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State v Deo [2011] FJHC 440; HAC002.2010 (9 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 002 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

SACHIN DEO
ACCUSED PERSON

Counsel: Mr Savou. L for State
Accused Person in Person

Date of Hearing: 5.8.2011 and 8.8.2011
Date of Summing Up: 9.8.2011

SUMMING UP

1. Gentlemen Assessors,
   

It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters 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. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

2. You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.
   
3. You will not be asked to give reasons for your opinions but merely your opinion themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that 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 on burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty.
   
5. The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused's guilt before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt then you must express an opinion that he is not guilty.
   
6. Your decision must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you might have heard about this case, outside of this courtroom.
   
7. Your duty is to find the facts based on the evidence apply the Law to those facts.
   
8. The accused in this case is charged with two counts. Firstly, that he had in his possession without lawful authority, 1162.7 grams of cannabis sativa an illicit drug. Secondly, that he cultivated 483.6 grams of cannabis, an illicit drug.
   
9. The offence charged in the first count has several elements which the prosecution must satisfy you of beyond reasonable doubt.
   

They are that the accused:

(1) possessed.

(2) without lawful authority.

(3) an illicit drug.

10. It is not in dispute that the accused had no lawful authority for the possession of drugs and that cannabis is an illicit drug.
    
11. The issue for you to decide is in whose possession was it? Was it the accused's drugs? The word 'possession' simply means having something in one's custody and control with knowledge of such custody and control. So the question for you to decide is whether these drugs were in the accused's custody and control or not.
    
12. The offence charged in the second count has several elements that the prosecution must prove beyond reasonable doubt.
    

They are that the accused:

(1) cultivated,

(2) Without lawful authority,

(3) An illicit drug.

13. It is not in dispute that the accused did not have the lawful authority to cultivate cannabis and you may consider that cannabis is an illicit drug. In proving the first element the prosecution has to prove that the accused took some part in cultivating and growing the plants that were seized by the police on 30th December 2009.
    
14. The accused is charged with two separate counts on the information. You must consider the evidence on each count separately and must not assume that if the accused is guilty on one count, that he must be guilty on the other as well.
    

The Evidence

15. Prosecution called 6 witnesses to give evidence. 1st witness was DC 3109 Sailasa Bolatagici.
    
16. On 30/12/2009 he had gone to the accused house at Lot 32 Mana Place, Nadawa. He had showed the accused the search warrant and explained to accused that they have received reliable information that the accused was selling drugs without lawful authority. Accused's mother also had been there. He had searched the house with Constable Jona. Dectecive Jona had found the drugs believed to be Marjuana under the accused's mother's bed. Witness had found a maroon bag containing money inside a blue bucket under the accused's mother's bed. They had also searched the accused's brother's room and found nothing he said.
    
17. They have then called ASP Mala who came and counted the money in front of Sachin. There had been 46,000 Fiji dollars. He said that the accused communicated in English. Accused had told them that the drugs were his and the cash he got from selling drugs. Accused in cross examination put to the witness, that the drugs found in his house were not his, but he took the blame. Witness denied and said that the accused told them that the drugs and the money was his.
    
18. The next witness was Detective Constable 3618 Jona who participated in the raid. According to his evidence, he had gone to the accused house with 3 officers. Detective Simione and Detective Sailasa had executed the search warrant and the witness with Detective Josaia had covered the back yard. There had been hibiscus hedges and he had identified 6 plants believed to be Marjuana plants. He said that he called Sachin, informed him that they found the plants and uprooted them. Then they had entered the house from the backdoor. Sachin's mother had accompanied them to the sitting room where the other police officers were seated. They had searched the rooms and the 3rd room they searched he had seen a brown carton inside of which there had been one black plastic and one maroon labeled as S. Nagindas plastic. Then accused was asked to identify what was in the plastic bags. He said that there were 16 parcels in the black plastic and 2 parcels in the maroon plastic. Altogether 18 parcels he said. Search list was prepared and Sachin Deo was taken to CID, he said.
    
19. He said that there are certain drugs which are lawful and Marjuana is not allowed. He said that he was the witnessing officer when the accused was caution interviewed. He said that the accused was given his constitutional rights and that the accused made the statement freely.
    

The caution interview statement was produced and exhibited.

20. Apart from the above duties he had taken the drugs to Koronivia on 31/12/2009 and had handed over the drugs to Madam Mili. He identified 4 parcels. 2 parcels contained 3 green plants each and 3rd and 4th parcels contained dried leaves.
    

He said 3rd parcel contained 16 parcels of dried leaves and that the 4th parcel contained 2 parcels of dried leaves.

