under Sec 182(2) of the Criminal Procedure Decree and The accused was given the chance to recall the pw1 if he wanted . The defence counsel informed that they did not want to do that. Therefore now the defence can't take that objection. 

18.	Now I turn my attention to the issue of no case to answer in this case. The Sec 213(1) (a) of the Crimes Decree stipulate that

(1)	 A person commits a summary offence if he or she, intending to insult the modesty of any person — 

(a)	 utters any word, makes any sound or gesture, or exhibits any object, 
intending that such word or sound shall be heard, or that such gesture 
or object shall be seen, by the other person; or 

19.	In view of the Sec 213(1)(a) of the Crimes Decree the elements of the offence are 

a.	A person
b.	With intent to insult the modesty 
c.	Of another person
d.	Utters any word, makes any sound or gesture or exhibit any object 
Intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person; 

20.	At this point I do not intend to reproduce the evidences adduced by the prosecution and proceed with analyzing the evidences presented by the prosecution with the relevant legal principles pertaining to the issue of No case to answer.

21.	The prosecution called following witnesses .

22.	PW1- Manjula wati; She said on the 15th Feb 2010 she was in her house. She saw the accused waving at her twice. She reported the incident to her husband and then later reported that to the police. 

23.	In her cross examination by the accused's counsel she said she reported about the accused in 2004 and again reported in 2010 as the accused was continuing with his action. She also stated the accused was annoying her. In her reexamination she stated the accused was calling her and she did not feel good about that. 

24.	PW- Vishwa Prakash(Husband of PW1); he said on that day he was at home and saw the accused calling his wife. 

25.	In his cross examination the pw2 told his wife had told many times that the accused called her and he saw what happened that day and reaffirmed that in reexamination. 

26.	PW3- PC 3052 Param Singh; He said on the 15th Feb 2010 he received a report. The complaint was that the accused was signaling the complainant. The pw3 visited the scene and interviewed the accused. The interview and charge statement were marked as exhibits 1 and 2 respectively.

27.	At this stage I have to see only if there are some evidences to cover all the elements in the case. Whether that is enough to prove the case beyond reasonable doubt is to be decided at the end of the trial.

28.	The pw1 stated that the accused was waving at her. She saw clearly the accused doing that twice and she said clearly in her reexamination she did not feel good about that. 

29.	The pw 2 confirmed the pw1 story. He said he also saw the accused waving at his wife. 

30.	Therefore when analyzing the evidences of prosecution's witnesses I find that there are some evidences to cover all the elements of the offence. As I mentioned before whether they are enough to prove the charge beyond reasonable doubt has to be decide at the end of the trial. 

31.	Also I am not in a view that these evidences presented by the prosecution were discredited by the counsel of the accused in her cross examination and or manifestly unreliable. 

32.	In view of foregoing reasons, I hold that at the conclusion of the prosecution case, it appears to the court that a case is made out against the accused sufficiently to require making a defense. Wherefore, I dismissed the submission made by the learned counsels for the Accused person under the section 178 of the Criminal Procedure Decree. 
28 days to appeal.

07/06/2012

H. S. P. Somaratne
Resident Magistrate, Navua