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State v Chandra [2008] FJHC 123; HAC023.2006 (19 June 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 023 OF 2006

THE STATE

v.

MICHAEL ASHLEY CHANDRA

Counsel: Mr. S. Qica for the State
Mr. S. Kumar for the Accused

Hearing: 10th – 19th June 2008
Summing Up: 19th June 2008

SUMMING UP

Madam Assessors, it is now my duty to sum up this case to you. In doing so, I will direct you on matters of law which you must accept and act upon. On matters of fact however, which evidence you consider reliable and which you do not, these are matters entirely for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact.

Counsel for the prosecution and the defence have expressed opinions to you about how you should find the facts of this case. They have done so because they are doing their duty as counsel. However, you need not accept anything they say. If what they have said appeals to your own judgment then of course you can accept their submissions or part of them.

If you have learned about this case outside this court room, you should disregard what you have heard. You must make your decisions on the basis only of what you have heard in this court room.

On the question of proof I direct you as a matter of law that the burden of proving the Accused’s guilt rests on the prosecution and never shifts. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find the Accused guilty as charged you must be satisfied beyond reasonable doubt of his guilt. If you have any reasonable doubt about his guilt you must find him not guilty.

The Accused is charged with dealing in illicit drugs contrary to section 5(b) of the Illicit Drugs Control Act. The State alleges that between the 7th and 8th of April 2005, at Nasinu in the Central Division he, without lawful authority, engaged in a dealing with another person for the sale of an illicit drug namely cannabis or Indian hemp weighing 2,322.9 grams.

The offence charged has several elements which the prosecution must satisfy you of beyond reasonable doubt. They are:

1. The Accused
2. Without lawful authority
3. Engaged in a dealing for sale with another
4. An illicit drug
   

There are a number of agreed facts in this case which both counsels have agreed to are not in dispute and what you can accept as if those facts had been led in evidence for the witness box. Those agreed facts are that Michael Chandra the Accused has a sister called Sarun Lata, who is married to a special constable Vijendra Prasad.

On the 7th of April 2005 between 7.00pm and 8.00pm the Accused was at the residence of his sister and brother-in-law. The next day at about 2.00am, the police were given information that there was marijuana or cannabis at the house of PSO Vijendra. A search was conducted and a black suitcase was found in the bedroom containing Indian hemp. The drugs were given to Ms Miliakere Naiwaikula the Government Analyst who said that she tested them and found the parcel to contain 2,322.7 grams of cannabis saliva.

These facts are not disputed. It is therefore not in dispute that the drugs found in Vijendra Prasad’s house was an illicit drug, so you can accept that element of the offence.

What is in dispute is that the drugs were connected with the Accused, that the Accused was dealing in the drugs for the purpose of sale and that the Accused was doing so without lawful authority.

If you accept that the Accused was indeed dealing in drugs then you can accept that he had no lawful authority for doing so. He was, for instance, not a qualified medical practitioner or a government analyst and he had no legal excuse for dealing in drugs.

So the real question for you to determine is whether it was the Accused who put the drugs in the suitcase Ex-1, and whether he was engaged in drug-dealing for sale.

The Evidence

The prosecution led evidence that on the 7th of April the Accused and his de-facto wife Ragini Lata visited the house of Vijendra and Sarun Prasad in Bau Road at about 7.00pm. The Accused and his wife had a disagreement, and Ragini Lata left the house. She went home in a taxi. The accused left later after visiting his sick father.

At 2.00am Constable Vijendra was questioned by Sgt. Pita who had received a call from "Soni" the Accused’s wife that there were drugs in Constable Vijendra’s house in a suitcase. She gave him the combination of the lock "007". The police then conducted a search of the house. The suitcase Ex-1 was in the bedroom occupied by the Accused’s sick father. Sgt. Pita opened it using the 007 combination and discovered the packets Ex-2.

The search party returned to the Nausori Police Station. Constables Vijendra, Krishna and Isoa were instructed at about 6.00am to find and arrest the Accused.

The officers came across the Accused on the King’s Highway at Koronivia driving his taxi with his wife as a passenger. They stopped his car, arrested him and brought him back to the Nausori Police Station. PSO Vijendra drove the Accused’s taxi back to the station, with the Accused’s wife in it.