21. However in cross examination it was found that the 3rd parcel contained 15 parcels and 4th parcel contained 3 parcels. He explained stating that when he took the drugs to Koronivia the 4th parcel only contained 2 parcels and the remaining parcel which is wrapped in Fiji Times was in the 3rd parcel with the other 15 parcels wrapped in Fiji Times.
    
22. Accused suggested that police wanted to frame him and the witness denied. Accused further suggested that the drugs taken from his house were different from the drugs exhibited and the witness denied saying that all these drugs were found at Accused's house.
    
23. The next witness was SP. Rajeshni Mala.
    

Her evidence was, that she went to Accused's house on receiving a phone call from Constable Sailasa saying that lot of money and dried leaves found. She had gone there and counted the money in front of Accused. There had been 46,000 dollars. Then they had come outside the house and had noted some plants planted in the compound believed to be Marijuana. She further said that she showed the accused the plants in the compound. She said that the dried leaves were found by the officers before she came. She confirmed the plants were uprooted in front of her.

24. The next witness was Sgt. 2344 Aiyaz Ali who was the Charging officer. On 31/12/2009 he had conducted the charge in English and Accused had chosen to be charged in English. He had given all the rights to the accused and his evidence was not challenged by the accused.
    
25. The next witness was the Government Analyst Miliakere Ratawake. She has a bachelor of Applied Science and Masters of Applied Science. Also she holds a certificate in the Botanical Identification of Cannabis sativa from the Science and Institute of Research of Auckland, New Zealand. She is the Director Research at Koronivia Research Station.
    
26. She said her work at Koronivia Research Institute includes the analyzing of Drugs including the illicit drugs. Her qualifications and experience was not challenged and you may consider her expert opinion on the analysis on the drugs is admissible in evidence.
    
27. On 31/12/2009 she said she received 25 samples from the police. It included 6 plants and rest were dried leaves. That is 19 parcels of dried leaves.
    
28. She said the plants were in 2 parcels and that there were another 2 parcels of dried leaves. The two parcels where plants were wrapped, there had been one parcel with one plant and 5 plants in the other.
    
29. For leaves there were 4 parcels in 1 pack and 15 parcels in the other, she said. She submitted the 3 documents. They were the advice letter to analyst and the certificate of analysis, her statement, and the table of results.
    
30. The advice letter to analysts was filled by the police and the certificate, statement and the table of results were done by the witness.
    
31. On her analysis total weight of the plants had been 483.6 grams and total weight of the dried leaves had been 1522.3 grams. Therefore total weight of plants and leaves had been 2005.9 grams. She confirmed to Court that although the advise letter to analyst filled by the Police mentioned 18 parcels of dried leaves, that in fact she received 19 parcels of dried leaves. She has mentioned that in her statement marked as exhibit P4. She confirmed that the plants and the dried leaves are Indian Hemp Plants and leaves, botanically known as Cannabis Sativa.
    
32. The next witness was Detective Sergeant 2419 Simione Ravouvou who was the interviewing officer of the accused and the investigating officer of this case.
    

He has recorded the caution interview statement of the accused on 30/12/2009. He said that the accused made no complaints. He has not threatened, assaulted or made any inducement on accused. The caution interview statement was read in court before you. In that the accused has admitted that he planted the six marijuana plants which were uprooted by the Police. He has identified 3 plastics containing wrapped dried leaves as marijuana which he bought for 800 dollars. He had said that those were taken by the police from under his bed. However when he was questioned as to the police finding the same under the mother's bed, he admitted and said that he hid it there for safety. ( Q.83 to 90) Further he has identified 15 parcels in a black plastic stating it contained marijuana. (Vide Q. 92 and 93). He also has identified one parcel contained in a white plastic as it contained marijuana. (Vide Q. 94 and 95). Further he has identified two parcels contained in a maroon S. Nagindas plastic stating it contained Marijuana. (Vide Q. 96 and 97).

33. As Investigation officer, he had taken the exhibits from CID headquarters to exhibit room at Totogo Police Station after receiving exhibits from Constable Jona. Constable Jona had brought the exhibits from Koronivia on the 31st December 2009 he said. He identified the 4 parcels and produced them in evidence.
    
34. In cross examination he denied threatening to assault the accused and denied forcing him to make the statement. Further he denied asking accused in court premises to plead guilty to the charges. However he admitted that he spoke to the accused in court premises.
    
35. At the close of prosecution case, you heard me explain several options to the accused. He has these options because he does not have to prove anything. The accused opted to remain silent. That is his right to do so. You must not draw any adverse inference from his choice to remain silent.
    
