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State v Gopal [2012] FJMC 71; Criminal Case 416.10 (30 January 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 416/10

BETWEEN

THE STATE

AND

1. SANJAY GOPAL
2. MELI KAMIKAMICA
3. SAULA MALATOLU
4. AKUILA VAKARARAWA
5. SAKUISA BULICOKOCO
6. TIMOCI RACULE
   

RULING

1. The accused persons are charged for harbouring prisoners contrary to Section 79 of the Prisons Act and for serious assault contrary to Section 277(b) of the Crimes Decree.
   
2. After the Prosecution case was closed the Counsel for the first and fourth accused persons and the third accused made submissions for no case to answer.
   
3. Section 178 of the Criminal Procedure Decree states as follows;
   

"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. Justice Nazhat Shameem in Abdul Gani Sahib V The sate discussed the tests that are applicable in considering whether there is a no case to answer. Accordingly the court has to consider;
   
   1. Firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence and;
      
   2. Secondly, whether on the prosecution case, taken at its highest, a reasonable tribunal could convict.
      
5. According to the written submissions of the first and fourth accused it was submitted that the first count was defective. It is stated in the written submissions that " the charge on count 1 is defective because the Prisons Act Cap 86 was repealed by section 55 of the Prisons and corrections Act 2006 which states " the prisons Act Cap 86 is repealed."
   
6. Further it is submitted that the accused were therefore charged and tried on a law that was repealed by Parliament and non existent.
   
7. I have carefully considered the contention of the Defence. It is very clear that the offence of harbouring prisoner is set out in Section 79 of the Prisons Act cap 86. Later the Prisons and Corrections Act has been introduced in 2006 which has repealed the Prisons Act.
   
8. I concede the fact that the new Prisons and Corrections Act states that the Prisons Act Cap 86 is repealed. However what has been overlooked by the Defence is the commencement date of the said Prisons and Corrections Act. Although the Prisons and Corrections Act has been introduced in 2006, only on the 18th March 2011 the Attorney General has declared the commencement date and it has been made effective from the 27th July 2008.
   
9. The offences pertaining to the present case are alleged to have been committed in July 2010. Therefore it is very clear that at the time the accused were charged, the Prisons and Corrections Act has not been commenced although it was introduced by then. Accordingly the accused have been charged under the Prisons Act which was in operation during 2010.
   
10. Although the Defence has contended that the accused were charged and tried on a repealed law I cannot agree with that contention. The situation would have been different if the offence of harbouring prisoner has been totally done away with by the new Prisons and Corrections Act 2006. If so the accused could have been acquitted forthwith after the declaration of the commencement date of the Prisons and Corrections Act 2006. But in the present context the said offence still exist under section 52 of the Prisons and Corrections Act 2006.
    
11. Section 52(3)(a) of the Prisons and Corrections Act 2006 reads as follows;
    

" Any person who harbours any prisoner illegally at large commits an offence and is liable on conviction to a fine not exceeding $ 5000 or to a term of imprisonment not exceeding 2 years or to both."

12. In the circumstance I reject the contention of the Defence. However the Prosecution is ordered to amend the first count by giving reference to the new Act and the section.
    
13. Secondly it has been submitted that there is no evidence against the first accused for resisting arrest. It should be noted that the Prosecution witness, PC 3074 Colati who arrested the first accused specifically stated that the first accused did not resist arrest. There was no other evidence as well against the first accused in respect of the second Count. Accordingly I find that there is no case for the first accused to reply in respect of the second count. Accordingly I acquit the first accused from the second count.
    
14. Further it has been submitted on behalf of the 4th accused, that he was not identified by the Prosecution witnesses. I have considered the evidence produced by the Prosecution. The Prosecution witness, DC 2933 Isoa Delaivatunoa gave evidence that he arrested one "Akuila". Further he said that the said Akuila resisted arrest too. However the witness did not identify the 4th Accused as the person, who was arrested for resisting arrest by him. It should be noted that just because the witness said that he arrested one Akuila, the Prosecution failed to establish the link to confirm that it was the same Akuila who appeared as the 4th accused in this case. I have perused the caution interview of the 4th accused as well. At least in his caution interview there is no mention with regard the name of the officer who arrested him or there is no mention about a resist of arrest. In the circumstances I am not satisfied that the Prosecution has made out a case against the fourth accused in respect of the third count. Accordingly I acquit the fourth accused from the third count.
    
15. The third accused has made submissions that he did not resist arrest. The offence of serious assault does not necessarily require assault on a Police Officer. According to Section 277(b) even resisting or obstructing a Police Officer in due execution of his duty also amounts to serious assault. The Prosecution has produced evidence against the third accused and I am satisfied that at this stage the Prosecution has made out a case against the third accused to reply.
    
16. Prosecution witness PC 2754 Viliame gave evidence regarding the arrest of the fifth and the sixth accused. He said that "the two accused tried to run away but they surrendered peacefully". There was no other evidence produced against the 5th and the 6th accused in respect of the fifth count for serious assault. I am of the opinion that the evidence of the said Police Officer would not suffice to prove the elements of the charge of serious assault. I am not satisfied that the Prosecution has made out a case against the fifth and the sixth accused to reply. In the circumstances I acquit the fifth and the sixth accused from the fifth count.
    

28 days to appeal

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

30.01.2012