|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[ON APPEAL FROM THE HIGH COURT]
Criminal Appeal Nos.
AAU 0054 of 2016
AAU 0059 of 2016
AAU 0062 of 2016
(High Court Case No. HAC 126 of 2015)
BETWEEN:
1. JOSEPH ABOURIZK
2. JOSESE MURIWAQA
Appellants
AND:
THE STATE
Respondent
Coram: Gamalath, JA
Prematilaka, JA
Bandara, JA
Counsel: Mr. M. Thangaraj with Mr. A. K. Singh and Mr. W. Korn for
the 1st Appellant
Mr. M. Anthony for the 2nd Appellant
Mr. L.J. Burney with Mr. S. Babitu and Ms. S. Tivao for the
Respondent
Mr. S. K. Waqainabete for the Legal Aid Commission.
Date of Hearing: 16 May 2019
Date of Ruling : 7 June 2019
JUDGMENT
Gamalath, JA
[1] The trite law dictates that in considering the culpability of an accused person, the paramount duty of a court of law is to consider whether, on the whole, the evidence led in a trial has the strength to meet the standard of proof cast upon the prosecution to prove the case beyond any reasonable doubt. If the weight attached to a set of evidence in its totality is unsatisfactory, saddled with irreconcilable inconsistencies, improbabilities or any other inherent, incurable weakness, such infirmities should enure to the benefit of the accused person. These legal propositions need no elaboration. A trial judge dealing with evidence of a case should carefully examine the weight to be attached to such infirmities. If there are infirmities perceivable having regard to the evidence, a trial judge is duty bound to examine them carefully and to evaluate them for the purpose of determining their final effect on the credibility of the relevant evidence. This is a mandatory requirement for it is only through a process akin to that, that the weight to be attached to evidence could be determined. In a judgement, there should be a clear reflection of proof that a trial judge has diligently focus his attention on to this important aspect of judging. In other words it is incumbent upon a trial judge to make reference to such infirmities. The impact of such infirmities on the totality of evidence should have a reflection on the judgement. In the same manner, whenever persons are jointly charged for an alleged commission of any offence, the case against each culprit should be considered severally and distinctly. These basic principles of law play a pivotal role in determining this appeal against the conviction of the two appellants, who stood trial in the High Court of Lautoka, for having in their possession 49.9 kg of cocaine and on conviction sentenced to 14 years imprisonment. There is a cross appeal by the State against the sentence of imprisonment whereby the State invites the Court to lay down guideline principles on sentencing on the offence of possession of cocaine under section 5 of the Illicit Drugs Control Act, 2004.
[2] I shall now refer briefly to the salient parts of the evidence;
The first appellant who elected to testify at the trial did not deny the detection of cocaine in the boot of HM046.According to his evidence, the bags belonged to one Simon, a Canadian who ran a yacht service. The first appellant ,a visiting Australian met Simon in a restaurant a couple of days before the detection of drugs.(These matters will be discuss in detail later ) Simon had promised to take the appellants on a free boat ride in that morning. It was Simon’s bags that the police found in the boot of HM046 and as such the appellants had no knowledge of the contents in it. The second appellant associated him-self with the evidence of the first appellant. Thus, they protested their innocence. The admissibility of their caution interview was ruled out after the voir dire inquiry. Although the first appellant revealed to the investigators about Simon, as he was being questioned on the gravel road itself, I find that the investigating officers had been totally unenthusiastic in verifying the information. Throughout the trial the appellants were consistent that the drugs belonged to Simon.
In the final analysis of facts relating to the case, the sustainability of the conviction against the appellants depends solely on the issue of whose version to believe, in the sense ,between the competing two versions of facts coming from the testimony of ASP Neiko on the one hand and on the other hand the evidence of the first appellant in which he denied having any knowledge on the presence of drugs in the boot of HM046, whose version is it that should prevail over the other in terms of credibility is the matter in issue.”
[3] A critical analysis of the evidence;
Having regard to the evidence of the main witness for the prosecution, ASP Neiko, I must pause here to state, that the exact positioning of HM046 after it was parked on the gravel road is difficult to gauge.
[4] This difficulty could have been averted, if the prosecution had presented in evidence a sketch plan depicting the important positions of the location. However, in the absence of a sketch plan, one has to depend solely on the evidence of ASP Neiko to conjure up the picture of the scene of crime .Since the evidence of ASP Neiko lacks precision and clarity on this matter, I find it difficult to gain a clear picture as to how ASP Neiko was able to observe the unfolding events at the back of HM046, where the appellants were said to have been busy in repacking the parcels containing drugs into two bags. The appellants contested the truth of this evidence.
[5] According to ASP Neiko, he had seen two men alighting from the parked HM046; accordingly , while an “I –taukei man got down from the side of the driver’s seat, the other man with fair complexion got down from the side of the front passenger seat”. Further, according to ASP Neiko, while the two vehicles were parked on the gravel road there was a distance of about two meters between them.
[6] At this point , once again I must state I have difficulties in understanding ASP Neiko’s evidence, particularly in relation to the manner in which HM046 was parked, in the sense, whether the two vehicles were facing each other or whether HM046 was parked in such a manner so that the police may have observed it from a lateral angle. The significance of the inferences that could be drawn out of this aspect of ASP Neilo’s evidence is vital in determining the credibility of his evidence regarding the observation of the movements of the two appellants that he claimed to have made from the distance of two meters. In other words, whether ASP Neiko is credible in his evidence that he saw the two appellants busy in repacking the drugs in the boot of the car is depended on the fact whether or not he could have seen the rear of HM034, from the angle towards which his vehicle was facing HM046. As can be gathered from his evidence, he had still been sitting in his car, whilst observing the activities of the two appellants, who were busy at the back of HM046, with an open cover of the car boot. As said earlier they had been busy in repacking the parcels of drugs into the two bags in the boot. In the circumstances, could he have observed the unfolding scenario from where he had been sitting is rather uncertain and this difficulty could have been avoided had the prosecution presented in evidence a sketch plan of the scene. As such ASP Neiko’s evidence on this issue remains unclear. As regards this matter what is important to the instant appeal is that this issue was strenuously contested by the Counsel for the first appellant. As I can gather from the line of cross examination, it is the contention of the defence that the prosecution’s version that the appellants were seen repacking the parcels into two bags was a concoction. Nor had they ever threw away bags out of the boot of the car. Despite the serious issues raised by the defence with regard to this aspect of the credibility of the evidence of ASP Neiko, I find nothing in the Judgement to demonstrate that the judicial scrutiny was directed at this matter.
[7] According to ASP Neiko, the two appellants having got out of the vehicle, threw out some suitcases from the boot of the car. When asked whether he saw who threw out the suit cases, the witness was categorical that he could not see exactly who was throwing out the suitcases. Although, he could not see who was exactly involved in throwing out the suitcases, he had seen both appellants “re-packing items in to black bags”. Later in his evidence, the prosecution has made some attempts to clarify the positioning of the two vehicles in relation to each other, and because of its factual significance to this appeal, I wish to state the evidence of ASP Neiko verbatim;
“Mr Neiko: I saw that suitcases were thrown out of the boot of the car
Q: You stated that you saw suitcases thrown out of the boot of the car did you see who was throwing out the suitcases?
A: I could not see who was throwing out the suitcases, My Lord.
Q: What else did you see?
A: I saw the repacking into black bags.
Q: You stated repacking, what do you mean by repacking?
A: Re-packing of items, My Lord.
Q: Now that point who was repacking the items?
A: Both of them, My Lord.
Q: What happened next after you saw the repacking?
A: The boot was closed and the 2 male individuals got back into the car.
Q: Now just a question officer, when your vehicle was stationary which direction was the car in which these 2 individuals are in which direction was it pointing towards?
A: Mr Lord if I may illustrate it was just parking right across it’s like where the dock is from the other end of the room.
A: Since it has reversed from the gravel road it was down towards that tree, it was more like a right angle direction where I was looking.
Q: So Officer, from where you were looking the driver’s seat was faced towards your vehicle?
A: Yes, My Lord.
Judge: No, can you please specify that, see that you are sitting there in your car, can you point it out which direction in this court house.
Mr Neiko: Where the assessors are sitting, My Lord.
Judge: Which direction the car was facing?
