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State v Kumar [2013] FJMC 42; Criminal Case86.2012 (29 January 2013)

IN THE RESIDENT MAGISTRATE’S COURT
AT NAVUA

Criminal Case : - 86/2012

THE STATE

V

SHIV KUMAR

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

RULING ON NO CASE TO ANSWER

[1] This is the ruling with regard to the no case submission made by the Learned Counsel for the defence at the conclusion of the prosecution’s case.

[2] The accused was charged with the two counts of Indecent Assault contrary to section 212(1) of the Crimes Decree No 44 of 2009. Before the hearing the prosecution withdrew the second count and proceeded with the first count only.

[3] At the conclusion of the prosecution’s case the learned defence counsel submitted that that there was a no case made out against the accused under Sec 178 of the Criminal Procedure decree to call their defence and asked the court to acquit the accused accordingly.

[4] The defence was invited to file written submission setting down their grounds which they complied with . Therefore based on the relevant case laws and evidences given by the prosecution’s witnesses as well as the submission of the defence I am going to consider this application.

LAW ON NO CASE TO ANSWER

[5] The relevant provision with regard to no case submission is section 178 of the Criminal Procedure Decree. That section 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] A practical note issued by the Queen’s Bench Division held that :

“A submission that there is no case to answer may be properly made and upheld :

1. When there has been no evidence to prove an essential element in the alleged offence
   
2. When the evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it
   

[7] In Fiji the position with regard to no case submission was discussed in a number of cases. His Lordship Justice Goundar stated in State V Aiyaz [2009] FJHC 186 that

“ 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."

[8] Therefore in a Magistrate Court a party can make an application for no case to answer based on following grounds.

1. When there has been no evidence to prove an essential element in the alleged offence
   
2. When the evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it
   

SUMMARY OF EVIDENCE

[9] The PW1, the victim in this case said on 18 March 2012 she was in her home listening to the radio. Her mom was washing the cloths. The accused came inside the house and held her shoulder and buttock. The PW1 told him not to touch her and then the accused left. The PW1 told about that to her mom. In cross examination the PW1 again stated the accused touched her shoulder and back.

[10] The PW2, PC Sharon said on 20 March 2012 she recorded the statements of the victim in English. She also recorded the statement of the PW3.

[11] The PW3, the mother of the victim. She was washing the cloths and saw the accused going inside the house. Later her daughter told her about that .

[12] The PW4 recorded the caution interview of the accused. The PW1 said the accused was asked in Hindi and recorded the statement in English. The statement was marked as EX-01.

[13] The PW5 charged the accused and the charge statement was marked as EX-02.

ANALYSIS OF THE EVIDENCE

[14] The accused is charged with Indecent Assault contrary to section 212(1) of the Crimes Decree. The elements of the offence are:

1. The accused
2. Unlawfully and indecently

100. Assault another person.
     

[15] The PW1 said on that day the accused came and touched her shoulder and buttock. She told him not to touch her. The PW3 said her daughter told about that to her.

[16] Therefore I find that from the PW1's evidence, there are enough evidences to fulfill all the essential elements of the offence. I also find that at this stage the evidence are reliable enough to call the defence.

[17] In view of above 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.

[18] Accordingly I dismiss the submission made by the learned counsel for the Accused person under the section 178 of the Criminal Procedure Decree.

29/01/2013

H. S. P. Somaratne
Resident Magistrate, Navua