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State v Hurtado [2015] FJHC 889; HAC073.2014S (17 November 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 073 OF 2014S

STATE

vs

AIDAN ALEC HURTADO

Counsels : Mr. M. Delaney and Ms. S. Navia for State
Ms. S. Vaniqi for Accused
Hearings : 2 to 6, 9, 10, 12 and 13 November, 2015
Summing Up : 16 November, 2015
Judgment : 17 November, 2015

JUDGMENT

1. On 6 November 2015, in the presence of his counsel, the accused pleaded not guilty to the following information:
   

Statement of Offence

UNLAWFUL IMPORTATION OF ILLICIT DRUGS: Contrary to section 4(1) of the Illicit Drugs Control Act 2004.

Particulars of Offence

AIDAN ALECT HURTADO between the 7th to 10th February 2014 imported into the Republic of Fiji at Nadi in the Western Division, 20.5042 kilograms of illicit drugs namely cocaine without lawful authority.

2. The trial then went on before myself and four assessors for 6 days. The assessors returned with their opinions on 16 November 2015. Three of the assessors, that is, Assessor No. 1, 2 and 3 returned a guilty opinion. Assessor No. 4 returned with a not guilty opinion. It was a mixed verdict.
   
3. The law at this stage of the trial is section 237 (1), (2), (4) and (5) of the Criminal Procedure Decree 2009, which reads as follows:
   

"...237 (1) When the case for the prosecution and the defence is closed, the judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) The judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors...

(4) When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be –

(a) written down; and

(b) pronounced in open court.

(5) In every such case the judge's summing up and the decision of the court together with (where appropriate) the judge's reasons for differing with the majority opinion of the assessors, shall collectively be deemed to be the judgment of the court for... all purposes..."

4. In Ram Dulare, Chandar Bhan and Permal Naidu vs Reginam [1956 – 57], Fiji Law Report, Volume 5, pages 1 to 6, page 3, the Fiji Court of Appeal, said the following, on an equivalent section of the then Criminal Procedure Code:
   

"...In our opinion learned counsel for the appellants is confusing the functions of the assessors with those of a Jury in a trial. In the case of the King v. Joseph 1948, Appeal Case 215 the Privy Council pointed out that the assessors have no power to try or to convict and their duty is to offer opinions which might help the trial Judge. The responsibility for arriving at a decision and of giving judgment in a trial by the High Court sitting with the assessors is that of the trial Judge and the trial judge alone and in the terms of the Criminal Procedure Code, section 308, he is not bound to follow the opinion of the assessors..."

5. In Sakiusa Rokonabete v The State, Criminal Appeal No. AAU 0048 of 2005, the Fiji Court of Appeal said as follows:
   

"...In Fiji, the assessors are not the sole judge of facts. The judge is the sole judge of fact in respect of guilt, and the assessors are there only, to offer their opinions, based on their views of the facts..."

6. I have reviewed the evidence called in the trial, and I have directed myself in accordance with the Summing Up I gave the assessors yesterday. The assessors' verdict was not perverse. It was open to them to reach such conclusion on the evidence. However, I am not bound by their opinion. On my analysis of the case based on the evidence, and on my assessment of the credibility of the witnesses, I am bound to disagree with the majority guilty opinion of the first three assessors, and agree with the not guilty opinion of the fourth assessor.
   
7. My reasons are as follows.
   
8. The authority creating the offence for which the accused was charged, was Section 4 of the Illicit Drugs Control Act 2004, which reads as follows:
   

"...4 (1) Any person who without lawful authority (proof of which lies upon that person) imports or exports an illicit drug commits an offence and is liable upon conviction to a fine not exceeding $1,000,000 or to imprisonment for life or both.

(2) In any proceedings under this Part, proof of lawful authority lies upon the accused person..."

9. Section 2 of the Illicit Drugs Control Act 2004, defines the word "import" as follows:
   

"..."import" means to bring or cause to be brought, into the Fiji Islands and is a continuing process including any stage thereof until any item reaches the intended recipient..."

10. Section 14 of the Crimes Decree 2009, reads as follows:
    

"...14 In order for a person to be found guilty of committing an offence the following must be proved –

(a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;

(b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element..."

11. Section 18 of the Crimes Decree 2009, reads as follows:
    

"...18 (1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence;

(2) Sub-section (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence..."

12. Section 20 of the Crimes Decree 2009, reads as follows:
    

"...20. A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events..."

13. As a result of the above sections and authorities, I made my directions as recorded in my summing up from paragraphs 9, 10, 11 and 12.
    
14. On my assessment of the evidence, the accused, through the parties' "Agreed Facts", dated 3 November 2015, had agreed that:
    
    • (i) he arrived at Nadi International Airport on 7 February 2014, at 8 pm, from Sydney Australia via flight FJ 910;
      
    • (ii) he flew to Nausori Airport on 7 February 2014 and arrived there at 8.45 pm;
      
    • (iii) he did not arrived with his baggage when he arrived in Fiji, and lodged a "Mishandled Baggage Claim" [Prosecution Exhibit No. 12] with the assistance of Airport officials at Nausori Airport, on 7 February 2014;
      
    • (iv) he did not have the relevant baggage tag;
      
    • (v) his bag arrived at Nadi International Airport on 9 February 2014;
      
    • (vi) he gave his permission for his bag to be opened at Nadi International Airport, for it to be properly scanned by Airport and Customs officials;
      
    • (vii) his bag was scanned by the Authorities, and 20.5 kg of cocaine in 4 containers were found in his bag;
      
    • (viii) the 20.5 kg of cocaine found in his bag were illicit drugs under the Illicit Drugs Control Act 2004.
      