Mr Neiko: The front of the car was facing towards the gravel road and the back of the car was pointing towards the ‘mocemoce’tree. (My emphasis)
[8] As regards this portion of ASP Neiko’s evidence, I get the picture that the two vehicles were facing each other while the appellants were said to be busy in repacking the drug parcels in to two bags in the boot. That makes it difficult, therefore, to believe to a certainty, that ASP had a clear view of the unfolding events at the back of HM046. ASP Neiko, had further stated in evidence that although he could not see which one of the two appellants threw the suitcases out of the boot of the car, he had seen both of them engaged in repacking packages into the black bags. Thereafter, two of them had returned to the vehicle and sat on their respective seats, “meaning the i-taukei man in the driver’s seat and the other one on the passenger seat”. ASP Neiko had said in evidence that he was able to observe what went on in the back of HM046 from where he was still sitting in his vehicle. ASP Neiko further stated that thereafter he walked up to the appellants and introduced himself as a police officer. Although he claimed to have seen the repacking of the parcels, he had not made an immediate search in the boot to find out what exactly was there in the boot.
[9] Further, on being inquired as to what they were doing at that location, the first Appellant had replied that they were sightseeing. [pg. 386]. The Appellants wanted ASP Neiko to reverse his vehicle so that HM046 could drive on. Neiko stated that “I agreed to their request, our vehicle reversed and that car came out from where it was parked”. It is rather perplexing as to why ASP Neiko did not immediately inspect the packages which he claimed to have seen being‘re-packed’ by both appellants into some black bags in the boot. This confusion is compounded by the fact that according to him, he had been giving pursuit to a vehicle that was said to be used in drugs peddling. Be that as it may, he had acceded to the request of the appellants and reversed his vehicle on to the wooden bridge. HM046 had driven forward and stopped closer to his vehicle. It was then only ASP Neiko asked the appellants to get out of the vehicle for him to carry out an inspection in the boot. In the evidence of ASP Neiko, one cannot find any answers to these uncertainties.
[10] ASP Neiko found the packages of cocaine in the car-boot, forming the basis for the allegation of joint possession of cocaine. ASP Neiko’s evidence was subject to a vigorous cross examination by the counsel for the 1st Appellant. Although ASP Neiko claimed that he saw the appellants engaged in re-packing the parcels, he admitted in his cross-examination that no steps were taken to examine the parcels for finger prints comparison. Further in the cross examination, ASP Neiko had the following to state: -
“Q: Now at the scene when you asked Mr Abourizk what he was doing there he said he was looking at land for an area to buy, didn’t he.
Mr Neiko: Yes, My Lord.
Q: And there was lots of land in that area for sale and in fact still is?
Mr Neiko: Ye, My Lord.
Q: When the crown prosecutor asks you that earlier today what did he say you said sightseeing didn’t you?
Mr Neiko: Yes, My Lord.
Q: You left out the very important part to the answer which is he was looking for land in the area for sale?
Mr Neiko: Yes, My Lord.
Q: You left it out because it doesn’t help you, that’s why you left it out of your answer didn’t you?
Mr Neiko: I did not mean to leave that answer My Lord.
Q: You are questioning him about what he was doing there right?
Mr Neiko: Yes, My Lord
Q: That before you asked that question you had seen the 2 of them repacking parcels right?
Mr Neiko: Yes, My Lord
Q: and you claimed this is after being given information about a drug exchange?
Mr Neiko: Yes, My Lord
Q: See if you had not seen any repacking at that point in time you would not need to give them their right would you, you told us you gave them their rights after the preliminary drug test right?
Mr Neiko: Yes, My Lord
Q: Let’s assume that you had not seen any repacking there would be no requirement of you to give Mr Abourizk his right before you asked him what you doing here?
Mr Neiko: No, My Lord
Q: But what you were doing you say was questioning him after you saw potential drug activity.
Mr Neiko: Yes My Lord
Q: And that means before you ask that question if that’s true you are required to question him and tell him that he does not need to answer your question is that true?
Mr Neiko: That’s correct My Lord.
Q: And we know from your evidence that you did not give him his rights before asking him what he was doing there?
Mr Neiko: Correct, My Lord.”
[11] Answering the cross-examination, ASP Neiko said that the official note books in which he kept records of the initial investigation had got destroyed during the recent cyclone. Consequently, in the preparation of his regular statements, upon which he relied on in refreshing his memory, there had been no means through which the accuracy could be determined. In other words, his evidence relating to the events at the scene where the vehicle was intercepted was based primarily and mainly on his memory of events alone. The counsel for the 1st Appellant suggested in the cross examination, it is a mandatory requirement that each police officer embarked on an investigation should carry with him a note book in which he is required to enter the events relating to the investigation, without delay.
[12] The witness admitted in the cross-examination that he had not entered any details in his statement about the exact position in which the “articles” were found in the car-boot. [pg 431]. Since none of the other officers who accompanied ASP Neiko had maintained any investigating notes at the scene, the defence alleged that they were denied the opportunity of having access to any first-hand information with regard to the actual happenings at the place of drugs detection.
[13] As I made reference earlier, ASP Neiko further admitted in the cross-examination that he never questioned the appellants as to what they were doing at the boot of the car, when he initially met them at the scene;
“Q: And you certainly did not say anything like “hey you two, what are you re-packing there, you did not ask any question about repacking, did you?
A: No, My Lord. (pg. 447)”.
[14] During the course of the cross examination the witness had further admitted that in maintaining the records of investigation, he had overlooked to refer to many important matters, including the bags being thrown out of the boot of the car;
“Q: You are overlooking a lot of important things Officer aren’t you in your statement?
Mr Neiko: Yes, My Lord
Q: You overlooked their rights correct?
Mr Neiko: Yes, My Lord
Q: You overlooked the bags being thrown out of the boot?
Mr Neiko: Yes, My Lord
Q: You overlooked this important evidence of you being at the Westin?
Mr Neiko: That’s correct, My Lord.”
[15] As transpired in the cross-examination, despite the directives contained in Force Standing Orders to ensure that a fingerprint expert’s assistance should be sought in cases where such expert evidence could be used effectively to solve crimes, the witness ASP Neiko admitted that he had not followed such procedure in this investigation.
[16] ASP Neiko had admitted that although he was involved in a covert surveillance from the previous day to the day of detection, he had not made arrangements to carry a camera with him to be used for this investigation. He had the following answer to be given in relation to this matter, and the effect of the answer that may have been left in the minds of the assessors needs little imagination in this appeal.
“Q: And because there are no surveillance records, because you did not have a camera, you can say anything you want about what happened that day, can’t you?
A: Yes, My Lord. (pg 483).”(My emphasis).
[17] Answering further to cross-examination ASP Neiko stated the following:
“Q: First time they stopped was few seconds ahead of you on the railway road 2 meters in front? Yes, My Lord. That was the sixthtime.A couple of lines further along, they are 2 seconds in front of you, 2 meters ahead of you, that’s the seventh time, and you are saying they got out and repackaged the parcels in front of someone that they don’t even know. Answer – They did repack the parcel My Lord.
Questions – in 2 seconds then they got back into the car. In 2 seconds they transferred 34 parcels, they got out of the car, transferred 34 parcels into another bag and then got back into the car, all in a few seconds. Is that right, right, and right in front of you? Answer – Yes they did that right in front of me, My Lord. See, not only did you say it then but you claim all this happened in a few second, this transferring of the parcels. That’s the evidence you gave the last time, isn’t it?
Mr Neiko: Yes, My Lord.
Q: Are you telling us the distance from me to His Lordship is 15 meters?
Mr Neiko: No, My Lord.
Q: And then I said you are sitting in the car with the driver and another man? Answer – yes, my Lord. These 2 people 2 meters in front of you, got out, they must have seen your car. Its right there, correct? Answer – Yes, My Lord. That’s the ninth time of 2 meters. You agree there was no mention of anything other than 2 meters during all of your evidence on the 29th was there?
Mr Neiko: No, My Lord
Q: Do you agree with me?
Mr Neiko: Yes, My Lord
Q: Then I said so you’re saying they went to the boot of the car. They transferred 50 kilos of drugs from one bag to another while you were watching them? Answer – Yes My Lord. See, you had never put any of these details in your statement, correct?
Mr Neiko: That is correct My Lord.
Q: So the first time that you were tested on this, this is the evidence you gave, correct?
Mr Neiko: That is correct, My Lord. (Page 491}
Q: Now, you say yesterday that you could not tell who was throwing the suit cases. Remember saying that yesterday to the Assessors and His Lordship?
