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State v Prasad [2012] FJMC 124; Traffic Case1722.2009 (12 June 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF NAVUA

Traffic Case No: - 1722/2009

THE STATE

V

MANOJ PRASD

For Prosecution : - Sgt. Lenaitasi
For Accused : -In person

RULING ON NO CASE TO ANSWER

1. The accused was charged with driving motor vehicle under the influence of Liquor contrary to section 102(1) and 114 of the Land transport Act. Since the Accused person pleaded not guilty to the charge the matter was set down for hearing on the 07th April 2010.
   
2. At the hearing Prosecution called 5 witnesses and tendered the caution interview. The charging statement of the accused was marked as a defence exhibit.
   
3. Since this case was taken before my predecessors before taking this matter I informed the accused about the rights under Sec 139 of the Criminal Procedure Decree. The accused informed that he has no objection for me to continue with the hearing.
   
4. The prosecution has closed their case on 30 May 2011. Before starting with the defence case I have to decide whether there is a case to be answered by the accused under section 178 of the Criminal Procedure Decree 2009 at the conclusion of the prosecution case.
   
5. 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”.
   
6. 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”.
   
7. 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”.
   
8. 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.
   
   1. 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).
      
   2. 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] HAC0023.199y learnedarned 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.
      
   100. 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”.
        

9 ] 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]

10. 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
    

1. Where there has been no evidence to prove an essential element in the alleged offence or
   
2. 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.
   

11 Now I draw my attention to the no case to answer in this case. The section 102(1) of the Land transport Act reads as"1) A person who drives a motor vehicle or is in charge or a motor vehicle while under the influence of intoxicating liquor or any drug to such an extent as to be incapable of having proper control of the motor vehicle commits an offence and is liable on conviction to the prescribed penalty.

12 In view of the sec 102(1) of the Land transport Act the main elements of the offence are

1. The accused,
2. Drives a motor vehicle or in charge of the motor vehicle
3. while under the influence of intoxicating liquor or any drug to such an extent as to be incapable of having proper control of the motor vehicle
   

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

14. The following witnesses were called by the prosecution in this case.
    
15. PW1- Mr. Charles Philip; He said the accused was his neighbor and on 24.04.2009 saw the accused take his vehicle out from the compound. At that time accused was fully drunk and drove the vehicle at high speed. The pw1 was worried and informed the police about that. Later the accused came from the town and reversed the vehicle. Whilst doing so the accused damaged the pw1's water meter. Then the police came and arrested the accused. In his cross examination by the accused the pw1 affirmed that the accused was drunk at that time.
    
8. PW2- Mr. Francis Perumal; He stated that on 24.04..2009 the accused came to see him. The accused was drunk and the father of the pw2 wanted him to leave. The accused reversed the vehicle at high speed and landed on the pw2's water meter box. The accused was so drunk and could not stand properly at that time. Then the police came and arrested the accused.
   
9. In his cross examination the pw2 maintained that the accused was drunk.
   
10. PW3- PCA 2883 Lino; He said on the 24.04.2009 they received a report of drunk driving. One person named Charles reported that incident. The pw3 went to the complainant's house. The complainant informed that the accused drove the vehicle and damaged his water meter and at that time the accused was drunk. The pw3 approached the accused. The accused smelled liquor at that time and eyes were blood red.
    
11. In his cross examination the pw3 said he arrested the accused.
    
12. Pw4-PC 2039 Iowane; The interviewing officer. The caution interview was marked as exhibit 1 and pw4 stated he did not use any force on the accused whilst taking the interview.
    
13. Pw5-Inspector Luke; He stated that the police did not conduct any tests since the accused was unstable and his speech was wobbly and he was smelling liquor.
    
14. Thereafter the prosecution closed the case.
    
15. When analyzing the evidences of prosecution's witnesses I find that there are some evidences to show that on that day the accused was drunk and also he was driving a motor vehicle. And also there is evidence to show that he met with an accident.
    
16. Therefore I find that from the evidences given by the prosecution's witnesses cover all the elements of the offence. Whether they are enough to prove the charge beyond reasonable doubt needs to be decided at the end of the trial.
    
17. Also I am not in a view that these evidences presented by the prosecution were discredited by the accused in his cross examination and or manifestly unreliable.

18. 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.
    

28 days to appeal,

12 June 2012

H. S. P. Somaratne
Resident Magistrate, Navua