15. The sum total of the Agreed Facts in paragraph 14 above was that the accused agreed, he imported or caused to be brought into Fiji 20.5 kg of cocaine, which he agreed was an illicit drug under the Illicit Drugs Control Act 2004. In his sworn evidence, the accused did not prove on the balance of probabilities, that he had lawful authority to bring the above 20.5 kg of cocaine into Fiji. That on the basis of the above evidence, which I accept as the sole judge of fact, the physical part of the offence, as created by Section 4(1) of the Illicit Drugs Control Act 2004, and required by Section 14(a) of the Crimes Decree 2009, had been satisfied by the prosecution beyond a reasonable doubt.
    
16. The next step was to satisfy the requirements of Sections 14 (b), 18 (1) and 20 of the Crimes Decree 2009, as it is implied into the verb "import" in Section 4(1) of the Illicit Drugs Control Act 2004. As the mens rea of the offence created by Section 4(1) of the Illicit Drugs Control Act 2004, and in line with the authority of Woolmington v DPP [1935] AC 463 that the prosecution must prove the prisoner's guilt beyond a reasonable doubt, the prosecution was required to prove beyond reasonable doubt that the accused knew he had an illicit drug in his bag when he checked in at Brazil.
    
17. The prosecution intended to prove the accused's knowledge of the illicit drug in his bag when he checked in at Brazil through his caution interview statements [Prosecution Exhibit No. 8]. In the caution interview statements, the accused allegedly confessed to having that knowledge. However, for its acceptance by the sole judge of fact (ie. the trial judge), the piece of evidence must pass the trial process. The prosecution must satisfy the sole judge of fact beyond a reasonable doubt that the accused did in fact make the statements, and if so, the statements were true. The circumstances surrounding the making of the statements from arrest, through the interview and his first production in court, must be carefully examined to see if the accused did make the statements, and if so, whether he did so voluntarily and out of his own free will. I have carefully examined the evidence of all the police officers from the accused's arrest, his caution interview and his production in court. I have also carefully examined the evidence given by the accused and his witnesses.
    
18. After considering all the evidence, as the sole judge of fact, I am left with a reasonable doubt whether or not the accused gave the statements, and if so, whether it was done so voluntarily and out of his own free will. The accused said he only speaks and read Spanish. Throughout the proceeding he had a Spanish interpreter. During the caution interview he had none. He said, he was pressured to sign his caution interview statements. It appeared he was not given his right to call his next of kin, when he was in police custody. The police had his mobile phones. For a foreign national in a foreign country, it was essential they be given an opportunity to call their next of kin as soon as possible. At the end of the day I am left with a reasonable doubt that the accused did give his police caution interview statements, and if so, whether he gave it voluntarily and out of his own free will. As a result, as the sole judge of fact, I have decided to place no weight and value on the accused's police caution interview statements.
    
19. The prosecution still had to prove knowledge on the part of the accused when he checked his baggage in at Brazil. Given that the physical element of the offence had been satisfied by the prosecution beyond a reasonable doubt, it is easy to assume, given the surrounding circumstances, that he knew he had illicit drugs in his baggage when he checked in at Brazil. It is also easy to assume that because he has a passport from Columbia and resided in Columbia most of his life, that he must have known about the illicit drug in his bag. It is also easy to assume that because he speaks and reads only in Spanish, the language in Columbia, that he must know about the drugs in his bag. However, criminal trials are about the production of facts instead of assumptions, in a courtroom. The accused said he checked in his baggage in Brazil. He said, he did not put the 20.5 kg cocaine in his bag. He said, his bag went through Brazil, Chile, New Zealand and Australia in transit. He did not collect his bag at those airports. He had no control over the same. He came to Fiji for holiday as he had succeeded in his university education. He said, someone had changed the locks to his bag. He said, he only put in 2 small containers of vitamins body building supplement in his bag at Brazil. No evidence was given by the prosecution to prove beyond reasonable doubt that baggage in transit from Brazil, Chile, New Zealand and Australia were "fool proof", that is, cannot be interfered with.
    
20. Looking at the evidence in its totality, I, as the sole judge of fact, have a reasonable doubt that the accused did know he had cocaine in his bag when he checked in at Brazil on or about 5 February 2014. When he arrived in Fiji on 7 February 2014, he did not have his bag. It arrived on 9 February 2014. He said, from 5 to 9 February 2014, he had no control over his bag as it was in transit between Brazil, Chile, New Zealand, Australia and Fiji. The accused's evidence had a measure of credibility, and as a result, had created a reasonable doubt in whether or not he knew that cocaine was in his bag when he checked in at Brazil. In accordance with the law, the benefit of that doubt must go to the accused.
    
21. As a result of the above, I disagree with the majority opinion of the Assessors, and agree with the minority opinion. I find the accused not guilty as charged, and I acquit him accordingly.
    
22. The 20.5 kg of cocaine is to be surrendered to the Chief Registrar's office within 7 days, and the same to be destroyed, as directed by the Chief Registrar.
    

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for Accused : Vaniqi Lawyers, Suva.