Mr Neiko: Yes, My Lord
Q: What you are trying to do was to pretend that you were too far away to make up which two individual was which?
Mr Neiko: Yes, My Lord
[18] Furthermore, ASP Neiko, particularly in regard to the issue of repacking stated the following, in the re-examination;
Re-Examination:
“Q: Did you put in your statement what you saw about the repacking?
A: I did not put the details of the repacking, My Lord.” (pg505).
[19] Despite the contentious issues to which I have made reference above, it is rather perplexing that the learned Trial Judge, in the judgement had failed to consider any of these material in determining the testimonial trustworthiness of ASP Neiko’s evidence. It seems as that the learned Trial Judge had not considered this aspect as important for he had placed a great reliance on the rebuttable presumption contained in section 32 of the Control of Illicit Drugs Act, 2004 for determining the culpability of the appellants. In relation to this matter, suffice it to state for now that in the light of the inconsistencies and improbabilities that the defence had raised at the trial, would it be safe to act on the evidence of ASP Neiko’s evidence is a question that begs a clear answer, in the trial as well as in this appeal. As for the trial, if on the strength of the improbabilities and inconsistencies found in the testimony of ASP Neiko, his evidence was considered as untrustworthy, and further considered as incapable of being used to prove the case against the appellants beyond any reasonable doubt, would it have been safe for the learned Trial Judge to arrive at the conclusion to convict the appellants? As said earlier, in the Judgement, the learned Trial Judge had failed to make any references to these issues. In the light of such deficiencies, it behoves this Court to inquire whether it is still safe to sustain the conviction against the appellants who maintained in their evidence that they had no hand in dealing with the parcels of cocaine found in the boot of the car.
[20] The second witness for the prosecution was one Inspector Maciu, the Chief Investigating Officer of the alleged crime. Apart from the evidence relating to the overall investigation that he carried out, he had been cross examined about one Simon, who according to the defence had placed the bags of cocaine in HM046. It has been the contention of the defence, that the involvement of Simon in the drugs transaction should have been probed into thoroughly for that would have exonerated the appellants from the alleged crime. It was the position taken up by the first appellant in his evidence, that the bags that were found in the boot with drugs belonged to Simon a Canadian, who interacted with him and promised to take him on a cruise. In response to the line of cross examination, Inspector Maciu admitted that both appellants had told him about one Simon and his connection with the bags containing cocaine. Simon had been staying at one place called First Landing Resort. Inspector Maciu’s answers go as follows:-
“Q: That’s not what I said. They told you they could take you to Firs Landing because Simon would be there now.
Inspector Maciu: That’s not true, My Lord.
Q: Now, what investigations have you made about Simon or First Landing? Did you go there?
Inspector Maciu: During our reconstruction, My Lord.
Q: Who went? Did you go?
Inspector Maciu: Yes, My Lord.
Q: And you went, you claim the next day, the Tuesday?
Inspector Maciu: Yes, My Lord
Q: Now, you obviously went there and spoke to reception about a man from Canada or America, correct?
Q: We only questioned some of the workers who were working outside the hotel.
Q: Are you telling us that this critical part of the investigation, the person said to be the owner of the bag with the drugs in it, you did not even go to reception?
Inspector Maciu: No, My Lord.
Q: You’re agreeing with me, are you?
Inspector Maciu: Yes, My Lord.
Q: Are you, well surely you spoke to the owner of First Landing, didn’t you?
Inspector Maciu: No, My Lord.
Q: Your investigation into the owner of the bags with the drugs was limited to speaking to some workers at First Landing. Surely that’s not correct, is it correct?
Inspector Maciu: My Lord, the other team TCU was also involved in the investigation enquiring the identity of this Simon, My Lord.
[21] It is note-worthy that the prosecution did not call any other witness involved in the investigation to testify. Inspector Maciu had admitted in evidence, that in the absence of any conclusive expert evidence, he was unable to state with certainty that the appellants had ever touched the drug parcels. Once again, I find that the learned Trial Judge had made no reference what so ever to these highly contentious issues in the Judgement. In my view, these were issues that should have been used effectively to consider whether the factual presumption contained in section 32 of the Illicit Drugs Control Act had been rebutted. Even without going that far, the primary question that should be asked is “has the learned Trial Judge used these unsatisfactory evidence with many an improbabilities to consider the weight that could be attached safely to the overall case for the prosecution”?
The Evidence of the First Appellant
[22] In his evidence he explained his years of friendship with the 2nd appellant, who was a cousin of his friend in Sydney, one Saula. He had visited Fiji a couple of times before this incident. In July 2015, in the West Inn Hotel in Denarau, he met one Simon at the Golf Club, where the appellant had been watching the State of Origin game between New South Wales and Queensland. Simon struck up a conversation with him. Simon introduced himself as the owner of a yacht and that he runs a charted yacht service. Simon appeared “quite charismatic, well-educated and likeable”, according to the first appellant. Simon had suggested that the appellant could take a boat trip with his wife for approximately about $1400 FJ. The appellant felt happy about the suggestion and exchanged their mobile phone numbers, and the appellant had saved Simon’s number on his mobile, which the investigating officers had taken into their custody, upon his arrest. On 9 July 2015 the appellant’s wife had arrived in Fiji from Australia. The appellant had booked a boat trip for his wife and him; however, on Sunday Simon called to say that due to a mechanical defect, the boat trip was cancelled. The following day the wife of the appellant returned to Australia. In the morning of the following Sunday Simon had rung him on the mobile and apologised for upsetting his plans to go on the boat trip with the wife and in order to compensate ,he had been offered a free boat trip .When he received the call, he was in the company of the second appellant. The appellant had asked Simon whether it would be all right to invite the second appellant on the trip and Simon had agreed to that. As instructed by Simon, the appellant had gone to First Landing Hotel and by that time the second appellant had already arrived at that place in HM046.
[23] Simon informed them that due to a mechanical defect in the boat, there will be a slight delay in going on the trip. Simon wanted a ride in HM046, ostensibly to meet his crew in the North. His boat was at the First Landing, next to Vuda Mariner. Having arrived at Ba they stopped the car for Simon to speak to his three crew members. The appellant had taken photos of Simon with his crew and he claimed that the photographs were saved in his mobile, which the police had taken into custody. Simon had returned to the car and informed the appellants that his crew would be going ahead to fetch a marine radio and wanted the appellants to transport the crews’ luggage into the boot in the appellants car. The appellant had agreed and accordingly Simon had placed one part of the luggage in the boot and the other part on the back seat.
[24] The appellant was categorical that at no stage either he or the second appellant touched any of the bags. Confirming the line of cross examination of ASP Neiko by his counsel, the appellant stated that the first thing ASP Neiko asked him when they met on the gravel road was whether he was from Canada, inferring that they were looking for a person from Canada. Simon had travelled with them to Ba for about 20 minutes. From there they had travelled to First Landing, where Simon got down at the car park. Simon had informed the appellants he was checking out of First Landing and thereafter he would be accompanying them to the yacht. Simon wanted some time at First Lading to check out. Until he was ready to re-join them, the appellants decided to drive around the area and thus ended up at Vuda point. They have never noticed any vehicle following them .The appellant denied that they threw out any suit cases from the car. That was the sum total of the evidence of the appellants.
[25] Reverting to the evidence of ASP Neiko again to examine his evidence with dispassion coupled with the degree of objectivity that it warrants, it leaves much to be desired as far as whether its credibility would pass muster. In the sense, if one may apply the test of probability to weigh the credibility of his evidence, would it be possible to believe his testimony without entertaining a certain degree of well-founded suspicion that the perpetrators carried out the repacking of parcels containing narcotic drugs, right in front of some unknown persons who were staying in a parked car whilst watching them from a close proximity of about two meters?. Further if his evidence should be believed, the inevitable question to be asked is why did not ASP Neiko arrested the appellants while they were busy in repacking the parcels into two bags. After all it is his position he was giving pursuit to a vehicle that was said to be carrying drugs. If what ASP Neiko had said was true, it is improbable that he did not take prompt action to arrest the two persons allegedly involved in repacking the parcels of drugs into two bags. Amongst many other tests that are traditionally used as yardsticks to determine the credibility of the evidence of a witness, the test of probability is also an important yardstick used in determining the testimonial trustworthiness of the evidence of any witness. Further, ASP Neiko, during the cross-examination gave the following answers.
Q: Now you said yesterday that you could not tell who was throwing the suit cases.
