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State v Prasad [2013] FJMC 392; Criminal Case 711.2011

(5 November 2013)
IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case: 711/2011

STATE

NIRAJ PRASAD

For Prosecution : - Mr.   Nath   for the State 

For Accused : -Mr. Fesaitu for the Legal Aid

RULING ON NO CASE TO ANSWER

[1] The accused has been charged with one count Defilement of a Child under 13
years of Age contrary to section 214(1) of the Crimes Decree.

[2] After the State closed their case on 24th October 2013 and the defence made an
application for a no case to answer in pursuant to section 178 of The Criminal
Procedure Decree.

[3] The section 178 of the Criminal Procedure Decree 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".

[4] The position with regard to these kind of applications have been discussed in R
v Jai Chand(1972)18FLR 101, Moidean v Reginam Criminal Appeal No. 41 of
1976 and Rohit Ram Latchna v The State Criminal Action No 32 of 1996.

[5] In R v Jai Chand (supra) His Lordship Justice Grant stated at p.103

"it seems clear 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's case, the court should adopt an objective test as distinct from the
ultimate subjective test to be adopted at the close of the trial. However, the
question does 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 not can any amount of worthless discredited
evidence".

[6] In Moidean v Reginam (supra), the Fiji Court of Appeal clarified the instances
when a submission of a no case answer maybe properly made.

 When there is no evidence to prove an essential element in the

alleged offence.
 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.
 The decision should depend on whether the evidence is such that
a reasonable tribunal might convict.

[7] In Rohit Ram Latchan v The State (supra), the Court of Appeal stated:

"A submission that there is no case to answer may 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 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".

[8] The defence's contention in this application is that there are not sufficient
evidence against the accused and the evidence so unreliable that no reasonable
tribunal can convict on that and therefore the accused should be acquitted from this
charge.
[9] In view of these argument made by the learned counsel for the defence it is
appropriate to briefly consider the evidence led by the State.

[10] The prosecution called 04 witnesses in the trial. At this stage I will consider
only the testimony of PW1, Ms. LN (name suppressed). She said that on 21st
August 2010 the accused took her to Urban Nest and had sex with her. At that time
she was 12 years old (birth certificate was marked as EX- 2). In cross examination
also she denied saying to the accused she was 19 years old at that time. She also
identified the accused.

[11] I believe PW1's testimony is sufficient to satisfy all the elements in this
offence at this stage. Even though there are some discrepancies in her evidence I
do not think her evidence is unreliable to act under this application.

[12] Based on the above reasons I find that there is a case against the accused and
therefore dismiss this application.

05th November 2013

H. S. P. Somaratne
Resident Magistrate

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