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State v Sovanivalu [2015] FJMC 15; Criminal Case 243.2008 (10 February 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case : 243/2008

STATE

V

AKUILA SOVANIVALU
JULIAN WAINIQULO

PC Josuha for the Prosecution
Mr. Vosarogo for the two accused
Date of Ruling :10th February 2015

RULING ON NO CASE TO ANSWER

1. The two accused are charged with one count of assaulting a police officer in due execution of his duty contrary to section 247(b) of the Penal Code and one count of resisting arrest contrary to section 247(b) of the Penal Code .
   
2. At the conclusion of the prosecution case the defence made a no case submission pursuant to section 178 of the Criminal Procedure Decree and opted to file closing submission regarding that.
   
3. In his detailed submission filed on 03rd December 2014 the learned counsel for the accused submitted that the prosecution has failed to prove the essential elements of the offences in this case and therefore the accused need to be acquitted .Crux of the argument was that the PW1 failed to identify the two accused as the persons who assaulted him and no evidence was presented about resisting arrest by the two accused during the hearing .
   
4. Section 178 of the Criminal Procedure Decree section provides :
   

“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”.

5. In State V Aiyaz [2009] FJHC 186 his Lordship Justice Goundar said 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."

6. Therefore a defendant can make a no case submission in this Court 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.
      
7. During the hearing the prosecution called PC Tamaniasu and PC Davis as witnesses and by consent tendered the caution statements and charge statements as exhibits. PW1 (PC Tamaniasu) in his evidence identified the 3rd accused as a one who assaulted him that night. In addition PW2 (PC Davis) in his evidence said there were 3 accused who were assaulting PW1 and he arrested them and from that only two are present in the Court. He also said all the accused resisted arrest. At this stage these evidence are enough for me to find that there is a case against the two accused. Therefore I dismiss the application made by the defence .
   
8. 28 days to appeal
   

H. S. P. Somaratne
Resident Magistrate, Suva