A: Yes My Lord.
Q: What you are trying to do was to pretend that you were too far away to make up which two individuals was which? [Emphasis is mine].
A: Yes, My Lord.
[26] Even on the issue of the distance from where the appellant’s vehicle was watched by the Police team, I find ASP Neiko’s evidence is riddled with inconsistencies and prevarications. It is more so, when it comes to the crucial piece of evidence relating to the repacking of drug parcels, which he claimed to have seen clearly;
“Q: Now, did you put in your statement what you saw in the repacking?
A: No, My Lord.
Q: My question is, did you put in your statement what you saw about the repacking?
A: I did not put the details of the repacking, My Lord.”
[27] These answers were given in re-examination. Especially, a crucial piece of information of this nature, which is directly relevant in determining the criminal responsibility of the offenders, should have been included in details in his statement, at least for the purpose of, on the one hand to refresh his memory and on the other hand for the purpose of verifying the truthfulness of the evidence in terms of preserving the spirit of fair trial. There had been no effort taken by the prosecution to elicit a plausible explanation from the witness as to why he failed to enter this part of the events into his statement. In the circumstances, little effort is required to understand the unsatisfactory nature of his evidence.
[28] The prosecution suggested that the appellants were hired by Simon for the purpose of delivering the parcels of drugs. What could be inferred from this suggestion is that the prosecution has not completely ruled out the possibility of the involvement of Simon in the drugs transaction. The appellant did not accept the suggestion. The appellant, in re-examination stated that the first time he saw ASP Neiko’s vehicle was whilst turning his vehicle round on the gravel road. It was parked a few metres away.
[29] At this point, if I may recall the answers of ASP Neiko in the cross-examination, towards the end of his testimony, ASP Neiko admitted that he reversed the car on the gravel road to accommodate the appellants to move forward. [Pgs. 496-497]. This was despite the fact that he had already seen the appellants hurriedly repacking some parcels into the bags in the boot.ASP Neiko further admitted that the appellants carried out the alleged repacking right in front of them, from a distance of about 2 meters. He said in evidence “that the appellants transferred the parcels from 2 bags into another bags, while I am watching from a distance of 2 meters away” [pg. 500].
[30] Even after seeing the repacking of the parcels, ASP Neiko had not thought it appropriate to administer the mandatory caution to the appellants. Nor had he questioned the appellants as to what were there in the car -boot. He had merely acceded to the request of the appellants to reverse his vehicle, in the sense that he was clearing the path of the appellants to move forward.
[31] As can be seen from his evidence, it was ASP Neiko’s position that the appellants re-packed the parcels into two bags within split seconds; [pg. 489]
“Q: And the first time they stopped, was a few seconds ahead of you, on the railway road to meet us in front?
A: Yes my Lord.
Q: And you are saying they got out and repacked the parcels in front of someone that they don’t even know?
A: They did repack the parcels my Lord.
Q: In 2 seconds then they got back into the car? In 2 seconds they transferred 34 parcels, they got out of the car, transferred 34
parcels into another bag and then got back into the car, all in a few seconds, is that right, in front of you?
A: Yes, they did that right in front of me, My Lord. [pg489]
[32] As against the totality of the evidence for the prosecution with certain clear improbabilities, I find the evidence given by the Appellant, with which the 2nd Appellant also had associated himself, is devoid of any material to vitiate its credibility. The appellant seemed to have stood his grounds firmly in his testimony in which he is protesting their innocence. However, I am mindful that as trite law dictates, on matters of this nature, the decision making process should be left in the hands of the triers of facts to make a determination, unless there is a manifest serious irregularity occurred; In R. v Whitehead (1929) 1 KB 99.
[33] The issue involved in here is that, there is no reference made by the learned Trial Judge about any of these issues in his Judgement. The main contention of the defence throughout the trial had been that the prosecution had presented a weak case based on improbable, inconsistent evidence and the evidence relating to the conduct of the investigation by ASP Neiko shows that the version of the appellants is creditworthy for a court to act upon to acquit the appellants.
The Assessors
[34] The 5 assessors opined unanimously that the appellants are not guilty. The learned Trial Judge disagreed with the unanimous opinion of the five assessors and overturned their opinion of assessors. I am mindful that in disagreeing with the unanimous opinion of the assessors, the learned trial Judge has to adduce cogent reasons and the dicta found in the case of Johnson v State [2013] FJCA 45; AAU90.2010 (30 May 2013) has to be considered as providing the guiding principles in disagreeing with the assessors opinion as stated at paragraphs 23 to 34 as follows:
“[23] The principles relating to the overturning a verdict of the Assessors by the trial Judge as set out in S.299 of the CPC were laid down by the Supreme Court in Lautabui v State [2009] FJSC 7; CAV0024.2008 (6 February 2009).
"[28] S 299 of the CPC recognizes that a judge has the power and authority to disagree with the majority opinion of the Assessors. When the judge disagrees with the assessors his or her reasons are deemed to be the judgment of the Court. However, the judge's power and authority in this regard is subject to three important qualifications.
[29] First, the case law makes it clear that the judge must pay careful attention to the opinion of the assessors and must have "cogent reasons" for differing from their opinion. The reasons must be founded on the weight of the evidence and must reflect the judge's views as to the credibility of witnesses: Ram Bali v. Regina [1960] FLR 80 at 83 (Fiji CA), affirmed Ram Bali v. The Queen (Privy Council Appeal No. 18 of 1961, 6 June 1962); Shiu Prasad v. Reginam [1972] 18 FLR 70, at 73 (Fiji CA). As stated by the Court of Appeal in Setevano v. The State [1991] FJA 3 at 5, the reasons of a trial judge: "must be cogent and they should be clearly stated. In our view they must also be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial."
[30] Secondly, although a judge is entitled to differ from even the unanimous opinion of the assesors, he or she must comply with the requirement of s.299 of the CPC to pronounce his or her reasons in open court. It was not disputed by the State that a failure to comply with the statutory requirement, whether because the reasons are inadequate or because they are not pronounced in open court, is sufficient, of itself, to warrant setting aside a conviction in a case where the judge overrides the opinion of the assessors.
[31] The third point is related to the other two. A person convicted of a criminal offence in the High Court has a right of appeal on any ground which involves a question of law alone: Cap 12, s.21(a)(a). The convicted person may appeal to the Court of Appeal on any question of fact, provided he or she obtains the leave of the Court of Appeal or a certificate from the trial judge: s.21(1)(b). An appeal to the Court of Appeal (whether as of right or after a grant of leave or of a certificate) is by way of rehearing: Setevano v State at 14. Thus, a decision by a trial judge to disagree with the assessors' opinion that the accused should be acquitted is subject to an appeal (albeit by leave) in the nature of a rehearing.
[32] It follows that the reasons of the trial Judge in such a case will be scrutinised closely on appeal. It is important to appreciate that one of the principal rationales for requiring trial courts sitting without juries to give reasons for their decisions is "to enable the case properly and sufficiently to be laid before the ... appellate court": Pettit v. Dunkley at 388. The reasons must be sufficient to fulfil that purpose.
[33] The qualifications to the power and authority of a trial judge to override the opinion of the assessors are closely related because an appeal by way of rehearing on a question of fact presupposes that the judge's reasons expose the reasoning process by which he or she has concluded that the case against the accused has been proved beyond reasonable doubt. Unless this is done, the Court of Appeal may not be able to determine whether the judge erred in reaching that conclusion, much less whether he or she had "cogent reasons" for depriving the accused on the benefit of the assessors' opinion. Further, in the absence of a cogent reasoning process in the judgment, the accused will not know precisely why the assessors' opinion in his or her favour was not allowed to stand.
[34] In order to give judgment containing cogent reasons for disagreeing with the assessors, the judge must therefore do more than state his or her conclusions. At the least, in a case where the accused have given evidence, the reasons must explain why the judge has rejected their evidence on the critical factual issues. The explanation must record findings on the critical factual issues and analyse the evidence supporting those findings and justifying rejection of the accused's account of the relevant events. As the Court of Appeal observed in the present case, the analysis need not be elaborate. Indeed, depending on the nature of the case, it may be short. But the reasons must disclose the key elements in the evidence that led the judge to conclude that the prosecution had established beyond reasonable doubt all the elements of the offence."
[35] I have closely examined the judgement to uncover the reasons for the learned Trial Judge to have disagreed with the opinion of the assessors. As stated above, the trite law demands that in disagreeing with the opinion of the assessors, the learned Trial Judge should adduce cogent reasons.
