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State v Bravo [2008] FJHC 171; HAC145.2007L (12 August 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No. HAC 145 of 2007L

STATE

v

GRACEILA GULLERMINA FERIA BRAVO

Hearing: 11th & 12th August 2008
Summing Up: 12th August 2008

Counsel: Ms. V. Lidise for the State
Mr. I. Khan for the Accused

SUMMING UP

Madam Assessors and Gentleman Assessor

[1] It is now my duty to sum up to you. In doing so, I will direct you on matters of law which you must accept and act upon. You must accept whatever I say on the law. On the facts of this case however, which evidence to accept and which evidence you think is reliable, these are matters for you to decide for yourselves. In other words, you are the masters of fact. If I express any opinion on the facts, or if I appear to do so, you may disregard my opinion and form your own.

[2] In the course of this hearing, the counsel for the defence and the counsel for the prosecution have made strong submissions as a matter of right to you about the facts of this case. But it is a matter for you to decide which version of the facts to accept, or reject.

[3] You will not be asked to give reasons for your opinions, and your opinions need not be unanimous although it would be desirable if you could agree on them. You opinions are not binding on me, but they will carry great weight with me when I deliver my judgment.

[4] On the question of proof, I must direct you as a matter of law that the onus or burden of proof lies on the prosecution to prove the case against the accused. This burden remains throughout the trial upon the prosecution and never shifts. There is no obligation on the accused to prove her innocence. Under our system of criminal justice an accused person is presumed to be innocent until he or she is proved guilty.

[5] The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused before you express an opinion that she is guilty. If you have any reasonable doubt as to whether the accused committed the offences charged, then it is your duty to express opinions that she is not guilty. It is only if you are satisfied so that you feel sure of her guilt that you must express opinions that she is guilty.

[6] Your decisions must be based only on the evidence which you have heard in this court and upon nothing else. Your duty is to apply the law to the facts adduced in evidence in the course of this trial.

[7] In this case the prosecution and the defence have agreed to certain facts. The agreed facts are part of evidence. You should accept those facts as accurate and the truth. They are of course an important part of the case. The agreement of these facts has avoided the calling of a number of witnesses and thereby saved a lot of Court time.

[8] The accused is charged with two counts. You must consider each count separately and render separate opinions in respect of each. The guilt or otherwise on one count does not automatically mean the guilt or otherwise on the other count.

[9] Count one alleges that the accused "on the 11th day of September, 2007 at Nadi in the Western Division, without lawful authority imported 2.1kg of cocaine, an illicit drug.

[10] In order to move the offence of "unlawful importation of illicit drug", the prosecution must lead evidence which satisfies you beyond reasonable doubt certain elements. The elements are:

1. The accused imported,
2. An illicit drug,
3. Without lawful authority
   

[11] The 2nd & 3rd elements are not in dispute. You will see from the agreed facts that the substance seized were tested in Australia by an expert analyst and they were found to be cocaine. As a matter of law I direct you that cocaine is an illicit drug. There is no suggestion by the accused that she had imported the drugs with lawful authority. Lawful authority in the context of count one means importing an illicit drug by virtue of a lawful occupation or profession such a doctor or analyst. You may accept the accused had no lawful authority either by virtue of her profession or by law to import an illicit drug.

[12] What is disputed is the first element. To import means "to bring or caused to be brought in to the Fiji Islands from overseas." The first element connotes that the accused had brought in to Fiji from overseas an illicit drug with knowledge or belief that it was an illicit drug. Knowledge is not always capable of direct proof, but it may be inferred from all the surrounding circumstances.

[13] In this case the prosecution is asking you to infer the knowledge from the circumstances the drug was initially obtained by the accused in Argentina and brought to Fiji strapped to the accused body without declaring at the Customs at the Nadi Airport on 11 September 2007. I will come back to this issue later in my summing up.

[14] The second count alleges that the accused "on the 13th day of September 2007 at Nadi in the Western Division without lawful authority possessed 2.1 kg cocaine, an illicit drug".

[15] In order to prove the offence of "Found in possession of Illicit Drug", the prosecution must lead evidence which satisfies you beyond reasonable doubt the following elements:

1. That the Accused was in possession;
2. Of an illicit drug;
3. Without lawful authority
   

[16] The first element is in dispute. Possession is proven if the accused intentionally had the substance in her physical custody or control to the exclusion of others, except anyone who was acting in concert with her in the alleged offence.

[17] The prosecution must also prove beyond reasonable doubt that in intentionally having such custody or control, the accused did so with the knowledge or belief that the substance was an illicit drug – not necessarily the illicit drug charged here, but a drug the possession of which is prohibited.

[18] The second and the third elements are not in dispute. As I said earlier the substance seized from the accused is cocaine, an illicit drug and there is no suggestion that the accused had the drug in her possession with a lawful authority.

[19] The issue is whether the accused intentionally had custody or control of the cocaine and she did so with the knowledge or belief that she had cocaine with her.

[20] Finally it has been suggested that why one Tom and Fernando were not called to give evidence especially when the statement of Elick McComber reveals that Fernando did exists in Fiji.

