Lata v State [2015] FJCA 120; AAU0037.2013 (13 March 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU0037 of 2013
[High Court Case No. HAC 83/10Ltk]

BETWEEN:

ROSHNI LATA
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. A. Singh for the Appellant
Mr. M. Korovou for the Respondent

Date of Hearing : 30 May 2014
Date of Ruling : 13 March 2015

RULING

[1] Following a trial in the High Court at Lautoka, the appellant was convicted and sentenced to 18 years' imprisonment for being in possession of 1990.4 grams of cocaine. This is a timely application for leave to appeal against conviction and sentence on the following grounds:

Appeal Against Conviction

1. The Learned Trial Judge erred in law by failing to give proper directions to the Assessors and himself on the Central issues in the case regarding Chain of Custody and upon request for re-direction he gave inadequate directions and failed to assist the Assessors with the evidence available and he erroneously implied that it was for the Defence to disprove the chain of custody, thereby causing a miscarriage of Justice.

2. The Learned Trial Judge stated in paragraph 5 of this judgment that "I am in difficult to understand the Defence referring to chain of custody" as a result of this admission he fell into error by not giving proper directions in law as is required to prove Chain of Custody in drug related matters thereby causing a miscarriage of justice.

3. The Learned Trial Judge failed to assist the Assessors with the Defences submissions and evidence regarding the missing bag and photographs taken of the bag at the Crime Scene, which was not produced at court or disclosed to the Defence and he erroneously concluded in paragraph 4 of his judgment that "the Prosecution witness clearly states that he took possession of the white coloured powder into his personal custody and transmitted it to government analyst which is confirmed by government analyst hence I find the Chain of Custody of the production is intact" and as a result he fell into error because the Black Leather knapsack which was locked was never taken to the analyst and further it was not continuously in the possession of the Prosecution Witness (3) as in the record of interview it is clear that the bag that was allegedly recovered from the crime scene was in the custody of the interviewing officer thereby causing a grave miscarriage of Justice, as the Prosecution failed to prove the Chain of Custody beyond all reasonable doubt.

4. The Learned Trial Judge failed to give adequate directions on the Defence of Duress as he erroneously read the English Dictionary meaning of the word duress and then he gave erroneous direction in law thereby causing a miscarriage of justice.

5. The Learned Trial Judge despite requests for re-direction failed to adequately direct the Assessors on the onus that it was for the Prosecution to negate the defence of Duress and in particular he failed to direct the Assessors that the Defence was raised in the Record of Interview and that it was part of the State's Case and further, the fact that the Appellant was under fear which was corroborated by the Second Prosecution Witness.

6. The Learned Trial Judge erroneously disallowed the Appellant from giving evidence on the issues of Duress, stating that she would need to call the persons who threatened the Appellant when he knew or ought to have known that there was no such requirement of the Appellant.

7. The Learned Trial Judge failed to put the Defences case and evidence of the Appellant to the Assessors as he was required by law to give a balanced Supping Up.

8. The Learned Trial Judge erred in directing himself and the Assessors by stating that there were only four listed elements the prosecution had to prove in that he failed to direct the Assessors and himself that there is a presumption that Mens Rea and evil intention or a knowledge of wrongfulness of the act, is an essential element in every offence and that presumption is liable to be displaced either by words of a statute creating the offence or by the subject matter with which it deals, and both must be considered the failure of the Learned Trial Judge thereby caused a miscarriage of Justice.

9. The Learned Trial Judge failed to direct the Assessors and himself on the issue of Mens Rea that before there can be a conviction, the act of the accused must accompanied by a guilty mind and further he failed to inform the Assessors and himself that intention is a fault element of the offence and possession is the physical element of the offence and that the Prosecution had to prove beyond reasonable doubt before a conviction could be entered, thereby the Learned Trial Judge made a fatal misdirection causing a grave miscarriage of Justice.

10. The Learned Trial Judge failed to direct the Assessors and himself and that there was a requirement in this case for them to be satisfied beyond reasonable doubt that the Appellant knew that the bag contained illicit drugs and that they were satisfied that she did not receive the bag fleetingly and unwittingly.

11. The Learned Trial Judge failed to direct the Assessors that they had to be satisfied beyond reasonable doubt and that they were not satisfied that the Appellant did not have any intention to do anything wrong and no knowledge that she was doing anything wrong thereby the Learned Trial Judge caused a miscarriage of Justice.

12. The Learned Trial Judge failed to direct the Assessors that the Prosecution had to provide that the Appellant knew that she was doing the criminal act which is charged against her, that she knew that all the facts constituting the elements necessary to make the Act criminal were involved in what she was doing and therefore by his omission caused a grave of miscarriage of Justice.