[36] What then were the cogent reasons upon which the learned Trial Judge placed his reliance in disagreeing with the opinion of the assessors? It is my understanding that the reasons that were given are mainly and basically referable to certain factual matters arising out of the evidence and for the purpose of clarity, I shall now set out them as follows from paragraph 25 to 30 of the judgement;
“25.Having concluded that, I now turn onto determine whether the prosecution has proven beyond reasonable doubt that the two accused persons had the knowledge and the control of the illicit drugs that was found inside the bag and suitcases in HM 046.
[37] As reAs regards this, it is important once again to refer to the evidence of ASP Neiko about the investigation he carried out about the movements of HM046. Is this evidence consistent is the most important question to ask in relation to this matter. ASP Neiko at the beginning of his evidence has stated that he started to monitor the movements of HM046 from Lautoka. (pg. 379). Then he said: “We followed the car My Lord after he left the city area”.
“Q: Now officer, how did you come into contact with this car, HM 046?
A: The number of the car was communicated to me via mobile phone.
Q: Now you stated that you followed the car, after it left the city area. Can you tell us more about this?
A: we followed the car before it reached Natabua junction.
Q: What happened?
A: We kept on following the car, from then on My Lord.
Q: And where was this car headed towards?
A: it was headed towards Nadi, My Lord.
Q: In regards to following this car, tell us about what happened?
A: I informed the driver to maintain a distance from the car, HM046.
Q: What was the distance you inform the driver?
A: It was approximately 5 cars distance between HM046 and the vehicle which I was travelling in.
Q: Why you kept on following this car?
A: We kept on following until the car made a right turn to the road that goes to Viseisei village.
Q: What happened after that Officer?
A: The car made another right turn towards Anchorage Resort.
Q: And then what happened?
A: The car kept on going towards the Marina.
Q: How far were you from HM 046?
A: We were still maintaining the same distance.
Q: And what happened after that?
A: The car went past Vuda Marina and made a right turn onto a gravel
road”.
That is his position in the examination in chief.
[38] Now, when it comes for answering the cross examination I find this evidence is inconsistent with what he had stated earlier. In answering the cross examination he had stated as follows:-
“Q: is it the case that you first saw the accused on the Queens highway about 1 km from the scene of the arrest?
A: That is correct My Lord.
Q: And are you saying that you monitored them in that 1 km range for
6 hours?
A: No, My Lord.
Q: When I ask you a question on the 29th of March what you told us was that you first saw the vehicle along the Queens Highway about 1 km from the ultimate destination and then you told us, you have followed him onto the railway road. That is what you told us. Isn’t it?
A: That is correct, My Lord.
Q: And if that version is correct, you’re only monitoring them for
minutes.
A: No, My Lord.
Q: Alright let’s go to what you said. This is page 13 bottom of the page. I ask
you some questions on the 2nd day. Where did you first see the vehicle? Along the Queens Highway was your answer. Is that still your evidence?
A: yes My Lord.
Q: is that near the junction you were telling us yesterday?
A: Yes my Lord.
Q: ok. And then I said well how far from the ultimate destination? And then you said around 1 km. Is that still your evidence?
A: Yes, My Lord.
Q: and then I said so you saw them by chance. Remember what you answer for that Question?
A: I cannot recall my Lord.
Q: Did you monitor them for 6 hours? From a distance of 4 cars?
A: No, My Lord”.
[39] Surprisingly, these answers have gone into the record with no objection being raised by the prosecution. In the same vein, there has been no attempt to have this inconsistencies clarified during the course of the re-examination of the witness. One cannot be unmindful of the fact that although the learned Trial Judge is the ultimate trier on facts, that the assessors who were drawn from the community must have been fully conscious of the geographical lay out relating to the area in which the detection was said to have taken place. The distance from Lautoka to the final destination in which the arrest took place was far exceeding just one kilo meter and I have no doubt that the assessors being members drawn from the community must have been attuned to that fact , throughout the trial.
[40] In relation to the proposition by the defence that this was a chance meeting of the vehicle of HM046 and the detection of the drugs was consequent to a random checking, the defence questioned ASP Neiko in the following manner:-
Q: at the scene you decided that this might be an offence
involving a large amount of drugs. Is that right? After you have opened the bags?
A: Yes, My Lord.
[41] I find that on the whole, the prosecution evidence has been based on evidence riddled with inconsistencies and improbabilities. In the light of such contentious matters, the learned Trial Judge should have been more circumspective in examining the totality of the evidence lead in the trial. It is unclear from the judgment, the degree of importance that had been attached to the contentious issues contained in the evidence, especially for the purpose of determining where does the truth lie. The learned Trial Judge seemed to have disbelieved the version of the Appellants that there was one Simon involved in the drugs transaction as alleged by the Appellants. However, he seemed to have overlooked the fact if Simon’s involvement was untrue, why did the Chief Inspector Maciu in his efforts to reconstruct the crime scene ever went in search of Simon to First Landing Resort, at all.
[42] In a trial, when the Judge is embarked on evaluating the evidence of a witness, it is important for him to make a reference to the inconsistencies, infirmities, contradictions, or omissions that are contained in the evidence of the witness and to make a clear pronouncement as to why despite such weaknesses, he is still inclined to believe the evidence. If the inconsistencies and infirmities are trivial in nature and could be ignored for they do not shake the credibility of the evidence in toto, then a Judge is free to ignore their effect and act upon the evidence and arrive at the conclusion that he wishes to draw from the evidence. On the other hand, if the infirmities or inconsistencies are serious, and serious enough to shake the very foundation of the credibility of the evidence of a witness, then it is the duty of the court to accrue to the benefit of the accused person the impact of such infirmities. There may also be instances where despite the existence of certain serious infirmities inherent in evidence, a court can, after adducing good reasons, ignore them and continue to act on the remaining evidence for their credibility. However, what is important eventually is that there should be a clear and unambiguous reflection of the rationale adopted by a court of law in evaluating the contradictions, omissions, improbabilities and any other infirmities relating to any evidence, for such matters play one of the pivotal roles in the determination of the ultimate credibility of any evidence. (See Prasad v State [2017] FJCA 112; AAU 105.2013 (14 September 2017). Further in relation to the manner in which the Appellate Court should be evaluating the evidence of a trial has been decided in the case of M v The Queen [1994] HCA 63; [1994] 181 CLR 487. (See Takiveikata v State [2007] FJCA 45; AAU0065.2004 (25 June 2007); For present purposes it is enough to quote the headnote:
"Held by Mason C.J., Deane, Dawson, Toohey and Gaudron JJ.,
(1) that where, notwithstanding that there is evidence to sustain a verdict of guilty, a court of criminal appeal is asked to conclude
that the verdict is unsafe or unsatisfactory, the court must ask whether it thinks that upon the whole of the evidence it was open
to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering that question the court must pay full
regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and the
fact that the jury has had the benefit of having seen and heard the witnesses.
(2) That in most cases a doubt experienced by an appellate court as to the guilt of the accused will be one which a jury ought also
to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt
experienced by an appellate court that it may conclude that no miscarriage of justice occurred. That is to say, when the evidence
lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the
court is a doubt which a reasonable jury ought to have experienced. If the evidence contains discrepancies, displays inadequacies,
is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance
for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, it is bound
to act and to set aside the verdict.
(3) Per Brennan J. An appellate court’s function is to make its own assessment of the evidence, not for the purpose of concluding
whether it entertains a doubt about the guilt of the person convicted, but for the purpose of determining whether the jury, acting
reasonably, must have entertained a reasonable doubt as to guilt.
(4) Per McHugh J. The correct test for determining whether a verdict should be set aside on the ground that it is unreasonable is
whether a reasonable jury must have had a reasonable doubt about the accused’s guilt. The court must make an independent assessment
of the evidence. However, before coming to the conclusion that a reasonable jury must have had a reasonable doubt about the accused’s
guilt, the court must give due weight to the advantages that the jury had in regard to the evidence and the atmosphere of the trial.
If, after considering the evidence, the court concludes that a reasonable jury must have acquitted, the verdict is unreasonable even
though there may be sufficient evidence in law to support the verdict."
