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State v Vuloaloa - Summing Up [2016] FJHC 99; HAC003.2015LAB (27 January 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 003 OF 2015LAB

STATE

V

MARA VULOALOA

Counsels : Mr. L. Fotofili for State
Accused in Person

Hearings : 25 and 26 January, 2016
Summing Up : 27 January, 2016

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS
   

1. Madam and Gentlemen Assessors, it is 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. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.

2. State Counsel and the accused have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State Counsel and accused, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.

3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.

2. THE BURDEN AND STANDARD OF PROOF
   

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an 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 that 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 so that you are not sure about his guilt, then you must express an opinion, that he is not guilty.

6. Your decision must be based 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. You must decide the facts without prejudice or sympathy, to either the accused or the victim, which is the public in this case. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.

100. THE INFORMATION

7. You have a copy of the information with you, and I will now read the same u:

"... [rea [read from the information]...."

4. THE MAIN ISSUE
   

8. In this case, as assessors and judges of fact, each of you will have to answer the following question:

(i) Did the accused, on 7 January 2015, at Savusavu in the Northern Division, without lawful authority, cultivated 94 plants of cannabis sativa plants, weighing 41 kg?

5. THE OFFENCE AND IT'S ELEMENTS
   

9. The accused was charged with "unlawful cultivation of an illicit drug", contrary to section 5(a) of the Illicit Drugs Control Act 2004. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused
(ii) knowingly
(iii) without lawful authority
(iv) cultivated
(v) an illicit drug

10. Under Section 2 of the Illicit Drugs Control Act 2004, an "illicit drug" means "any drugs listed in Schedule 1 of the Act. In Schedule 1 Part 8 of the above 2004 Act, a "cannabis plant", whether fresh, dried or otherwise, is an "illicit drug". A cannabis sativa plant, commonly known as a marijuana plant, according to the above definition, is an "illicit drug". To make the accused liable for the offence, the prosecution must make you sure that what the accused was cultivating, at the material time, was an "illicit drug", within the definition of the above 2004 Act.

11. The prohibited act in the offence is the verb "cultivate". Under Section 2 of the Illicit Drugs Control Act 2004, the word "cultivate" means "planting, sowing, scattering the seed, growing, nurturing, tendering or harvesting". Put simply, the prosecution must make you sure that the accused was planting or growing an illicit drug, at the material time. This is the physical element of the offence.

12. In addition to the above, the prosecution must make you sure that, the accused, at the material time, knowingly cultivated an illicit drug. It must be shown that the accused knew, at the material time, that he was cultivating an illicit drug. This is the mental element or fault element of the offence.

13. The prosecution must also make you sure that the accused had no lawful authority to cultivate an illicit drug, at the material time. However, the accused can escape liability for the offence if he proves, on the balance of probabilities, that he had lawful authority to cultivate the illicit drug. You must look at and carefully consider the total evidence, when answering the above issues.

F THE PROSECUTION'S CASE

14. The prosecution's case were as follows. On 7 January 2015, Ilaisa Salanilivaliva (PW1) and two police officers DC 3389 Elia Selabuco (PW2) and Corporal 3035 Tevita Savou (PW3) went to Mara Vuloaloa's (the accused) farm. The farm was near Natuvu Settlement near Viani Village. The three collectively uprooted 94 plants of cannabis sativa growing on the accused's farm. The 94 plants were handed over to PC 3556 Kesi Ratavo (PW6), who handed the same to WPC 3548 Reshma Prasad (PW4), the crime exhibit writer at Savusavu Police Station.

15. On the same day, after 7.35pm, PW4 handed the 94 cannabis sativa plant to PC 4560 Jone Rabuka (PW5) to transport the same to Labasa Police Station. After 9pm, PW5 handed the 94 cannabis plant to the Labasa Police Station exhibit writer, SC 1854 Mosese Tuidraki. On the same day, Miliana Werebauinona (PW8) analyzed the 94 plants to identify and certify the same. She is a Principal Scientific Officer from the Forensic Chemistry Unit of the Fiji Police Force, and is a duly qualified scientist, with overseas and local Bachelor and Master Degrees, in the analysis of illicit drugs and other chemicals.

16. PW8 certified the 94 plants as cannabis sativa plants, and weighed the same as totaling 41 Kg. On 7 January 2015, at 4.50pm, PW6 caution interviewed the accused at Savusavu Police Station. The interview was witnessed by WPC Maca Baleinamoto (PW7). PW6 gave the accused his legal rights, his right to counsel and his right to a priest or relatives. He was asked a total of 30 questions and he gave 30 answers. During the interview, the accused admitted he planted the 94 plants of cannabis sativa on his farm at Natuvu Settlement. It appeared he had no lawful authority to do the above.

17. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.

G THE ACCUSED'S CASE

18. On 25 January 2016, the first day of the trial, the information was put to the accused. He had previously waived his right to counsel. He pleaded not guilty to the charge. In other words, he denied the allegation against him. At the end of the prosecution's case, a prima facie case was found against him, whereupon he was called upon to make his defence. He choose to give sworn evidence and called no witness. That was his right.

19. The defence case was simple. The accused admitted he cultivated 24 plants of cannabis sativa on his farm at Natuvu Settlement on 7 January 2015. He disputed that he planted another 70 plants of cannabis sativa, making up the total 94 plants, alleged by the police that he cultivated. In cross-examination, he admitted he had no lawful authority to cultivate any cannabis sativa plants. He admitted he had been cultivating cannabis sativa plants since September 2014.

20. He admitted he was caution interviewed by police at Savusavu Police Station on 7 January 2015. He said, the police never assaulted or threatened him during the interview. He said, he signed the interview notes. However, because he pleaded not guilty to the offence, he is asking you, as assessors and judges of fact, to find him not guilty as charged. That was the case for the accused.

H ANALYSIS OF THE EVIDENCE

21. In this case, in analyzing the evidence, our compass is to look at each element of the offence as described in paragraphs 9(i), 9(ii), 9(iii), 9(iv) and 9(v) hereof. We must also take on board, the discussions we had on each element of the offence, as described in paragraphs 10, 11, 12 and 13 hereof. You will have to carefully consider the whole evidence given by the prosecution and the defence, and see whether those evidence prove beyond reasonable doubt all the elements of the offence, as described in paragraph 9 hereof.

22. The most important piece of evidence in this case, were the sworn admissions given by the accused when he gave evidence in the trial. He admitted on oath that he had been cultivating cannabis sativa (marijuana) plants since September 2014 in his farm near Natuvu Settlement. He admitted, in cross-examination, that he had no lawful authority to do the same. He apologized for cultivating cannabis sativa on his farm. As far as the elements of the offence as described in paragraph 9 hereof, it appeared, given the above that, the accused is admitting he knowingly and without lawful authority cultivated an illicit drug on his farm since September 2014. However, he admitted he only cultivated 24, instead of 94 cannabis sativa plants. That in itself would amount to him committing a crime against Section 5(a) of the Illicit Drugs Control Act 2004, that is, unlawful cultivation of an illicit drug.

23. The prosecution's version of events was that the accused cultivated 94 plants of cannabis sativa, at the material time. PW1, PW2 and PW3 uprooted a total of 94 plants of cannabis sativa from the accused's farm. They said the 94 plants were wrapped in a blue tauplin and handed over to PW6, who handed it over to PW4, the Savusavu Police Station exhibit writer. PW4 handed the 94 plants to PW5 to transport to Labasa Police Station. PW5 handed the drugs to PW9, the Labasa Police Station exhibit writer. PW9 then handed the 94 plants to PW8, the police scientist. PW8 analyzed the 94 plants and confirmed they were cannabis sativa, an illicit drug and they weighed a total of 41 Kg.

24. Looking at the prosecutor's evidence and the accused's sworn evidence together, it would appear that the accused did cultivate cannabis sativa (marijuana) plants, at his farm near Natuvu Settlement from September 2014 to 7 January 2015. He admitted in cross-examination that he had no lawful authority to do the above, and it appeared he did the above knowingly. In his police caution interview statements, tendered as Prosecution Exhibit No. 1(A) and 1(B), the accused admitted he cultivated 94 marijuana plants on his farm, at the material time – see Questions and Answers 16 to 26. In his sworn evidence, he said the police did not assault or threatened him during the interview. He signed all the pages of his interview statements. The police caution interview officer (PW6) and the witnessing officer (PW7) both said, the accused gave his statements voluntarily and out of this own free will.

25. If you accept the prosecution's version of events and the accused's sworn admissions in court that he knowingly cultivated cannabis sativa on his farm without lawful authority, at the material time, you will have to find the accused guilty as charged. If otherwise, you will have to find the accused not guilty as charged. It is a matter entirely for you.

I SUMMARY

26. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty as charged.

27. Your possible opinion are as follows:

(i) Unlawful cultivation of illicit drugs: Guilty or Not Guilty

28. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa.

Solicitor for the Accused : In Person.