36. Gentlemen Assessors, you heard the evidence of many witnesses on behalf of the prosecution. If I did not mention a particular piece of evidence, it does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.
    
37. You have heard the evidence led by the prosecution. You must decide which witnesses are reliable and which are not. The consistency in the evidence of the witnesses is an important criterion that has to be used in evaluating the credibility of the witnesses.
    
38. Witnesses Police constable Jona and SP Rajeshni Mala both testified to the fact that the 6 plants believed to be Marijuana were uprooted from the garden of the accused house. Constable Jona said that he first went to the back yard, found the plants, called the accused, uprooted the plants, and then went inside the house from the back door. Thereafter they have conducted the search where they found the dried leaves and the money and that they called the ASP Mala. However ASP Mala's evidence on the matter of detecting the plants was contradictory to the evidence of PC Jona. ASP Mala said that she came on a phone call from Sailasa that they have found lot of money and dried leaves in a house, they counted the money in the sitting room and that once they came outside they noted the plants. She further said that the plants were uprooted in front of her.
    
39. PC Jona in his evidence said that he handed over 6 green plants in two parcels and 18 parcels of dried leaves to the Government Analyst. The same amount is mentioned in the Advise Letter to analyst marked P3. However the Government analyst confirmed that although the advise letter says 18 parcels, she received 19 parcels of dried leaves. Accused took up the position in cross examination that the drugs exhibited were not the drugs sent to the government analyst. In the particulars of the offence in count No. 1 in the information the weight of drugs mentioned is 1162.7 grams. However in the Government analyst report the weight of the dried leaves mentioned is 1522.3 grams. Total weight of the plants and leaves in the Government analyst report is 2005.9 grams and it is about 359.6 grams more than the total weight of the drugs mentioned in the counts 1 and 2 in the information. In the document P5 the Analysis of Cannabis table, the total weight of the dried leaves is 1162.7 grams. However when you add the totals given in items 7 to 25 on dried leaves the total comes to 1522.3 grams as mentioned in the Certificate of Analysis. The witnesses PC Jona, D/Sgt Simione and the Government Analyst however identified their signatures on the wrappings of the parcels identifying the same.
    
40. DC Sailasa said in evidence that PC Jona found the drugs and he found a maroon bag containing cash inside a blue bucket. However PC Jona said that underneath the bed he saw a brown carton which inside there was one black plastic and one maroon labeled S. Nagindas plastic.
    
41. In light of the above contradictions it is for you to consider which witnesses are credible and reliable.
    
42. Prosecution witnesses Police officers DC Sailasa and PC Jona testified that the dried leaves and the money were found under the bed of the accused's mother. Accused's mother had been in the house when the raid was conducted. It was evident that the accused's brother also lives in the house. To prove that the possession of the dried leaves was with the accused, prosecution relies on the confession made by the accused in his caution interview statement where the accused admitted that the dried leaves belonged to him. The accused put to the witnesses that he was forced and threatened to make the statement. Prosecution witnesses testified that the accused was not forced, threatened, or induced.
    
43. The accused was unrepresented by a counsel and he suggested to the witness DC Sailasa that the drugs did not belong to him and however he took the blame.
    
44. The burden is entirely on the prosecution to establish not only the voluntariness of the confession in the caution interview statement, but also the truthfulness of it. In assessing the truthfulness of the confession you have to consider with the rest of the evidence of the prosecution witnesses in material parts relevant to the two charges in the case.
    
45. The prosecution however says that the caution interview statement was not obtained under threat or promise and that accused told the truth voluntarily.
    
46. 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 offences. Further if you do not accept the contents of the interview statement are reliable you may reject same.
    
47. You have heard evidence lead by the prosecution. You must decide which witnesses are reliable and which are not.
    
48. For you to find the accused guilty of the charge in count No.1, you must be sure that the dried leaves which were found in the house of the accused were in fact in the possession of the accused and that they were the dried leaves that were examined by the Government Analyst.
    
49. For you to find the accused guilty of the charge in count No.2 you must be sure that the plants were uprooted from the accused's garden and that the accused took some part in cultivating or growing the same and that those were the plants that were examined by the Government Analyst.
    
50. You must consider the evidence on each count separately.
    
51. I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charges against the accused persons has been proved beyond reasonable doubt.
    
52. Your possible opinions on each count are either Guilty or Not Guilty.
    
53. Gentlemen Assessors, this concludes my summing up on the law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused person. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.
    
54. You may retire to consider your opinions.
    

Priyantha Fernando
Judge
09.08.2011