[21] Madam and Gentleman Assessors you are not here as investigators or detectives. Your role is not to speculate what Tom or Fernando would have said in Court. Your duty is simply to assess the whole of evidence before you and on that evidence gaps (if you find any), ask yourselves this question - are you satisfied beyond a reasonable doubt of the guilt of the accused before you or does it leave you with a reasonable doubt?

The Prosecution Case

[20] The entire prosecution case is based on agreed facts. I will highlight some of these facts which I think are important.

[21] The accused is a Mexican national. On 11 September 2007, she arrived in Fiji from Argentina via a flight from Auckland, New Zealand. She checked into West Motor Inn at Nadi. She was arrested on 13 September 2007 and taken to the Nadi Police Station. At the station two women police officers stripped searched her and found nothing on her. On the same day, officer Davendra Vijay searched the accused’s handbag (Exhibit 2) and found the substance Exhibit 1 inside the bag. A pair of rubber shorts (Exhibit 3) and two women’s tights (Exhibit 4) were also found inside the handbag. Exhibit 1 was tested and found to be cocaine. The substance was further tested in Australia and confirmed to be cocaine. On 16 September 2007 the accused was caution interviewed by officer Amol Prasad. She was charged on 17 September 2007 by officer Caqusau.

[22] The accused made statements in her caution interview and charge. The statements are evidence against and for the accused.

[23] In her caution interview the accused said:

"Q.68 On 13th of September 2007 in the morning at about 09.00 a.m. who came to visit you at your room 202 of West Motor Inn Hotel?

A.69 A white man who introduced himself as Fernando and is not the one who is currently present in the Nadi Police Station

Q.70 Did you expect that man to meet you at the hotel?

A. Yes

Q.71 What was the name of that man whom you expected to meet?

A. I was given his name as Fernando H. or Peter

Q.72 Who told you that someone will meet you at the hotel?

A. Martin

Q.73 Where did you meet Martin?

A. In Argentina

Q.74 How did you meet Martin?

A. Through Internet during Chat while I was in Mexico and I mentioned to Martin that I’ll be traveling to Argentina and to Fiji. In Argentina I met Martin.

Q.75 When you were in contact with Martin through Chat?

A. About three months ago

Q.76 Where did you meet Martin in Argentina?

A. In Buenos Aires at the Obelix (Monument) in a Street called 09th of July.

Q.77 What transaction took place between you and Martin?

A. When we met, Martin asked me to bring this Medicine to Fiji and it was not dangerous. I was lead to believe it was not dangerous and not to declare it but to hide it because of the quantity.

Q.78 Can you describe the Medicine?

A. I only saw the little squares stitched together.

Q.79 How was the Medicine given to you?

A. In a plastic bag on the open Street.

Q.80 How much money did you receive from Martin to bring the Medicine to Fiji?

A. Martin did not pay any money

Q.81 Did you visit the home or got details of Martin?

A. I only met him at that place and did not go to his house and do not have any details of his residence.

Q.82 How were you able to bring the Medicine to Fiji without declaring?

A. Martin told me not to declare.

Q.83 Where was the Medicine kept?

A. I carried it on my self by wearing it inside the tights.

Q.84 How did you carry it on your self?

A. Martin gave me a rubber shorts coloured light brown and told me to put the Medicine inside and wear it.

Q.85 When did you wear the Medicine inside the rubber shorts to have the Medicine transported to Fiji?

A. I wore the Medicine inside the rubber shorts on 09th of September 2007 in the hotel room in Argentina and went to the Airport to board my flight to Fiji.

Q.86 How long did you wear the Medicine inside the rubber shorts?

A. Until I arrive in Fiji at the West Motor Inn.

Q.87 What information Martin gave to you so that you gave the Medicine to the right person?

A. I gave Martin the name and phone number of the hotel in Fiji where I will stay and Martin will tell Fernando who will check for me.

Q.88 Were you checked by Customs or any other Authority at the Airport up to Fiji?

A. No, I went through all the scanning machines without any fear and nobody asked or questioned me at any of the Airport.

Q.89 What you did with the Medicine at West Motor Inn upon arrival?

A. I left it just in the room. I did not hide it.

Q.90 Look at this black hand bag. Where did you get this hand bag from?

A. It is my bag and I brought it from Mexico.

Q.91 When that white man who identified himself as Fernando at your hotel room, what you did?

A. I was called by that man from the reception who identified himself as Fernando and that Martin sent him to pick the package. I told him to wait at the reception but he told me that he’ll come to room and then someone from the reception directed him to the room.

Q.92 What language did he speak to you?

A. He spoke in bad Spanish. Bit in English, bit in Spanish

Q.93 Where did you give the Medicine?

A. He asked me to use the toilet and I allowed him in. When he cameout of the toilet, I picked the Medicine in the room and gave it to him. He took it in his hand. The Medicine was stitched up. I told him that I was going to Town. He told me that he has a taxi outside and to go with him. I picked up my bag and he told me to put the package in my bag and give it back in town. I put the package in At the reception the man spoke to the reception in Fijian language. After that we boarded the taxi and came to town."