13. The Learned Trial Judge failed to direct the Assessors that the Appellant would not be guilty if she acted under an honest or reasonable mistake as to the existence of facts.

14. The Learned Trial Judge omitted to direct the Assessors and himself on the issue of Actus Reas by failing to direct the Assessors that the Act charged as a crime must be proved to be voluntarily or a willed act of the Appellant. If it is not so proved beyond reasonable doubt then the Appellant must be acquitted and further he failed to direct the Assessors that it is the ACT that must be willed though its consequences may not be intended.

15. The Learned Trial Judge misdirected the Assessors and himself by stating at Paragraph 23 of his Summing Up that Counsel of the Appellant takes up the following defences and identifies those defences in the said paragraph when he should have given direction in regards to the following matters;

a. The Primary Defence raised was that the Prosecution had failed to prove the chain of custody of the drugs as what was taken to the analyst and what was recovered by police were markedly different and further what the prosecution witness asserted in regards to the security of the drugs was in stark contrast of what was recorded in the caution interview that was tendered by the prosecution.

b. The Defence had submitted that the Assessors had to be satisfied of the mental and physical element and the Prosecution had failed to prove that the Appellant knew that the substance was illicit drugs.

c. That the prosecution evidence as to the security of "drug" was contradictory as the third prosecution witness claimed he had continuous possession whereas the Record of interview by another officer claimed otherwise.

d. Good Character of the Appellant was raised as a defence.

e. On the Law of Duress. The Learned Trial Judge was requested to inform and assist the Assessors on the requirement that the onus was on the Prosecution to negate Duress and to assist by pointing out that it was the prosecution who tendered the Record of Interview in which the Appellant had raised Duress as a Defence and this was collaborated by the Second Prosecution Witness who stated the Appellant was concerned for her safety and that of her children and had asked for Police Protection, and on that date the Appellant had no knowledge that the bag contained illicit drugs and that her knowledge was restricted to the bag but not to the specific contents.

f. That there was no evidence before the Court that the Appellant knew that the substance was illicit drugs.

g. The Black Leather Knapsack was not produced and no explanation provided as to its disappearance but there was evidence that drug unit had been disbanded because of actions of certain officers and as such caution should have been exercised in accepting the evidence of third Prosecution Witness."

16. The Learned Trial Judge erred in giving directions on the issue of Good Character as he was required by law to direct the Assessors that they must bear in mind the Accused's Good Character when considering the Questions of the Accused's guilt and that the Assessors should also consider good character as a factor alleging the likelihood of the Accused committing the crime charged and in particular the Assessors should have considered the good character of the Accused in assessing the credibility of the explanations offered by the Appellant to police and the credibility of the Appellant as a witness.

17. The Learned Trial Judge erroneously rejected photographs produced by the Defence to be marked as identification on grounds that the photographer had to be called when he ought to have known that this was incorrect at that stage of the trial as a result it deprived the defence of opportunity to cross examine the witness and thereby causing the trial to miscarry.

18. The Learned Trial Judge at the end of the address by Defence Counsel erroneously instructed the Assessors that don't worry about what has been said to you, it is too difficult, I will explain to you in simple terms the Learned Trial Judge ought to have known that this was an incorrect statement to make and that that statement could have had the effect of the Assessors not placing any weight on counsels submission.

19. The Learned Trial Judge failed to direct the Assessors and himself that a Record of interview can be used for and against an accused and in particular in fairness he should have pointed out the material that was consistent with her innocence.

20. The Learned Trial Judge erroneously pre-empted a Defence Application of recusal by stating that a junior Lawyer cannot appear in High Court and her sworn affidavit was a nullity when he should have known that Junior Lawyers are not prevented from appearing at mentions in the High Court, thereby causing a miscarriage of Justice.

21. The Learned Trial Judge failed to assist the Defence in relation to a Notice to produce stating that it is a matter between "chambers" thereby causing a miscarriage of Justice.

Appeal Against Sentence

1. The Learned Trial Judge failed to give the Appellant a discount on the undertaking on oath to provide assistance to the authorities in regard to the prosecution of the actual perpetrators.
   
2. The Learned Trial Judge failed to give the Appellant any discount for remorse as by her assistance to authorities she was clearly expressing remorse.
   
3. The Learned Trial Judge failed to consider the tariff in the two more serious cases which he referred to concerning importation of Cocaine as compared to the case before him concerning possession simpliciter, thereby imposing a sentence that was manifestly harshly and excessive.
   
4. The Learned Trial Judge breached the rule in R v De Simioni when he took into account matters for which the Appellant was not charged and which made the matter more serious when there was no evidence.
   