The Accused was interviewed by Constable Pradip Lal between 7.18 and 8.30am on the same day. The defence disputes the contents of the statement saying that the Accused was forced to confess after repeated assaults at the time of the arrest and before the interview, and threats to detain him, his family and his father if he did not confess. The defence says that you can put no weight on the interview.

The prosecution however says that the interview was not obtained under pressure and that the Accused told the police the truth in it. What weight you put on the Accused’s statement to the police is entirely a matter for you. However if you accept that the contents of the interview are reliable you may think that they contain a complete confession to all the elements of the offence.

In the statement the Accused told the police that he was a taxi driver and that on the 7th of April 2005, he was given 8 parcels of dried leaves which he believed to be marijuana or cannabis saliva by a man called Isoa. They met outside Hanson’s Supermarket and after Isoa gave him the parcels he dropped him at the Suva Bus Stand. He paid Isoa $20 with an agreement that he would sell the leaves and pay Isoa $800 cash. He then bought some food, and one hour later went to the house of Ragni Lata. The drugs were in the back seat of the taxi. He then drove to the house of his brother-in-law Vijendra Prasad, with his wife in the taxi. When he arrived he took out the drugs in a garbage bag, went into the bedroom of the house, opened a suitcase and locked the drugs inside. He said that he knew that it was an offence to be in possession of marijuana.

The Accused was charged with the offence and he refused to sign and made no statement.

The evidence of the Government Analyst was that she was given the drugs by the police that she tested it and found all parcels to contain cannabis and that the total weight was 2,322.7 grams.

The suitcase, drugs and caution interview have all been exhibited. The police witnesses identified the suitcase as the same one in which the drugs were found and for which the combination was "007". The wife of Vijendra Prasad, Sarun Lata, disagreed with them and said that the Accused’s suitcase was slightly smaller than Ex-1.

At the close of the prosecution case, you heard me give several options to the Accused. He could have given sworn evidence, an unsworn statement or remained silent and he had these options because he does not have to prove anything. The burden of proving his guilt remains on the prosecution at all times. He chose to give sworn evidence and to subject himself to cross-examination. You must give his evidence careful consideration.

His evidence was that he knows nothing about the drugs found at Constable Vijendra’s house and that he was not dealing in drugs. He said that when he was arrested at Koronivia on the 8th of April he was assaulted by Constable Isoa by a slap on his head, and punches on the way to the police vehicle. He also alleged repeated punches on his arrival at Nausori Police Station and being made to stand and sit in the Crime Office holding his ears. He also alleged a kick by constable Pradip on his private parts, together with threats to detain his family. He eventually confessed under the pressure of this treatment. He also called Ragini Lata to give evidence. She denied going to the house of Vijendra Prasad at all on the 7th of April denied being the person who told the police about the drugs although she admitted she was also known as "Soni" and denied trying to keep her husband escape the consequences of this case. She said she saw the Accused being assaulted by police at the time of arrest and on arrival at the station.

Also giving evidence was a neighbour at Narere who said that the police did not enter the Accused’s house on the 8th of April. This evidence was led to contradict Constable Pradip’s evidence that after the interview he had searched the Accused’s house and found nothing there of any relevance.

That was the case for the defence.

Summary

In summary, the prosecution asks you to rely on the evidence of the presence of drugs in the suitcase at the house of Vijendra Prasad, and of the Accused’s statement to the police to find that the Accused was dealing in illicit durgs for the purpose of sale. The prosecution says that the Accused was not assaulted or intimidated that he never complained about such ill-treatment to a doctor or the magistrate until this trial commenced and that the contents of the interview are reliable. The prosecution invites you to convict the Accused.

The defence says that the interview cannot be given any weight because it was obtained by police pressure and assault and that there is reasonable doubt about the ownership of the suitcase and the drugs. The defence invites you to find the Accused not guilty, and says that the police evidence is unreliable and full of inconsistencies.

Which version of the evidence you choose to accept is a matter for you. You have heard all the evidence and as representatives of our community it is you who must decide which witnesses are reliable and which are not.

If you are satisfied beyond reasonable doubt that the Accused put those drugs into the black suitcase Ex-1 and the Accused who bought them from Isoa with an intention to sell them and give Isoa $800 for them, you must find the Accused guilty. If you have any reasonable doubt about who placed the drugs in the suitcase, and about the deal with Isoa then you must find the Accused not guilty.

I will now ask you to retire.

Nazhat Shameem
JUDGE

At Suva
19th June 2008