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State v Saukelea [2015] FJMC 46; Criminal Case 181.2014 (15 April 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case : - 181/2014

STATE

V

PENISONI SAUKELEA
METUISELA TUINARO

Counsel : Ms.D.Kumar for the State
Mr. Nainima (L.A.C) for the 1st accused
Ms.M.Tarai (L.A.C) for the 2nd accused
Date of Ruling : 15th April 2015

RULING ON NO CASE TO ANSWER

1. Both accused are charged with one count of Aggravated Robbery contrary to section 311(1) (a) of the Crimes Decree No 44 of 2009.
   
2. At the conclusion of the prosecution case on 09th April 2015 both counsel from the legal aid made a no case submission on behalf of their clients pursuant to section 178 of the Criminal Procedure Decree.
   
3. In their respective oral submissions both counsels submitted that the prosecution has failed to produce sufficient evidence to satisfy one of the main element in the offence (identity of the persons who committed this offence) and also the evidence were so discredited in cross- examination that no reasonable tribunal can convict the accused based on them. Therefore they further submitted that the Court should acquit the accused from this charge.
   
4. In her reply the learned state counsel argued that the complainant has identified the two accused in the Court ( dock identification ) and in addition the 1st accused has made admissions in his caution statement. Therefore the state submitted that there are sufficient evidence at this stage and this application need to be dismissed.
   
5. Section 178 of the Criminal Procedure Decree 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".

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. His Lordship Justice Grant in R v Jai Chand 18 FLR 101 at page 103 stated that:-
   

"..... the decision as to whether or not there is a case to answer should depend 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. 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 trial. But the question does not solely depend on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused to his defense. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence( emphasis added) ".

8. In Shabib v The State [2005] FJHC 95; HAA0022J.2005S (28 April 2005) her Ladyship Justice Shameem said:
   

"In the Magistrates' Court both tests apply. So the Magistrate must ask himself or herself firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence,

And second whether on the prosecution case, taken at its highest, a reasonable tribunal could convict. In considering the prosecution case at its highest, there can be no doubt at all that where the evidence is entirely discredited, form no matter which angle one looks at it, a court can uphold a submission of no case . However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defence case".

9. In this case the state concedes that the only evidence against the 2nd accused is the dock identification made by the complainant during the hearing. Even though there is some evidence that the complainant made some kind of an identification of the accused in the police station the proper procedure was not followed in that . The state's position is that even without the proper ID the Court can take this in to consideration this Dock Identification .
   
10. But there are number of case authorities from Fiji as well as in other jurisdictions that have held dock identification is unreliable and should be avoided if possible . In Macedru v State [2014] FJHC 914; HAA20.2014 (12 December 2014) the court held that:
    

"A dock identification of an accused person where there has been no foundation such as an identity parade or identification by photograph previously, is highly undesirable and should be resisted. It is not inadmissible per se (as decided by the Privy Council in Holland v. H.M. Advocate [2005] HRLR 25) but the discretion of the tribunal should judge the worth and probity of it. Where identity is in issue, it shouldnot be allowed at all. Wherever it is allowed and a witness has identified the accused then a very strong direction should be given by a Magistrate to himself or by a Judge to the finders of fact. It is essentially a matter of weight to be decided by the fact finders."

11. Both counsels for the accused have also brought this Court attention to the Lotawa v State [2014] FJCA 186; AAU0091.2011 (5 December 2014). In that case his Lordship Justice Madigan held:"Dock identification is completely unreliable in the absence of a prior foundation of identity parade or photograph identification because it then becomes the ultimate leading question. The answer is obvious to any witness -- the person to be identified is sitting in the dock. The Privy Council has examined the merits and demerits of such identification in the case of Holland v. HM Advocate(The Times June 1, 2005) where it was held that such an identification was not per se incompatible with a fair trial but other factors must too be considered such as whether the accused was legally represented, what directions the Judge gave to the finders of fact on this identification and how strong the prosecution case was in all other respects. It has been decided now in a line of English cases that it should be refused by a trial Judge except in situations where the accused has refused to participate in a formal identification parade or where he has otherwise avoided attempts at identification. Even then very strong directions must be given as to how little weight is to be placed on such identification."
    
12. In this case as noted earlier only evidence against the 2nd accused is the dock identification made by the complainant. There was no proper ID parade conducted in the police station and he was not even given the option regarding that also . Even though he was shown to the complainant in the police station this was not done in proper manner which lead me to reject that identification in the police station . The complainant has not seen the accused before the incident and by his own admission he saw him only for 4 or 5 minutes even on that day. Even there are some discrepancies in his police statement and his testimony . There is no other evidence to link the accused to this offence. Considering all these I do not think the dock identification made by the complainant is safe in this case and therefore disregards that.
    
13. As for the 1st accused also there was a dock identification made by the complainant. Again police failed to conduct a proper ID parade. But there is some evidence from the complainant that he has seen the 1st accused before the incident. According to him the 1st accused came few days before the alleged incident to his shop trying to pawn some boots. The defence did not cross- examine this claim but in his oral submission the counsel for the 1st accused denied that. But I am mindful that this assertion coming from the bar table is not evidence .And most importantly the accused has made some admissions regarding this offence in his caution statement and this has been already admitted after a voir dire hearing and marked as an prosecution exhibit during the hearing
    
14. Based on the reasons mentioned above I find that there are no relevant and admissible evidence against the 2nd accused and therefore acquit him from this charge. As for the 1st accused there is sufficient evidence at this stage and accordingly I dismiss his application .
    

H. S. P. Somaratne
Resident Magistrate, Suva