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State v Bose [2015] FJMC 57; Criminal Case 343.2015 (27 May 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case : - 343/2015

STATE

V

TOMASI BOSE
SIMELI KAITU

PC Josuha for the Prosecution
Ms.Mishra (L.A.C) for the 1st accused
The 2nd accused in person

Date of Ruling : 27th May 2015

RULING ON NO CASE TO ANSWER
FOR THE 1ST ACCUSED

1. Both accused are charged with one count of Theft contrary to section 291(1) of the Crimes Decree No 44 of 2009. In addition the1st accused is also charged with one count of Resisting Arrest contrary to section 277(b) of the Crimes Decree for which he has already pleaded guilty .
   
2. Since both accused denied the 1st count the trial was conducted on behalf of that in which 06 witnesses gave evidence. At the conclusion of the prosecution case the learned counsel from the legal aid made a no case submission on behalf of the 1st accused pursuant to section 178 of the Criminal Procedure Decree and filed her written submission regarding that .
   
3. In her detailed and comprehensive submission the counsel argued that the evidence given by the eye witnesses are manifestly unreliable and the prosecution has failed to prove that the 1st accused was involved in this offence.
   
4. 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".

5. 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
   

6. 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) ".

7. 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".

8. In this case the prosecution called two eye witnesses ( the complainant and her friend) as well as the arresting officers of the both accused. The complainant said whilst waiting to go home around 0345 am in the morning 05 people assaulted her and stole her mobile phone. In her cross- examination by the 2nd accused she said that he was wearing the blue shirt on that night. PW2 said a group scared the complainant and took her mobile . He followed 2 of them and informed the police about them. He also identified the two accused as the persons he followed that night. In cross- examination the witness informed the Court that the 1st accused and the 2nd accused were wearing blue and a red shirt respectively on that night . PW3 arrested the 2nd accused near to the place whilst PW4 arrested the 1st accused near MacArthur street . At that time the 1st accused resisted the arrest.
   
9. After considering the above evidence I find that there is some identification by PW2 of the 1st accused and also when he was about to arrest by the police officers he resisted arrest which I consider as a circumstantial evidence to link to the 1st offence.
   
10. Therefore I find that there is a case against the both accused in this case and accordingly dismiss this application made by the learned counsel .
    

H. S. P. Somaratne
Resident Magistrate, Suva