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State v Naturu [2010] FJHC 240; HAC004.2010 (9 July 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 004 OF 2010

STATE

V

WAISALE NATURU
RONALD RITESH CHAND

Mr. T. Qalinauci for the State
Both accused in person

SUMMING UP

[1] Ladies and Gentleman assessors; we have now come to the stage in the trial where it is my duty to sum up the evidence to you; and to direct you on the law. You will then be required to deliberate together and each of you must give a separate opinion whether the accused is guilty or not guilty of the charge.

[2] Our functions have been and remain quite different throughout this trial. The law has been my area of responsibility and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.

[3] The facts of this case are your responsibility. You will wish to take into account the arguments in the speeches you have heard but you are not bound to accept them. Equally, if in the course of my review of the evidence I appear to express any views concerning facts, or emphasise a particular aspect of the evidence, do not adopt those views unless you agree with them and if I do not mention something which you think is important you should have regard to it and give it such weight as you think fit. When it comes to the facts of this case it is your judgment alone that counts.

[4] In arriving at your conclusions you must consider only the evidence you heard in this case. You must disregard anything you heard from friends, relatives or through any media outlet about this case. You must ignore any suggestions or advice made to you by anyone, no matter how well meaning it may be.

[5] You must decide this case only on the evidence which has been placed before you that includes witnesses and exhibits which have been produced. There will be no more evidence. You are entitled to draw an inference that is to come to common sense conclusions based on the evidence which you accept, but you must not speculate about what evidence there may have been or allow yourselves to be drawn into speculation.

[6] In assessing the evidence, you are at liberty to accept the whole of a witness evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross examination? You are to ask yourselves was the witness honest and reliable?

[7] As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding upon any proposition put to you and in evaluating the evidence in this trial. You are to ask yourselves whether it accords with common sense or is it contrary to common sense and experience.

[8] I ask you to please put aside any feelings of prejudice you may have against certain people and to put aside any sympathy you might feel for anyone connected with the trial. This court room has no place for sympathy or prejudices – you must arrive at your opinions calmly and dispassionately. In this regard if you have strong feelings about the abuse of illicit drugs or the culture surrounding drugs, you must put that from your mind. You must only be concerned with the evidence that has been put before you and nothing else.

You must assess the evidence against each accused separately. Just because you might think that one of the accused is guilty does not mean that the other is necessarily so.

[9] I must also direct you that anything one accused says in his cautioned interview about the other accused is not evidence against that accused. Interviews can only be evidence against the person who is being interviewed and against nobody else. I will remind you of this direction when I come on to discuss the evidence.

Onus and Burden of Proof

[10] In this case, as in every case in Fiji, the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant’s guilt is on the prosecution.

[11] How does the prosecution succeed in proving the defendant’s guilt? The answer is – by making you sure of it. Nothing less will do. If after considering all the evidence you are sure that the defendant is guilty you must return a verdict of "Guilty". If you are not sure, your verdict must be "Not Guilty.

[12] The two accused in this case are charged with cultivating Indian hemp. You can take it from me that Indian hemp is another term for marijuana, an illicit drug. For you to find each of the accused guilty of this offence you have to find, proved to you beyond reasonable doubt that –

(i) the accused,

(ii) took some part in the cultivating or growing of the plants that were seized by the Police on the 7th July, 2004.

[13] You will bear in mind that to prove the charge the State does not have to prove that each of the accused grew the plants from seeds to maturity, just that he did play some part in the process of cultivation.

[14] The evidence has been very brief and I will not go over it in much detail. You hard that a party of police officers went to Namoli Village on the 7th July 2004 in response to information received about marijuana plantations in the area. They took the Turaga ni Koro and Jope with them and found at a distance three plots of land growing marijuana. Jope told us that he saw "Tete" or the second accused running away from the farm when they arrived there. They found more than 2000 marijuana plants which they uprooted and took to the Sigatoka Police Station.

[15] Both of the accused were interviewed under caution in connection with the allegation of involvement in the offence. They gave answers voluntarily to the questions asked and you must assess these answers in the normal way that you assess any other evidence and give them the weight you think fit. If you think that they did in fact give these answers which are a direct confession to the charge, then you may accept those answers in coming to your opinion on the evidence in total. However I just remind you here that each of the accused has said incriminating words about the other accused and you are not permitted to place any weight at all on those parts of their statements.

[16] Both of the accused chose not to give evidence in the trial. That is their right. Each of them is entitled to remain silent and to require the Prosecution to make you sure of his guilt. You must not assume that he is guilty because he has not given evidence.

[17] So there it is Ladies and Gentleman. It has been a very short trial and it is for you now to retire and consider whether the State have made you sure that these two were cultivating marijuana. If you are sure you will find them guilty; if you are not sure then you will find them not guilty. You may now retire and let my Clerk know when you are ready with your opinions .

P.K. Madigan
Judge

At Lautoka
9 July 2010