[43] On the issue of the burden of proof I have carefully examined both the summing up and the judgement in this case and it is my observation that on the whole the learned Trial Judge had misdirected him-self on the issue of the burden of proof, The learned Trial Judge directed as follows in the judgment;
“If the prosecution proved beyond reasonable doubt that the two accused persons had in possession of such illicit drugs, the burden will then shift onto the two accused persons to prove that they had a lawful authority to bear such possession. However, the first and second accused persons did not adduce any evidence to establish that they had any lawful authority to have in possession of illicit drugs. Hence, the element of “without lawful authority” was not disputed during the course of the hearing.”
This indeed is an ex-facie erroneous premise for the appellants had been quite unequivocal in their defence that they ever had the possession of cocaine in their possession, be it lawful or unlawful possession. It was their position throughout the trial that the bags containing cocaine was put into the car boot by one Simon and thus they had absolutely no knowledge of their presence until the police found it. I have already dealt with that evidence extensively.
[44] Having regard to the above passage of the judgement , suffice it to state that if the prosecution had proved beyond any reasonable doubt that the possession was without any lawful authority , then the issue regarding the culpability should end, then and there. Whether or not the prosecution has proved the case beyond any reasonable doubt should be the final determination that a court should arrive at, having regard to the totality of the evidence in the trial. This error in the judgement in the instant case could be attributed to the fact that there had been a certain degree of compartmentalization of evidence by placing side by side meaning on one side the prosecution’s evidence and on the other side the evidence of the appellant. That is certainly an error in assessing the evidence for implicit in it is the adoption of the criterion used in assessing the evidence on the basis of preponderance of evidence ,where the standard of proof is lower than that of in a criminal trial.
[45] This error seems to have been repeated throughout the judgement. The reason for that could be attributed to the fact of over emphasis that has been given to the operation of the presumption that is contained in section 32 of the Illicit Drugs Act. As regards that matter, it is important to bear in mind that the dictates of law do not become operative in an abstract vacuum. Laws do not transform them-selves into animation unless there is a platform for their operation created by human intervention. The force of section 32 of the Illicit Drugs Act should also be considered in that light.
[46] The culmination of the error based on the wrongful assertion of the burden of proof can be seen through the tone of paragraph 21 of the judgement in which the learned Trial Judge had stated as follows;
“21. The first accused person in his evidence actually did not dispute the presence of suitcases and the bag in HM046. Furthermore, he did not adduce evidence to establish that neither he nor the second accused person were not in control of HM046.According to the evidence of the first accused person, both of them were in HM046 at the location where ASP Neiko approached them. In view of these evidence and the agreed facts, I am satisfied that the prosecution has successfully proved beyond reasonable doubt that,
Having said, the learned Trial Judge concluded that “accordingly, the prosecution has successfully established the presumption of possession as stipulated under section 32 of the Illicit Drugs Control Act. Hence, the onus is now shifted on the two accused persons to prove contrary or rebut the presumption of possession.”
[47] In reality the above facts of (a) to (d) are based entirely on matters that the appellants have not disputed in the trial against them. In other words, the learned Trial Judge had reiterated the obvious, undisputed facts relating to the case and there was never any contention about the factual basis upon which those matters were perceived.
[48] The real contentious issues lie elsewhere for it is the argument of the appellants at the trial that the case for the prosecution is not built upon strong and credible evidence and thus the unsustainability of the conviction. In other words, the pith and substance of the defence had been to ask in simple terms whether it is safe to find the appellants guilty, solely based on such unsatisfactory, shaky evidence .I have in the preceding paragraphs discussed at length the nature of the evidence adduced by the prosecution with a special emphasis being given to ASP Niko’s evidence. As against the evidence of the prosecution, the first appellant had also offered his own version of the story in which, putting it in a nut shell, he had said one Simon had placed the bags in the car and the appellants had no knowledge about what contained in them. As pointed out earlier, the evidence of ASP Neiko was not the best kind of evidence that one would expect to be used in determining the guilt or otherwise of a person facing a criminal charge. Its credibility has been tainted with many inconsistencies and improbabilities.
[49] However, neither in the summing up nor in the judgment, I can find any critical analysis of the evidence of the prosecution in general or the evidence of ASP Neiko in particular. The usual yardstick for the purpose of this determination is based on the following guiding principles;
(a) that taken as whole one believes the evidence for the prosecution beyond any reasonable doubt, then the accused is guilty. In the same way if the defence evidence is believed, then the case for the prosecution should fail. Here the standard of proof is different and it is to be decided on a balance of probability.
(b) that if the evidence adduced by the defence is rejected for its credibility and considered as incapable of creating a reasonable doubt on the case for the prosecution; that does not on its own would be considered as capable of proving the prosecution case, for still the need is to consider whether the evidence for the prosecution can be believed on its own beyond any reasonable doubt. If it is not so, the doubt should enure to the benefit of the accused person.
(c) The other situation is where there is a reasonable doubt about the credibility of the evidence for the defence. In the sense, one neither believes nor disbelieves the evidence of defence. That in effect means the case for the prosecution has not been proved beyond any reasonable doubt and the benefit of such a situation should also be accrued to the benefit of the accused person.
[50] Part 4 of the Illicit Drugs Control Act, 2004, dealing with Evidentiary Matters, speaks of “Factual presumption relating to possession of illicit drugs” under section 32 states:
“Where in any prosecution under this Act it is proved that any illicit drug controlled chemical or controlled equipment was on or in any premises, craft, vehicle or animal under the control of the accused, it shall be presumed, until the contrary is proved, that the accused was in possession of such illicit drug, controlled chemical or controlled equipment. ”
[51] Pipson on Evidence at para 6 to para 18 at page 136 dealing with the difference between presumption of law and presumption of fact state as follows:-
“6-18. Presumptions of law differ from presumptions of fact in the following respects:
(a) Presumptions of law derive their force from law, while presumptions of fact derive their force from common sense and logic. However, many of the former have intrinsic logical weight, being indeed derived from the latter, yet there are others which have none. Thus, after a person has been absent for six years and 364 days there can be no presumption of death, yet the addition of one more day’s absence will enable the presumption to be applied.
(b) A presumption of law applies to a class the conditions of which are fixed and uniform; a presumption of fact applies to individual cases, the conditions of which are inconsistent and fluctuating. Thus, the presumption of death arises whenever seven years’ unexplained absence is proved; but when it is necessary to establish the time of the death more precisely, the question must be decided on the evidence adduced in each specific case.
(c) Presumptions of law are made by the court, and in the absence of opposing evidence are conclusive for the party in whose favor they operate and for the purpose for which they operate; presumptions of fact result in inferences drawn by the tribunal of fact, who may disregard them, however cogent.
In practice, however, these distinctions are by no means easy to apply; and the line of demarcation, even when visible, is often overlooked. A presumption which is regarded by some judges and text writers as one of law is treated by others as one of fact, or of mixed law and fact; indeed, the same judges have not infrequently place the same presumption in different categories at different times.”
[52] Section 32 of the Illicit Drugs Control Act 2004, defines the section as containing a factual presumption, which can be rebutted by an accused person by adducing evidence to create a reasonable doubt on the prosecution’s case. As the learned Author explained in the citation above “presumption of facts applies to individual cases, the conditions of which are inconsistent and fluctuating; presumption of fact results in inferences drawn by the tribunal of fact, who made this disregard them however cogent”.
[53] In the absence of a detailed discussion on the inconsistencies, improbabilities, and other deficiencies clearly perceivable through the evidence adduced in the prosecution’s case on a whole, could it be possible to justify the rejection of the evidence adduced for the purpose of rebutting a factual presumption, is a serious question to raise when one is required to make a conclusion on the justifiability of a Judgment. As I have already highlighted in the preceding paragraphs, in rejecting the evidence of the 1st Appellant, the learned Trial Judge had failed to consider the evidence on the whole, and to explain why he was more inclined to believe the case for the prosecution, notwithstanding the existence of the serious inconsistencies and improbabilities that loom largely over the testimonial trustworthiness of the prosecution’s case.
[54] This non direction on the serious improbabilities and inconsistencies in the case for the prosecution is tantamount to a misdirection and I am therefore, of the opinion that the conviction cannot be supported having regard to the totality of the evidence in this case. Further, in the light of the unsatisfactory nature of the evidence adduced by the prosecution, I do not consider this as a fit case where the application of the proviso could be used to purge the defects intrinsical to the prosecution’s case. In this backdrop, the cross appeal filed by the State could be taken up for consideration on another occasion, where the circumstances would justify such a consideration.