5. The Learned Trial Judge erred in his Sentencing exercise when he failed to comply with a Sentencing requirement to consider mandated provisions of the Sentence and Penalties Decree 2009.
   
6. The Learned Trial Judge erroneously took collective Social harm as an excessively important factor thereby increasing the starting point substantially thereby causing a miscarriage of Justice.
   
7. The Learned Trial Judge erroneously stated that the offence of possessing drugs was more serious than murder as in murder one life is lost whereas in supply of drugs many lives are lost.
   
8. The Learned Trial Judge failed to consider that the prosecution had not provided the purity of the drug and as such he was in error to assume that it was of a high purity and thereby failed to give the Appellant any benefit of the fact that it could have been of low purity as the certificate stated no more than it was positive for cocaine.
   
9. The Learned Trial Judge fell into sentencing error when he did not give any weight to the evidence of the Appellant and her two character witness and further at the end of the case on Sentencing when Counsel requested opportunity to address he stated that he required a written submission and on the date of sentencing he read a prepared Sentence without giving Counsel opportunity to address him on the Sentencing exercise.
   
10. The Learned Trial Judge failed to give the Appellant any credit to her pre-sentence custody and also failed to consider that the conduct was at the lower end of criminality.
    
11. The Sentencing imposed by the Learned Trial Judge was manifestly excessive having regards to all the circumstances of the case.
    

[2] The prosecution case against the appellant was that she concealed the drugs in a knapsack
bag and kept it at her former maid's home. The appellant disclosed the location of the knapsack bag when the police questioned her. The drugs were seized, secured and sent for a test. The test confirmed the drugs were cocaine.

[3] At trial the appellant gave evidence. Her first defence was that she was not in possession of the drugs. Her second defence was that she did have knowledge the substance was an illicit drug. Her third defence was that she possessed the drugs under duress. The assessors and the trial judge rejected the defences and convicted the appellant.

[4] Both counsel have filed detailed submissions on the issue of leave. The test for leave is whether the ground of appeal is arguable.

[5] I deal with the grounds as they were argued in the appellant's written submissions.

Grounds 1 – 3
[6] The appellant's contention is that since the alleged drugs were found in a knapsack bag, the bag should have been produced in court to prove the chain of possession. This contention is misconceived. The chain of possession rule applies to the illicit substance and not to its storage facility. In the present case, the prosecution relied upon DC Sauvakacolo's evidence to establish the chain of possession. DC Sauvakacolo's evidence was that after seizing the substance, he took it to the Government Analyst for an analysis and obtained a report. At para 43 of the summing up, the trial judge gave clear directions on the issue of chain of possession. Grounds 1-3 are not arguable.

Grounds 4 and 5
[7] In the present case, the appellant gave evidence that she kept the substance (which she had no knowledge was an illicit drug) under duress. She said she was threatened by her son-in-law who was in prison and two other people. Duress is a statutory defence provided by section 40 of the Crimes Decree 2009.

[8] After reading out section 40, the trial judge then quoted the meaning of duress from two different dictionaries. After the summing up was delivered, counsel for the appellant sought a re-direction on duress, that is, the prosecution carried the burden to prove the defence of duress did not apply in this case. When the trial judge re-directed on the defence of duress, he highlighted the prosecution's position regarding the defence but at no point he told the assessors that the onus to disprove duress was on the prosecution. Grounds 4 and 5 are arguable.

Ground 6
[9] This ground contends that the trial judge prevented the appellant to give evidence surrounding the threats made to her. The nature of threats made to the appellant was not explained in the summing up.

[10] It appears that the appellant is correct to say she was not allowed to give evidence of the threats made to her to mount her defence of duress. This ground is arguable.

Ground 7
[11] When an accused elects to give evidence, the trial judge is obliged to direct the assessors that he or she does not have to prove anything and that his or her evidence must be taken into account when considering the issues of fact which they have to determine. The trial judge's direction at paragraph 36 of the summing up on how the assessors were to consider the appellant's evidence is correct in law. This ground is not arguable.

Grounds 8 and 9
[12] In his summing up, the trial judge did not give clear directions on the requisite mental element for possession. In Koroivuki v State [2013] FJCA 15, AAU0018.2010 [5 March 2010] the Court said at para 8:

"There is no question that the Appellant was convicted of possession and not supply of drugs. The Illicit Drugs Control Act 2004 does not define the word "possession". In absence of a statutory definition, the Court can be guided by the English common law of the word "possession". Possession is proven if the accused intentionally had the drugs in his physical custody or control to the exclusion of others, except anyone who was acting in concert with him in the alleged offence (Lambert [2001] UKHL 37; [2002] 2 AC 545). Possession is also proven if the accused intentionally had the substance in some place to which he either alone or jointly with some other person acting in concert with him had access and might go to get physical or control it (Lambert, supra".