[24] Later in the interview the accused said:

"Q.117 We have information that you are connected to the importation of Illicit drugs to Fiji that has been seized by Police found in your possession and the drugs was supposed to be picked up from West Motor Inn Hotel by Fernando on the 13th September 2007. Is this the drugs that seized by Police from your possession at the Police Station on the 13th of September 2007?

1. This is the package that was given to me and I brought to Fiji from Argentina but I did not know that it was illicit drugs. I thought it was Medicine as I was told by Martin."
   

[25] In her charge statement the accused said:

"I collaborated with the police because I’m innocent. I came in this country for vacation and it was never my intention to offend this country".

[26] Madam and Gentleman Assessors what weight you give to the accused’s police statements is a matter entirely for you.

[27] That is the prosecution case.

The Defence Case

[28] At the end of the prosecution case you heard me explain to the accused certain options. She could have remained silent; she could have made unsworn statements, or she could have given sworn evidence from the witness box. An accused has these options because an accused person does not have to prove anything. The burden of proving her guilt rests on the prosecution and never shifts.

[29] The accused chose to give unsworn statement from the dock. That is something which she is perfectly entitled to do, and is not in anyway to be taken against her. But an unsworn statement cannot have the same value as sworn evidence, tested by cross-examination. You must therefore give it such weight as you think fit bearing in mind it has not been tested.

[30] The unsworn evidence of the accused is consistent with her police statements. The accused said she honestly believed as informed by one Martin that she should carry medicine to Fiji and give them to one Fernando in Fiji who was very sick with bone cancer so she sympathized and wanted to help him as she was also suffering from breast cancer. Martin told her that the medicine was not dangerous. The accused said she was led to believe that it was not necessary to declare it but to hide it because of its quantity. The accused said that she had no knowledge she had cocaine in her possession. If she had known, she would not have got involved. The accused said she honestly believed that she was bringing medicine and not an illicit drug to Fiji.

[31] Madam and Gentleman Assessors the accused raises the defence of honest and reasonable mistake of fact. A mistake of fact occurs when a person is mistaken to what actually are facts. In this case, the accused is saying that she believed that she was carrying medicine. A person is not criminally responsible for an act done under an honest and reasonable mistake of fact.

[32] The onus of proof is on the prosecution to satisfy you beyond reasonable doubt that the accused had not acted under an honest and reasonable mistake of fact.

[33] The accused also says that she is also a person of good character and would not have taken risk if she had known that the substance she was carrying was cocaine.

[34] Madam and Gentleman Assessors a good character of the accused is relevant primarily to her credibility i.e. as to whether to believe her evidence. But you may also take into account as part of the evidence as a whole as being relevant to the question whether it is likely that a person with such a character would have committed the offence.

[35] That is the defence case.

Analysis

[36] From the accused’s own statements you may find the accused brought in Fiji from overseas a substance and was in control of that substance until she was arrested on 13 September 2007. The real issue is whether the accused knew she had brought in Fiji an illicit drug and whether she knew she was in possession of an illicit drug.

[37] The prosecution says the evidence of the accused traveling from her country of residence Mexico to Argentina on vacation, the obtaining of the substance on a street of Argentina from a person she had come to know from internet chat, the bringing of the substance strapped to her body without notice to the authorities at the Nadi Airport, are circumstances from which an inference could be made that the accused was knowingly carrying and was knowingly in possession of an illicit drug. On these facts the prosecution further says that no reasonable person could entertain an honest belief that she was bringing medicine and not an illicit drug to Fiji.

[38] Madam and Gentleman Assessors you may find the accused guilty if you are sure that the facts proved are not only consistent with the guilt of the accused but are also such as to be inconsistent with any other reasonable conclusion.

[39] The defence says the accused might be a businesswoman but she is a naïve person who could be easily manipulated by others in trusting them. The defence says the accused had no knowledge that she carried or had in her possession cocaine. The defence says the accused honestly believed given her trustworthy personality what one Martin had told her in Argentina that the substance that she was going to carry was medicine for one Fernando in Fiji who was suffering from cancer. The defence says you should believe the accused and find her not guilty.

Conclusion

[40] What version of the facts you accept is a matter for you. What weight you put on the accused’s statements is a matter for you. The accused do not carry any burden of proof. You may find the accused guilty of the charges if you are satisfied of her guilt beyond reasonable doubt. If you have any reasonable doubt about her guilt you must find her not guilty. Remember to consider the two counts separately. Your opinion is either guilty, or not guilty on each count.

[41] That concludes my summing up of the law and the evidence in this particular trial.

[42] We have now reached the stage where you must retire to your room to deliberate together and form your individual opinions on the charges. Take as much time as you wish.

[43] On your return you will each be asked separately to state in Court your opinion as to whether the accused is guilty or not guilty of the charges.

[44] Would you please now retire to consider your opinions? When you have made your decisions would you please advise the Court Clerk and the Court will reconvene to receive your opinions.

Daniel Goundar
Judge

At Lautoka
12th August 2008.