[55] In the circumstances I hold that the conviction should be set aside and the appeal should be allowed.
Prematilaka, JA
[56] I had the benefit of reading in draft the judgment of my brother Gamalath, JA and respectfully I am unable to agree with the reasons and the conclusions therein. My judgment in this appeal is as follows.
[57] This appeal arises from the conviction of the appellants on a single count of Unlawful Possession of Illicit Drugs, contrary to Section 5(a) of the Illicit Drugs Control Act 2004. The particulars of the offence were as follows
&;Joseph Nayef&#yef ;Abour> b> and Josese Muriwaqa e the the 13th day of 2015, at Lautoka in the Western Division, without lawful rity, found in possession of illicit drugs weighing 49ng 49.9 kilograms.’
>
[58] After trial, the five assessors expressed opinions that the appellants were not guilty of the said count. The learned High Court Judge disagreed with their opinion and convicted the appellants in the judgment delivered on 22 April 2016. On 29 April 2016 the learned judge imposed a sentence of 14 years of imprisonment with a non-parole period of 12 years.
Preliminary observations
[59] The appellant timely sought leave to appeal against the said conviction and sentence. The State applied for leave to appeal against the sentence. The single Judge of this court in the leave to appeal ruling dated 08 May 2018 summarised the appellant’s grounds of appeal as follows.
[60] The gThe grounds of appeal urged by the State at the leave to appeal hearing were as follows.
[61] Goundar, JA sitting as the single Judge of the Court of Appeal inter alia had said in the leave to appeal ruling;
‘[4] At trial, the prosecution led evidence that after a covert surveillance, police intercepted and discovered cocaine inside a suitcase in the boot of the vehicle driven by appellant Muriwaqa. Appellant &Abourizk wpasseiger in the vehicle. cle. The appellants did not dispute that the substance found in the vehicle was cocaine, an il drug physelement was not in dispute. The fault eult element was in dispute. The appellantslants clai claimed that they did not know that they were in possession of cocaine. The assessors’ unanimous opinion was that both appellants were not guilty. The learned trial judge did not accept that opinion. In a written judgment, the learned trial judge convicted the appellants.’ (emphasis added)
[62] Having discussed section 57 and 59 of the Crimes Act, the Ruling has the proceeded to state that the issue whether the burden
of proof under section 32 of
[63] The single JudgeJudge further held in relation to the trial judge’s reasons for disagreeing with unanimous not guilty opinion of the assessors that the issue whether the learned trial judge had embellished the test under section 237 of Criminal Procedure Act 2009 for not agreeing with the opinions of the assessors is a question of law alone.
[64] As for the rest of the grounds of appeal, the single Judge had remarked that they raised questions of mixed law and fact and the main litigation issue at the trial was the fault element and that it was arguable before the full court, having regard to all the evidence, as to whether it was open on the evidence for the trial judge to be satisfied beyond a reasonable doubt that both appellants knew that they had an illicit substance in their possession.
[65] Goundar, JA also found in relation to the ground of appeal against the sentence, where he had granted leave to appeal against the sentence by both the appellants and the State, that it was arguable whether the trial judge had committed error in the exercise of the sentencing discretion and stated that
‘[13] The maximum penalty prescribed for possession of an illicit drug is life imprisonment. There is no established tariff
for the offence of possession of cocaine. In Lata v Stateb><] FJCA 56; AAU0037.2013 (26 May 2017, the offender was convictedicted of p of possesossession of 1.9 kg of cocaine after trial and sentenced
to 18 years’ imprisonment. The Court of Appeal reduced the sentence to 15 years’ imprisonment. In the present case, the
appellants were convicted of possession of a far large quantity of cocaine (49.9kg). But the sentence is less than the sentence that
was imposed in Lata...’
The evidence at the trial in brief
[66] The prosecution alleged that the two accused were having in their possession 49.9kg of illicit drugs, namely Cocaine. Tere found in a car bearing ring the registration number HM 046 (‘HM046’) at a location close to Vuda Point, Lautoka where only the two appellants were inside the vehicle. The police have found 34 parcels wrapped with plastic wrappers and masking tapes inside a travelling bag and a suitcase found inside the boot of HM 046. At the trial the two appellants had not challenged that the suitcases and a bag were in the HM 046. According to ASP Neiko, he had found some suitcases and a traveling bag inside the boot of HM046 when he had approached and searched the car. He had then found 20 parcels wrapped with plastic wrappers and masking tapes in the travelling bag and 14 more parcels inside one of the suitcases found in HM 046. While giving evidence in court, he had identified the bag and suitcase together with those 34 parcels.
[67] The first and second appellants on their part had admitted in the agreed facts that they were known to each other and had been traveling in HM046 since 07 July 2015. They had further agreed that they were travelling in HM 046 on 13 July 2015. The second appellant had been the driver of HM046 and the first appellant had been the passenger when the police approached them at Vuda Point.
[68] The first appellant had testified at the trial. The second appellant had not given evidence at the trial. No other witnesses too had been summoned on behalf of the appellants. The 01st appellant had said that he met one Simon at Denarau Golf Club. Simon had told him that he owned a boat and he chartered it for trips. The first appellant had then booked a trip for himself and his wife on Saturday but Simon had informed him in the morning that he had to cancel the trip. The first appellant’s wife had left Fiji on Sunday. Simon had again called him on next Monday and informed him that he could still go on the boat trip with his wife. Having heard that the wife of the first appellant had already left, Simon had offered him a free boat trip on Monday. The first appellant had gone to First Landing Resort with the second appellant to meet Simon to take the free boat trip. Again, Simon has told them there was a mechanical problem in the boat and had taken them to Ba. According to the first appellant, in Ba, Simon had asked them to take the baggages of his crew in HM046 as they can go to the boat and make it ready until the crew returned with the correct marine radio. First appellant had returned to Vuda Point with the second appellant and Simon. They had dropped Simon at First Landing Resort, who wanted 15 minutes for him to check out from the Resort. Simon had asked the two appellants to go to Vuda Marina, which was situated right next to the Resort and that he would meet them there. The two appellants instead of going there had turned to the left side of the Resort and gone along a narrow gravel road to see lands for sale. When they saw a railway cart parked beside the gravel road they had realised that they could not go further. They turned their car back. At that point they saw the vehicle of ASP Neiko. ASP Neiko approached them and asked them what they were doing at this location. According to the evidence given by the first appellant, the two accused persons claim that they had no knowledge of or knew nothing of the existence of drugs in the bag and suitcases as they belonged to Simon.
[69] ASP Neiko in his evidence had stated that acting on a tip off over the phone, he and his team positioned themselves at Natabua junction along Queen's highway and monitored for six hours the movement of vehicles going towards Nadi from Lautoka City area on 13 July 2015. However, they had no surveillance camera with them to take photographs. The police party was in a private vehicle and ASP Nick was wearing casual wear. They had then noticed HM 046 coming from the Lautoka city and going towards Nadi and the team had followed HM 046 until it turned onto the gravel road and drove further about 500 meters and stopped at the railway cart. ASP Neiko had not spoken of him having observed HM 046 going into First Landing Resort or stopping anywhere to drop off any person as claimed by the 01st appellant. Neither had such a scenario been suggested to him under cross-examination. Thus, the evidence of ASP Neiko with regard to HM 046 entering into the gravel road and traveling down until it found the railway cart and stopped there appears to have stood unchallenged.
[70] In paragraph 21 and 22 of the judgment the trial judge states as follows
c. Those 34 wrapped parcels were illicit drugs, namely, Cocaine,
[71] My brMy brother Gamalath, JA too has agreed that the matters stated under (a) to (d) under paragraph 21 of the imp judgment are
based entirely on undisputed facts or matters that the appellants have not chot challenged at the trial and as against that, the
appellants’ position had been that he had no knowledge of what the bags said to have been placed by one Simon in HM 046 contained.
Further, Gamalath, JA too has agreed that the appellant’s position at the trial had been that the bags containing Cocaine were
put into the car boot by Simon, a Canadian and that the illicit drugs belonged to Simon. Needless to state that ownership of articles
is of little relevance when an accused is charged under section 5 of the Illicit Drugs
[72] Section 32 of the Illicit Drugs Control Act 2004 states
‘Factual presumption relating to possession of illicit drugs
Win any prosecution under ther this Act it is proved that any illicit drug, controlled chemical or controlled equipment was on or in any premises, craft, vehicle or animal under the control of the accused, it shall be presumed, until the contrary is proved, that the accused was in possession of such illicit drug, controlled chemical or controlled equipment.’
