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State v Chand [2012] FJMC 136; Criminal Case 163.2011 (20 June 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF NAVUA

Criminal Case No: - 163/2011

THE STATE

V

PARESH CHAND

For Prosecution : - Sgt. Lenaitasi
For Accused : -Mr. Shah

RULING ON NO CASE TO ANSWER

1. The accused was charged with Obstructing Police Officers in Due Execution of His Duty contrary to Sec 247(b) of the Penal Code as the first count and Resisting Arrest contrary to Sec 247(b) of the Penal Code as the second count. As the accused pleaded not guilty for both counts this 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 and a medical report.
   
2. I now pronounce my ruling under section 178 of the Criminal Procedure Decree 2009 at the conclusion of the prosecution case.
   
3. 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”.
   
4. 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”.
   
5. 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”.
   
6. 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 e [2000] HAC0023C0023.1999S] my learned sister Justice Shameem described the test as whether at this stage there is evidenclevant and admissible evidence, that the accused committed the offence. I adopt her honour&nour’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”.
        

7. 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]

8. 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.
      

9. Now I draw my attention to the no case to answer in this case. The section 247(b) of the Penal Code read as "Any person who-

(b) assaults, resists or willfully obstructs any police officer in the due execution of his duty, or any person acting in aid of such officer; or

10. In view of the sec 247 (b) of the Penal Code, the main elements of the Obstructing police officer in due execution of his duty are

1. The accused,
2. willfully obstructs any police officer
3. in the due execution of his duty
   

11. The main elements of resisting arrest are

1. The accused,
2. Resists
3. any police officer in the due execution of his duty
   

12. At this point I do not intend to reproduce the evidences 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.
    
13. The PW1 4150 Firshad ; He said on 23 Aug 2009 he was doing duty with Sgt Virend and Cpl Koroi. He operated the radar machine and stopped motor vehicle Reg. No CM 881 .He showed the driver the speed machine and booked him. At that time there was an Indian man with him in the front passenger seat. Then the pw1 went to his car and started booking the driver when the passenger in the front seat came out and said in high voice the machine was shit. The pw1 warned the passenger to go and sit or he will be arrested for obstructing the police officers. Then the passenger went to the car. Later the pw1 with other police officers approached the vehicle and asked the passenger to get out from the vehicle. He refused. He was holding hand brake and a panel and the police officers used force to bring him out. At that time he was pulling the officers uniform. Then they took him to the Navua police station and charged him.
    
14. In his cross examination by the learned counsel for the accused the pw1 stated that the accused did not assault him .The pw1 also admitted that because of the seat belts the accused could not come out but at that time he was holding in to something in the vehicle.
    
15. In his reexamination the pw1 said even though the accused punched him they did not land on him.
    
16. The PW2 Cpl Koroi; He was doing duty with other police officers on 23 Aug 2009. He heard one Indian guy calling the pw1 the radar was not good. He also heard the pw1 telling the Indian person to go and sit or otherwise would be arrested. Then two officers went to the vehicle and told him to come out. The pw2 also went to the place. They got him out of the vehicle and took to the police station.
    
17. In his cross examination the pw2 said he saw the accused coming out of the vehicle and talking to the pw1. The accused said the meter was a shit and then went back. Then the officers went to the vehicle and told the accused to come out. The accused was not willing to come out. He was holding to seat belt. The pw2 said he could not remember seeing the accused injured at that time.
    
18. The PW 3 1753 PC Farook; He said he was on duty in the Navua police station and interviewed the accused.
    
19. In his cross examination by the Counsel for accused the PW3 said he saw the accused with his injuries. In his examination in chief and cross examination the PW3 stated the accused was not drunk at that time.
    
20. Now I will analyze the relevant evidences with regard to the elements of the offences. The pw1 said whilst he was doing his duty the accused came and said the machine was not good. That was confirmed by the pw2 too.
    
21. According to the pw1 later when the police officers went to arrest him the accused was holding the hand brakes. The accused was pulling the officers uniforms at that time. Later in his cross examination the pw1 said it maybe the seat that the accused was holding. The pw2 also said the accused was not willing to come out and he was holding to the seat belt.
    
22. Therefore when analyzing the evidences of prosecution's witnesses I find that there are some evidences to cover all the elements of the both offences. Whether they are enough to prove the charge beyond reasonable doubt has to be decided at the end of the trial.
    
23. Also I am not in a view that these evidences presented by the prosecution were discredited by the counsel of the accused in his cross examination and or manifestly unreliable.
    
24. 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,
20 June 2012

H. S. P. Somaratne
Resident Magistrate, Navua