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Magistrates Court of Fiji |
REPUBLIC OF FIJI ISLANDS
IN THE MAGISTRATE’S COURT
SUVA
CENTRAL DIVISION
Criminal Case No. 656 of 2010
State
v.
Saleshni Devi
For State: PC Tawake
Accused : Present - Represented by Ms. Whippy
RULING – No Case to Answer
Introduction
The Accused is charged with six counts of Larceny by Servant, contrary to Section 274 (a) of the Penal Code.
At the close of the prosecution case, the Counsel for the defence made a submission for a no case to answer.
The Law – No Case
Part XIII - of the Criminal Procedure Decree 2009 provides for the Procedure in Trials before Magistrates Courts. Division 1 of Part XIII deals with Provisions Relating to the Hearing and Determination of Cases. Section 178 of the Criminal Procedure Decree 2009, falls within Part XIII and it provides 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.”
Section 178 of the Criminal Procedure Decree 2009 is identical to Section 210 of the Criminal Procedure Code, Cap 21, which it has replaced.
This Court is guided by a long standing Criminal Practice Direction, cited as A Practice Note [1962] 1 All ER 448 which provides that:
"A submission that there is no case to answer may pmay properly be made and upheld (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the proson has been so discredited ited as the result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. Apart from these two situations a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If however, a submission is made that there is no case to answe, the decisdecision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a rease tribunal might convict. Ict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case swer."
This Court also takes note of R v. Jai Chand [1972] 18 FLR 101, where Justice Grant s that:
"the decision as to whether or not there is a case to answerr shoupend not so much onch on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribpropeirecting its mind to the law and the evidence e couldcould or might convict on the evidence so far laid before it. In other words, at the close of the prosecution case the Court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence".
The Prosecution Witnesses Evidence
The Prosecution called 3 witnesses.
Submission
Only the Defence has made written submissions which this Court has carefully considered. In summary, the Defence submitted that "fundamental elements of the charge remain to be proved."
Analysis
The Court noted all the evidence that was tendered in this Court. Having considered the evidence of the prosecution witnesses, the Court at this stage is not so much concerned at this stage on conviction or acquittal but on whether the evidence is such that the Court properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. From the evidence tendered in Court at the close of the prosecution case the Court has adopted an objective test as distinct from the ultimate subjective test as adopted at the close of the trial.
From the Particulars of the Charge, this Court notes that it is alleged that accused stole various species of the fish that was supplied to the shop under her supervision. The prosecution has tendered photocopies of the delivery note in Court and photocopy of the hand written delivery record notes of Ashneel Chand. No other copies or office copies were tendered in Court to show this what the actual deliver was and what the changes or amendments were. The Company would have had copies which would show what was delivered and what changes were made if any and what were the shortages or the allegedly stolen items. None were tendered to show this Court of the changes of it in fact took place. The prosecution witness also agreed that the accused had informed the office of shortages and missing items.
From the evidence before it this Court finds that the elements of the offence are not made out and so unreliable that this Court objectively would not and might not be able to convict the accused on the evidence before it as it is very weak and unreliable.
For the foregoing reason this Court finds that the accused has no case to answer. This Court acquits the accused. 28 days to appeal.
Chaitanya Lakshman
Resident Magistrate
25th March 2013
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URL: http://www.paclii.org/fj/cases/FJMC/2013/131.html