[73] It is clear that the burden of proof on an accused when the presumption under section 32 of the Illicit Drugs
[74] To that extent the trial judge had erred in law in treating the burden on the appellants as an evidential burden under section
59(1) of the Crimes Act when the presumption under section 32 of the Illicit Drugs Control Act 2004 becomes applicable. However, this error has prejudiced the prosecutid not the appellants. However, there was an evidential burden
on the appellant to show, if , if that be the case, that they had lawful authority to possess the quantity of Cocaine concerned,
as the prosecution cannot be expected to prove the negative and that fact was exclusively within the knowledge of the appellants.
The appellant did not discharge this burden and in fact, they could not have done so without first admitting that they knowingly
had in their possession the prohibited drug. Given their defense of lack of knowledge of the presence of Cocaine in the bag and suitcase
in the boot of the car, the element of ‘without authority’ in section 5(a) of the Illicit Drugs
[75] Given the above evidence of the prosecution, it is clear that the prosecution had proven that 34 wrapped parcels were in HM 046, those parcels contained illicit drugs, namely Cocaine and they were under the control of the appellants. In Koroivuki v State AAU0018 of 2010: 5 March 2013 [2013] FJCA 15 the Court of Appeal said of possession as follow.
‘The Illicit Drugs Control Act 2004 doe define the word "possesossession". In absence of a statutory definition, the Court can be d by the English common lawn law definition 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 physically or control it (Lambert, supra).Ri>
[
[76] However, section 4 of the Crimes Act, though not exhaustive, interprets what the words "possession", "be in possession of" or "have in possession" include and in my view, any English common law definition of possession should be adopted keeping section 4 also in mind and in a way not inconsistent with section 4. Section 4 of the Crimes Act also defines what joint possession is. In that context, it is my humble view that the additional element of ‘extra beneficial factors’ recognized in English common law as part of joint possession is not found in section 4 of the Crimes Act and therefore should not be regarded as part of the concept of joint possession in Fiji as stated in Mohammed &v State> AAU0092 of: 12 Decemberember 2014 [2014] FJCA 216.
[77] Therefore, quite/b>independent of the common law definition of possession, in the instant case the fthe factual presumption relating to possession of illicit drugs under section 32 of the Illicit Drugs Control Act 2004 read with section 4 of the Crimes Act should be applied a should therefore be presumed that the appellants were jointly in possession of that quantiuantity of Cocaine. The burden of proving the contrary was on the appellants. However, given the position taken up by the first appellant in his evidence it is clear that they were not challenging the physical possession of 49.9 kg of Cocaine. According to the first appellant’s evidence the appellants were admittedly aware of the presence of the suitcases and bags in HM 046 but had no knowledge of the contents therein. In other words, the appellants’ real challenge was to the fault element of the offence which they stood charged with.
Relevant provisions of law
[78] Section 5 of the Illicit Drugs Control Act 2004 states as follows
‘Any person who without lawful authority
(a) acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drug; or
(b) engages in any dealing with any other person for the transfer, transport, supply, use, manufacture, offer, sale, import or export of an illicit drug;
commits an offence and is liable on conviction to a fine not exceeding $1,000,000 or imprisonment for life or both.’
Elements of the offences created by section 05 of the Illicit Drugs Control Act 2004
[79] Section 13 (1) of the Crimes Act states that an offence consists of physical elements and fault elements. Fault element in some jurisdictions is called the mental element or mens rea. Therefore, any given offence could have more than one physical element and more than one fault element. According to section 13(2), the law that creates a particular offence could provide that there is no fault element for one or more physical elements of that offence. Similarly the law that creates an offence could also provide different fault elements for different physical elements [vide section 13(3)] of that offence. Thus, unless the law creating an offence specifically provides otherwise as anticipated in sections 13(2), every such offence must be taken to consist of physical as well as fault elements. For a person to be found guilty of committing an offence physical element/s and fault element/s have to be proved (vide section 14). Thus, the mere absence of a specific reference to a fault element in an offence does not mean or presupposes the lack of a fault element/s in that offence unless the law creating that offence specifically rules out such a fault element.
Strict liability
[80] There is another class of offences recognized by the Crimes Act. The law creating a particular offence could provide that an offence should be a strict liability offence in which event there are no fault elements for any of the physical elements of such a strict liability offence [vide section 24(1)(a)]. The law creating an offence may also provide that strict liability applies to a particular physical element of that offence [vide section 24(1) and (2)] in which event there are no fault elements for that physical element [vide section 24(2) (a)]. Thus, there can be two types of strict liability offences.
Absolute liability
[81] Section 25 deals with offences of absolute liability which are similar to the two types of strict liability offences under section 24 except that the defense of mistake of fact under section 35 is unavailable in the two types of absolute liability offences whereas mistake of fact as a defense is available in respect of strict liability offences.
[82] It appears that the offences referred to in section 13(2) could either become strict liability offences or absolute liability offences depending on how the law creating the offence may provide.
Offences that do not specify fault elements
[83] There are other offences where the law creating those offences do not rule out fault elements but do not specify fault elements either and thus, are silent as to the required fault elements. In other words, those offences have no fault elements inbuilt in the definition of the offences. However, it would be wrong to assume that those offences have no fault elements. It is to deal with such offences that Crimes Act, 2009 has promulgated section 23.
[84] Section 23 (1) and (2) declare that
‘If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.’
[section 23(1)]
‘If the law creating the offence does not specify a fault element for a physical element that consists of circumstance or a result, recklessness is the fault element for that physical element.’
[section 23(2)]
[85] The physical elements of an offence are (a) conduct or (b) a result of conduct or (c) a circumstance in which conduct, or a result of conduct, occurs [ vide section 15(1)]. ‘Conduct’ means an act or an omission to perform an act or a state of affairs and ‘engage in conduct’ means (a) do an act or (b) omit to perform an act [vide section 15(2)].
[86] In my view, the offences created by section 05 of the Illicit Drugs Control Act 2004 do not specify fault elements and do not specifically rule out fault elements either. Further they are not strict or absolute offenTherefore those offences cres created by section 05 are in the category of offences envisaged by section 23 of the Crimes Act. The physical elements for those offences are, of course, clearly the acts set out under section 05(a) and 05(b). Thus, the answer to the question whether the physical element/s in those offences consist only of conduct or a result of conduct or a circumstance would determine what the fault element/s in those offences created under section 05 are. In other words, it has to be determined whether the offences created by section 05 of the Illicit Drugs Control Act 2004 come under sections 23(1) or 23(2) of the Crimes Act in order to identify the corresponding fault elements.
[87] For the purpose this appeal, I shall mainly focus on the act of possession. Is possession a mere conduct, a result of conduct or a circumstance? It is my considered view that possession constituting the physical act of the offence denotes not merely a conduct or a result of conduct but a circumstance as set out in section 15(1)(c) inasmuch as possession is concerned with a relationship between a person and property which gives the person control over it. Possession could be of two types: ‘actual’/‘de facto’ or ‘constructive’/‘legal’. Section 4 of the Crimes Act seems to recognise both types of possession.
[88] Section 4 of the Crimes Act states that “possession", "be in possession of" or "have in possession" includes —
(a) not only having in one o7;s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person;
(b0;if 0;if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed anen to be in the custody andy and possession of each and all of them
[89] However, needless to state that section 4 is not exhaustive of the interpretation of ‘possession’ but states what it inter alia includes.
[90] The word circumstance is not defined in the Crimes Act, 2009. It has been defined in the Cambridge English Dictionary as ‘a fact or event that makes a situation the way it is’ and as ‘a fact or condition connected with or relevant to an event or action’ by the Oxford English Dictionary. Merriam-Webster Dictionary describes it as ‘a condition, fact, or event accompanying, conditioning, or determining another: an essential or table #160;concomitant’. Webste17;s New World Dictionary describes a circumstance as ‘a fact or event accompacompanying another, either incidentally or as an essential condition or determining factor.’
Therefore, I am inclined to conclude that possession is a circumstance rather than a mere conduct or a result of conduct.
[91] Therefore, sie, since section 05 of the Illicit Drugs a="http://www.paclii.org/forg/fj/legis/num_act/idca2004242/">Control Act 2004, though not applicable in this case.
[92] Section 14 states inter alia
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJCA/2019/98.html