[13] While the trial judge said the prosecution was required to prove that the accused possessed the drugs, his directions on how the possession could be proved are arguably not in accordance with Koroivuki's case. Grounds 8 and 9 are arguable.

Grounds 10 – 13
[14] These grounds overlap with grounds 8 and 9. They are arguable grounds.

Ground 14
[15] This ground was withdrawn.

Grounds 15 and 16
[16] These grounds contend that the trial judge did not properly put the appellant's defences to the assessors. The only issue I find arguable is that the appellant claimed to be a person of previous good character. The summing up contains no directions on the appellant's good character.

Ground 17
[17] This ground contends that the trial judge prevented the appellant from leading evidence of certain photographs. The relevance of the photographs was not explained to this Court. This ground is not arguable.

Ground 18
[18] If there is support in the court record for the contention under this ground, then the ground is arguable.

Grounds 19 – 21
[19] No submissions have been advanced on these grounds. I am unable to assess if the grounds are arguable.

Sentencing
[20] The appellant contends that the trial judge's sentencing discretion is flawed in principle for numerous reasons. The trial judge used 17 years as his starting point. He then added 4 years to reflect the following aggravating factors which he identified at para [12] of the sentencing remarks:

"12. If a person murder another person it will cause the lost of a life, the family and few others will suffer but when the drugs are sent among the society there is a large number of people especially the youth of our society were destroyed. Simply someone to make money destroying of many families in the society is unpardonable. I find his as an aggravating factor and increase your sentence by 4 years. Now your sentence is 21 years imprisonment."

[21] The trial judge reduced the sentence by three years to reflect the following mitigating factors at para [13]:

"(a) You are a first offender;

(b) You have a young daughter who is an asthmatic patient;

(c) You submit you are willing to pay a fine of $10,000 instead of a custodial sentence;

(d) You are religious and regularly attending church."

[22] The appellant's contentions are:

(1) She offered to assist the authorities in regard to the prosecution of the actual perpetrators. This contention flies in the face of the position taken by the appellant at trial that she did not possess the drugs, but if she did then she did so without intention or knowledge, and if she did so with intention and knowledge then she possessed under duress. In my judgment, the appellant's offer of assistance was late and misconceived and therefore the trial judge was not obliged to consider it.

(2) She expressed remorse. There was no evidence of any genuine remorse by the appellant. She is still challenging her conviction on appeal.

(3) The trial judge used the wrong tariff. There is no established tariff for possession of cocaine but the trial judge stated "the tariff should be between 15 years and 20 years". The trial judge gave no reasons how he arrived at the tariff of 15 to 20 years after stating there was no tariff for the offence. This contention is arguable.

(4) The trial judge considered factors that could have been basis for a more serious charge. There is no evidence that the trial judge punished the appellant for a more serious uncharged offence.

(5) The trial judge failed to consider the Sentencing and Penalties Decree 2009. This contention is vague and not arguable.

(6) The trial judge considered collective social harm to pick up his starting point. There is basis for this argument.

(7) The trial judge considered possession of drugs more serious than murder. This point is arguable.

(8) The prosecution has failed to provide purity of the drug. This point is arguable.

(9) The trial judge failed to take into account the appellant's previous good character. The trial judge took into account that the appellant was a first time offender as part of the mitigating factors. This point is not arguable.

(10) The trial judge failed to take into account the appellant's remand period. This point is arguable because the sentencing remarks make no mention of the appellant's remand period.

(11) The sentence is manifestly excessive. It could be argued that due to the identified arguable errors the sentence is manifestly excessive.

Bail Pending Appeal
[23] The appellant also seeks bail pending appeal. While I find the appeal against conviction and sentence is arguable, I am not satisfied that the grounds of appeal show every chance of success (Seniloli & Ors v State Criminal Appeal No. 41 of 2004).

[24] The appellant is serving a lengthy sentence. The appeal can be heard by the end of this year. The question of the appellant having completed her sentence before the appeal is heard does not arise. In these circumstances, the application for bail pending appeal must fail.

Result
[25] Leave to appeal against conviction refused on grounds 1-3, 7, 14, 17 and 19-21.

[26] Leave to appeal against conviction allowed on grounds 4-6, 8-13, 15-16 and 18.

[27] Leave to appeal against sentence granted as per paragraphs [22] (3) (6) (7) (8) (10) and (11) above.

[28] Bail pending appeal refused.

....................................
Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Anil J. Singh Lawyers for Appellant
Office of the Director of Public Prosecutions for State